About the Fair Use and Video Project

This project began as an attempt by the American Library Association’s (ALA) Video Roundtable to establish a recommended body of practice in the fair use of video for educational purposes. A team of six librarians, with advice and guidance from ALA’s Office of Information Technology Policy, coordinated the process of gathering input from the media librarian community and created the document, below. The team conducted in-person interviews at national conferences and hosted a series of focus groups at locations across the country: Boston, Seattle, Evanston, Washington, D.C. and Richmond. About eighty library staff members with varying responsibilities for buying, processing, and/or supporting the educational use of video were included in our surveys. The document was reviewed by a group of legal scholars and lawyers expert in fair use.

Fair Use and Video Working Group:

Steve Brantley, University of Illinois at Chicago
Nell Chenault, Virginia Commonwealth University
Carleton Jackson, University of Maryland
Carrie Russell, American Library Association, Office for Information Technology Policy
Claire Stewart, Northwestern University
Judith Thomas, Chair, University of Virginia
Justin Wadland, University of Washington-Tacoma

SECTION 1: INTRODUCTION

Librarians who acquire, manage and provide access to media collections are increasingly at the forefront of the struggle to balance the educational needs of students and faculty with the commercial interests of producers and distributors. At the fulcrum is the cumbersome legal apparatus that controls much of what we do in the library: Sections 107, 108, 109, and 110 of the copyright law. With little case law to guide understanding of the copyright in the non-profit educational context, stakeholders – from educators to documentary filmmakers – have interpreted the meaning of the law in varying ways for well over 30 years.   Librarians who work with media must make sense of this confusing legal picture in order to devise policies that first and foremost address the teaching, learning and research needs of their clientele.

The content

Media collections hold diverse formats that range from cutting-edge to obsolete. A typical collection might hold many different kinds of spinning disks, optical media, film, and electromagnetic tape, most of which are subject to format-based copyright restrictions and permissions. The media distribution spectrum is similarly broad, represented at one end by major media outlets, which distribute via high-volume commercial channels, and at the other end by small independent filmmakers, who might sell videos piecemeal from their home offices. Many other distribution outlets lie between these two poles: film festivals, online auctions, bookstores, museums, and library aggregators, to name just a few. The Web is one of the biggest distribution channels of all, abounding with downloadable or streaming content appropriate for teaching, research and learning. Some web video, such as that available in collections on archive.org, is unencumbered by copyright and is immediately useful to scholars. Other video, such as most of that on YouTube, is bound by license restrictions that severely hamper its utility in an academic setting.

The users

User expectations are set by the prevailing technology environment, which now allows ready, immediate, around-the-clock access to online information. Academic users – both students and faculty – expect the same access to their scholarly resources, media included.

The demand for online, asynchronous access is not merely the whim of a generation of entitled students. The entire structure of academia is shifting in ways that are profoundly challenging our assumptions about the kind of education students should receive and how they should receive it. The days of the single teacher lecturing to a group of students in a solitary classroom are numbered. This outmoded paradigm is unfortunately reflected in copyright law, which is based on the assumption that “real” teaching is narrowly defined as a face-to-face educational experience. In reality, the notion of class time and place is increasingly fluid. The “classroom” can be a combination of physical and online space, often bounded by course management systems or embedded within virtual worlds. Growth in global or collaborative instruction means that course members appear as virtual presences who must have the same access to course materials as the resident professors or students.

Distance learning, blended classrooms, learning management systems, lab-based learning, case-based learning, and social media all have wrought profound changes to the way teaching and learning happens, but the combination of law and technology that governs media lags far, far behind these ineluctable changes.

Changes in modes and models for research and publication in media-related fields are equally unsettling to the academic status quo. With the growth of digital scholarship, digital media has entered the mainstream of the scholarly record. Scholars need access to media in the forms that best enable their research and support the publication of their findings. This kind of broad-based access is not necessarily or normatively the kind of access made available to scholars by those with a vested interest in controlling the use of media content. For innovative, meaningful scholarship to happen, scholars need to work with media as deeply, continuously, creatively, and constructively as they have traditionally done with text.

