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 to the Landing (AU’s social network), to see if it would play in that network’s default media player (Flowplayer). It wouldn’t. A subsequent Landing discussion about the tech trouble 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.

Cross-blogged from the AU Landing

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