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
> [log in to unmask]
>
> -----Original Message-----
> From: Sandy Thatcher <[log in to unmask]>
> Date: Tue, 3 Sep 2013 09:44:25 -0500
>
> To be clear, I have no interest in limiting the "flexibility" of fair
> use as a vehicle for adapting copyright law to shifting technologies
> and other new circumstances. That is indeed its chief virtue.  And it
> is a virtue that serves the interests of copyright owners as much as
> it does the interests of users.  But a concept can be stretched so far
> beyond its original meaning that it loses its effectiveness also. Fair
> use is probably best employed as an adjunct to limitations and
> exceptions, which being targeted and specific offer much greater
> certainty to those concerned with copyright questions, rather than as
> the first resort for litigants.  It seems that the ARL and some other
> groups are now favoring fair use over any other approach, abandoning
> for instance the effort to provide specific guidance for use of
> "orphan works," and this is bound to result in more litigation, not
> less. The trend also seems to be toward equating fair use with
> "re-purposing" of any kind and making that the principal touchstone of
> what fair use is. This becomes problematic, among other reasons,
> because it makes fair use into a general tool for displacing the right
> of copyright owners to control "derivative" uses, which are assigned
> to owners under the law. I would ask Kevin how, if fair use is just
> using copyrighted works for a different purpose, he would distinguish
> between what is fair use and what is an example of derivative work.
>
> Sandy Thatcher