Concomitant with the huge shifts described above are the radical changes in our creative culture. Artistic productions that depend on the transformative remixing or reuse of copyrighted works are an essential part of the creation of new culture, as described in compelling terms in the Center For Social Media’s Code of Best Practices in Fair Use for Online Video. Media reuse and remixing, whether for social or artistic reasons, are now part of the scholar’s toolbox for the creation of new work.

The market

Driven by fear of lost revenue from the copying and distribution of copyright content, and seeking to gain additional revenue from new means, the media industry has invested deeply in controlling both content and means of access. Distributors are aggressively pursuing ways to monetize all kinds of uses, including those that even the U.S. Copyright Office has ruled as fair (e.g. the licensing of media clips for course-based viewing). The vested interests of the content producer have influenced copyright legislation, effected the development of new forms of licenses, and spurred the development of new technologies to control use.

Licensing

Licenses are an increasingly common feature of the library collection development landscape. When libraries acquire by license digital media content in the form of streaming subscriptions, downloadable files, or DVDs or VHSs, they broker a contract with a vendor that defines terms of use that may prevent or restrict fair use. These terms are sometimes at odds with the educational uses to which teachers and students wish to put these important resources.
To add to the confusion, vendors often impose different terms of use for different manifestations of the same content. Two examples:

  • Right of first sale: Section 109 of copyright law allows the owner of a copy to transfer (i.e., sell, lend or give away) that copy of a copyrighted work without the permission of the copyright owner. With video, the right of first sale still commonly applies to physical items, such as DVDs and VHS tapes. However, with streaming media, producers have increasingly moved to license, not sell, the digital files, often with expressed limitations on the rights of the licensor to sell or otherwise dispose of the content. In addition, licenses occasionally even impose term limits on use and require continuous payment for the same content.
  • Clip extraction: The Librarian of Congress has announced an exemption to the DMCA (more below) that allows the circumvention of digital rights management systems in the production of clips by faculty and some students for educational purposes. However, the exact same content in streaming form is often controlled by licenses that may preclude those exact same fair uses of copyrighted video, e.g. clipping, tagging, or other transformational re-purposing of video content.
  • Viewing rights: Commercially distributed physical media, i.e. VHS and DVDs, are imprinted with a non-negotiated “home use only” viewing license. It is almost universal practice among media librarians to rely on section 110, which offers explicit language allowing screenings in the context of face-to-face instruction, as a welcome exception to copyright law for classroom viewings. There has been little or no challenge to this practice, possibly because it is widely recognized that Congress clearly intended for videos to be shown in this context. With streaming media, however, licenses often include language that defines the copyright holders’, rather than the educational institutions’, understanding of what constitutes an appropriate classroom experience. Such licenses may attempt to go beyond section 110(1) and even 110(2) by prescribing such features as class size and term limits.

Licenses for videos – as for all library resources – that restrict ownership rights represent a real threat to that core aspect of the library mission to preserve, protect, and ensure continued access to our cultural record. Librarians in our surveys revealed that they are deeply concerned about their reduced ability to fulfill their archival mission because of restrictive licenses.

To avoid constraining future legitimate scholarly uses, our community aligns strongly around the position that librarians should articulate the need for licenses with the fewest restrictions and the greatest freedoms, and should, whenever possible, request terms of use that explicitly protect fair uses of video content. Heavy reliance on licensing could have significant unintended consequences for the future, when yet-to-be-invented technologies and yet-to-be-known uses of information have again transformed the teaching and learning landscape and media is trapped in a delivery scheme appropriate for an earlier age.

Technological controls

Producers are employing a number of technological strategies for controlling use, including the application of digital rights management systems to fixed and streaming media, and the bundling of media into proprietary players.
Technological protection measures (TPMs) are the means by which digital rights management systems control and restrict the use of media to specific authorized users and to a set of closely prescribed methods. These TPMs are intended to serve as a “digital lock” that prevents unlawful access to a work but may also prevent lawful uses of works, i.e. fair uses in support of education.
Another common approach to digital rights management involves the bundling of media into proprietary players that limit the users ability to capture or modify the file outside of the player environment. Most online media is tightly bound into its specific player – although free online tools for extracting that content abound on the web.

