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Heart of work vs non-profit, education, transformative, etc = Fair Use?

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joker3d

Junior Member
Hello. I have interesting case and question to experts in copyright law.
Sorry for long message. But I need to give all the details to give a clear picture.

Summary:
Large US-based world-wide non-profit professional organisation, creates and sells professional standard.
I took their standard, created single-page summary from it, and published it freely on the Internet.
They are asking me to pay a lot of money for license or remove it from the internet.

I consulted with local lawyer - he analyzed all the details (I give them below) and concluded that it is a Fair Use case. But considering that the company is large and I am not making any money here I will spend more a lot of time and money if I will be protecting my position.

However if I am right I don’t want to step back and I am ready to fight. I see it from other point of view - I am not making money here but it is an interesting case and I am earning experience here.

But I want to doublecheck my position with US/World-wide copyright experts here on this web site. So I really appreciate your help.

This is what I learnt from Fair Use concept and how it is applied to my case:
Factor #1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
a) Use = non-profit: I am not making any money;
b) Purpose = educational: the purpose of my product is to help people understand the original Standard;
c) Transformativeness = yes:
- I organized the content in specific structure: single-page bird's-eye view (it is really hard to overview and understand the original standard without such single-page overview and original standard is lacking such overview);
- I added new content: color coding (for different areas of the standard), and relationships between processes which were not reflected there but are assumed by practitioners (I am one of such practitioners and these relations are made on my own opinion - and I might be wrong somewhere, btw;).

Factor #2: the nature of the copyrighted work;
a) Original is published: it is sold on organization’s web site, on Amazon, etc.
b) Original is fact-based: it is a collection of well-known best practices - it is not creative or fiction content.

Factor #3: the amount and substantiality of the portion used in relation to the copyrighted work as a whole
a) Very small amount is used: original consists of 500+ pages and my product is just one page - it is like a table of content - names of all the processes, and names of all process inputs, outputs and tools.
b) Substantiality - Heart of the work. This is the main issue!
- The Standard has a Glossary. Somebody can tell it is the heart. And I didn’t use the Glossary at all.
- The Standard has Appendix which is ISO-certified subset of the Standard. Somebody can tell it is the heart. And I didn’t use the Appendix.
- The Standard has few introduction chapters with key profession definitions. Somebody can tell it is the heart. And I didn’t use these initial chapters.
- I took the processes reflected in other parts. But I tend to agree I took the heart of work. Because my intention was to take the hardest to memorize key part of the Standard - all processes and their inputs, outputs, tools and put them in a clear and easy to memorize way (all together on a single page, color coding) and add extra useful information (relations between processes). Unfortunately original Standard failed to do all of this. That’s why I wanted to create this work.
And actually there is no way to make education material without referring the heart of original work.
c) Amount and content I used was not more than it was necessary to accomplish the goal. Listing all the processes, their inputs, outputs, tools I couldn’t skip any one of them - so I used all of their names (without all the descriptions which take hundreds of pages).

Factor #4: the effect of the use upon the potential market for or value of the copyrighted work
a) No effect at all or even positive effect:
- Nobody can use my product without having original Standard (it is like trying to use book’s content without having the book itself).
- Moreover I hope (and my intentions was to, because I am big fan of it) made positive effects on original Standard’s sales - because if you have a content of a great book it is kind of advertisement to buy the whole book if you don’t have it yet.
- The work has a clear reference to the original Standard and I encouraged people to become members of the organization, become professionals and use the Standard.

The Organisation insists that “Heart of work” supersedes any qualifiers for noncommercial use and any other of my arguments.

I negotiated with them: suggested they publish it themselves, and I can remove it from my website, I am also ready to change something (e.g. remove my link from the footer of my work, etc). Generally I am ready to do anything if they keep this work available - at least to those who purchased their Standard. I had many many positive feedbacks from professionals and I want to have this work available for the community. They thought about my ideas and recently came back with “No”.

To make a story even longer - there was a similar work published some years ago by other professional and the Organisation gave him permission to do so freely because he was a member of the Board of the Organisation. I don’t know all the details here - so don’t want to rely on it. But I feel this is clearly unhonest in addition to all Fair use arguments I stated above.

Any opinions? Any suggestions? I really appreciate your help! Happy to answer any questions.
 


FlyingRon

Senior Member
Your purpose appears not to be one of fair use. Preparing instructional materials for a work is not commentary, search engines, criticism, parody, news reporting, research, or scholarship.

The rest of the stuff doesn't matter.
 

joker3d

Junior Member
Your purpose appears not to be one of fair use. Preparing instructional materials for a work is not commentary, search engines, criticism, parody, news reporting, research, or scholarship.

