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Subject:

Re: 'Warning: for private domestic use only' DVDs

From:

Jason Miles-Campbell <[log in to unmask]>

Reply-To:

Jason Miles-Campbell <[log in to unmask]>

Date:

Fri, 27 Jul 2012 15:54:33 +0100

Content-Type:

text/plain

Parts/Attachments:

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text/plain (1 lines)

Hi Lisa, 
 
 
 
There may be legislative changes to come, but the situation is the currently as follows: 
 
 
 
There are two separate areas of law to be considered, copyright on the one hand, and contract on the other.  The Copyright, Design and Patents Act 1988 helps us out in copyright terms - s.34(2) means that we don't infringe copyright when showing a film for the purposes of instruction (etc), s.36A means there's no infringement of copyright in lending (etc).  However, none of these provisions affects the contractual situation.  The CDPA 1988 might save me in terms of copyright, but in the right (wrong!) circumstances, I might still be liable for breach of contract. 
 
 
 
For there to be a breach of contract, you have to get adequate notice of the terms and conditions.  If you are purchasing without being made aware of the T&Cs, and without having a reasonable opportunity to consult them, those T&Cs probably aren't part of the contract.  There's some latitude granted for practicality (you might need to go to a train station to consult the railways conditions of carriage), but adequate notice needs to be given (e.g. where a car park disclaimer could only be seen *after* entering through a ticket barrier at a pay car park, that was too late).  Second, as well as needing adequate, prior notice of the terms, you also need to be in breach of them to be liable.  At that point you have to ask what does "for domestic use only" mean?  There's certainly some ambiguity in that, resolvable only by trying to unpick what was agreed between the seller and buyer, in the context. 
 
 
 
So, to answer "By buying a film with T&C (Terms & Conditions) that are more restrictive than the permissions established by government regulations, is the consumer legally obliged to observe the more restrictive T&C placed on that item?", the answer is yes, because the 'regulations' are about copyright, whereas the T&Cs are contractual.  To answer "I wondered if it would be necessary to have the consumer actually sign an agreement" - no, there's no requirement even for it to be in writing, never mind signed.  As to "Sometimes published books have statements on the title pages like 'item not to be circulated', but I can't see how that would be binding either unless that condition was already set by the regulations put forward in the CDPA?" – if adequate notice wasn’t given, or your institution wasn’t the purchaser, then the condition wouldn’t apply.  In no case would it negate the copyright permission to lend granted to educational establishments by s.36A. 
 
 
 
Hope that makes some sense! 
 
 
Cheers, 
Jason 
Jason Miles-Campbell |  Service Manager | JISC Legal | T 0141 548 2889  | E [log in to unmask]<mailto:[log in to unmask]> 
JISC Legal,  a JISC Advance service, is hosted by the University of Strathclyde, a charitable body, registered in Scotland, with registration number SC015263 
 
 
 
 
 
-----Original Message----- 
From: Lisa Redlinski [mailto:[log in to unmask]] 
Sent: 27 July 2012 15:08 
To: Jason Miles-Campbell; [log in to unmask] 
Subject: RE: 'Warning: for private domestic use only' DVDs 
 
 
 
Hi 
 
Jason I have a follow up question, maybe others have wondered the same thing so hopefully other readers of the list will find this of interest? 
 
By buying a film with T&C (Terms & Conditions) that are more restrictive than the permissions established by government regulations, is the consumer legally obliged to observe the more restrictive T&C placed on that item? 
 
I ask, because I wondered if it would be necessary to have the consumer actually sign an agreement (like we do when we purchase software, when we hit the ACCEPT button on the T&C) in order to bind the consumer to the more restrictive regulations. 
 
Sometimes published books have statements on the title pages like 'item not to be circulated', but I can't see how that would be binding either unless that condition was already set by the regulations put forward in the CDPA? 
 
 
 
Thank you, 
 
Lisa 
 
 
 
-----Original Message----- 
 
From: A general Library and Information Science list for news and discussion. [mailto:[log in to unmask]] On Behalf Of Jason Miles-Campbell 
 
Sent: 27 July 2012 12:04 
 
To: [log in to unmask] 
 
Subject: Re: 'Warning: for private domestic use only' DVDs 
 
 
 
There's an argument put forward sometimes that the "for domestic use only" bit isn't specific enough to negate the right to show a video under s.34(2) of the CDPA 1988 - and therefore showing it at an "educational establishment for the purposes of instruction" in not an unauthorised showing (in fact, by s.34(2)'s wording, it's not a public showing at all). 
 