Issues of circumvention of TPMs are addressed in the discussion of the Digital Millenium Copyright Act, below.

SECTION 2: LEGISLATION

DMCA

The Digital Millennium Copyright Act (DMCA) of 1998 is an amendment to the copyright law that established new regulations for the protection of digital works. In simple terms, under the DMCA it is illegal to make devices for breaking TPMs, and illegal to break a TPM in order to gain unlawful access to a work. An example familiar to media librarians is the DVD content scrambling system (CSS), applied as a TPM to most commercial DVDs, which makes it difficult to create digital clips from a motion picture in order to show portions in the classroom.
The DMCA has an important built-in safety valve: triennial rulemaking. Every three years, the Register of Copyrights is required to conduct an inquiry into the impact of TPMs on users’ ability to make lawful uses of digital content, and to issue new exemptions when significant harm to legitimate uses can be demonstrated. In the 2006 rulemaking, an exemption was added for media studies professors to circumvent TPM on DVDs for the purpose of making video clips. An extension and expansion of this allowance was granted in 2010, when the Librarian of Congress announced an exemption from the prohibition against circumvention of technological measures for video on DVDs that are lawfully made and acquired and circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment in the following instances:

(i) Educational uses by college and university professors and by college and university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos.
This welcome piece of new legislation represents an effective compromise between the copyrights of content producers and the fair use rights of educators.

The TEACH Act, Section 110(2)

The Technology, Education and Copyright Harmonization (TEACH) Act of 2002 extended the face-to-face teaching exceptions of Section 110 to include use of protected works in digital formats, including transmission via digital networks at schools, colleges and universities. It does not supersede or replace fair use, but instead describes under what circumstances copying and distribution of digital content for non-profit educational purposes are lawful. In the TEACH Act, many uses of protected works in distance education and in the blended classroom are lawful, including the digital display of maps, art slides and graphics, as well as digital performance of music and portions of motion pictures, mash-ups, and other audiovisual works.

Fair use can also be exercised in the distance and blended classroom in ways not specifically addressed in the TEACH Act, as was true before the TEACH Act was enacted. A fair use determination may actually support a broader use of works than those articulated in TEACH.

Fair Use

There are many excellent documents that describe fair use and attempt to set it within an educational context. For a thorough understanding of the legislation and its impact on higher education and libraries, see Kenneth Crew’s Copyright Essentials for Librarians, Carrie Russell’s Copyright for Librarians, or any of the Center for Social Media’s best practices documents, especially the Code of Best Practices in Fair Use for Media Literacy Education. Because copyright law cannot anticipate every use of a work a person might want to make, fair use is critical to helping the law keep pace with technology.

Fair use is intended to be applied on a case-by-case basis, which means it’s challenging to develop library policies around it. However, this community holds that it is possible for institutions to develop general policies based on separate categories of activities, the most common of which are presented as illustrative cases, below.

With a fair use analysis, four factors—

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

—are considered by a court when they make a fair use determination. This is the same type of judgment call that media librarians need to make when making fair use decisions.

When one reads fair use court opinions, one finds that while all factors are considered, usually one or two factors are given prominence. Most recently, the courts have stressed the first factor, asking whether the use furthers a societal good, and, increasingly, whether the use was transformative in nature. Transformative uses are generally those that do not compete with the market for the work, present the work in a new context, enhance or enrich the learning experience, and/or incorporate the work into a new form of creative expression.

The library profession

Libraries actively support the use of video in teaching, learning, research, criticism and the creation of new works – that much hasn’t changed for decades. What is changing is how students and faculty, faced with a bewildering tangle of regulations on the use of copyrighted video, are increasingly turning to media librarians as copyright experts, seeking advice on how to “stay legal” in their use of media content. At some schools, university counsel assume that role and become actively engaged in advising or guiding faculty. At other places, counsel stay in the background or deal with broader, pan-institution issues or problems. At this intersection of legal and library experts, different missions and motivations (enabling scholarship vs. limiting liability) can cause tension and frustration.

