Hypothetical Situation: Could this be "fair use"?
- June 20, 2011 @ 6:32pmflorida says:Scenario: You were given the rights to translate a scholarly book by both the author and the publisher of the original work. You agreed that prospective publishers must contact the original publisher to negotiate foreign-language publication rights. (So, you have the rights to translate but not to publish.) Years pass after the translation was completed with no agreement being reached between the publishers, i.e., that of the original work and that of the translation. In the meantime, communication has continued, albeit infrequent, between you (the translator), the publisher, and the author of the original work; indeed, you continue to promote your translation online and to submit proposals for publication, but all your efforts lead, invariably, to prospective publishers walking away from (or never even reaching) the negotiation table over the question of foreign language rights. Again, you were given the rights to translate this work (and promote it for publication). Question: Could publishing this translation for non-profit (educational) purposes fall under "fair use"?
As many of you know, there are four considerations in determining fair use (in US copyright law):
(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.
Point #1: In this case, it would be "nonprofit educational purposes" (usually seen more favorably in fair use claims).
Point #2: Informational nature vs. entertainment? As a scholarly translation, clearly this would be informational, which is usually seen more favorably in fair use claims (than works of entertainment, such a novel).
Point #3: The portion is 100% of the copyrighted work, which doesn't help your claim of fair use (but alone, may not render it invalid either).
Point #4: In this case, the effect upon the potential market would not be negative at all; in fact, it could be positive. Since the publisher's books---this one included---are not found in this market, your translation would draw attention to their work. Additionally, there's no reason to believe that, if your translation is not published, the publisher of the original work will commission a translation of this book to penetrate this market. Further, there's no reason to believe that publishers in the potential market are waiting for you to disappear from the picture so they could then contact the publisher of the original to propose the publication of their own translation of the work; indeed, you've been actively promoting the book and submitting proposals to publishers in the region for years. (Because of its content, the book is not very attractive to publishers in the potential market, and its publication has primarily been considered only in the context of an author-financed co-edition; it was probably a bad decision on your part to translate it.)
Considering all of these points (and the fact that credit would be given to both the author and the publisher of the original work), I wonder if there is any reason for you, as the translator---who, again, was given permission to translate---to be concerned if you were to go ahead and publish on a non-profit basis (with a print-on-demand outfit). (What about a limited edition with a print-run of just 100 copies?) Could this be a clear case of "fair use" under US copyright law (and the Berne Convention)? After all, you don't expect to sell many books (if any), and your costs will never be surpassed by any revenue that you might be lucky enough to generate.
Any ideas will be greatly appreciated. :-) - June 21, 2011 @ 8:48amGClement says:Ultimately, any one interested in applying Fair Use needs to make his or her own fair use evaluation using a four factor analysis. If you have conducted such an evaluation in good faith, based on your understanding of the situation, you have done what the law requires. After all, you have ALL the facts of the case, including the actual terms of the original agreement with the copyright owner. Any of us CAN Scholars and CAN Staffers do not have the whole picture, like you do.
If you have determined the use is Fair based on a four factors analysis, and are still concerned with risks in going forward with your publishing project, you might find it helpful to consult a lawyer qualified to provide legal advice. - June 21, 2011 @ 3:21pmflorida says:I really appreciate your response. The agreement with the publisher was simple: rights to translate and promote the work were conferred, and when appropriate, interested parties were to be referred to this publisher (to negotiate the relevant foreign-language publication rights). Thanks! By the way, what if the analysis of three of the four factors suggests that a claim of fair use may be justified? How important is that fourth factor (in this case)? Thanks again!
- June 22, 2011 @ 2:56pmGClement says:florida, My understanding from library legal scholars is that no one factor in the four factors nalaysis trumps the others and that no one factor is dispositive. All four factors need to be considered in aggregate.
