- August 14, 2008 @ 1:43pmwilliamsonl says:We have come across something odd in our collection and I would like to hear various cases for/against. We have a set of 2 videos produced in the 1970's of a professor at Dartmouth that cover lessons for teaching Shakespeare. These are tapes of the professor giving classes. Each video has 8 lessons on it.
We recently discovered that when these were originally purchased, 16 copies were made, each containing one lesson and these were catalogued and have circulated for years along with the original. This was so an instructor could just have the one he needed without having the 15 he didn't.
My opinion--circulating the copies is okay as long as we archive the original and do not circulate it either inside or outside the library. We are still only making available one copy of each lesson which is what we originally purchased.
Any thoughts for or against?
- August 14, 2008 @ 2:36pmRuthDukelow says:By itself, the argument of archiving the original and circulating the copies would not hold up. There is an exception in the law for a single copy of an archived original of software, but this software exception does not extend to copying/archiving videos.
You also could not rely on making a copy for the library's collection under section 108, unless the library's original copy is "lost, stolen, damaged, deteriorating, or in an obsolete format" and is no longer available for purchase for a fair price.
Which brings you to looking at whether your use (copying and distribution) falls under the four factors of section 107:
Under (1) purpose and character of the use - your purpose is educational insofar as you make the copied videos available to your faculty for ease of use in their classes at your institution. The only problem here is that is sounds like you have included the 16 copies in your collection and you circulate them (distribute them) to anyone. If so, I think that weakens your fair use argument considerably.
Under (2) nature of the work - it sounds like these works are likely more creative than factual, so copying them is less likely to be fair use.
Under (3) amount and substantiality - you've copied the entire works, so less likely to be fair use.
Under (4) effect on the market for the work - you have paid for the original, so this factor would lean more in your favor.
Overall, I would argue that - if you want to continue to keep the 16 copies and to make them available to your faculty - you would have a better chance with a fair use argument if you take the 16 copies out of your catalog and it you don't distribute them outside of your own faculty. You're probably better off cataloging the original two videos (commercially produced and legally obtained) and making those two legal copies available for circulation from your collection. I don't think you gain anything with your copies/archives position.
Some other alternatives:
(1) discard the copies and only circulate the two original videos (how often are they still used?)
(2) ask for permission
I'll be interested to hear what others on the Forum have to say.
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