Personal Thoughts on Copyright Law
This post came out of a post I made on Plurk saying that I wanted some ideas about some blog posts I could put here, on my business site, and on my sister’s new site. The idea of writing about SOPA was mentioned. So I thought great, I could potentially write three different blog posts about SOPA from the three different perspectives of the three different sites. So this is the one for this site.
I wanted to get the post about the “Four Dharmas of Gampopa” posted first, so I posted that yesterday. I wanted to post that first because I wanted to refer to it particularly in my post about Copyright here. So why did I want to refer to it? I wanted to talk about Fair Use, and permission to use. I didn’t get permission to use that, or the portion of “The Sutra of The Recollection of the Noble Three Jewels” that I put in the previous post.
Do I think that these posts constitute Fair Use? I think that the Sound Cloud recordings do not, in themselves constitute Fair Use. The Sound Cloud recordings with what I wrote about the chants themselves may or may not constitute Fair Use.
In United States Copyright Law the doctrine of Fair Use is governed by four principles:
Purpose and Character of the Use
The first factor is regarding whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only “supersede the objects” of the original for reasons of personal profit. – Wikipedia Fair Use
This only applies to Copyright work, where permission is not granted. If permission is granted, or if the work is not Copyright then this doctrine is not applicable.
Lets take the last part first. Am I attempting to supersede the objects of the original? Am I attempting to duplicate the original? With the Sound Cloud recording yes, I’d say that I am, but “for personal profit” might be questionable. The original being the printed version which I have bought my copy of from a reseller.
Now what about the blog posts themselves? I have attempted to link to the originals as best I can. Now since these are somewhat restricted texts, there might be other issues with that as well. So I don’t think that I’m really trying to do this for personal profit.
As for whether this “stimulates creativity for the enrichment of the general public” I would lean very much on the side that it does.
Nature of the Copied Work
To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright—only their particular expression or fixation merits such protection. — Wikipedia Fair Use
Both of these works in their original form are in the public domain. It seems that at least under United States Law translations of works in the public domain are protected under the Copyright Act (as well as other acts). So what this refers to is whether these works should even be copyright. My personal feeling is that it’s very questionable if such works should be. Is the presentation of the translations that significantly different from any other translation of the same works? I don’t really think they are. Not when they get “Life plus 50 years” or “Life plus 70 years” copyright protection. That maybe is a matter for another post.
Amount and substantiality
The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that is used in relation to the whole, ex: a few sentences of a text for a book review, the more likely that the sample will be considered fair use. — Wikipedia Fair Use
This is a tricky question to answer for both, and then the question also arises, do the two blog posts get considered as a whole, or are they always considered separate? The “Four Dharmas of Gampopa” post probably is a little easier to consider. That is the entirety of the chant. But that chant is only available as part of the whole chant book. So, it is complicated. It would probably be considered a significant amount shared.
As for the other one, it is only a small part of the whole chant, which is available online for free. Which really complicates matters. Still it would be considered a significant amount copied.
Just because something is available online for free, it doesn’t mean that it is appropriate to redistribute it, especially claiming it to be your own.
Effect upon work’s value
The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner’s ability to exploit his or her original work. — Wikipedia Fair Use
OK, so does this change any of the ability of the Nalanda Translation Committee’s ability to exploit their work? I would like to believe that it increases the value of the original work. What does reduce (at least in theory) their ability to ability to exploit their work is the requesting of people to provide copies of these works to read from. I see these requests every year around this time for the Mamo chants. They are restricted works which are shared at public events for the purposes of the accumulations of merit, but are not publicly available for personal use.
Conclusions
Probably both of those previous posts could be requested to be taken down under the Digital Millennium Copyright Act and rightly so, by law. But I am firmly of the opinion that morally they are contributing far more to the Nalanda Translation Committee than they are harming them, and would like to invite them to comment on this, and the other two posts. (Email sent)