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Hello Colleagues.

Folks indicated they would like a summary of responses. Here it is. Spreading the news…

Margaret Ericson, Art and Music Librarian, Colby College

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In a nutshell. We have been doing this for years.  We retain most, but not all the vhs titles that are migrated.  Every title that is migrated is unavailable or out of print.  Each title migrated becomes -  Library Use Only. This means on site or  classroom only, no general circulation.  We note the transfer in the title’s catalog record.

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You may already know about the ARL Code of Best Practices in Fair Use for Academic and Research Libraries (January 2012), but in case you did not, you may be interested in a section in there on digitization for preservation. 

http://www.arl.org/pp/ppcopyright/codefairuse/code/three-digitizing~print.shtml

A PDF of the entire document can be found on this page:

http://www.arl.org/pp/ppcopyright/codefairuse/code/

From that code:

“Principle

It is fair use to make digital copies of collection items that are likely to deteriorate, or that exist only in difficult-to-access formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials.

Limitations

•             Preservation copies should not be made when a fully equivalent digital copy is commercially available at a reasonable cost.

•             Libraries should not provide access to or circulate original and preservation copies simultaneously.

•             Off-premises access to preservation copies circulated as substitutes for original copies should be limited to authenticated members of a library’s patron community, e.g., students, faculty, staff, affiliated scholars, and other accredited users.

•             Full attribution, in a form satisfactory to scholars in the field, should be provided for all items made available online, to the extent it can be determined with reasonable effort.”

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I think the answer is that you can both reformat these works, particularly if they are out of print, and still check the new copy out to users. I would recommend reading this article by Lolly Gasaway at UNC-Chapel Hill. http://www.unc.edu/~unclng/America%27s%20cultural%20record.htm

I know that you are allowed by copyright law to make an additional copy as an archive—so here your VHS could be maintained as your archive copy (not circulating) and your new DVD as the circ’ed copy. I don’t know that you must keep the VHS, but may want to as an archive for a little while anyway. Also, if a digital file is created from the master VHS, maintained on a server and then a circ’ing DVD is cut, that could be construed as a copyright violation as it would be three copies.

Our reading of the Digital Millennium Copyright Act is that the limitations on use of a preservation digital copy of an analog original are far more restrictive than even what is allowed for the original format. In fact, it seems to indicate that the digital copy could not be used outside the library building! So our take was that we couldn’t even continue doing with the DVD what we had been allowed to do with the VHS.

So, we’ve been buying commercial replacement DVDs when they are available and affordable. Where DVD isn’t commercially available, we’ve either sought permission to digitize (having permission gets you around the DMCA issues) or working with faculty to identify alternative resources.

I'm sure you'll hear this from other sources, but the preservation exemption in copyright does say that if you migrate formats, the new format cannot leave the space. So, basically, if you borrow our VHS and make a dub, you can continue to circulate up to 3 copies. If you migrate a format, it should be in-library use only.

I have seen a variety of philosophies on how to interpret this. Just like the "classroom" in much of copyright, the "library" isn't clearly defined. Personally, I probably wouldn't have a problem letting faculty take them to show in class, but you might not want to circulate them as widely as you did materials in the past.

You may want to look at the new ARL Fair Use guide, though. They discuss this outside of section 108 from a fair use perspective, which could also help in your decision making:

Principle 3 addresses this directly, and from my perspective, it is a welcome additional viewpoint alongside section 108 exemptions:

http://www.arl.org/pp/ppcopyright/codefairuse/code/three-digitizing.shtml

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Multiple people suggested the VideoLib Listserv

A good place to ask video copyright questions is the VideoLib listserv – open to anyone.

To subscribe to VideoLib: http://www.lib.berkeley.edu/MRC/vrtlists.html

VideoLib

•             For broad and lively discussion of issues relating to the selection, evaluation, acquisition, bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions.

•             It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries, educational institutions, and video producers and distributors.

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A very illuminating statement paper will be coming out of NYU's Video at Risk Mellon grant in the fall. This information more widely and he said the fall.

My predecessor started a digitization project with some of our deteriorating VHS tapes. She did a lot of research surrrounding the topic and we came up with the following criteria:

1. Item is not available for purchase on DVD or is unreasonably difficult to obtain.

2. After digitization, VHS are stored as archived copies and are not available to patrons.

3. The digitized DVDs are library-use-only. We do make a few exceptions, such as faculty classroom use.

Most of the VHS that we digitized were already library-use-only because of their rarity or replacement cost. This doesn't impact our lending because we do not lend A/V materials through interlibrary loan, though we are always open to special cases. Although we have a TV with a VCR, VHS is to us an obsolete technology since IT does not support it in classrooms anymore. 

I'm attaching the document my predecessor used when determining our criteria. See most particularly Section 108 (page 19).

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I am a newly minted media librarian and have been facing many of these same questions myself. In conversation with my colleagues here,  the Library is creating preservation copies of any titles that aren't commercially available. Once a copy is created, we retain the original VHS in the case that we need to make another preservation copy (DVDs are quite fragile too). And, yes, preservation copies cannot leave the premises of the Library. You may want to visit the website for Columbia's Copyright Advisory Office:

http://copyright.columbia.edu/copyright/libraries-and-copyright/copies-for-preservation/

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1.  It would seem you would need only to keep proof that you did in fact own the VHS at one time

2. The analog copy goes into storage and becomes inaccessible (if you keep it) as long as the digital copy is available.  The digital copy becomes in-library use only. This is all from DMCA (now in Copyright Act, sec. 108(c)).  Perversely, you’re at least allowed to make three of those digital copies per analog original.

There’s also the question of whether you can legally migrate from VHS to DVD if copies of the VHS, and VCRs, are still “reasonably available.”  A strict reading of the law (last paragraph of 108 (c)) implies that VHS is in fact not obsolete, in which case you have to be able to argue that your VHS originals are either damaged, deteriorating, lost, or stolen.