DVD copies of deteriorating VHS tapes

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  • I know this topic has been posted before, but I've read the other threads and haven't found a clear answer.
    As a librarian at a small college library, I am seeking a way to convince my (non-librarian) administration of the merits of creating DVD copies of deteriorating VHS tapes that are no longer available for sale. It seems from my research that if we plan to circulate these DVDs outside of the library walls, then this is an illegal practice - as section 108 does not apply to audio-visual materials except (perhaps) in the case of in-house only archival copies.

    I feel quite strongly that the important thing for libraries is to ensure that our patrons retain access to materials that we have paid for and which we would like to retain as part of our collection. I also think that by creating DVDs only for those materials that are not available for sale that we are not negatively impacting the marketplace (any more than we have historically).

    I do not believe that I will find any part of the law that fully supports this practice – but I also believe that is partially because libraries have never been challenged over these sorts of “whole work” reproduction rights so there are simply no precedents to point to.

    Can anyone help me make a case for creating the DVD copies? Would anyone be willing to e-mail me about what your library is doing "off the record"?
  • The kicker is that they still make VHS players -- it's the format of the playback device that counts. See the relevant section below:

    Section 108(b) and (c) provides exceptions for libraries and archives to copy materials for their collections in specific circumstances.

    Published Works (c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if —

    (1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and

    (2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.

    For purposes of this subsection, a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

    However, IF your VHS tapes really are detioriating, I think you are safe following these guidelines as well.
  • Yes, they really are deteriorating. The VHS tapes in question are those that are used for class reserves and thus have been watched hundreds of times so that the tape is wearing out/getting crinkly. So, if I understand section 108 correctly, the copies can be made for archival purposes but can't be used outside of the library. So, putting the DVD copies on reserve for the students to watch in the library would be ok, but not to let the professors show to their class in another building?
  • That's right. Frustrating indeed. The students could watch them in the library -- but the umbrella of "library" doesn't extend to the whole institution.
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  • Just some questions: Would the copyright holder of these tapes give you permission to do this and thus let the professors use them in class. Provided the tapes are not available as DVDs, they might be willing to do this as they have nothing to gain. Would you be able to purchase used VHS tapes of the often used items through a second hand dealer?
  • Yes, you COULD ask permission from the copyright holder -- that's always an option. Someplace like Disney would probably say no. But a small producer of educational works might say yes. Additionally, the question of determining if an AV work is under copyright or an orphan work is made more difficult by the fact that is probably isn't by a single author, but if you make a good-faith effort to track down the rights holder and can't locate them, you could make the copy with the proviso that you will cease and desist if the rights holder contacts you and asks you to. And yes, you can always try to purchase a replacement copy. Just make sure you are purchasing a legally-made replacement copy.

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