Landing : Athabascau University

Uploading to Youtube: derivative work or public display?

Browsing the OER Commons for course content, I found some introductory videos, in Quicktime format, about the Harlem Renaissance, licensable for educational use.

Experimentally, I uploaded one here, to see if it would playback in the Landing. It wouldn't. A subsequent discussion about that has led me to consider Youtube as a technical workaround: if the Quicktime video won't play in the Landing, a Youtube version of it will.

But anything involving Youtube and third-party content involves legal as well as technical questions. The question here is whether uploading to Youtube a video used under Creative Commons-type  licensing (specifically, a Teachersdomain.org "Download and Share" license) is okay or not.

The license wording seems ambiguous on the question of Youtube uploading, and in need of interpretation. On one hand, the license expressly forbids "derivative works": you may not make "a translation, musical arrangement, dramatization, fictionalization, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted." Uploading this video to Youtube means transforming -- or, arguably, translating -- the work from Quicktime format to flash-video format. However, the vocabulary and context of the license language here seems to suggest not technical but creative transformation.

So on the other hand, provided the use is for educational purposes only, the license does allow you to "distribute, publicly display, publicly perform (digitally or otherwise) the Work (as long as it is properly acknowledged and attributed)." This language seems less ambiguous: it does permit public, digital display. That seems to speak to what Youtube is about.

I'm not a legal expert, so I'm inclined to err on the side of caution here. But given how new Creative Commons-type licensing is, and how clear and robust fair use is (the content is USA-made), I find it an interesting case to consider on the matter of educational-use repurposing.

Comments

  • Thanks for bringing forward questions from the maze that is copyright law and educational use (especially repurposing). I consulted my familial network (law student child) and assuming I understand your scenario correctly...

    Changing format does not constitute transforming (it is still a video) or translating. Does changing format involve making a copy? I thought it would but apparently there is case law to back the position that it does not mean copying.

    Uploading to YouTube might stray outside the "educational use" part of the licence, tho, depending on whether the account is accessible to the public (or only to students) or whether the video is up for a short period or for a long time.

    Like you, I'd rather err on the side of caution, and it seems there is still plenty to discuss and investigate.

    Jan Thiessen June 24, 2011 - 12:17pm

  • Thanks, Jan, for the case-supported suggestion that "format-shifting" doesn't constitute "derivative transformation." (That bodes well for a few different projects in the works, actually.)

    It also seems clearer that Youtube, as you say, tests the "educational use" parameter. For two reasons:

    1. Youtube uploading could be construed as commercial use, since it is a Google subsidiary (and Google is most assuredly commercial), and increasingly festooned with advertising.
    2. The Teachers Domain website hosting the content offers buttons for linking this content to over three hundred and forty social networks -- from which Youtube is conspicuously absent.

    For the time being I've decided simply to link to the hosting site's own player. It means my course page is less visually interesting, but legal security trumps design here.

    Mark A. McCutcheon June 24, 2011 - 1:29pm

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