November 22, 2017

VHS Copyright and Due Diligence | Field Reports

degfarrellyIn the mid-1970s, the advent of the VHS format revolutionized the ability of libraries to collect and loan film. Now, collections developed during the 25-plus years of the format’s dominance present an impending crisis. On average, college or university library collections hold nearly 3,500 VHS tapes. Associate and master’s degree institutions hold fewer titles, doctoral institutions hold on average 5,300 titles, and Association of Research Libraries (ARL) members 8,300 titles. Conservative estimates are that between 15 percent and 25 percent of all these titles were never released on DVD or in streaming format and/or are no longer available in the marketplace.

Section 108 of US Copyright law: 17 U.S. Code § 108 specifically allows libraries to make up to three digital copies of works that are lost, damaged, stolen, deteriorating, or in an obsolete format. VHS is now an obsolete format. This past summer, the last new VHS player, by the last VHS manufacturer, Funai, rolled off the assembly line. Furthermore, research by Walter Forsberg and Erik Piil reveals that VHS meets the copyright determination of “deteriorating” in that even brand new, fresh out of shrink-wrap VHS tapes fail to perform to current industry specifications.

DOING DUE DILIGENCE

To take advantage of the right to duplicate provided by Section 108, however, a library must engage in a reasonable effort to determine that an unused copy cannot be obtained at a fair price. The law does not specify what constitutes a “reasonable” effort nor a “fair price.”

Searching for the availability of replacement copies on a title-by-title basis is detailed, tedious, and time-consuming. To assist others in this task, a small group of academic librarians (Chris Lewis, American University; Jane Hutchison Surdi, William Paterson University; and deg farrelly, Arizona State University [ASU]) developed a database of titles for which due diligence has been completed. Funding for development of the database came from a small research grant provided by ASU Libraries. This database, at Section108Video.com, is now freely available to other libraries as a resource to consult in their own preservation efforts.

For the purposes of this database, the developers determined that a search of the catalog/website of the original distributor, an Amazon search, a WorldCat search (looking for other publishers of the title or evidence of the production of a preservation copy), and a general search for the title on Google constitute reasonable effort. Copyright law does not require tracking down the original copyright holder. The database developers determined that titles available only as term-licensed streaming files or included in an aggregated subscription do not meet the “fair price” threshold. They maintain that requiring an ongoing and continual paywall for access to a title does not add up to a true replacement for an original owned in hard copy.

all right to copy

The database currently lists more than 1,600 titles for which due diligence was conducted, resulting in a determination that these titles may be duplicated within the parameters of copyright law. Only titles that meet the requirement of being no longer available in the marketplace are included. Titles identified as still being available for purchase either in hard copy or with in-perpetuity/life of file format streaming files are not included.

Anyone is free to view the database. Default listing is by date added and displays the name of the institution that generated the record. Search and sorting functions allow for alphabetical listing of titles and discovery by series title, producer, and distributor.

Crowd contributors

Registered users may add to the database, either by generating new records for titles not already included or by tagging entries with their own local identifiers (call number, accession number, etc.). The goal of the project is to continue to amass a record of titles eligible for duplication within Section 108 through crowdsourcing. It is hoped that just as the database will reduce the need for multiple libraries to conduct individual due diligence, its metadata will identify titles for coordinated preservation of video content.

Section108Video.com is still very much a work in progress. There are features yet to be developed and bugs to be worked out. Documentary and educational video exists as part of the collected record of human knowledge and deserves to be preserved as much as the printed record. But time is running out! Estimates are that VHS and other analog video formats will be unplayable by 2025, owing to lack of functional equipment. The metadata collected in Section108video.com is but a first step in assuring the preservation of this irreplaceable material.


deg farrelly (deg.farrelly@asu.edu) is Media Librarian, Arizona State University Libraries, Tempe

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Comments

  1. Glad to see Deg’s article on important treasures and promotion of preservation for future use. Unfortunately, not helpful to attempt if the item is lost, stolen or damaged. Thus, an archive copy should be considered immediately to protect access. Further action will help with digitization and adding transcripts and caption to the production. Perhaps discussion on the Marrakesh Treaty with relation to video archives could be addressed. Thanks,

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