Media librarians in general resist being pressed into a policing role. As one librarian put it, “I don’t hang around the copy machine, waiting to nab someone photocopying too much of a book. Why would I try to police video use?” However, they take their role as educators very seriously, understanding that the complexities of the law and the ambiguity that is at the heart of fair use makes these challenging times to be both a scholar and a librarian.

Media librarians are also increasingly caught between other competing forces. Like other groups of librarians who deal in specialized content – e.g. music or image librarians – those who collect media often feel a sense of responsibility towards the producers of content, which they must balance against the needs of both their libraries and their constituents. The producers in question are the small, independent filmmakers and distribution companies – not the major media labels – that create and distribute the kind of high-quality social commentary or groundbreaking artistic work that is a staple of most academic media collections. This symbiotic relationship between producer and consumer is one that a significant portion of the media librarian community would like to protect.

The effects

What are the effects of these forces acting on the media librarian’s world? Our surveys of the profession revealed that they respond in a myriad of ways.

Those who find themselves at odds with their highly risk-adverse legal counsel often hide their services from both counsel and the public eye. These librarians try to fly below the radar while fulfilling their core functions for the institution. They are strongly disinclined to share information about their behavior in a quasi-public setting, e.g. on professional listservs or at conferences. Many libraries maintain dark archives: collections of uncatalogued media that are maintained as a way of ensuring access to materials of value to faculty and students.

Others feel compelled to retreat from fair use. Librarians who are understandably confused by the ambiguous or conflicting aspects of copyright law or are pressured by risk-adverse legal counsel tend not to exercise their fair use rights in the educational use of content. These are librarians who “just say no” to any uses not explicitly permitted by the content provider, who may prefer a contractually negotiated license that specifically outlines permitted uses. The unfortunate consequence of this behavior is the chilling effect on academic inquiry that involves uses not specifically permitted by the license.

Those fortunate librarians who work with university attorneys who are themselves dedicated to ensuring that the content and tools of scholarship are fully available to their user community and that fair use is protected, rely heavily on their counsel in the formulation of collection and access policies.

In terms of the actual application of fair use in their own work, media librarians tend to overemphasize the fourth factor, “The effect of the use upon the potential market.” That is, they automatically assume that this factor is exclusively determinative. Although the fourth factor does hold considerable weight in a fair use assessment, the courts have said that in some cases you can indeed ignore the market effect, for instance when the use recontextualizes or transforms the work. All four factors must be assessed in a fair use determination.

Along with overemphasizing the fourth factor, media librarians tend to quantify the third factor, “The amount and substantiality of the portion.” This effort, driven by a desire to establish an educational safe harbor for fair use, even if it is only on a local institutional level, has resulted in the promulgation of guidelines that set terms for the amount and type of the portion used. Some institutions construct their policies and procedures based on these amounts (e.g. “only 10 minutes from the beginning of the film”) which appear nowhere in the actual law. Policies accrete on these initial terms in further efforts to limit liability (e.g. available for two days/only from a streaming server/only in the course management module, etc.). There is no evidence that any of these guidelines or restrictions – or permissions – have any real meaning or consequence in terms of legal judgments of fair use.

The veritable explosion of online video has pushed librarians into new terrain in their quest to make media available to scholars. Familiar with the world of video purchasing and licensing, librarians are now figuring out how to respond to faculty requests to gather and ensure accessibility to material outside of the usual distribution chains. Librarians are being asked to address access issues caused by the very ephemerality of the Web by collecting and storing web content, practices that lead librarians into a tangled thicket of usage restrictions and license terms. YouTube in 2011 is a case in point. Use of YouTube content is bound by a license that restricts downloading; however, downloading is ubiquitous, and online video download tools are abundant on the Web. In fact, YouTube itself is replete with videos offering instruction on how to “illegally” download content from that site.

