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

drew Roberts zotz at 100jamz.com
Mon Jun 2 09:12:17 EDT 2008


On Monday 02 June 2008 08:32:19 Peter Brink wrote:
> 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.

This does not follow. Sure B can use the new license. Nothing stops me from 
selling you one license now and one more to your liking later on.

However, I think the real problem here is that A is not legally allowed to put 
a cc license on X without violating the exclusive license deal made with B.

A can craft up a custom license similar to a cc license which specifically 
excludes printed copies or negotiate with B to agree to the application of 
the cc license but cannot just apply a cc license to the work.

> 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, I think this is an incorrect solution. I think it comes down to people 
still trying to make the non-exclusive license mean more than it does. (Or at 
least more than it needs to.) And also perhaps less than it does in another 
way.

To me, non-exclusive means that I can put the work under other licenses and 
with other people or sub-sets of people. It also means I cannot offer an 
exclusive license to anyone which would interfere with the non-exclusive 
license I give. (And, if I have already given such an exclusive license, I 
cannot then put a non-exclusive cc license on the work.)

For instance, I could put a cc BY-SA on one of my works. Then, I could sell 
you a license allowing you to use any or multiple cc NC license(s) on 
derivatives you make from my work.

I can then sell someone else the right to make a screenplay based on the work 
and keep the screenplay and the movie ARR but I could not give them the 
license in such a way that they had an exclusive to make such screenplays and 
movies.

I don't think that non-exclusive can mean that the person getting the cc 
license has to worry if the person giving out the cc license has made some 
other licenses that silently affect the import of the cc license. Or that 
they may do so at some point in the future. That way lies madness.

I think if we want the license to apply to the licensed copy of the work and 
all copies and derivatives stemming from that licensed copy and not have the 
license apply to the work itself, or other instances of the work, we should 
just say so in a clear manner (or if we are saying that now, in a clearer 
manner) and be done with the complications.

>
> /Peter Brink

all the best,

drew


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