Klarinet Archive - Posting 000032.txt from 2009/02

From: "Matthew Lloyd" <matthew@-----.uk>
Subj: RE: [kl] RE: [SPAM] RE: [kl] Derivative Works
Date: Mon, 02 Feb 2009 16:01:06 -0500

Why is it greedy to refuse to provide freebies? Do we expect teachers to
work a day a month without pay?

Matthew

-----Original Message-----
From: Peter Gentry [mailto:peter.gentry@-----.uk]=20
Sent: 02 February 2009 14:53
To: klarinet@-----.org
Subject: [kl] RE: [SPAM] RE: [kl] Derivative Works

In the last two or three years the copyright act has played havoc with =
music
education in the UK. Teachers have been threatened with all manner of
sanctions should they get within 2 meters of a photo-copier. The result =
has
been a great restriction in the scope and variety of music available for
pupils and adult learners to play. Also the "legal" music soon gets too
tatty to be of use. Greedy publishers are strangling musical education.

regards
Peter Gentry=20

-----Original Message-----
From: Jonathan Cohler [mailto:cohler@-----.org]=20
Sent: 02 February 2009 02:45
To: klarinet@-----.org
Subject: [SPAM] RE: [kl] Derivative Works

First, here is the "fair use" section of the=20
law". Clearly, making a copy for personal study=20
(when you already own a duly paid-for copy) falls=20
under the terms of this clause.

Second, you did not show me a single case to=20
support your claim that it does not. My bet is=20
that one does not exist.

--Jonathan

>=A7 107. Limitations on exclusive rights: Fair use40
>
>Notwithstanding the provisions of sections 106=20
>and 106A, the fair use of a copyrighted work,=20
>including such use by reproduction in copies or=20
>phonorecords or by any other means specified by=20
>that section, for purposes such as criticism,=20
>comment, news reporting, teaching (including=20
>multiple copies for classroom use), scholarship,=20
>or research, is not an infringement of=20
>copyright. In determining whether the use made=20
>of a work in any particular case is a fair use=20
>the factors to be considered shall include -
>
>(1) the purpose and character of the use,=20
>including whether such use is of a commercial=20
>nature or is for nonprofit educational purposes;
>
>(2) the nature of the copyrighted work;
>
>(3) the amount and substantiality of the portion=20
>used in relation to the copyrighted work as a=20
>whole; and
>
>(4) the effect of the use upon the potential=20
>market for or value of the copyrighted work.
>
>The fact that a work is unpublished shall not=20
>itself bar a finding of fair use if such finding=20
>is made upon consideration of all the above=20
>factors.

>Jonathan Cohler followed up:
>
><<<Sounds like we are in agreement then:
>
> 1. Instrument change
> 2. Articulation marks
> 3. Octave changes
>
>are not "preparing derivating works.">>>
>
>Correct.
>
><<<Making a personal copy of a work for your own study purposes =
(especially
>because your original copy is so marked up as to make it unreadable), =
when
>you have purchased and own a properly licensed copy, is certainly "fair
>use.">>>
>
>Absolutely not. Making a photocopy of a "single performable unit" is
almost
>certainly never fair use, even in an educational (classroom) context.
>
>Here, you didn't make a photocopy - you did it by hand or computer. =
This
>doesn't matter. Changing notes/articulation/octaves doesn't make any
>difference - it's still a copy.=20
>
>If you changed enough of the piece - added enough "originality" so =
that
>your copy becomes a derivative work - your copy is an arrangement made
>without prior permission. This is worse.
>
><<<Performance rights are a separate issue, of course.>>>
>
>Yes indeed, unless you fall into one of the enumerated exceptions in
Section
>110 of the Copyright Act - basically performing for students in a
classroom.
>If you charge cash for tickets, probably not.
>
><<<But if you are claiming that, because I put my personal copied part =
on
>the stand when I perform, instead of the original illegible marked up =
copy,
>that I am therefore violating the copyright, that's insane.
>
>Show me one such case.>>>
>
>The law of gravity seems insane too, right after you've just fallen =
down
the
>stairs. It's still the law.=20
>
>It's true that most all of this activity flies under the radar, usually
>because there's not enough money involved for the MPA to get excited. =
Most
>shoplifters don't get caught either. Doesn't mean that shoplifting is =
OK.
>
>There's lots of discussion in the archives over whether making a =
particular
>photocopy or not will lead to Bad Things Happening To You. A junior =
high
>school student playing a solo at the festival from a photocopy might =
get
>scolded, or even disqualified. More prominent people playing off of
bootleg
>copies get more attention. Does the Boston Pops count? See Dan's note =
at
>http://test.woodwind.org/Databases/Klarinet/2003/06/000141.txt.=20
>
>As a practical matter, the copyright enforcers don't drop a complaint =
on a
>violator; they send a nastygram called a "cease and desist" letter. My
>favorite example is the one that the Dole campaign got for using "I'm a
Dole
>man!" - you can read the exchange at
>http://www.courttv.com/archive/legaldocs/misc/doleman.html. Given who =
you
>are, what you do, and the fact that your concert information is now =
splayed
>all over the Internet, there's a possibility that the holders of the
>Prokofiev Sonata might send you a love note. Or not.
>
>Unfortunately, damages for copyright infringement can be stiff. If =
found
to
>be making illegal copies of copyrighted works, violators can face fines =
of
>$750 to $30,000 (statutory damages) and if the court finds willfulness, =
up
>to $150,000 per infringement. If willful infringement for commercial
>advantage and private financial gain is proven, fines can increase up =
to
>$250,000 and/or 5 years imprisonment or both.
>
>Is this "insane"? Dunno. Sometimes, as Dickens' Mr. Bumble notes, =
"the
law
>is a [sic] ass - an idiot."
>
>kjf
>
>
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--=20
Jonathan Cohler
Artistic & General Director
International Woodwind Festival
http://iwwf.org/
cohler@-----.org

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The 2009 Woodwind.Org Donation Drive is going on right now - see
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