SECTION 3: COMMUNITY PRACTICE: ILLUSTRATIVE CASES

The cases described below illustrate community practice in the fair use of video in libraries, using situations commonly encountered by librarians at institutions of higher education. The cases are intended to help librarians interpret and apply fair use with more confidence in any type of library, however. Academic librarians, K-12 school librarians, public librarians, teachers and students can all benefit. This document does not attempt to define the limits of fair use because each fair use situation must be evaluated individually. The examples are illustrative and are intended to frame specific cases within a body of community practice, giving librarians confidence in supporting fair uses of video at their own institutions.

The cases outlined below are relevant to those who engage in the development of media services in support of the curriculum. Others areas of concern, i.e. those related to the fair use of moving images in special collections or the intellectual property issues of scholar produced content, need to be addressed in a separate document.

CASE 1: REPLACING DAMAGED OR LOST VIDEOS

Librarians take their curatorial functions seriously and make copies for many reasons, including:

  • for preservation and security;
  • for deposit for research use in another library or archives;
  • to replace a copy that is damaged, deteriorating, lost, or stolen;
  • to make accessible a work in a format that has become obsolete.

Media librarians have special reasons to be proactive in terms of preservation of video content, because format obsolescence and deteriorating physical media put their collections at severe risk.

While Section 108 (reproductions for non-profit libraries and archives) does provide an exception for preservation and replacement purposes, it does not cover all formats and legitimate reasons when and why a library might want to preserve a work. Indeed, The Section 108 Study Group, which released a report on March 31, 2008, observed that the Copyright Act does not adequately address many of the issues unique to legacy and digital media, either from the perspective of rights owners or libraries, archives, and users. Notably, if a work is reproduced in a digital format, that copy cannot be made available to the public outside the premises of a library – although the definition of both “public” and “premises” is under debate in many quarters. Thus, it’s unclear whether replacement copies of media lawfully made under Section 108 could be used in the classroom (whether physical or virtual) under that statute, where most educational uses actually occur. A negative opinion in this regard would severely diminish the value of the videos as educational materials, weakening the effect of an exception created to help libraries meet their mission.

This is why media librarians more commonly invoke fair use to provide access to preservation copies, whether those copies were made under Section 107 or Section 108.

Replacement and Preservation Copies

Our fair use focus groups revealed a consensus regarding making copies for replacement and preservation purposes.

After looking in the marketplace to purchase a suitable replacement or preservation copy, media librarians as a matter of fair use commonly:

  • Create a copy of the work in the suitable format including digital formats;
  • Migrate the copy to newer more sustainable formats over time.

The legislative history of fair use is very interesting in this regard. The documentation of Congress’ fair use discussions includes a reference to the restoration of early film prints – in their entirety – as a good example of a fair use. Congress intended 107 to be applied to cases of educational – or public benefit – copying, regardless of amount; the cited example in the legislative history specifically referred to the preservation of disintegrating moving images.

“The efforts of the Library of Congress, the American Film Institute, and other organizations to rescue and preserve this irreplaceable contribution to our cultural life are to be applauded, and the making of duplicate copies for purposes of archival preservation certainly falls within the scope of “fair use.””
[House Report No. 94-1476 at 73.]
(Thanks to attorney Robert Clarida for this reference.)

Media librarians occasionally do “proactive preservation,” i.e. copying in anticipation of the video’s eventual deterioration. They also copy from videos borrowed through Interlibrary Loan when their own copy is lost or has deteriorated. The media librarian community is mindful that this is not a legitimate collection-building strategy and should be reserved for special cases. By and large, copying of borrowed videos is confined to items originally held by one library that can no longer be copied, are entirely unavailable in the market, but can still be obtained through Interlibrary Loan.

If the original copy is in an obsolete format, media librarians first check the marketplace to purchase the title in the newer format. If it is not available for purchase at a reasonable price, librarians commonly:

  • Transfer the copy to the new format when requested from faculty and students for use;
  • Use the copy in the same way as was used the original copy;
  • Make discrete copies only when necessary and/or at the request of a member of the university community. Media librarians do not “wholesale” copy their entire collection into newer formats.

