In "The Laws of Texts: Copyright in the Academy." (College English 57 [1995]:774-775), Martha Woodmansee and Peter Jaszi tell an interesting cautionary tale about out attitudes to "transformative" and "non-transformative" compilation:

As teachers we have come to rely increasingly on photocopying. Many of us had even begun, with the aid of our campus Kinko's, to design our own individualized course anthologies--when a federal court ruled in Basic Books v. Kinko's (1991) that such anthologies could exceed fair use unless permission were obtained for each selection. The ensuing "logistical nightmare," in Karen LeFevre's phrase, hardly needs to be described here. It will suffice to quote the cartoon by Mivian Scott Hixon in the Chronicle of l0 June 1992 which depicts one teacher happily announcing to another, "This is the best reading list I've ever developed; there's nothing in it that's still under copyright!" (B7). Central to the decision against Kinko's was the finding that it had been engaged in strictly "non-transformative repackaging" of the unauthorized excerpts included in the anthologies it reproduced. Although in each case the materials had been chosen by instructors to suit their own courses, culled from diverse books, articles, and other publications, and assembled in packages totaling hundreds of pages, the court held that

In this case, there was absolutely no literary effort made by Kinko's to expand upon or contextualize the materials copied. The excerpts in suit were merely copied, bound into a new form, and sold.... The copying in suit had productive value only to the extent that it put an entire semester's resources in one bound volume for students. It required the judgment of the professors to compile it, though none of Kinko's. (1530-31)

Would the outcome have been different if the professors rather than the commercial copy shop had been sued? Would the exercise of their judgment have been enough to qualify as "transformative"? The value added to the individual materials in question by their being juxtaposed with one another between the covers of a single volume seems to have been lost on this court, which brought a Romantic notion of genuinely authorial activity to bear on the case.

In Romantic ideology the collective and collaborative element in composition--including the cutting and pasting--is denied. An author is not thought to create by selecting and arranging inherited ideas but to be the very source, or origin, of new ideas--or at least to "transform" received ideas in the loaded sense that the young Goethe had in mind when he described writing as "the reproduction of the world around me by means of the internal world which takes hold of, combines, creates anew, kneads everything and puts it down again in its own form, manner" (Letter to Sacobi 116). Viewed in this light, Kinko's course packets would indeed seem to exhibit "absolutely no literary effort." The tendency to privilege uses that are thus "transformative" was carried forward when the U.S. Court of Appeals for the Second Circuit declined in American Geophysical Union v. Texaco (1994) to treat the photocopying of scientific journal articles by a corporate research scientist as "fair use." The researcher had not incorporated material from the photocopies in his publications, and the court concluded that such copying was "archival" rather than genuinely transformative--it "merely transform[ed] the material object embodying the intangible article that is the copyrighted original work," rather than the "original work" itself. Ominously, the court reasoned that "the concept of a 'transformative' use would he extended beyond recognition if it was applied to [a scientist's] copying merely because he acted in the course of doing research."

References:

American Geophysical Union v. Texaco, Inc., Federal Reporter (Third Series) 37 (1994):881-908.

Basic Books Inc. v. Kinko's Graphics Corp. Federal Supplement 758 (1991):1522-47.

I [the editor speaking again] find it interesting that I feel honour-bound to include Woodmansee and Jaszi's references in this node rather than in my own reference. It is a courtesy to the reader who might want to look up Basic Books Inc. v Kinko's Graphics Corp. without having to look up Woodmansee and Jaszi's article first, a situation that would only arise in the research environment in which we academics so happily play. But it is also an interesting case of textual recursion that would not be as likely to happen in quite the same way in a print environment in which I would not have scanned and interpolated such a large hunk of Woodmansee and Janszi's material, especially with no more introduction than the fact that it is "an interesting cautionary tale."

So what value have I added by establishing this link to a medium-sized node of undigested material rather than the usual short, tightly-selected quotation? Have I crossed the line from writer to compiler? Should I worry?

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