I was asked if a private school in NYC could digitize its large collection of VHS content onto DVD. Like much of the world, the school had long stopped investing in VHS in favor of more contemporary DVD technology. Now, it’s hoping that it can continue using the VHS titles in reincarnated digital format.

The answer is complicated. As an initial premise, the ability to copy a VHS title to DVD is part of the bundle of rights controlled by the copyright owner. Any attempt to make a duplicate without permission from copyright owner would be an infringement. There are two possible exceptions: Fair Use and §108 of the Copyright Law.

In most educational scenarios, the Fair Use Doctrine provides protection against infringement claims. However, Fair Use will only excuse copying if four factors are considered:

1) Is the copying for commercial or non-profit educational purposes?
2) Is the nature of the content being copied creative, factual, or somehow intended for duplication by others?
3) Is a large proportion or the most important portion of the work being copied?
4) Would the copying compete with the copyright owner’s business?

 In this case, a quick review suggests that while the educational purpose (#1) support the fair use argument, the nature of the content (#2), the fact that an entire title would be copied (#3) and the likelihood that there are DVD versions available (#4) all strongly argue against Fair Use.

On the other hand, §108 provides a very complicated exception for copies made by libraries. It would allow the school’s library to make copies if the existing copies were damaged or missing, or if the current format has become obsolete. To qualify, the library would have to confirm that now new reasonably priced replacement were available. Interestingly, although most of us recognize that VHS is rather useless these days, it does not meet the “obsolete” threshold because standard VHS players are still available for sale (blame amazon). Interestingly, the less popular but larger ¾” VHS format does qualify as obsolete.

Fortunately, all hope and budget are not lost.  The school was advised to document the deteriorating condition of the existing tapes after years of classroom viewing, to confirm that a search had found no DVD copies of exactly the same titles, and, if possible, view the duplicates in the library facilities. These actions would support the §108 exception. Additionally, it was suggested that only the portion of a title that would be viewed in a single class lesson be recorded onto each DVD, supporting the Fair Use argument.

Feel free to contact the office if you would like a review of your organization’s copyright policies.