 

Preservation Copies of Orphan Works

Media librarians are occasionally faced with the challenge of trying to preserve and provide access to materials for which the copyright owner cannot be found. The disposition of these “orphan works” is a problem that’s endemic across the media landscape. While many wait for Congress to address the problem of orphan works, fair use still provides the rationale that it does for works for which owners CAN be found. Therefore the same fair use argument can be applied to the educational copying of orphan works for the purposes of preservation and educational use.
After an unsuccessful search for the rights holder for a suitable copy, media librarians regularly make preservation and replacement copies of orphaned works and:

  • Create a copy of the work in the suitable format including digital formats;
  • Migrate the copy to newer more sustainable formats over time;
  • Keep a record of the reasonable search conducted to locate the rights holder.

 

Access to Replacement and Preservation Copies

It is a universal media librarian practice that copies made under fair use are used in the same way as was intended for the original, in keeping with our mission to provide access to resources needed for teaching, learning and research. For instance, if the original was intended to be accessible to the university community, then the reformatted replacement is generally made similarly accessible, and often discoverable through the library catalog. It is also a common and very necessary practice to make the copies in up-to-date formats that are appropriate for a 21st century educational environment.

Once the copy is made, media librarians commonly:

  • Include the copy in the library’s online catalog so users can find it;
  • Use the copy as they did the original, which might include lending, course reserves, classroom screenings (including those transmitted via digital networks), and public access within the library.

 

The Fair Use Analysis

Below is a sample fair use analysis for the creation of preservation copies:

  1. the purpose and character of the use. The use is nonprofit, educational, and provides the societal benefit of preserving our cultural heritage for future generations.
  2. the nature of the copyrighted work. The videos might be dramatic, artistic or documentary productions. If the material is published (as are most library collections outside of Special Collections) then the second factor weighs more strongly in favor of fair use.
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole. The entire work will need to be copied, which weighs against fair use. However, the express purpose of the copying, a societal benefit, cannot be realized without copying the entire.
  4. the effect of the use upon the potential market for or value of the copyrighted work. If an appropriately formatted copy of the work were available at a reasonable price, then the media librarian would purchase that copy. Making a preservation copy of an otherwise unavailable copy does not effect the market for that work.

 

CASE 2: OFF-AIR RECORDINGS

The case of off-air television recordings is particularly thorny, since many media librarians report that they have only been able to find formal guidance in an outdated, proscriptive set of guidelines called the Kastenmeier Guidelines http://www.lib.berkeley.edu/MRC/Kastenmeier.html, created in 1984. These guidelines do not appear in copyright law and have no force or effect in the law; still, some media librarians incorrectly rely on them as a “safe harbor” for educational purposes. Other librarians do prefer to rely on 107 for capture and use of off-air recordings, especially since the Kastenmeier Guidelines are increasingly seen as inappropriate to today’s educational environment.

Media librarians are occasionally asked to capture television recordings, through a myriad of broadcast, satellite or cable media services, for later use. They are also asked to convert copies of these recordings captured by faculty at an earlier date to a format suitable for teaching in a 21st century classroom. With increasing availability for purchase of television series and news programs, off-air recording is ceasing to be an efficient or desirable service offered by libraries. Where off-air recordings are more common, however, are in collections donated by faculty or other researchers, or through some other channel given into the care of the library in support of specific classroom activities. These recordings are more likely to be unavailable for purchase, and often represent years of painstaking capturing and collecting by faculty, a time-shifting practice sanctioned by case law. As such, they begin to look more like archival or even special collections; guidance and policy may be more readily available from groups working on these issues or those developing services around an institutional repository, where faculty digital collections are increasingly common.

Media librarians today, however, are by and large operating without a clear body of practice from the nascent institutional repository community. It is currently common practice for librarians to:

  • search for a copy of the recording in the market; if no copy is found;
  • add the taped copy to the collection, and
  • provide access to the off-air tape in the manner that meets the educational need, usually restricting access to either the specific course or to the specific educational community.

