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The Guide to the End of VHS: Copyright and Fair Use

Copyright and Fair Use

Copyright and Fair Use

Simply put it is just illegal to make a digital copy of a copyrighted video. Indeed, one can only make a legal copy of a video under strict, particular conditions. One can only make a copy of a video IF AND ONLY IF one has the copyright to that video or the permission of the one who actually does hold the copyright. This means that RITE is not legally able to make wholesale copies of videos (transfer from VHS to DVD for example) just because these VHS titles will soon be an obsolete medium. 

Fair Use
For more information about Fair Use and to help you determine if your intended use falls under this category, see the Fair Use Checklist. You can also read more about Fair Use in this document from SUNY. 

Current Media Policy

Classroom Use

Possession of a film or video does not confer the right to show the work. The copyright owner specifies, at the time of purchase or rental, the circumstances in which a film or video may be "performed." For example, videocassettes from a video rental outlet usually bear a label that specifies "Home Use Only." However, whatever their labeling or licensing, use of these media is permitted in an educational institution so long as certain conditions are met.

Section 110 (1) of the Copyright Act of 1976 specifies that the following is permitted:

Performance or display of a work by instructors or pupils in the course of face-to- face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images is given by means of a copy that was not lawfully made ... and that the person responsible for the performance knew or had reason to believe was not lawfully made.

Additional text of the Copyright Act and portions of the House Report (94-1476) combine to provide the following, more detailed list of conditions:

  1. They must be shown as part of the instructional program.
  2. They must be shown by students, instructors, or guest lecturers.
  3. They must be shown either in a classroom or other school location devoted to instruction such as a studio, workshop, library, gymnasium,or auditorium if it is used for instruction.
  4. They must be shown either in a face-to-face setting or where students and teacher(s) are in the same building or general area.
  5. They must be shown only to students and educators.
  6. They must be shown using a legitimate (that is, not illegally reproduced) copy with the copyright notice included.
  7. Further, the relationship between the film or video and the course must be explicit. Films or videos, even in a "face-to-face" classroom setting, may not be used for entertainment or recreation, whatever the work's intellectual content.

Use Outside the Classroom

Besides use in classrooms, videocassettes and videodiscs that are owned by the College may ordinarily be viewed by students, faculty or staff at workstations, or at viewing stations located on the first floor. These videos may also be checked out for use outside of the library by Buffalo State College students, faculty and staff only.

Copying Videotapes / Off-Air Recording of Broadcasts, Including Satellite TV

Copying videotapes without the copyright owner's permission is illegal. An exception is made for libraries to replace a work that is lost or damaged if another copy cannot be obtained at a fair price [Section 108 of the Copyright Act of 1976].

Licenses may be obtained for copying and off-air recording. Absent a formal agreement, "Guidelines for Off-the-Air Recording of Broadcast Programming for Educational Purposes," an official part of the Copyright Act's legislative history, applies to most off-air recording:

  1. Videotaped recordings may be kept for no more than 45 calendar days after the recording date, at which time the tapes must be erased.
  2. Videotaped recordings may be shown to students only within the first 10 school days of the 45-day retention period.
  3. Off-air recordings must be made only at the request of an individual instructor for instructional purposes, not by staff in anticipation of later requests.
  4. The recordings are to be shown to students no more than two times during the 10-day period, and the second time only for necessary instructional reinforcement.
  5. The taped recordings may be viewed after the 10-day period only by instructors for evaluation purposes, that is, to determine whether to include the broadcast program in the curriculum in the future.
  6. If several instructors request videotaping of the same program, duplicate copies are permitted to meet the need; all copies are subject to the same restrictions as the original recording.
  7. The off-air recordings may not be physically or electronically altered or combined with others to form anthologies, but they need not necessarily be used or shown in their entirety. All copies of off-air recordings must include the copyright notice on the broadcast program as recorded.
  8. These guidelines apply only to nonprofit educational institutions, which are further expected to establish appropriate control procedures to maintain the integrity of these guidelines.
  9. Certain public broadcasting services (e.g. Public Broadcasting Service) impose similar restrictions but limit use to only the seven-day period following local broadcast.

Common Questions:

May I purchase or rent a film from the local video store and use it in my class?

Tapes from a video store are labeled "Home Use Only," indicating a licensing agreement with the copyright holder. Nevertheless, use of such tapes is considered "fair use" in a face-to-face teaching situation. Tapes marked "Home Use Only" may also be placed on reserve in the library if they are used strictly for instructional purposes and not entertainment.

Is it permissible to make a copy of a rental video in order to use it again, later?

No. That would infringe on the rights licensed to the rental agency. (Absent reasonable return for service, rental agencies cannot survive.)

Can an auditorium or other large space be used to show a video labeled "Home Use Only" to a class?

Yes, so long as the performance is not open to the public and is for an instructional purpose within the structure of the course. Use for entertainment is prohibited.

Can a college-owned video be copied for Reserves?

Not unless permission for the copying has been obtained from the copyright owner.

May a club or other group show a video obtained from a local video store?

No. However, many film/video libraries and distributors offer the required "public performance rights" that are included in a higher rental fee.

What if a student rents a video from a video store and views it with a few friends in her dormitory living room?

Experts disagree! But since access to dormitories is limited to acquaintances of students, this would seem to be comparable to "home use."

Can a videotape be made of a film that is out of print and deteriorating rapidly?

Although the film is out of print, permission of the copyright owner is nonetheless required.

We asked a lawyer ...

Through the Western New York Library Resources Council, we were able to Ask-a-Lawyer about some of the rights and laws involved with transferring a VHS tape to a digital medium. 

Short answer: " ... when it comes to creating a new format of a work, written permission from the copyright owner is always best."

Long answer: Check out WNYLRC's Ask-a-Librarian FAQs and see the Topic: Reformatting VHS entry.

Making Legal Copies

Letting us rip: Our new right to fair use of DVDs
from Chronicle of Higher Education

How to Rip DVD clips (legally and easily)
from: Chronicle of Higher Education

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