[cc-licenses] multiple licenses of same image
Peter Brink
peter.brink at brinkdata.se
Fri Jan 26 13:56:31 EST 2007
Sorry for the late reply...
Terry Hancock skrev:
> Peter Brink wrote:
>
>> A "work" must be the result of a creative act - the same
>> goes for derivative works. A mechanical transformation is in itself
>> not a creative act, the result of such a transformation is a copy and
>> not a derivative work. If I scan a picture and make two versions
>> available, one in low resolution and one in high resolution, those
>> two images are _copies_ of the _same work_.
>
> Perhaps so. This seems like a plausible, but debatable legal theory.
> Can we clarify what jurisdiction(s) you feel this applies to? Your
> email address suggests Sweden (at least that's what I think "se" is,
> please correct me if I'm wrong).
What we are talking about here is really what it takes for a thing to be
a copy of a work. Common to (almost) all jurisdictions is that a copy is
a reproduction, in any form, of the work (see also art. 9.1 of the Berne
Convention). Then what is a reproduction? In the U.S. case White-Smith
Music Pub. Co. v. Apollo Co. (209 U.S. 1 (1908)) the concept of a copy
was defined as follows: “[a] copy is that which comes so near to the
original as to give to every person seeing it the idea created by the
original”. Substitute “seeing” with “perceiving” and you get a statement
with global relevance.
It’s pretty obvious (to me at least) that if a radio station plays a
piece of music, using a high quality copy, and a listener tapes that
piece, then the listener has created a copy of the music played by the
radio station. That the tape copy is of lower quality, i.e. that
information was lost when the music was transmitted using radio waves,
is really of no consequence. The file used by the radio station and the
file on tape may not identical and to a computer they may appear to be
different objects but to a person they are still copies of the same work
– and that’s what matters. Every person hearing the copy played by the
radio station and then hearing the copy on tape would say that they have
heard the same piece of music.
Just modifying a work a bit is not enough to turn it into a derivative
work. If you have a low-resolution digital copy of a painting, and add
information so that the result is a medium-resolution image, that every
person seeing it would say is the same picture as the painting, then you
still have a copy. It doesn’t matter that you have used skill or made
choices to produce the medium-resolution image – if it appears to be the
same picture as the painting to an objective viewer, then it’s a copy.
Then, when does a thing quits being a copy and becomes an adaptation (or
a derivative work)? It must be pointed out that it’s very difficult to
provide hard and fast rules for when a work is a copy and when it has
been transformed so much that it’s a derivative. This is something that
courts decide on a case by case basis. As a general rule there must be a
difference between the original and the adaptation and this difference
must be perceivable by an objective person. In civil law jurisdictions
an adaptation must be the result of a creative act, it obviously needs
not be as original as the original work, but there must be some
creativity involved in the formation of the work. In the U.S. a
derivative work must (in theory) be substantially different from the
underlying work. The Feist decision would seem to imply that derivative
works need to be the result of a minimum of creativity in the US too,
but that might be a false assumption on my part.
In any case, in all jurisdictions the amount of difference needed
depends on a) what kind (or type) of work we are talking about and also
b) on how (relatively speaking) original the work is. A highly original
work has in general a wider scope of protection as compared to a work of
low originality. It takes more to create a derivative based on a piece
of “art music” then it takes to create a derivative based on, or even an
original work inspired by, a piece of pop music.
The scope of protection afforded to a work must however end somewhere.
At some point a derivative must cease to be a derivative and become a
new original work, otherwise the formation of new works would be
seriously hampered. This problem is solved differently in different
jurisdictions. There is a US case where an artist based a set of
sculptures on a photo. The court found that the sculptures where
derivatives of the photo. A Swedish court would, I think it’s safe to
say, find it obvious that when someone transforms a work from two to
three dimensions the result is a new independent work. The opposite is
not true however; a photo of a sculpture is a copy not a derivative
under Swedish law.
A personal observation is that US courts seems to take the commercial
value of a work into consideration when assessing its scope of
protection. That is not done in civil law jurisdictions, as far as I
understand. Swedish courts, for example, does not take the monetary
value of a work or the time and money invested in making it in
consideration when deciding whether a thing is eligible of copyright
protection or not. Nor do they use investments as a factor when
assessing the scope of a works protection.
/Peter Brink
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