 

The Fair Use Analysis

Below is a sample fair use analysis for providing access to off-air recordings:

  1. the purpose and character of the use. The use is educational, providing access to scholarly materials that would otherwise be impossible to acquire.
  2. the nature of the copyrighted work. The videos might be dramatic, artistic or documentary productions. The work was at one time distributed over broadcast channels and originally captured as a fair use sanctioned by 464 U.S. 417.
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole. The library will be unable to control the amount captured by a third party; amounts will range from short clips to entire segments or episodes.
  4. the effect of the use upon the potential market for or value of the copyrighted work. If an appropriately formatted copy of the work were available for purchase at a reasonable price, then the media librarian would purchase that copy rather than providing access to the captured version. Providing access to an off-air recording of unavailable broadcast material does not effect the market for that work.

 

CASE 4: COURSE-BASED STREAMING

Libraries traditionally offer video reserves in support of the curriculum. In this service, one or more videos are selected as required or recommended viewing by a faculty member for a specific class, and the library ensures ready access to these important titles through the development of policies and services. In practice, one copy is generally made available for a class of a few to a few hundred students. Occasionally, for very large classes, the library obtains more than one copy for its reserve collection.

As discussed above, today’s classroom is no longer bounded by time and place, and a significant number of the librarians in our focus groups held that library reserves should extend to the online manifestation of the course without extra licenses or permissions. These librarians maintain that they are simply doing what they have always done – allowing restricted access to course materials for class members. Just as all 50 students in a class can gather to watch the video (a practice Congress clearly intended to support with 110(1)), so 50 students should be able to log onto the course management system, today’s equivalent of the classroom, and watch a streaming version there. Doing so represents no real effect on the market, since the standard, time-honored option is to buy one physical copy for many students.

In fact, the market is likely to see some benefit, as our surveys indicated. Media librarians are by and large willing to pay a greater institutional cost for materials that they expect to use in a variety of ways to a potentially large audience, and often invest in public performance rights in order to reach as broad an audience as possible. There is good reason to think, in fact, that the copyright holder would have increased opportunities for revenue if the streaming version were clipped or transformed; students, newly exposed to the material, would be more likely to purchase the entire version on their own in order to have an uninterrupted viewing experience.

Librarians are not, however, willing to adapt their educational uses to the vendors’ product offerings and are generally disinclined, in part because their budgets do not allow for it and in part because they think it represents an abrogation of their fair use rights, to be forced to pay repeatedly and separately for the same content with every change in delivery format.

That said, the media librarians in our survey were well aware of how roiled are the waters of course-based streaming. They are most likely to purchase separate streaming content or licenses when they do not already own a copy of the title and/or when the service provided by the vendor is value-added – e.g. it provides enhanced functionality for access and use. They are most likely to stream their own purchased copy when by doing so the use of the material has been transformed from its original intention and mode of expression and/or the vendors offerings do not meet the scholarly need and/or when they are delivering short portions. This community holds strongly to the position that clips have strong fair use justification when streamed from a course site.

The librarians in our surveys are well aware that fair use is most successfully applied in a case-by-case analysis, and they regularly conduct these analyses as part of their standard operating procedure for streaming services.
After looking in the marketplace for an affordable copy that offers the broadest range of acceptable uses, media librarians commonly:

  • Create a copy of the amount of the work necessary to meet the teaching and learning aims, understanding that the more closely tailored the portion is to the educational need, and the shorter the portion in relation to the whole, the stronger is the case for fair use;
  • Restrict access to class members via technological means.
  • Remove access to the work after the course has ended.

 

The Fair Use Analysis

Below is a sample fair use analysis for the course-based streaming of video:

  1. the purpose and character of the use.The use is non-profit and by definition educational, bound to the curriculum of a specific course. The strongest fair use case would see a transformational use of the material: for example, it might be presented in the context of an online discussion forum that includes faculty commentary and student frame analysis.
  2. the nature of the copyrighted work. In general, the performance of highly creative and fictional works, such as motion pictures, is less fair than if the performance was the reading of non-dramatic literary work.  When creative, fictional works represent the content of a course (a John Ford film in a class devoted to the works of John Ford), their use is unavoidable.
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole. If the amount is closely tailored to learning objectives and represents less than the entire work, then the use is more fair. At times, however, the entire must be displayed in order to achieve the educational goals. This use is less fair, but this factor should be balanced with the others.
  4. the effect of the use upon the potential market for or value of the copyrighted work. It is standard library practice to provide one video for a class of students. Streaming the work would not alter in any significant way that longstanding practice or its market ramifications. However, if vendors offer streaming versions appropriate to the needs of the course as part of their catalog, the argument of market harm would be stronger. Short portions and/or highly transformed works would have the least effect upon the market.

