ARL Policy Notes
UC Boulder Takes VHS Tapes Back to the Future With the #Librarianscode

This is the first blog post in a series highlighting some of the fair use success stories we’re beginning to hear from librarians using the Code to move past fear and uncertainty and into positive action using their fair use rights. As with every Code of Best Practices, the #librarianscode can, will, and should be applied differently by different people and institutions in different situations. It is not one-size-fits-all. Some will be more conservative than the consensus described in the Code, while others may go further, depending on local circumstances. These stories are not meant to highlight ideal or best applications of the Code, as there is really no single right way to use the document. Rather, these stories show libraries moving from inaction to action thanks to the encouragement and support that the Code provides. How will you use the Code? If you have a story to share, please email socialmedia@american.edu.

When we were talking to academic and research librarians about the kinds of problems they encounter in dealing with copyrighted materials, one question surfaced perhaps more than any other. Here’s how Brice Austin at UC Boulder described it to us via email:

Our campus IT department recently decided it would no longer support VHS on campus either by providing or servicing machines to play this format. While the Libraries continued to provide some VHS machines, faculty and graduate students still had a need to show VHS tapes in the classroom. Faculty also preferred DVD format for course reserves, so that students could use their laptops for individual viewing.

Section 108 (c) of the Copyright Act addresses the issue of replacing “obsolete formats,” but that term is defined so narrowly in the law that it seems to exclude VHS tapes, at least as long as someone, somewhere, is willing to sell you a VCR. If you’re going to convert those VHS tapes to DVD, or some other modern format, it helps to know your rights under fair use.

That’s why the Code of Best Practices in Fair Use for Academic and Research Libraries includes a principle about migrating formats to preserve and facilitate access to older media. The fair use doctrine exists to enable culturally beneficial uses that would be unduly curbed by copyright protection, and this is a prime example.

Skip containing discarded VHS tapes

CC BY Rob Pearce

The Code outlines a thoughtful, common sense approach to the question of when it is fair use to reformat materials, including asking whether materials can be obtained in modern formats at a reasonable price, and taking the old format out of circulation when a surrogate is added in its place. With these ideas in mind, and the Code in hand, the folks at UC Boulder were prepared to have a productive conversation with their campus counsel:

The Libraries Management Team made a case for conversion of VHS tapes to DVD format from our collections, relying heavily upon ARL’s Code of Best Practices, Principle Three: “Digitizing to Preserve at-risk items.” After some back and forth surrounding specific details, Counsel agreed to our proposal. Specifically, Counsel stated “In addition to reviewing the Libraries’ summary, I reviewed provisions of the Copyright Act, the Code of Best Practices in Fair Use of Academic and Research Libraries issued January 2012,” and noted that “It greatly assisted me in providing this response.”

Now the UC Boulder libraries are moving forward with a policy that allows them to migrate old VHS tapes in a way that supports faculty teaching while respecting copyright, thanks to the efforts of mission-driven librarians like Brice, and with a little help from the #librarianscode.

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