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

2. 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

3. 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

4. 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 – 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

5. 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

6. 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

7. 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)