We have several VHS tapes that our anthropology professors use in the classroom. Our campus will be phasing out VHS as the players break down. We would like to send these to a vendor to create DVDs or digital files. We feel we have done the due diligence searching for a replacement. In most academic libraries media materials are purchased for distribution to the classroom for educational use. Making a copy would be of little benefit if use is not allowed in classroom, face to face instruction.
WNYLRC ATTORNEY’S RESPONSE
From: Stephanie C. Adams
Date: June 27, 2017
This question starts with 17 USC 108(c), which allows for duplication of “obsolete,” formats, but limits the accessibility of digitized copies “to the premises” of the library.
The inquiring library set out the other 108(c) factors: the obsolescence of VHS (manufacture stopped in 2016), the lack of commercially available copies, and the published nature of the work. So as you say, what’s left to determine is: Does the “premises” of a library in an educational institution include the whole campus?
“Premises” is not defined in the Copyright Code, nor is it commented on in the lawmaking notes (vis-à-vis this question). I found no case law directly on point. So we’ll go to the lawyer’s last resort: common sense.
Section 108’s bar on digitized preservation copies leaving the premises of the library is very rigid, and it is likely the boundaries of your library are, too. If the library has a finite space that is reported in things like strategic plans, accreditation reports, and campus maps, then the “premises” would most likely be deemed to end at the door, not flow throughout the campus. A quick search on this issue show this is the emerging consensus. So yes, the DVD’s you make as a result of this format shift are, at first, trapped in your library.
This creates a ridiculous conundrum: you need to shift the format so the educational material may be accessed, now that the format is no longer supported. But in transferring the information to a digital format, you are shackling it to the premises. How can you provide access?
 The Section 110 exemption for “classroom use,” requires that the viewed copy be “lawfully made,” and your digital copy, to be “lawfully made,” must stay on site. So I do not feel safe advising you to use that route…although it is uncharted territory.
You have two options:
First, it is important to remember that the shift of format does not necessarily change the license your institution purchased when it first acquired the VHS tapes. This is a point strongly emphasized in both 108, and the lawmaker notes accompanying it. If your institution had a license to use the copies for classroom room, directly from the owner/publisher, that license might survive the shift. That could be determined from the purchase records or license text on the video itself.
Second, the Association of Research Libraries’ “Code of Best Practices in Fair Use for Academic and Research Libraries” was drafted, in part, to address this situation (see page 18). In the Code, the ARL posits that when a preservation copy is made, further access can be granted under Fair Use. This does come with limits however: “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.” Further, the Code states that preservation and Fair Use copies should not be accessed simultaneously, and technology controls should be used both label the copy as required by 108, and to restrict further duplication.
This Fair Use solution to your problem has been adopted into the published policies of many institutions (here are a few examples). As there is no case law on point, I cannot say it is a slam-dunk defense, but I can say that if you adopt your own policy for carefully following this emerging standard practice, and then document that you follow it as you embark on this journey to ensure continued access to educational material you rightfully purchased, you will be in good company if content owners decide to sue for infringement, and recent case law about fair use will likely weigh in your favor.
There is a good deal of writing and advocacy on this issue, and hopefully in another few years, I will have a more definitive answer to give you!