[cc-community] The Question of Manufacturing Copyleft
Terry Hancock
hancock at anansispaceworks.com
Wed Oct 31 09:30:40 EST 2007
[NB: United States law is assumed in this post. Things no doubt get even
stickier when applied across jurisdictions!]
Andrew Rens wrote:
> You typed " So, for example, it is not generally the case (or so I believe)
> that
>>building circuit boards based on a copyrighted design constitutes
>>"copying" the design (or "deriving" from it, either).
>>
>>I believe that for the purposes of copyright, such practices are simply
>>"use", which is generally unregulated."
> Why do you think this?
Well, there are several reasons.
One is that PCBs are considered "manufactured products" not "copies of
designs".
In general, there are designs used in the manufacturing of objects. But
the objects are not considered "copyrightable". This is why there exist
things like "patents" and "design patents".
The more damning evidence is that the US decided it needed a *separate*
law to protect intellectual property in "semiconductor masks".
To me, that is *highly* suggestive that the copyright law didn't apply
to such masks. PCBs are more similar to such masks than to a printed
page, IMHO. So I suspect they also would not be covered by copyright
law. Of course, they are *not* "semiconductor masks" either, so a
special law to cover masks won't apply to them either.
OTOH, I do see copyright notices on the human-readable screen-print
which is printed onto PCBs. But that just appears to cover the screen
print, not the etching.
In any case, even if PCBs did fall into the realm of copyright, there
are other examples, such as mechanical assemblies that probably do not
(they are NOT made by a printing process, although with CNC machines and
robotics, it MIGHT be possible to fully automate their manufacture --
suggesting that no creative effort is required to replicate them).
> Where a design is an 'artistic' work, and the nature of the artistic work is
> such
> that creating an object from it amounts to building a 3d model, then to do
> so
> is to create a derivative work.
Can you support this? (Examples, cases, industry-practice, whatever)
So, for example, if I have sculpted a statue, and I make resin casts
from it, then someone else makes a knock-off version and casts that (by
say, creating a master from one of the copies) -- have I got a copyright
infringement case against them, or do I have to use some other legal
basis, like trademarks or design patents?
In fact, I rather thought this is what defined the need for design
patents? (If not, can somebody tell me why they do exist?)
Mind you, *I* don't know -- that's why I'm asking! IMHO, it would be
terrific if what you say is true, I just haven't seen the evidence to
support it (and I don't know where to find it).
> The classic example is a mould made from
> an item (like a boat hull) which is considered to be a derivative work from
> the 2D plans, even if the putative copier has never had the plans in his
> possession.
Now, the problem here, is that IIRC, "boat hulls" are, once again,
covered by a SPECIAL "related right", and not necessarily by copyright.
IOW, I don't think we can go from boat hulls to a general principle,
because they are written into the legislation as "boat hulls" (IIRC,
this is literally true -- there's an "and boat hulls" in there somewhere
to specially extend copyright to them -- I know the DMCA has some
legislation on it as well. Maybe airfoils and airplane fuselages are
also included -- but that still wouldn't be very general).
> The question then is whether the design is the equivalent of a 2D version
> of the circuit board or merely a symbolic representation of how to build the
> circuit board
> since IMO the former will extend the copyleft licence to working models,
> while
> the latter will not.
What's scary about this is that the source code of a program is clearly
(at least to me) "a symbolic representation of how to build" a program
and not "version of the" program. Compilers are pretty smart tools --
they certainly do not represent a simple mapping. OTOH, they don't
require human intervention (not if the program is correct).
So, IMHO, the distinction between "instructions on how to do something"
and "a master from which copies can be made" OUGHT to be a simple matter
of creative input --- if a machine can be built to totally automate the
process[1] of replicating "objects" from the "design" then the process
of replication should be considered either "copying" or "derivation".
Not "use".
To support this theory, I would cite the ruling on photographic
reproductions of paintings:
http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm
The argument here is that a flat-on photograph of a flat work contains
no artistic "originality" (regardless of how much work might have been
involved in creating the copy).
This suggests to me that mere replication does not contain enough
originality to be protected under copyright, and that the copyright
governing the original work should apply.
However, there are probably significant holes in this theory.
For example, it is one thing to prove that a replications *does not add*
copyrightable content to a work, but it's something else to claim that
it *is a copy* and therefore falls under copyright monopoly protection
for the original work.
Also, a design is not the original work being replicated, but is a
master based upon it. In terms of 3D works, you can think of it as a
mold. You do not copy a mold when you making castings from it -- you
copy the original work. But in some cases, there is no original work --
you made the mold from scratch so all castings are from the mold. In
that case, the "original" exists only in the mold creator's mind.
A digital CAD/CAM design for a product is similar to this, in that the
"original" may only exist as a computer model to be fabricated into a
real object by the CAD/CAM process.
To my mind, this is still a "copy" -- just like a book is a "copy" of
the lithographic plates it is printed with, even though it is certainly
true that the book is not a litho plate. The point is that the *creative
content* of the litho plate is copied into the book.
Likewise, the creative content of a CAD/CAM design is copied into matter
when the design is manufactured.
OTOH, there are cases when a "design" is not as complete as CAD/CAM, and
there is creative energy needed to convert the design into a "master"
for replication purposes.
For example, if instead of a semiconductor mask you have only a
specification for what the semiconductor does, then there is a creative
endeavor involved in converting that specification into a mask that can
be used. So such an act is not mere "copying".
Which raises the question of whether it is a "derivation" or merely
"fair use" of the original specification.
However, while this makes sense to *me*, it is not at all clear to me
that this interpretation is supported by law. In fact, I'm inclined to
think that US law makes some kind of rather arbitrary distinction
between "copies of information products" and "made material objects" --
a distinction which must have seemed a lot clearer in the 1790s than it
does today!
> On the patenting agle you may also want to look at whether your jurisdiction
> allows
> use/utility patents (often easier to get, cheaper) and you could open
> licence that patent.
My nervousness about copyright law is as nothing compared to my abject
terror of patent law. :-)
Cheers,
Terry
[1] Yes, clearly there is a side issue with respect to "intelligent
machines". By choosing this test, I'm suggesting a "human chauvinist"
definition of "creativity" -- as "the difference in capability between a
human being and a machine". Scary idea in itself, but hopefully off-topic!
--
Terry Hancock (hancock at AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com
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