From: "Hoon, Peggy" <[log in to unmask]>
Date: Fri, 6 Sep 2013 15:30:19 +0000

Some time ago I became intrigued with trying figure out the difference
between a derivative work and a transformative use (in response to Sandy's
question).  I did quite a bit of research on this topic resulting in the
following post:

http://www-apps.umuc.edu/blog/collectanea/2011/04/making-sense-of-derivativ
e-wor.html

"Making Sense of Derivative Works, Transformative Uses and Fair Use".
Sandy used to read Collectanea at one time, so perhaps he has already read
this - I would point him back to it (and others) for comment.  I also
highly recommend the law review article I refer to in it.

Best, Peggy

--
Peggy E. Hoon, J.D.
Scholarly Communications Librarian
J. Murrey Atkins Library
University of North Carolina at Charlotte
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On 9/5/13 6:04 PM, "LIBLICENSE" <[log in to unmask]> wrote:

>From: Sandy Thatcher <[log in to unmask]>
>Date: Wed, 4 Sep 2013 23:14:15 -0500
>
>I'm wondering how "common" it is for libraries to digitize and make
>available for e-reserves entire monographs, novels, and other works
>whose intended audience, according to the ARL Code, are not students
>in the first instance and whose use for classroom instruction is
>therefore a different "purpose" and hence "transformative"--because
>that is exactly what the ARL Code insists can be considered fair use.
>
>Sandy Thatcher
>
>
>> From: Kevin Smith <[log in to unmask]>
>> Date: Wed, 4 Sep 2013 12:11:26 +0000
>>
>> To reply to Sandy's question, I must again insist that there is no
>> "original meaning" of fair use, a phrase he seems to insist on.  Fair
>> use is not like a cat or dog, subject to a clear definition (rather
>> like Mr. Gradgrind's horse).  Instead, fair use is a set of
>> instructions about how to think about particular situations and the
>> totality of circumstances that surround them.  So in answer to the
>> question how I would distinguish between a permissible fair use and an
>> infringing derivative work, I will give the typical lawyer's answer --
>> it depends.  It depends, as always, on the specific facts and
>> circumstances of the use in question.  There is no way to draw the
>> line a priori.  So give me some facts and I can give you an opinion,
>> but speculation untethered from a concrete situation is useless.
>>
>> And before he asks, the ARL Code to which Sandy refers so often and
>> with such disdain, is not an attempt to define fair use; it is simply
>> an elaboration of the kind of thinking that individuals can engage in
>> when considering recurring situations.  It is, if you will, a more
>> detailed set of instructions for thinking about fair use when engaged
>> in common library activities, based on a combination of the practice
>> of many libraries over the years and the approach to the fair use
>> analysis that the courts have outlined over its long history.
>>
>> Kevin
>>
>> Kevin L. Smith, M.L.S., J.D.
>> Director, Copyright and Scholarly Communication
>> Duke University Libraries
>> Durham, NC  27708
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