Re: Re: Unreferenced Notes from an Instructor

John's and Steve's responses well illustrate the vexatious concept of derivatives. The classic examples of derivatives are translations and treatments in other media, e.g. movies from novels. Against this exclusive right you have to weigh the lip-service paid to the notion that the ideas inherent in something are not protected, only the expression.

Where does the idea-expression dichotomy end and the derivative work begin? An abstract or summary of a work really shouldn't be considered a derivative, if it doesn't quote excessively, since it only seeks to extract the underlying ideas from a work without making use of any of its expressive devices. Words, of course, come in only limited quantities, so paraphrasing should be given a degree of latitude.

At the risk of being sued, here is a short quote, for purposes of comment and analysis, from Nimmer (footnotes omitted):

<quote> It should be noted...that the term derivative work in a technical sense does not refer to all works that borrow in any degree from pre-existing works. A work is not derivative unless it has substantially copied from a prior work. If that which is borrowed consists merely of ideas and not of the expression of ideas, then, although the work may have in part been derived from prior works, it is not a derivative work. Put another way, a work will be considered a derivative work only if it would be considered an infringing work if the material that it has derived from a pre-existing work had been taken without the consent of a copyright proprietor of such pre-existing work.<unquote>

Lest anyone think that the last sentence quoted is circular, you have to exclude from consideration the exclusive right to make derivatives from the determination of whether something infringes. That said, I think--if Nimmer is correct, which for practical purposes means if it's supported by case law--that an abstract, precis, synopsis, or reactive notes on another work that did not quote from the original is NOT a derivative of the original.

One reason why it's important to determine that the summaries are not derivatives is that many textbook publishers make additional money publishing just such sorts of summaries as part of their teacher supplementary materials. If all you had to go on was fair use analysis, the fact that a market exists for such materials could easily defeat a fair use claim. If, however, the summaries are outside the scope of the exclusive rights, by not being a copy, performance, display, *or derivative* of the original, then fair use analysis becomes unnecessary.

Vance

On 5/10/05, Steven Jamar <sjamar[_at_]law.howard.edu> wrote:
> One of the rights that attach to a copyrighted work is the right to
> make or license derivative works. The notes on the book is a
> derivative work (probably). Making notes for oneself is certainly
> fair use, even it one is making a derivative work.
>
> When you then distribute the work, you are then moving into a realm
> where there could be a greater impact than you making your own
> notes. The notes might be a substitute (like Cliffs Notes) for the
> book itself and might discourage purchase of the book and might
> impact a market for such notes, which market is for the author to
> exploit in the first instance.
>
> The Indiana U checklist is good -- but it does not really capture
> fully the ways courts look at and look for economic impact.
>
> I would refer her question to the school's general counsel office.
> In my judgment it seems to be a close enough question that if I were
> in your position I would not want to advise her one way or the other.
>
> FWIW, personally, I would distribute them and argue that it is fair
> use, but then I am an advocate of broader fair use rather than
> narrower and so would be acting to stretch the boundaries rather than
> giving conservative legal advice to keep a client out of trouble.
> These are two different ways of approaching the problem.
>
> Steve
>
>
> On May 10, 2005, at 4:00 PM, Meghann Matwichuk wrote:
>
> > Hello all,
> >
> > I am a new subscriber to this listserv and look forward to learning
> > more about copyright issues through the discussions that take place
> > here.
> >
> > I've received the following request from an instructor:
> >
> > "I have read a great book and taken notes on each chapter. I have
> > typed them up and am wondering if I could give them to the
> > students. They do NOT include references and quotations because I
> > state at the beginning that they are all the author's words and
> > voice and none of it can be attributed to me in any way,
> > whatsoever. It is a summary of each chapter. Let me know if you
> > think I should NOT let the students have a copy of the summary. I
> > don't want to get into trouble and more important, I don't want to
> > encourage plagiarism in any form. If by giving them a copy of my
> > notes from the book, they begin to think they don't have to use
> > footnotes or that it is ok to use someone else's voice, I would
> > feel tremendous regret."
> >
> > My instinct is that she is within fair use in distributing these
> > notes to her students. I plan on referring her the following
> > checklist:
> >
> > http://copyright.iupui.edu/checklist.htm
> >
> > Any thoughts / opinions on the matter? I suppose I'm just looking
> > for some reinforcement before I respond to her -- or to hear if I'm
> > missing something obvious! Thanks in advance.
> >
> > Best,
> >
> > ******************************
> > Meghann R. Matwichuk
> > Instructional Media Department
> > Morris Library
> > University of Delaware
> > 181 S. College Ave.
> > Newark, DE 19717
> > (302) 831-1475
> >
>
> --
> Prof. Steven D. Jamar vox: 202-806-8017
> Howard University School of Law fax: 202-806-8567
> 2900 Van Ness Street NW mailto:sjamar[_at_]law.howard.edu
> Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/
>
> "The most precious things one gets in life are not those one gets for
> money."
>
> Albert Einstein
>
>
> #############################################################
> This message is sent to you because you are subscribed to
> the mailing list <CNI-COPYRIGHT[_at_]cni.org>.
> To unsubscribe, E-mail to: <CNI-COPYRIGHT-off[_at_]cni.org>
> To switch to the DIGEST mode, E-mail to <CNI-COPYRIGHT-digest[_at_]cni.org>
> To switch to the INDEX mode, E-mail to <CNI-COPYRIGHT-index[_at_]cni.org>
> To postpone your subscription, E-mail to <CNI-COPYRIGHT-null[_at_]cni.org>
> Send administrative queries to <CNI-COPYRIGHT-request[_at_]cni.org>
>
> Visit the CNI-COPYRIGHT e-mail list archive at <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>.
>

-- 
Vance R. Koven
Boston, MA USA
vrkoven[_at_]world.std.com