Klarinet Archive - Posting 000116.txt from 2009/02

From: Michael Nichols <mrn.clarinet@-----.com>
Subj: Re: [kl] Derivative Works
Date: Thu, 05 Feb 2009 22:13:31 -0500

On Thu, Feb 5, 2009 at 6:17 PM, Matthew Lloyd
<matthew@-----.uk> wrote:

> Not according to the definition of fair use posted it isn't.

Actually, if you read it carefully, the statute does not, in fact,
define what "fair use" means. I'll put the relevant words in all caps
so you can see what I mean by this:
---
Section 107. Notwithstanding the provisions of sections 106 and 106A,
THE FAIR USE OF A COPYRIGHTED WORK, including such use by reproduction
in copies or phonorecords or by any other means specified by that
section, FOR PURPOSES SUCH AS criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship,
or research, IS NOT AN INFRINGEMENT OF COPYRIGHT. In determining
whether the use made of a work in any particular case is a fair use
the FACTORS TO BE CONSIDERED SHALL INCLUDE =97

(1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of
the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of
fair use if such finding is made upon consideration of all the above
factors.
---
So, you see, the statute gives you some guidance as to what kinds of
uses might be considered fair by way of what purposes such fair uses
may be made, but it never defines what a fair use is and certainly
doesn't place any limitations on what a court might decide is a fair
use. The "such as" and "include" language in the statute reveals how
open-ended Section 107 really is. Part of the reason why the statute
does not define fair use is that the doctrine of "fair use" was
originally a creation of the courts--i.e., it is, in fact, judge-made
law. The Copyright Act of 1976 merely codified the existing case law,
which dates back to the 1800s. What "fair use" actually means is
still defined by case law.

In determining whether a use is "fair," courts generally look to see
if the use is "transformative" in nature, such that the use serves
some different or additional function than the original work and by so
doing, does not supercede the original work. (This is a different
concept from a "derivative work," by the way.) Making page-turn
copies of selected pages of sheet music arguably serves this sort of a
purpose because the purpose of a page-turn copy is to be used in
conjunction with the original copy to make the performance of the work
more practical. The page-turn copy, in this case, does not replace or
supercede the original, purchased copy (indeed, you can only use the
page-turn copy in conjunction with the original) but merely makes it
more usable.

Although I've been talking about U.S. law, it is worth noting (and a
court would likely take note of this) that the Music Publishers
Association (UK) has published a "Code of Fair Practice" in which they
list page-turn copies as being considered "fair use." The
Australasian Mechanical Copyright Owners' Society (AMCOS) has
published similar guidelines. In the U.S., the Music Teachers'
National Association (MTNA)'s copyright guidelines state that copying
single pages for facilitating page turns without permission is
acceptable. Thus, I would think that, if nothing else, the fact that
this is widely considered an acceptable practice in the industry (as
these sources indicate) would weigh heavily in favor of page-turn
copies being considered fair use.

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