 

CASE 5: DOWNLOADING STREAMING CONTENT

As we move into the second decade of the century, it’s apparent that much video content will be increasingly available online from any one of a number of distribution sites. It is often the case, however, that the version available online does not meet the educational needs of the class. Reasons might include:

  • The class is taught in an area without the appropriate infrastructure to support video streaming;
  • The faculty needs to ensure continued access; many “cloud” services, such as YouTube, have no such guarantees of permanence;
  • The streaming version does not allow for a host of educational uses commonly regarded as fair uses, such as clipping or remixing in the creation of new works.

The two primary inhibitors to the exercise of fair use in the downloading and reformatting of content are:

  • Digital rights management protection (discussed above). Recent amendments to the DMCA have provided an exemption for a body of educational uses. Two significant university constituencies, faculty and film/media students, are now exempt from the anti-circumvention regulation for educational uses, thus opening up the possibility of making fair uses of decrypted video.
  • Restrictive licenses. Much online content is bound by restrictive licenses, whether it’s streaming from the site of a video vendor or from a publicly accessible site like YouTube.

Our focus groups revealed that most media librarians tend to avoid downloading of online content when the click-through licenses specifically forbid it. Those who do invoke fair use in the downloading of online streaming content were generally responding to unusual circumstances where the educational need was great and the options were few and inadequate (e.g. it was impossible to get reliable Internet access for international travel programs).

The Fair Use Analysis

Below is a sample fair use analysis for the downloading of streaming web content:

  1. the purpose and character of the use.The use is non-profit and educational. The strongest fair use case would see a transformational use of the material, not available through its online manifestation, or an educational use that demands a downloaded copy (e.g. display in a non-networked environment).
  1. the nature of the copyrighted work. If the video is fact-based, the use is more fair; artistic, the use is less fair. Freely available video on the web is as published as material gets, being generally available for world wide access, which leans toward fairness.
  2. the amount and substantiality of the portion used in relation to the copyrighted work as a whole. If the amount is closely tailored to learning objectives and represents less than the entire work, then the use is more fair. At times, however, the entire must be displayed in order to achieve the educational goals. This use is less fair, but should be assessed along with the other factors.
  3. the effect of the use upon the potential market for or value of the copyrighted work. If a downloadable copy is not already available for purchase, then the downloading of the online copy would cause no market harm.

    CONCLUSION

Librarians everywhere are dealing with a collision of forces: the seismic changes in higher education; turmoil in the copyright arena; and the constant emergence of new technologies. Our study revealed that media librarians in particular are relying on their core values as librarians and their common sense to chart their course through these turbulent educational waters.

Not a single librarian revealed herself as being either cavalier about the law or dismissive of the market. However, librarians in our survey groups showed themselves to be deeply respectful of fair use as a means to ensure the kind of access to valuable content that is appropriate to the classroom, library, and learning space of today’s university.

This study of media librarian behavior reflects a moment in time at the beginning of the second decade of the 21st century. Such is the pace of change in higher education that new technological breakthroughs, court cases, and revisions to the law will likely change the landscape, over and over again, for use of library content of every conceivable format. However, fair use is clearly the cornerstone of a philosophy of service based on the principle of unfettered access to the materials of research and scholarship. This philosophy will endure as long as we maintain a strong commitment to the real intention of the copyright law, to “promote the progress of science and the useful arts.” Without fair use, libraries would most assuredly have to sharply curtail their efforts to deliver the essential materials of scholarship in the form and manner appropriate for real academic inquiry.