 
 
The same could be argued of lending, that unless there is a clear abrogation of the lending right in s.36A, lending will not be an infringement of copyright. Two things need to be added to that - first, that even if it is not an infringement of copyright, it may be a breach of the contractual terms and conditions of supply; and second, it will require a judgement in each case as to how far the particular restriction goes. 
 
 
 
You can buy DVD blanks with "for domestic use" pre-stamped. Does that preclude s.34(2) showing, and s.36A lending for anything that goes on it? "For domestic use", it could be argued, really means "not for commercial or for playing to the public in general" rather than intending to wipe out the CDPA permitted acts. Perhaps the implementation of Hargreaves will sort all this out... :-) There's an FAQ at (apologies for the long URL, may be split over lines): 
 
http://www.jisclegal.ac.uk/ManageContent/ViewDetail/ID/1795/Can-a-college-or-university-library-lend-DVDs-to-staff-or-students-and-can-these-be-viewed-in-the-library.aspx 
 
 
 
Cheers, 
 
Jason 
 
 
 
Jason Miles-Campbell |  Service Manager | JISC Legal | T 0141 548 2889  | E [log in to unmask]<mailto:[log in to unmask]> 
 
 
 
Visit our website: www.jisclegal.ac.uk<http://www.jisclegal.ac.uk> 
 
Subscribe to our newsletter: www.jisclegal.ac.uk/newsletter<http://www.jisclegal.ac.uk/newsletter> Follow us on Twitter: twitter.com/jisclegal Tune in via Vimeo: vimeo.com/jisclegal 
 
Linkedin: www.linkedin.com/company/jisc-legal<http://www.linkedin.com/company/jisc-legal> 
 
 
 
JISC Legal,  a JISC Advance service, is hosted by the University of Strathclyde, a charitable body, registered in Scotland, with registration number SC015263 
 
 
 
 
 
On Thu, 26 Jul 2012 07:45:56 +0000, Virginia Power <[log in to unmask]<mailto:[log in to unmask]>> wrote: 
 
 
 
>I would agree with Charles on this. 
 
> 
 
>I have just gone through our collection and finally persuaded staff to part with their VHS copies and in replacing with DVDs I have sought permission from the rights owners for educational use to be allowed. 
 
> 
 
>Time consuming but has to be done 
 
> 
 
>Hope this helps 
 
> 
 
>Virginia 
 
> 
 
>Virginia Power | Resources & eLearning Manager Bridgwater College | 
 
>College Way | Bath Road | BRIDGWATER | TA6 4PZ | Tel: 01278 455464 
 
>DDI: +44(0)1278 441243| [log in to unmask]<mailto:[log in to unmask]> | www.bridgwater.ac.uk<http://www.bridgwater.ac.uk> 
 
> 
 
> 
 
> 
 
>-----Original Message----- 
 
>From: A general Library and Information Science list for news and 
 
>discussion. [mailto:[log in to unmask]] On Behalf Of CHARLES 
 
>OPPENHEIM 
 
>Sent: 25 July 2012 15:14 
 
>To: [log in to unmask] 
 
>Subject: Re: 'Warning: for private domestic use only' DVDs 
 
> 
 
>This question is better sent to lis-copyseek, but here is my take on it. 
 
>The lending right (i.e., the right to PREVENT lending) applies to libraries lending to clients, though not libraries lending to other libraries.  You therefore should respect the notice.  As I see it, the only way round the problem is to negotiate with the rightsowner (or someone representing the rightsowner) for a licence. 
 
>Charles 
 
> 
 
>Professor Charles Oppenheim 
 
> 
 
>--- On Wed, 25/7/12, Jez Conolly <[log in to unmask]<mailto:[log in to unmask]>> wrote: 
 
> 
 
>From: Jez Conolly <[log in to unmask]> 
 
>Subject: 'Warning: for private domestic use only' DVDs 
 
>To: [log in to unmask] 
 
>Date: Wednesday, 25 July, 2012, 14:52 
 
> 
 
>Hello, 
 
> 
 
>We have several DVDs in stock currently, mostly documentaries, which bear variations of this fine print on the discs and their cases: 
 
> 
 
>'Warning: for private domestic use only. Any unauthorised copying, hiring, lending or public performance of this DVD is illegal.' 
 
> 
 
>Some of them are also marked 'for educational purposes only' but the majority are not. 
 
> 
 
>My question is, are these simply unsuitable for library stock? Are colleagues prepared to stock but not lend items like these? Am I worrying unnecessarily? 
 
> 
 
>I'm happy to take replies directly rather than via the list. 
 
> 
 
>Many thanks, 
 
> 
 
>Jez 
 
> 
 
>________________________________ 
 
> 
 
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