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