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SCREEN-L  March 2005, Week 4

SCREEN-L March 2005, Week 4

Subject:

Re: The Fight for Fair Use

From:

Nicole English <[log in to unmask]>

Reply-To:

[log in to unmask]

Date:

Thu, 24 Mar 2005 12:39:12 -0600

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (179 lines)

Hi...
Usually I just lurk on this list, rather than responding.... but this is 
an issue where my partner and I have seen attitudes change considerably 
over the last few years.... 
:S

We both teach IP issues in our classes...   and have for years....  we 
are both also artists, so we have been on both sides of the issue....  
(and we have Webpages of links to copyright issues that we too can share). 

Our understanding years ago was that for academic purposes, and esp. for 
very short segments, that the Fair Use principle applies....  similarly 
for students.... 

Also, for purposes of discussion, review, news, parody, etc...  these 
were all examples of Fair Use.... 

It was also our understanding that the Web used "print" guidelines as 
its precedent.... 

The DMCA may seem to confuse things, but my understanding (my reading) 
is that it is focused more on "Cracking" protection codes or reverse 
engineering for purposes of bootlegging for profit....  the rest of it 
seems like more traditional Fair Use principles that we have had for 
some time.... 

So, I believe that all your examples below are examples of Fair Use .... 

But, I/we hardily agree that the trend has been for copyright to protect 
the interests of corporations than of individual artists (as originally 
envisioned).... 

My position is that corporate copy protection is mainly targeted at 
wholesale bookleggers within the industry, and not to the bulk of the 
masses of individual users and academics like us....  hence the copy 
protection protects the corporations but violates our Fair Use 
rights....  even as consumers, we have the right to make a personal 
copy, a fact that seems to be forgotten in the shuffle.... 

It seems to me like our rights are in conflict....

A solution might be to have non-copyright-protected materials  made 
available for Fair Use (like for academics).... but even that seems 
terribly regulated.... 

In any event, it seems that copyright law has long digressed from its 
original purpose of protecting the artist or creator of a tangible work 
of intellectual property....  now, it protects corporations who give the 
original artists pennies on the dollar at best, and worse, often no 
compensation at all.... (see the Motown stories)....

I also am very supportive of the idea of banding together to protect our 
Fair Use Rights... as well as returning the idea of Copyright Law to 
protect mainly the artist...  not powerful corporate interests.....
:S
Just my thoughts on the matter.... 
NE....

Nicole English
Interdisciplinary PhD Program, Sociology/Psychology
Instructor, Program for Adult College Education (PACE)
University of Missouri--Kansas City (UMKC)
[log in to unmask]



Jeremy Butler wrote:

> At one point, I made some very tentative inquiries to an intellectual 
> property (IP) lawyer about what would be entailed in a legal fight to 
> establish fair-use principles for film/TV scholars/teachers.  The 
> problem I immediately ran into is that she and, I fear, most IP 
> lawyers are in business to represent corporate copyright HOLDERS 
> (i.e., publishers, movie studios, the RIAA & MPAA, but not really 
> individual authors, artists, et al., for whom IP law was not 
> designed).  Thus, they are trained to DEFEAT fair use.
>
> Nonetheless, I think UFVA, SCMS, etc. owe it to film/TV 
> scholarship/teaching to find a fair-use-friendly IP lawyer and invest 
> some money in trying to establish some PRECEDENTS.  Even with the 
> DMCA, the principles of fair use are weighted in favor of the 
> scholar/teacher, but those principles are worthless when large 
> corporations can wield the threat of a lawsuit to force 
> scholars/teachers to abrogate those principles.
>
> Let's take an example from the related area of trademark, to which the 
> principle of fair use does NOT apply; but bear with me for a second.  
> We once hosted a Website called "World Cinema Review," which consisted 
> of reviews of international cinema.  My institution received a 
> cease-and-desist letter from the Bravo channel's lawyers, because they 
> claim a servicemark on the phrase, "world cinema."
> No, I am not kidding.  Never mind that a Google search for "world 
> cinema" will return hundreds of thousands of responses.  Bravo says 
> they own "world cinema" because they run (ran?) a series of films 
> under the banner, "World Cinema."
>
> It would seem obvious that Bravo would lose a court battle over this, 
> but my institution couldn't bear the costs.  So, a simple C&D letter 
> served its purpose:  we ceased and desisted.  "World Cinema Review" 
> changed its name.
>
> Fair use of film/TV material faces the same sort of challenge.  
> Because there is very little (as in, no) case law to support it, 
> fair-use proponents are all vulnerable to spurious attacks by 
> lawyers.  THIS is where I see our professional organizations stepping 
> in.  They need to pay to proactively set legal precedents.  
> Considering that they all sponsor publications that get involved in 
> fair-use issues on a frequent basis, it is in their own institutional 
> best interests.
>
> To me, some of the key fair-use questions requiring precedent setting 
> are:
>
> 1.  Is it fair use for teachers to excerpt DVDs, copy them onto 
> another DVD or the Web to use in class?  What if it's a 
> distant-education class?
>
> 2.  Is it fair use for a teacher to make frame grabs, duplicate them 
> and distribute them to a class?  Similarly, is it fair use for a 
> student to use frame grabs in a paper?
>
> 3.  Is it fair use for academic publications (journals and books) to 
> print frame grabs with critical articles--without paying fees to the 
> copyright holders?  This has become the de facto policy at many 
> publications, but often authors/publishers do not realize this and pay 
> unnecessary (and exorbitant) fees.  And often publishers are nervous 
> about not asking permissions for these sorts of illustrations.  (When 
> I get comments like this, I refer the publisher to FILM ART, which has 
> been published for over 20 years, has not asked permissions for frame 
> grabs, and has never been sued.)
>
> 4.  Related to #3 and increasingly a concern since the DMCA:  Is it 
> fair use for an ONLINE publication to include frame grabs with 
> critical articles?  And if it is, does this fair use also extend to 
> audio and video?  I.e., is it fair use for an online journal to 
> include a 30-sec. video clip from an hour-long television program?
>
> I know all film/TV scholars/teachers would breathe easier if we could 
> get these questions answered.
>
>
>> Date:    Wed, 23 Mar 2005 05:52:49 -0500
>> From:    david tetzlaff <[log in to unmask]>
>> Subject: The Fight for Fair Use
>>
>> >It is the duty of
>> >our professional organizations -- Society for Cinema and Media Studies,
>> >University Film and Video Assocation, Broadcast Educators Association,
>> >etc. -- to speak for us.  For years, I've pestered SCMS, in particular,
>> >to take action on this, but to no avail.
>> ...
>> If we can get one organization on board, the others might follow
>> (well, maybe not BEA). What sort of action do you think SCMS should
>> take, and why have they not done so?
>>
>> I'm not that active in SCMS, though I'm a member, and i am going to
>> the conference this year. If there's anything I can do to help
>> organize within SCMS, let me know. I'm sure Jason would be up for it
>> as well...
>>
>> That's just awful news that Hatch is getting more involved.
>>
>> regards,
>>
>> djt
>> -- 
>> * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
>>
>> Prof. David Tetzlaff         "The spectacle is the sun which never
>> Connecticut College #5345        sets over the empire of modern
>> 270 Mohegan Ave.                 passivity. It covers the entire
>> New London, CT 06320             surface of the world and bathes
>>                            endlessly in its own glory."
>>
>

----
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