RE: Re: Unreferenced Notes from an Instructor

Depending on the similarity, paraphrasing might not be considered a derivative work. After all, the copyright is on the expression, not the idea. Is the original a work of fiction or something like a textbook?

I also think the effect on the market might be overstated somewhat. We can easily make a plausible argument in the reverse: by providing a roadmap, it makes the work more accessible and thus increases the potential market for the work. In other words, it works as a supplement, not a replacement. (This argument is especially easy to make if he isn't looking to distribute commercially).

It's also worth noting that case law has shown that the fourth factor, despite what is said in Harper & Row, is no more important than the other factors (something Prof. Patry discussed recently on his new-and-highly-recommended weblog:
http://williampatry.blogspot.com/2005/05/whats-role-of-fourth-fair-use-f actor.html).

(In the interest of disclosure, I am not a lawyer; I am merely an overzealous law student, so please don't take this analysis for anything more than it is :)

Thanks.
Tim [http://www.slashstar.com/blogs/tim]

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Steven Jamar Sent: Tuesday, May 10, 2005 6:20 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: Unreferenced Notes from an Instructor

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


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