Re: videos on-line

From: Gardner, Jeanne <Jeanne.Gardner[_at_]pcc.cccoes.edu>
Date: Thu, 23 Jul 1998 17:49:25 -0600

On July 22, 1998, Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
>
> On 07/21/98, Glen Gummess <gmckay[_at_]nmjc.cc.nm.us> wrote:
> >
> > We've got some incompatible or conflicting concepts here. First
> > we have "using videos on line" and then we have "computer cluster
> > machines."
>
> For purposes of the statute, I don't think it matters -- the fundamental
> question is whether there is unauthorized reproduction, distribution,
> public performance, and/or public display -- in either case, I believe
> there is.
>
> Using the web as a delivery system by itself makes essentially no
> difference -- i.e, you could have password protected web access, or
> unprotected web access, in cluster machines, or at home -- pick a
> couple from either column. In any of these instances, you still have
> reproduction, distribution, etc. (In case you believe the password
> protected version is not "public," review the definition of "public"
> under the statute).
>
> > On the other hand... "Computer cluster machines" to me means using
> > a computer lab as a presentation system which implies control over
> > distribution.
>
> Again, I don't think the question is so much control, as authorization.
> One very controlled reproduction/distribution can be infringement.
>
> > Granted, you can put the computer lab itself "online" but I'm
> > assuming for argument purposes that the lab in this discussion
> > is *not* distributed beyond a physical classroom-type location.
> > I think there is potential for fair use here as well as the 110
> > exemption. The instructor would have to be directly involved in
> > the process of making a video available for specific curricular
> > purposes; and, if digitized, the video clips would have to be of
> > a size *minimally sufficient to impart the teaching objective.*
> > And only the students enrolled in the curriculum should have access.
>
> Let's start with the 110 exemption. It applies to *face-to-face*
> classroom instruction -- so if the instructor is in the computer lab,
> giving a lecture, and uses the monitors to show films as part of the
> instruction -- essentially in place of the standard "show the film on
> the classroom wall" part of the instruction -- then yes, I agree, the
> exemption might apply. But I don't think that is what most "computer
> lab" access contemplates, especially not the bit about the instructor
> being present.
>
> As to fair use -- I don't think limiting access is necessarily going
> to get you very far here; it may do more to limit damages than to
> define a fair use. Imagine making the argument with any other work
> (i.e., "I made copies of the textbook and only gave them to members
> of the class.")
>
> Keeping the clips short may have more utility, since snippets are
> unlikely to function as substitutes for the original and may be less
> likely to damage the market for the original -- this looks more like
> "I made copies of a *few pages* of the textbook, and only gave them to
> members of the class." But even there, keep Gerald Ford's memoirs in
> mind -- what bit of the movie is likely to be exerpted? Probably the
> most interesting or significant part, no? And given the MDS trend, what
> do you do if the court defines the relevant market as "the market for
> film clips in educational media"?
>
> (I should also mention that the folks I talked to from Princeton were
> claiming digitizing 20 minute clips from feature films was fair use --
> well, maybe. It depends. But if I were Princeton's counsel, I'd be
> nervous.)

I thought the passage of H.R. 3048 The Digital Era Copyright Enhancement Act of 1997 gave nonprofit educational institutions the right to broadcast videos to students in distant locations, removing the face-to-face limitations.

Amends Title 17, 107, SEC. 2. FAIR USE.

            Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, and by analog or digital transmission, is not an infringement of copyright.  

SEC. 5. DISTANCE LEARNING.

          (a) TITLE CHANGE- The title of section 110 of title 17,
          United States Code, is amended to read as follows:

          `Sec. 110. Limitations on exclusive rights: Exemption of certain
          (b) PERFORMANCE, DISPLAY AND DISTRIBUTION OF A WORK- Section

   110(2) of title 17, United States Code, is amended to read as follows:

   `(2) performance, display or distribution of a work, by or in

           the course of an analog or digital transmission, if--
                 `(A) the performance, display or distribution is a 
               regular part of the systematic instructional activities of 
               a governmental body or a nonprofit educational institution;
                 `(B) the performance, display or distribution is directly
               related and of material assistance to the teaching content
               of the transmission; and
                 `(C) the work is provided for reception by--
                     `(i) students officially enrolled in the course in
                   connection with which it is provided; or
                     `(ii) officers or employees of governmental bodies 
                   as part of their official duties or employment;'

Jeanne Gardner
<jeanne.gardner[_at_]pcc.cccoes.edu> Received on Thu Jul 23 1998 - 23:49:40 GMT