I agree that the argument to make is that it is non-infringement is a much better one to make than trying to argue for a fair use.
-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Denis N. Magnusson
Sent: Monday, August 28, 2006 3:56 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: Derivative Inquiry
You will get better-informed comment, but . . .
Under s. 106(1),(2),(3) of the Copyright Act, defining infringement, you do
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
#############################################################
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>
To resume mail list message delivery from postpone mode, E-mail to
<CNI-COPYRIGHT-feed[_at_]cni.org>
Visit the CNI-COPYRIGHT e-mail list archive at <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>.
#############################################################
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>
To resume mail list message delivery from postpone mode, E-mail to <CNI-COPYRIGHT-feed[_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/>. Received on Tue Aug 29 2006 - 19:45:31 GMT
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:57 GMT