Scenario

A faculty member's departmental library holds several older VHS videocassettes that are used regularly for classroom presentations. The videos are no longer available commercially in either VHS or DVD formats. The faculty member wants to create a compilation of clips by converting segments of the VHS tapes to digital form, and then burning the clips onto DVD for use in classroom lectures.

Response

When audiovisual media is commercially available in digital formats converting an analog versions to digital format is not good practice. To take advantage of the fair use provision in copyright law users are expected to acquire authorized copies, i.e. commercially distributed copies, to use in any follow-on work.

The fact that a video is out-of-print and no longer distributed commercially isn't, alone, sufficient reason to assume copying or converting is permissible. It is an element of the market effect of a use to consider, in a thorough four factor analyis of fair use. In this case creating the clip compilation may be fair use but because fair use is determined on an individual case basis it is necessay to analyze the use of each clip from the four-factor pespective.

Note: Fair use, as a matter of general principle, is medium neutral. In this scenario the fact that the copying involves format conversion effects only one factor, market effect. The purpose for the copying, the nature of the orginal clips, and the size of the clips to be copied remain important to the overall balance of a four factor analysis.