[cc-community] The Question of Manufacturing Copyleft
rob at robmyers.org
rob at robmyers.org
Wed Oct 31 11:53:00 EDT 2007
Quoting Terry Hancock <hancock at anansispaceworks.com>:
> 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.
It could also be a misunderstanding of the law, a bogus claim, or just
>> Where a design is an 'artistic' work, and the nature of the artistic work is
>> that creating an object from it amounts to building a 3d model, then to do
>> is to create a derivative work.
> Can you support this? (Examples, cases, industry-practice, whatever)
A "3d model" of an "artistic work" is a sculpture, which will be
covered by copyright.
See discussions of Rogers vs. Koons for how a sculptural copyright
relates to an image copyright and how originality features in this
(ignore the failure of the Fair Use defence though ;-) ). But do note
that a sculpture is not a functional artefact so this does not compare
to e.g. making a machine part from a design.
> 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?
You have a very strong copyright claim.
Sculptures are copyrighted artistic works (works of original
expression of an idea). Copying one is a classic example of breaking a
>> 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
> Now, the problem here, is that IIRC, "boat hulls" are, once again,
> covered by a SPECIAL "related right", and not necessarily by copyright.
Yes there is a hull right in the US. It is my second favourite "right"
after the seed right. ;-)
>> 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,
>> 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 of replicating "objects" from the "design" then the process
> of replication should be considered either "copying" or "derivation".
> Not "use".
Software copyright is an interesting example.
A film of a novel is a derivative work, as is a translation of it into
a foreign language, so the text of a program being translated into
another "text" by a compiler clearly makes a derivative work.
But a binary executable is a configuration for a universal machine,
and so is a functional artefact. The copyright should therefore in
theory evaporate as it does with an IC, but it doesn't.
This may just be an irregularity in the law, or it may be that the
status of the program as text is overrides its status as machinery. I
am probably naturalising the results of heavy lobbying by the software
industry here. ;-)
> 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.
The CAD file will look like this:
32, 54, 65, 12, 17, 19 c
34, 2, 6 L
The 3D object manufactured as a result will not look like this. So it
would be an adaptation, not a copy. But an adaptation must be another
copyrightable work, which the physical object made from the CAD/CAM
file may not be:
CAD/CAM of sculpture -> sculpture, copyright.
CAD/CAM of machine part -> functional artefact, no copyright.
Compare this to the photograph example: if I photograph one kind of
thing I get copyright, but if I photograph another I do not. Yet the
same medium is used in each case.
> Likewise, the creative content of a CAD/CAM design is copied into matter
> when the design is manufactured.
For the manufactured object to have a copyright it must be a member of
a class of objects that can legally have a copyright, though.
> 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.
By the time you have the chip there is no derivative work *from a
copyright law point of view*, just a functional object. If the
specification is a mathematical or functional description then models
of it may not break the copyright on the spec (you can't copyright an
idea, just an expression of that idea).
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