Out of print and technologically-obsolete material formats

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  • At our institution, we often have high interest videos that are utilized by faculty that occasionally go missing-in-action. We seek to acquire a replacement immediately, but sometimes we are unable to purchase a replacement for a variety of reasons including the fact that the item is out-of-print. Under these circumstances, would it be appropriate to borrow a copy of the item through ILL then make a copy for our collection and a back-up archive copy (should it go MIA "again")? It seems to me that "First Sale" should cover this action because we originally purchased the item and have made a good faith effort to secure a replacement. However, are there other things we would need to consider? Secondly, if it is determined that it would be appropriate (under the circumstances listed above) to make a copy (and archive copy), do other institutions have a policy that defines the "permission to copy" so it is clear to Faculty; and, would you be willing to share your policy language?

    The second question relates to technologically-obsolete formats. We have many students who do not even own a VHS player, yet need to use a particular video in our collection. Our solution has been to either purchase the item in DVD (if available) or secure permission from the vendor to change the format from VHS to DVD (if purchase is not possible). We are encountering situations where we are unable to purchase the video AND the vendor will not give permission to change the format. Are there other options at this point that would still keep us in compliance with copyright? Note: These are also high use materials that are of critical use to students.
  • I feel more comfortable answering your second question, so I'm going to deal with that first.

    Some people will tell you that changing formats is never legal, but I disagree. I believe that there are some situations, including yours, in which changing formats is a fair use. Will a judge agree? I don't know.

    Four factors of fair use:
    1. Character of use. Educational. In your favor.
    2. Nature of work. Creative vs. Factual. I don't know, so I'll assume creative. Not in your favor.
    3. Amount Used. 100%. Not in your favor.

    4. Market effect.
    Very contentious. I would argue no market effect. You are willing to buy the DVD, but it doesn't exist. If the copyright holder contacts you after you make the conversion and tells you that a DVD is now available for sale, would you buy it? If the answer is yes, then I think it's very easy to demonstrate no market effect.

    I believe that 1 and 4 outweigh 2 and 3 in this scenario.

    Of course, a judge could disagree with my assessment.

    If you find my argument compelling, I suggest that you stop asking for permission. Fair use allows you to do what you want without getting permission. If you truly believe that this is a fair use, then getting permission is merely a courtesy. However, by asking for permission, you open yourself up to the argument that you don't really believe that the use is a fair use.

    I'm not convinced that your first situation is legal. I need to think about it for a while.
  • Not that I disagree with AFry, but to play devil's advocate, there is the argument that the owner should be able to control the format in which his product is released, in which case if it isn't out on dvd, then that's the copyright owner's perogative.

    In regards to your first question, I think AFry's answer could also apply about good faith effort. If you have made every effort to replace the video with a second copy that is unavailable, then replacing your copy does not seem illegal.
  • I don't see how First Sale can be used to justify making a copy. However, as LWilliamson said, I believe my earlier argument could be used to make a copy.

    I don't have an official policy that I can give you, but here's what I would do.

    Ideally, I would want to know how many videos qualify as high interest and how often they go missing-in-action before making a policy. If the mia % is high and the total number of high interest videos is low, I'd make archive copies before they go mia. If the % is low or the total number is high, I'd make replacement and archive copies from ILLs after the fact.

    If you don't know, I'd write up a policy for both situations. Use the next year to figure out if you need to make copies of all high impact videos before they go mia. Use the other policy until you have made a final decision.

    I would not use the phrase "permission to copy." You don't have permission from the copyright holder, and I don't think "permission" accurately describes fair use.

    You also need to consider how the library providing the copy feels. Many people accept LWilliamson's devil's advocate argument. If the people at the ILL library accept this argument, they will think you are breaking the law and may consider themselves accessories.

    You could decide not to tell the ILL library. Fair use doesn't require permission from the copyright holder and certainly not from the owner of the copy. However, this approach may create problems if the ILL library finds out.

    You could also explain what you want to do and give your justification when requesting an ILL. However, this approach will probably reduce your chances of getting the ILL and may send up a flare to litigous copyright holders.

    If I had an official policy on this, I would restirct copying to a well-defined "high interest" collection. I would quote the law (Title 17 Section 107) and explicitly state the fair use determination. I'd also make it an official policy to search for "official" versions once a year and to purchase these versions when possible. That's not necessary, but I think it really strengthens your fair use argument.

    Hope that helps.
  • A couple of things:

    the copyright law does not allow the library to make back-up copies in case they might be stolen or damaged or whatever. People call these "archive copies" but I have never understood where this notion came from. Making "archive" copies would have a tremendous negative effect on the market for the work - it really is avoiding buying another copy.


    you can make REPLACEMENT copies (up to 3) AFTER your item goes missing, and you cannot find the item for purchase in the market for a fair price AND if you make a digital replacement copy (say, video to DVD), that copy does not leave the premises of the library. Sad but true. 108(c)(2) (I doubt that changing this will be an agreed upon recommendation of the 108 study group).
  • You mean the part about the digital copy? That would be unfortunate.
  • Yep, I mean the part about the digital copy. As I understand it, publishers still are concerned that the digital copy will be furthered copied and distributed. Some want libraries to apply TPMs to the digital copy to restrict copying. The library associations and their copyright lobbyists have tried to stay away from the notion that libraries would put use restrictions on library materials.
  • Could someone explain how one makes a copy of an item AFTER your item goes missing? The wording of that has always struck me as oddly ironic. In answer to my own question, I suppose one could interlibrary loan the video which seems to be what Dmeeds is suggesting.

    I am very new to this site and forum. I joined in hope to find a reasonable answer to the question of converting videos to dvd format. Our campus media services is getting more and more requests to convert videos because the players are becoming obsolete in the classroom. I have been looking for something authoritative on this subject but am either losing my searching touch or not looking in the right places. Any help?
  • Yes, I believe so- after an item has been stolen, you can make a copy from a different item using ILL or another source.

    "Obsolete in the classroom" doesn't necessarily mean the technology is obsolete- for example, you very likely could not use the library and archives obsolete technology exemptions to make a copy of a VHS tape, because VCRs and tapes are still being manufactured and sold. You'd have to try to justify copying in another way, such as constructing a fair use argument, and that's going to be very situation-dependent.

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