Andrew, I don't wish to sound mean but I don't know how to soften this.
I can only hope that some day you appreciate the guidance people here,
are giving you.
On 11/9/2012 9:37 PM, Andrew Thule wrote:
Jerry, what the Law actually says trumps what the copyright office says.
What you are implying here is that the quotes I posted from Cir 21 do
not reflect what the actual intent of the law is. You may be surprised
to know that the Copyright Office is not the source of those quotes from
Cir 21. In fact the source is the 1976 report of the House of
Representatives Judiciary Committee on the House amendments to the bill
that became the Copyright Act of 1976 (H.R. Rep. No. 94-1476, 94th
Cong., 2d Sess., September 3, 1976). If those quotes don't reflect what
the law actually is then the House report does not reflect what the
House passed into law. There was an earlier Senate report which differs
on some points but in the case of these quotes the House report should
reflect changes in the proposed law after the Senate report and should
reflect the will of not just the House but also the Senate.
I quoted the law itself which outlines restrictions on Copyright for
fair use.
And it was addressed and also your interpretation.
I also quoted the Law which justifies 'derivative works' even where
Copyright applies.
Where you quote you also misinterpret.
If copyright doesn't apply to certain types of work - you need to show
that the source material I've used is NOT THAT TYPE OF MATERIAL. (I'm
not making use of someone's novel. I'm making use of their research.)
You contrast novel with research. That shows a fundamental flaw in your
logic. Novels and research publications are equally entitled to
copyright. Perhaps the bases for your misunderstanding is a common one,
that copyright does not protect facts and research is about facts so not
protected. The facts from research are not protected (not by copyright
but other laws may apply) as also any fact discussed in novels are not
protected either, but while the facts, ideas and information in works
are not protected by copyright the ways they are expressed are, even in
research publications as much as in novels.
http://www.law.cornell.edu/uscode/text/17/101
17 U.S.C. § 101 - Definitions
'"Literary works" are works, other than audiovisual works, expressed in
words, numbers, or other verbal or numerical symbols or indicia,
regardless of the nature of the material objects, such as books,
periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in
which they are embodied. '
Novels and research publications are equally "literary works" under this
definition.
If derivative work is permitted - you need to show I've not met the
conditions of derivative work.
A derivative work can not be published without the permission of the
copyright holder of the original work, because that copyright holder has
the copyright to the original and any material from that original in
any derivatives of it.
17 USC § 103 - Subject matter of copyright: Compilations and derivative
works
http://www.law.cornell.edu/uscode/text/17/103
'(a) The subject matter of copyright as specified by section 102
includes compilations and derivative works, but protection for a work
employing preexisting material in which copyright subsists does not
extend to any part of the work in which such material has been used
unlawfully.
(b) The copyright in a compilation or derivative work extends only to
the material contributed by the author of such work, as distinguished
from the preexisting material employed in the work, and does not imply
any exclusive right in the preexisting material. The copyright in such
work is independent of, and does not affect or enlarge the scope,
duration, ownership, or subsistence of, any copyright protection in the
preexisting material.'
According to (a) above your rights to produce copies of a derivative of
your own making, do not, extend to any part of it that was used
unlawfully (being without proper permission or exception).
17 U.S.C. § 101 - Definitions
http://www.law.cornell.edu/uscode/text/17/101
'A "derivative work" is a work based upon one or more preexisting works,
such as a translation, ...'
The DSS texts, because of age, are PD, but modern translations are
derivatives protected by copyright being the unique expressions of the
translators. The ideas expressed we hope are true to the original PD DSS
texts but each translation has it own way of expressing the ideas which
is the bases for copyright. Using these modern expressions without
permission or license is a violation of copyright unless the the use
falls under an exception in the law. Educational, scholarly, research,
personal, translation or derivative use do not simply qualify as an
exception. Fair use is an exception, but just being such things as
educational or personal do not guarantee that a use is fair use, as I
have already pointed out and as others have pointed out.
Jerry
The source material I've used is both exempt (according to the law)
and the derivative work in accordance with the law even if it weren't
exempt.
~A
On Thu, Nov 8, 2012 at 6:39 PM, jhphx <jh...@cox.net
<mailto:jh...@cox.net>> wrote:
On 11/8/2012 9:26 AM, Andrew wrote:
The US definition of 'Fair Use':
http://www.copyright.gov/title17/92chap1.html#107
§ 107 . Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106a, the fair
use of a copyrighted work, including such use by ... is not an
infringement of copyright.
It should be noted that the doctrine of fair use existed before
this section of law was coded. This section does not define the
doctrine but only gives guidance for applying the doctrine.
If there was a section of law that said something like:
"Notwithstanding the provisions concerning the guilt of killers, a
deadly act of insanity involving shooting, stabbing, poisoning,
or strangling is not an act of guilt," it would NOT mean that any
act of shooting, stabbing, poisoning, or strangling was an insane
act. It would not be defining insanity. Likewise, 107 is not
defining fair use. Thinking it does is a common mistake.
The fallowing quotes are from:
The US Copyright Office
Cir21
Reproduction of Copyrighted Works
by Educators and Librarians
http://www.copyright.gov/circs/circ21.pdf
'Although the courts have considered and ruled upon the
fair use doctrine over and over again, no real definition of
the concept has ever emerged. Indeed, since the doctrine is
an equitable rule of reason, no generally applicable definition
is possible, and each case raising the question must be
decided on its own facts. On the other hand, the courts have
evolved a set of criteria which, though in no case definitive
or determinative, provide some gauge for balancing
the equities. These criteria have been stated in various ways,
but essentially they can all be reduced to the four standards
which have been adopted in section 107:'
'For example,
the reference to fair use "by reproduction in copies or
phonorecords or by any other means" is mainly intended
to make clear that the doctrine has as much application to
photocopying and taping as to older forms of use; it is not
intended to give these kinds of reproduction any special
status under the fair use provision or to sanction any reproduction
beyond the normal and reasonable limits of fair use.
Similarly, the newly-added reference to "multiple copies for
classroom use" is a recognition that, under the proper circumstances
of fairness, the doctrine can be applied to reproductions
of multiple copies for the members of a class.
The Committee has amended the first of the criteria to
be considered---"the purpose and character of the use"---
to state explicitly that this factor includes a consideration
of "whether such use is of a commercial nature or is for
non-profit educational purposes." This amendment is not
intended to be interpreted as any sort of not-for-profit
limitation on educational uses of copyrighted works. It is
an express recognition that, as under the present law, the
commercial or non-profit character of an activity, while
not conclusive with respect to fair use, can and should be
weighed along with other factors in fair use decisions.'
If one understands that last sentence then one understands that
non-profit and educational do not guarantee a fair use claim.
Jerry
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