Edited from Desantis, Nick (1/15/2012) Fair-Use Guide Seeks to Solve Librarians’ VHS-Cassette Problem. Chronicle of Higher Education - http://chronicle.com/blogs/wiredcampus/fair-use-guide-hopes-to-solve-librarians-vhs-cassette-problem/35151?sid=wc&utm_source=wc&utm_medium=en
Fair Use is vague at times, well, actually most of the time. Four factors help gauge and weigh whether the use is allowed or not. Using the acronym PANE to recall the fabulous four it helps in making decisions related to copyright questions. Purpose, Amount, Nature and Effect
The article divides the issue of using videos. I have made efforts to highly recommend NOT purchasing public performance rights for any video in our library and encouraging to apply Fair Use. However, that being said, there are videos which have been used, though on campus, for other groups and organizations. I would still argue, this is an instructional use but non-classroom specific use. The details of the law contribute intentionally to vague interpretation to allow the maximum permissible use.
The article discusses the first case scenario - An academic library has a collection of video tapes that is slowly deteriorating, thanks to the fragile nature of analog media. A librarian would like to digitize the collection for future use, but avoids making the copies out of fear that doing so would violate copyright law. And the institution’s attorneys have advised the librarian that the fair-use principle, which might offer a way to make copies legally, is too flexible to rely on. In this case the law allows, for archival purposes, to make copies. Attorneys are more cautious, much more cautious than the law actually states. In addition, guidelines or best practices, tend to side with lawyers and publishers but the law actually seems to be written in such a way as allowing far more creative use.
Second Case - enabling video to be accessible online. The ARL committee groups realized self-censoring online activities would be contrary to the library’s mission. Some still argue a single copy may fall under fair use, multiple copies probably wouldn't.
Third Case – Copyright is the law. The new code explicitly states it was not negotiated with rights holders. The groups agreed on principles scratching the surface of what they really believe. The librarians thought it was essential to articulate some common fair-use principles, even if there are risks involved. Some suggest contravening the law isn't the solution. The law is not flawed. The solutions and recent proposals to combat "piracy" are even worse. There should be any conflict with the law and what some refer to as the moral high ground.
Fair Use is an allowed exception to the law. ARL should be applauded with its work to clarify it, as we all should, for the purpose of promoting the creative and useful arts. Libraries via the Internet, digitization, open source, institutional repositories are to become the great benefactors of the information age!
The Association of Research Libraries and a team of fair-use advocates will announce a code of best practices designed to outline ways academic librarians can take advantage of their fair-use rights to navigate common copyright issues.Brandon Butler, director of public-policy initiatives at the Association of Research Libraries, said this guide is different than early fair-use guidelines for libraries, which he described as narrowly crafted “safe harbors” that had the unintended effect of making it more difficult for librarians to do their jobs. “It’s not meant to be a legal memo handed down from on high telling librarians, We the lawyers have told you here are your rights,” he said. “It’s meant actually to be exactly the opposite of that. It’s meant to be a brief from the librarians to the lawyers saying, We know a little bit about fair use too, and here’s what we think are our rights.”
The new code identifies eight common library practices to which the fair-use principle can be applied, like making special-collections items available electronically and creating digital versions of library materials for patrons with disabilities. Each principle includes a set of limitations and enhancements that further specify how a fair-use claim can be made. Still there was no general consensus from the group. Several years ago, after two and a half years, another group came up with the CONFU guidelines. These guidelines were also overly restrictive but deemed fair, even though Fair Use allows far more rights, that is, exceptions, for copyright.