RE: Derivative Inquiry

From: Denis N. Magnusson <magnussd[_at_]post.queensu.ca>
Date: Mon, 28 Aug 2006 15:55:45 -0400

You will get better-informed comment, but . . .

Under s. 106(1),(2),(3) of the Copyright Act, defining infringement, you do

• not "reproduce" "copies" (see case noted below),
• nor prepare "derivative works", Act, s. 101: " . . . A work consisting of editorial revisions, annotations, elaborations, or other modifications, _which, as a whole, represent an original work of authorship_, is a “derivative work”" -- separating the pages and encasing in plastic does not create a derivative 'original work of authorship'.
• nor distribute "copies",

and I can't see how perform, display or audio transmission, in or to the public, would apply, (s. 106(4),(5),(6))

I don't believe that s. 106A(3)(B) would apply either "(B) to prevent any _destruction_ of a _work of recognized stature_, and any intentional or grossly negligent destruction of that work is a violation of that right." The work is not "destroyed" and its "recognized stature" may be debatable). S. 106A(3)(B) was surely intended to apply to cases such as the destruction of the original of a painting (the original canvas) and not to the destruction of a few of the many reproductions of a work.

The concept of a derivative work must imply the making (reproduction) of a copy -- not an exact copy, but a modified copy derived from the protected work. Re the meaning of "reproduce copies", the s.101 definition of "copies" is not especially helpful in your context, and I don't think "reproduce" is expressly defined in the Act. Direct reliance on foreign precedent can be risky and unhelpful, nevertheless, the Canadian Supreme Court decision noted below deals with a somewhat analogous fact circumstance. This is an Act which grants only a _right_ to control _copies_ (leaving aside moral rights -- s. 106A) -- either material copies (s. 101), or immaterial copies (performances, etc.) if disseminated to the public --NO COPIES, NO BREACH OF THE _COPY_ _RIGHT_. http://scc.lexum.umontreal.ca/en/2002/2002scc34/2002scc34.html Théberge v. Galerie d’Art du Petit Champlain inc., Neutral citation: 2002 SCC 34.
From headnote: "The process in issue here involves lifting the ink that was used in printing a paper poster (lawful copies authorized and sold by copyright-owner-plaintiff) and transferring it onto a canvas (done by defendant without copyright owner consent) . . . . Since this process leaves the poster blank, there is no increase in the total number of reproductions. The historical scope of the notion of “reproduction” under the Copyright Act should be kept in mind. “Reproduction” has usually been defined as the act of producing additional or new copies of the work in any material form. While the Act recognizes that technologies have evolved by which expression could be reproduced in new ways, the important evolution of legal concepts in the field of copyright is not engaged by the facts here. This is a case of literal physical, mechanical transfer in which no multiplication takes place."

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Jason sheperd Sent: August 24, 2006 6:25 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Derivative Inquiry

We are researching an issue and it appears that the practice is ok (as in not infringing activity) but I wanted to get the collective wisdom of the listserv.

A preschool daycare buys age apprpriate workbooks for its students, removes the pages and puts them in plastic in a binder (the binder has all pages, cover, title page, etc) so that the teachers can work with each student using a dry-erase marker on the plastic. This way the daycare only has to purchase a couple sets for use with all of its students. No photocopying is

taking place. Our research indicates this is not a violation of the distribution right or derivative work right. Do you all agree?

Jason

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Visit the CNI-COPYRIGHT e-mail list archive at <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>. Received on Mon Aug 28 2006 - 23:55:45 GMT