[cc-community] Not sure does cc apply to a copy or 'original' work

Peter Brink peter.brink at brinkdata.se
Mon Jun 2 08:32:19 EDT 2008


shell_layer-creativecommons at yahoo.com.au skrev:
> I know I've already put in my two cents, but here's some more:
> 
> CC licences follow copyright. Copyright restricts you from making a
> copy of something. Copyright doesn't attach to ideas; if I tell you
> about my idea, copyright doesn't affect whether you can write it
> down. Copyright only applies to an expression of an idea - something
> written, recorded, etc.
> 
> So, it is that expression of your idea - the photo, the CD, the
> printed book - that you CC-license. The only reason that copyright
> seems to attach to the idea is because it attaches to all expressions
> of that idea, and all derivatives from those expressions, because
> copyright applies automatically.
> 
> CC licences don't apply automatically; they only apply to copies
> (expressions of your idea) when you apply them. Any copies that do
> not have a licence applied are not licensed.

Again the problem is that the license explicitly states that the 
licensor offers the licensee the right to make use of the work under the 
terms of the license and the only reasonable interpretation of that is 
that all copies of the work are offered under the same license.

The term "work" actually means the intangible expression of an idea as 
it exists in the mind of the author. This is the works "inner form". 
When the inner form is combined with an "outer form" (such as an digital 
image) a copy of the work is created. The "original" of a painting is 
therefore, as far as the law goes, just a copy of the work. Example: the 
work X can be cast in the form of an high-resolution full colour image A 
and in the form of a low-resolution black and white image B. Both A and 
B are copies of X. If  Y comes along and manipulates B so that the end 
result (C) looks like A then C is also a copy of X. That Y has made 
choices and applied some creativity in the process is of no concern.

The licensor has chosen a license that defines "work" exactly as the 
term Work is defined by the law. The licensee should therefore have the 
right to make the reasonable assumption that all copies of the work are 
offered under the license.

However the license is also non-exclusive. The licensor has reserved the 
right to enter other agreements on other terms with one or more other 
parties (all of which must also be non-exclusive). The copyright holder 
(A) could therefore enter an agreement with B which gives B the right to 
use a high quality version of A's work under other terms than the 
CC-license. B would then be bound by those terms and if the terms of 
that contract forbids B from sub-licensing or distributing copies etc., 
then B may not do so, if he does he is in breach of the contract with A.

Case:
1995 the author A enters a contract with the publisher B and B later 
publishes her book X. The contract only gives B the exclusive right to 
publish printed copies of X, and B has not the right to sub-license X. B 
does have the right to take legal actions against any infringements in 
their publishing rights.

Ten years later, A licenses X under a CC-BY-NC-SA license, and 
distributes X as a pdf-file. B cannot make use of the license since they 
are bound by another contract with A. The owners of the printed copies 
have not received a license offer and B cannot make such an offer. A is 
bound by a contract with B that prevents A from offering a license on 
printed copies of X.

Now, Y comes along and copies a large quantity of the printed version of 
X. Could B could sue Y for copyright infringement?

My solution:
Y would most likely try to defend himself by referring to the CC 
license. However, A has reserved the right to issue other licenses, and 
also implicitly informed her licensees that there might already exists 
one or more such licenses. A cannot issue a license on printed copies 
and one has to assume that by issuing the license on a electronic form 
of the work she has taken reasonable steps to avoid violating her 
agreement with B.

Since Y knows that the license is non-exclusive he cannot be in 
good-faith about his rights to use a copy of the work that lacks a 
license statement, and even more so when such copies pre-date copies 
that carry a license statement. Y has therefore infringed on B:s copyright.

Comment:
It's up to the licensee to make sure that copies of a work that does not 
carry a license statement are not governed by another contractual 
agreement. A licensee would therefore be wise not use any copy of a work 
that has been licensed under a CC license that does not include a 
license statement.

/Peter Brink


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