Media Copyright in the Digital Age Jane Morris Head, Scholarly Communication and Research Services Boston College Libraries April 7, 2017

Digitization: VHS format change Section 108 (c) Preservation copying General requirements: not commercial, open, notice of copyright included Damaged, deteriorating or obsolete Always deteriorating, now obsolete (2016) because equipment not manufactured, not reasonably available in marketplace Code of Best Practices in Fair Use for Academic and Research Libraries Anticipated obsolescence; declared fair use Section 108 (preservation) failure doesn’t preclude Section 107 (fair use) For preservation and as surrogates Application of law in this context Now obsolete but before it was – use the Code – may still want to because more liberal Obsolete because: Equipment needed is no longer manufactured No longer reasonably available in the commercial marketplace

Limitations Limitations of 108 carried into Best Practices 108 – copy after reasonable effort determines that unused replacement cannot be obtained at a fair price BP – Copies not made if fully equivalent digital copy commercially available at reasonable cost 108 – Copy in digital format not made available to the public in that format outside the premises of the library BP – Do not provide access to original and new copy BP – Off-premises access limited to authenticated members of community BP – Full attribution required

Principles into practice Ask acquisitions to find title for purchase in DVD If no DVD, check streaming, but this is not fully equivalent since no lending If available in DVD – buy it; if not, response is archived (we provide a format for this email – including what steps were taken) Create DVD, withdraw VHS Bibliographic record indicates the DVD is a preservation copy DVD copy circulates to BC community but not on ILL Don’t end up with more copies than you had before

Digitizing for fair use streaming Faculty request to stream an entire film – typically in Canvas We search for a streaming license If a license is not available, or in the case where faculty just want clips Digitize entire video – provide link and clipping instructions Provide fair use information

Fair use – Who decides? BP One: Materials should be made available only when and to extent that there is a clearly articulable nexus between the instructor’s pedagogical purpose and the kind and amount of content involved. Only the instructor can evaluate this. The following have become standard practice to assist a favorable fair use outcome: Password–protected to the class Cite properly Caution: Do not distribute Use excerpts that are no longer than needed to accomplish the educational objective Provide added context: commentary, discussion questions or a rel The following have become standard practice to assist a favorable fair use outcome: Password–protected to the class Cite properly Caution: Do not distribute Use excerpts that are no longer than needed to accomplish the educational objective Provide added context: commentary, discussion questions or a related assignment Can the whole film be fair use? USC v AIME – did not decide this but the judge did say she could imagine an instance where this would be reasonable

Working with Counsel Mission risk vs. Legal risk Libraries have our own exceptions and own body of practice Do not ask “Can we do X?” Formulate a theory and be able to defend it You know more about library exceptions and practices It builds credibility It makes it easier for Counsel to say yes Ask about policy formulation not specific cases Challenge by MTS – even the first copy infringes – cf to Google – providing fair use snips Say – we want to do this – here’s why it’s important and here’s why we think we can. Can defend a whole film USC v AIME – not decided but judge said it would not be unreasonable to think that. Counsel has said she could support being fair use (Shakespeare ply v film for instance)