Thanks, Gary. Actually these points are what I was getting at, but you are much clearer. I wasn't attacking Larry's rhetoric but the rhetoric he was criticizing. And it seems clear that "transformative" is defined in law precisely the to exclude producing an exact copy in a different format. Seems an odd argument to try.
Judy -----Original Message----- From: videolib-boun...@lists.berkeley.edu [mailto:videolib-boun...@lists.berkeley.edu] On Behalf Of ghand...@library.berkeley.edu Sent: Thursday, June 24, 2010 11:36 AM To: videolib@lists.berkeley.edu Subject: Re: [Videolib] Is an educational use a transformative use. I think you've misinterpreted Larry's question and intent. First, I think it's a critical mistake to confuse the face-to-face teaching exemption of the copyright law and the broader concept of fair use. The former simply allows the "display" (i.e. screening) of a copyrighted work in the service of classroom teaching without having to secure the permission of the copyright holder. This has nothing to do with the broader concept of fair use, which makes allowances for using portions of copyrighted works (without permission) in various contexts, educational, intellectual, cultural. One type of fair use allowance is for the "transformative" use of copyrighted works: i.e. the use of copyrighted material to create new and unique intellectual property...for example, to use a film clip in a remixed video...or to incorporate a portion of a jazz sound recording in a web site devoted to teaching African American history. One current argument (by some academics and academic institutions)has it that the digital encoding and/or streaming of an ENTIRE video (without license) for use in a specific academic class is allowable under the broad provisions of fair use...some of these arguments are based on the contention that such encoding/streaming and academic use of video is in itself "transformative", and therefor allowable under the banner of fair use. Gary Handman > Larry wrote: > > "I'd like the list to answer a simple question: does your institution > consider any educational use of copyrighted material, in whole or in part, > ipso facto a transformative use and therefore a fair use?" > > > This seems like goofy rhetoric to me. Or am I way off base? > Fair use involves the use of part or parts of the original item. > Educational use is defined in law as use in face-to-face teaching. It has > more latitude than fair use, right? E.g. you could indeed show a video of > a Shakespeare play to your Shakespeare class, or a film explaining cell > division to your bio class. What you can't do is announce a public free > showing, however culturally enriching, as "educational" under the law. > Transformative use is something I have not thought about much but I assume > it has to do with artistic/critical use of existing materials. It would > cover such uses as "sampling" audio tracks to make new songs or > incorporating existing media into a "video poem." Is that right? > > Looking at a Wikipedia article, I see that the criterion is "whether the > new work merely supersedes the objects of the original creation" or > changes it. If it does, it is not fair use. Certainly an unauthorized > digitial version of an entire work is infringing in that it is intended to > completely replace/supersede the use of the legal hard copy. > > http://en.wikipedia.org/wiki/Transformation_%28law%29 > > Judy > VIDEOLIB is intended to encourage the broad and lively discussion of > issues relating to the selection, evaluation, acquisition,bibliographic > control, preservation, and use of current and evolving video formats in > libraries and related institutions. It is hoped that the list will serve > as an effective working tool for video librarians, as well as a channel of > communication between libraries,educational institutions, and video > producers and distributors. > Gary Handman Director Media Resources Center Moffitt Library UC Berkeley 510-643-8566 ghand...@library.berkeley.edu http://www.lib.berkeley.edu/MRC "I have always preferred the reflection of life to life itself." --Francois Truffaut VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors. VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors.