The rest of the stuff doesn't matter.
Thank you very much for your reply.
But Fair Use is not based on "commentary, search engines, criticism, parody, news reporting, research, or scholarship". It is based on the four factors I listed above (see §107 of the United States Code)
 

Zigner

Senior Member, Non-Attorney
Thank you very much for your reply.
But Fair Use is not based on "commentary, search engines, criticism, parody, news reporting, research, or scholarship". It is based on the four factors I listed above (see §107 of the United States Code)
You have an attorney - listen to your attorney. If you don't trust your attorney, get a new one.

Please remember that "fair use" is a defense you raise when you are sued. If you can't afford to be sued, then you should consider complying.
 

joker3d

Junior Member
You have an attorney - listen to your attorney. If you don't trust your attorney, get a new one.

Please remember that "fair use" is a defense you raise when you are sued. If you can't afford to be sued, then you should consider complying.
Thanks for advice.

Btw, what jurisdiction is applied in this case? How this happens cross-countries - e.g. can I transfer the case to my local court in other country?

Let's assume I can afford to be sued and defense using "fair use" doctrine. What's your view on the arguments?

A small quote: Harper & Row, 471 U.S. at 566: ..."the effect of the use upon the potential market for or value of the copyrighted work." This last factor is undoubtedly the single most important element of fair use.
I see no any thoughts - when I have most of the factors on my side and the most important one on my side as well - how can anyone think it is still not fair use. Could you please clarify?
 

Zigner

Senior Member, Non-Attorney
Thanks for advice.

Btw, what jurisdiction is applied in this case? How this happens cross-countries - e.g. can I transfer the case to my local court in other country?

Let's assume I can afford to be sued and defense using "fair use" doctrine. What's your view on the arguments?

A small quote: Harper & Row, 471 U.S. at 566: ..."the effect of the use upon the potential market for or value of the copyrighted work." This last factor is undoubtedly the single most important element of fair use.
I see no any thoughts - when I have most of the factors on my side and the most important one on my side as well - how can anyone think it is still not fair use. Could you please clarify?
My advice stands - speak to your attorney. Also, please be aware that this site deals with US law matters only.
 

FlyingRon

Senior Member
Thank you very much for your reply.
But Fair Use is not based on "commentary, search engines, criticism, parody, news reporting, research, or scholarship". It is based on the four factors I listed above (see §107 of the United States Code)
Bullhockey. If you're going to read the statute, read the WHOLE section. The four factors are determining if the use for "commentary..." qualifies as not being infringement. You can't just ignore the first half of the sentence in your rush to interpret the second half.
 

quincy

Senior Member
Summary:
Large US-based world-wide non-profit professional organisation, creates and sells professional standard.
I took their standard, created single-page summary from it, and published it freely on the Internet.
They are asking me to pay a lot of money for license or remove it from the internet.

I consulted with local lawyer - he analyzed all the details (I give them below) and concluded that it is a Fair Use case. But considering that the company is large and I am not making any money here I will spend more a lot of time and money if I will be protecting my position.

However if I am right I don’t want to step back and I am ready to fight. I see it from other point of view - I am not making money here but it is an interesting case and I am earning experience here.
Where are you located, joker3d? Fair Use is part of the US Copyright Act and other countries do not have this as an affirmative defense to infringement (although some other countries might have similar factors that are looked at by a court).

If/when you are sued, you will be sued in your country, in your country's courts under your country's laws - the laws of which are bound to be different from the laws here. I suggest you concentrate on those laws and seek out another IP professional in your area for another personal review of your work compared to the original.
 

quincy

Senior Member
... This is what I learnt from Fair Use concept and how it is applied to my case:
Factor #1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
a) Use = non-profit: I am not making any money;
b) Purpose = educational: the purpose of my product is to help people understand the original Standard;
c) Transformativeness = yes:
- I organized the content in specific structure: single-page bird's-eye view (it is really hard to overview and understand the original standard without such single-page overview and original standard is lacking such overview);
- I added new content: color coding (for different areas of the standard), and relationships between processes which were not reflected there but are assumed by practitioners (I am one of such practitioners and these relations are made on my own opinion - and I might be wrong somewhere, btw;).
First, fair use is an affirmative defense in the US. It is not permission to use copyrighted works. A court decides if a use falls within the guidelines provided under the US Copyright Act only after an alleged infringer is sued by the copyright holder.

Second, you are misunderstanding "educational purpose" and "transformative" as these are used in copyright law. Your use appears to be neither for an educational purpose nor transformative. Your use appears to be a derivative of the original, and creating derivatives is an exclusive right of the copyright holder.

Factor #2: the nature of the copyrighted work;
a) Original is published: it is sold on organization’s web site, on Amazon, etc.
b) Original is fact-based: it is a collection of well-known best practices - it is not creative or fiction content.
A compilation of facts can be copyrightable. What is protected can be the facts that are selected and the ordering of the facts, to name a few ways facts are copyrighted. Once again, you are misunderstanding how this factor is analyzed by the courts when determining fair use.

