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 [log in to unmask] 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 >> [log in to unmask]