Swatting three bugs at once

In was warm here in North Carolina over the Thanksgiving holiday, and, like many of our neighbors, we left our doors open during the day to enjoy the pleasant breeze.  The downside, however, was that while watching a football game on Sunday, I found myself swatting ineffectively at several small insects that found their way into the house in spite of our screens.  I was reminded of that experience today (the weather is sadly much cooler) when a question about ILL and DVDs was forwarded to me.  It seemed there were three different misapprehensions at work in the question, so I want to take this opportunity to swat these three “bugs” in one blog post (but I am absolutely am not comparing any of the folks who posed this question to insects; it is just that the misunderstandings of copyright law represented therein are “pesky”).  In addition to debunking these three worries, I also want to acknowledge two caveats that arose as I discussed this situation with some colleagues.

So here is the problem.  A librarian is searching for a DVD of a relatively obscure foreign-language film from 1938, and concludes that she cannot obtain a copy through ILL because the professor who is requesting the film plans to show it in her classroom.  The request went to a librarian list as a plea for help in finding a copy of the film to purchase because, the librarian had concluded, ILL was not an option.

As I say, I think there are three potential misapprehensions behind this conclusion that sometimes cause librarians to restrict their options for obtaining material out of a misplaced fear of copyright problems.

The first possible reason someone might be hesitant in this situation is the notion that audio/visual works cannot be loaned through ILL.  It is easy to see the source of this mistake, since various A/V materials are explicitly excluded from the two provisions in section 108 of the copyright law that authorize copying for ILL (subsections d and e).  But we must remember that those two subsections of section 108 are only about making copies for ILL; they have no impact on the issue of loaning originals.  So where an original of a DVD (that is, a lawfully-made copy that is made with the direct authorization of the rights holder) is requested, ILL is perfectly OK.

Now here is one of the caveats.  Many institutions decide not to loan audio/visual works because of work flow and availability issues.  They may fear damage that can occur during mailing.  Those are perfectly fine reasons to decline to loan a DVD, and the holding library is entitle to make such a decision.  Just because the law allows a practice does not mean any particular person or entity is required to do it.  But it is important to recognize that a decision not to loan A/V works through ILL is just that, a decision.  It is not based on a legal prohibition.

The next potential misconception here is that the doctrine of first sale, which is what really does underlie all lending of originals from a U.S. library, somehow does not apply to the particular DVD in question.  But first sale, found in section 109 of the copyright act, does allow the lending of any type of original of a copyright-protected work (with a narrow exception for computer software that is not relevant to this discussion).  Whether it is a copy of a book, a filmstrip, a music CD, or a DVD, first sale — which is an exception to the exclusive right over distribution — allows lending of the lawfully made original.  It does not matter if that loan is accomplished through ILL, or library reserve, or simply between two friends.  Nor does it matter, after the Supreme Court ruling in Kirtsaeng v. John Wiley, where the lawfully-made original came from; as long as it was original made with the consent of the rights holder (i.e. not a bootlegged copy) it can be loaned.

Here is a good place for my second caveat.  These rules from the copyright act about ILL, lending of originals and, in a moment, classroom showings, are default rules.  They are in place unless they have been changed by an agreement between individual parties.  Where there is such an agreement, it is the agreement that provides the rules and restrictions for those parties, while the default rules of the copyright law apply to everyone else and in regard to any other topic or material.  So if the specific DVD was obtained under a license that prohibited lending or ruled out classroom showings, that license should be obeyed.  Likewise if the film is part of a licensed database.  But most individual DVDs do not come with their own license.  Instead, they are purchased under the default rules for distribution, performance, and lending that I am describing here.

Which brings me to the last potential misunderstanding, that a borrowed DVD cannot be used for a classroom showing.  Classroom showing is allowed, as most academics know, as an exception to the exclusive right over public performance.  Actually, the exception is somewhat broader than in-class performance; it allows a public performance or display of a copyrighted work in any “face-to-face teach activity” that takes place in “a classroom or similar place devoted to instruction.”  So it is easy to imagine a film showing that would qualify, as part of an in-person teaching activity, even when not directly connected to a scheduled class or a regular course.  More importantly, for our issue, the copy used for such a showing need only be “lawfully-made,” the same requirement as for the application of first sale, described above.  There is nothing to prevent a classroom showing of a DVD that is borrowed from the library, from Redbox, from your neighbor, or through ILL.

This problem has given us a chance to examine three potential misunderstandings that can sometimes cause librarians to restrict their own activities unnecessarily, out of fear of copyright issues.  It is easy to see how such misconceptions arise, since the law is complicated on these points.  But, properly understood, the law often gives more leeway to libraries than we often realize.  It is nice to have the chance to dispel these myths.  Now if I could just get those bugs out of the house!