Factor #3: the amount and substantiality of the portion used in relation to the copyrighted work as a whole
a) Very small amount is used: original consists of 500+ pages and my product is just one page - it is like a table of content - names of all the processes, and names of all process inputs, outputs and tools.
b) Substantiality - Heart of the work. This is the main issue!
- The Standard has a Glossary. Somebody can tell it is the heart. And I didn’t use the Glossary at all.
- The Standard has Appendix which is ISO-certified subset of the Standard. Somebody can tell it is the heart. And I didn’t use the Appendix.
- The Standard has few introduction chapters with key profession definitions. Somebody can tell it is the heart. And I didn’t use these initial chapters.
- I took the processes reflected in other parts. But I tend to agree I took the heart of work. Because my intention was to take the hardest to memorize key part of the Standard - all processes and their inputs, outputs, tools and put them in a clear and easy to memorize way (all together on a single page, color coding) and add extra useful information (relations between processes). Unfortunately original Standard failed to do all of this. That’s why I wanted to create this work.
And actually there is no way to make education material without referring the heart of original work.
c) Amount and content I used was not more than it was necessary to accomplish the goal. Listing all the processes, their inputs, outputs, tools I couldn’t skip any one of them - so I used all of their names (without all the descriptions which take hundreds of pages).
The number of words or the amount of copyrighted material taken is not nearly as important as what words and what portion of the work is taken. If you have taken the "heart" or the essence of the copyrighted work for use in your own work, that is infringement. Taking the essence of a copyrighted work and providing it to the public affects the value of, if not the market for, the copyrighted work.

Factor #4: the effect of the use upon the potential market for or value of the copyrighted work
a) No effect at all or even positive effect:
- Nobody can use my product without having original Standard (it is like trying to use book’s content without having the book itself).
- Moreover I hope (and my intentions was to, because I am big fan of it) made positive effects on original Standard’s sales - because if you have a content of a great book it is kind of advertisement to buy the whole book if you don’t have it yet.
- The work has a clear reference to the original Standard and I encouraged people to become members of the organization, become professionals and use the Standard.
Your work might not only be infringing on the copyrights of the original, you may also be infringing on trademarks. You appear to be trading off the reputation of the organization whose work you have "summarized."

The Organisation insists that “Heart of work” supersedes any qualifiers for noncommercial use and any other of my arguments.

I negotiated with them: suggested they publish it themselves, and I can remove it from my website, I am also ready to change something (e.g. remove my link from the footer of my work, etc). Generally I am ready to do anything if they keep this work available - at least to those who purchased their Standard. I had many many positive feedbacks from professionals and I want to have this work available for the community. They thought about my ideas and recently came back with “No”.
No means no. If the copyright holder has refused to give you permission to use their work (with or without a license and compensation), you use the work at risk of an infringement lawsuit. Having been informed by the copyright holder that they believe your work infringes on their rights, to use their work would be considered "willful infringement" and, if the original work is federally registered, the damages awarded can be substantially higher (up to $150,000) than the statutory damages a copyright holder is eligible to collect (between $750 and $30,000 per infringed work).

To make a story even longer - there was a similar work published some years ago by other professional and the Organisation gave him permission to do so freely because he was a member of the Board of the Organisation. I don’t know all the details here - so don’t want to rely on it. But I feel this is clearly unhonest in addition to all Fair use arguments I stated above.
It appears you might also be infringing on the licensed rights of the other author.

Any opinions? Any suggestions?
Again, have another IP professional in your country compare what you have created with the original work. Have the IP professional in your country go over the IP laws of your country. "Fair use" may not be an option for you even if your country has something similar to the US fair use defense to infringement.

Here are links to the four fair use factors discussed in your posts and which you seem to think favors your use (I tend to disagree):

http://www.copyright.gov/fair-use/more-info.html
http://fairuse.stanford.edu/overview/fair-use/four-factors/
 

joker3d

Junior Member
Thank you all, and especially quincy for detailed comment.
You turned upside-down my confidence.
And I should also consider my local laws (I'm in Russia).

It looks I might be not so right...
 

quincy

Senior Member
Thank you all, and especially quincy for detailed comment.
You turned upside-down my confidence.
And I should also consider my local laws (I'm in Russia).

It looks I might be not so right...
You're welcome, joker3d. And we thank you for the thanks. They are appreciated.

Following is a link to the World Intellectual Property Organization (WIPO) with the laws in Russia that relate to intellectual property, in case you want to work your way through the IP laws of your country. Again, these are the laws that you need to concentrate on. But you are probably best off seeking legal assistance in Russia.

http://www.wipo.int/wipolex/en/profile.jsp?code=RU

Good luck.
 

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