- August 5, 2011 @ 3:22pmTonepoet says:I don't have any legal training whatsoever so giving somebody actual legal advice would very well likely be unwise of me. However I do have a profuse interest in copyright related manners, so here's the best hypothesis I can currently propose using my current level of knowledge: If you're translating a work, chances are it's from another nation, meaning the normal exemptions might not apply because it's not considered under U.S. jurisdiction and the U.S. doesn't currently seem to want to step on the toes of foreign rights holders. Omega vs. Costco for example holds for the ninth circuit that foreign works aren't subject to right of first sale. I'd approach the situation with great caution and read the entirety of Title 17 Chapter 6 regarding "Manufacturing and importation requirements." The basic idea here is that importing a work without permission damages the holder's ability to co-ordinate worldwide releases, negotiate pricepoints that work within localized marketplaces and maintain the integrity of their rights to their work when they hold back release due to unfavorable conditions. Also on fair use in general, redistribution of 100% of a work usually would normally exhaust any potential for fair use since it serves as an effective substitute in all regards. This means it serves against points 2-4, not just point 3 as counterintuitive as that may seem. When you think about it though, when 100% of a text is reused, how could it not be serving its original purpose in addition to whatever purpose you have in mind? Also anybody who gets a copy, probably won't need an additional one from the original rights holder, which means they've effectively lost that sale if they could've ever gotten it and the primary purpose in preserving the exclusive rights is in preventing that. Yes there are rare situations where 100% of a work doesn't weigh unfavorably against fair use, such as Sony Corp. of America vs. Universal City Studios or R.I.A.A. vs. Diamond Multimedia Systems Inc. However those cases both assume the recipient of the work was already granted due license for use of a particular copy and needed to make another to serve a specific individual purposes. This is seen to have little or no effect on the ability for the rights holder to distribute their works to the general public as they see fit as the general public isn't involved at all outside of what they'd already allowed, factoring in favorably with point 4. It also generally mirrors the purpose the customer already bargained for in point 2. This sort of situation is rather rare though and doesn't seem to apply here. I think if you were to actually be placed in a misfortunate situation such as that as you describe, you'd be out of luck, so you should probably do your best to avoid it by coming to a finalized agreement before performing any work. Thankfully though, this is all hypothetical, right? <_< >_>
- October 3, 2011 @ 11:11amLaura090 says:[quote=Tonepoet]I don't have any legal training whatsoever so giving somebody actual legal advice would very well likely be unwise of me. However I do have a profuse interest in copyright related manners, so here's the best hypothesis I can currently propose using my current level of knowledge:[color=#f1f1f1]marijuana seeds for sale[/color] [color=#f1f1f1]buy weed seeds[/color] [color=#f1f1f1]buy cannabis seeds[/color] [color=#f1f1f1]cannabis seeds for sale[/color] [color=#f1f1f1]pot seeds for sale[/color] [color=#f1f1f1]northern lights weed[/color] [color=#f1f1f1]crate training puppies[/color] [color=#f1f1f1]puppy aggression[/color] [color=#f1f1f1]puppy whining[/color] [color=#f1f1f1]puppy growling[/color] [color=#f1f1f1]weaning puppies[/color] [color=#f1f1f1]puppy chewing[/color] [color=#f1f1f1]puppy separation anxiety[/color] [color=#f1f1f1]puppy crying[/color] [color=#f1f1f1]how to leash train a puppy[/color] If you're translating a work, chances are it's from another nation, meaning the normal exemptions might not apply because it's not considered under U.S. jurisdiction and the U.S. doesn't currently seem to want to step on the toes of foreign rights holders. Omega vs. Costco for example holds for the ninth circuit that foreign works aren't subject to right of first sale. I'd approach the situation with great caution and read the entirety of Title 17 Chapter 6 regarding "Manufacturing and importation requirements." The basic idea here is that importing a work without permission damages the holder's ability to co-ordinate worldwide releases, negotiate pricepoints that work within localized marketplaces and maintain the integrity of their rights to their work when they hold back release due to unfavorable conditions. [color=#f1f1f1]why do dogs eat grass[/color] [color=#f1f1f1]why do dogs eat poop[/color] [color=#f1f1f1]puppy toilet training[/color] [color=#f1f1f1]puppy training[/color] [color=#f1f1f1]puppy training tips[/color] [color=#f1f1f1]puppy barking[/color] [color=#f1f1f1]puppy biting[/color] [color=#f1f1f1]house training a puppy[/color] [color=#f1f1f1]how often should i feed my puppy[/color] [color=#f1f1f1]a[/color] [color=#f1f1f1]b[/color] [color=#f1f1f1]c[/color] [color=#f1f1f1]d[/color] [color=#f1f1f1]e[/color] [color=#f1f1f1]f[/color] [color=#f1f1f1]g[/color] [color=#f1f1f1]h[/color] [color=#f1f1f1]i[/color] [color=#f1f1f1]j[/color] [color=#f1f1f1]k[/color] [color=#f1f1f1]l[/color] [color=#f1f1f1]m[/color] [color=#f1f1f1]n[/color] [color=#f1f1f1]o[/color] [color=#f1f1f1]p[/color] [color=#f1f1f1]q[/color] [color=#f1f1f1]r[/color] Also on fair use in general, redistribution of 100% of a work usually would normally exhaust any potential for fair use since it serves as an effective substitute in all regards. This means it serves against points 2-4, not just point 3 as counterintuitive as that may seem. When you think about it though, when 100% of a text is reused, how could it not be serving its original purpose in addition to whatever purpose you have in mind? Also anybody who gets a copy, probably won't need an additional one from the original rights holder, which means they've effectively lost that sale if they could've ever gotten it and the primary purpose in preserving the exclusive rights is in preventing that. Yes there are rare situations where 100% of a work doesn't weigh unfavorably against fair use, such as Sony Corp. of America vs. Universal City Studios or R.I.A.A. vs. Diamond Multimedia Systems Inc. However those cases both assume the recipient of the work was already granted due license for use of a particular copy and needed to make another to serve a specific individual purposes. This is seen to have little or no effect on the ability for the rights holder to distribute their works to the general public as they see fit as the general public isn't involved at all outside of what they'd already allowed, factoring in favorably with point 4. It also generally mirrors the purpose the customer already bargained for in point 2. This sort of situation is rather rare though and doesn't seem to apply here. I think if you were to actually be placed in a misfortunate situation such as that as you describe, you'd be out of luck, so you should probably do your best to avoid it by coming to a finalized agreement before performing any work. Thankfully though, this is all hypothetical, right? <_< >_>[/quote] It's my understanding that indeed it is hypothetical alright.. well portrayed though :)
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