[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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