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cc-licenses - Re: [cc-licenses] "commercial" use of Att/Share-alike materials

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Subject: Development of Creative Commons licenses

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  • From: Peter Brink <peter.brink AT brinkdata.se>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] "commercial" use of Att/Share-alike materials
  • Date: Sun, 23 Oct 2005 23:44:33 +0200

Wrye Modder skrev:
--- Peter Brink <peter.brink AT brinkdata.se> wrote:

A derivative work is a work that transforms the expressions found in another work. If a work reuses expressions from another work that are not in themselves works then the result is _not_ a derivative work.


You're using a standard of transformation as the measure of derivation, but I
see no basis for that in the CC licenses, nor do I know of one in copyright
law.

There is no independent CC definition of the concept "derivative work". CC bases it definition fairly closely on the definition found in the US Copyright Act.

The definition of the term "a derivative work" in the US Copyright Act (17 U.S.C.) 101 ยง, reads: "A ''derivative work'' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ''derivative work''."

Which is fairly similar to the definition used by CC: (1.b) "''Derivative Work'' means a work based upon the Work or upon the Work and other pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted,..."

As a comparison the definition used in the Berne Convention is: "3) Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work."

What you do when you create a derivative work is to transform a work into a new form. The "inner" form is retained, possibly expanded with new material, and reshaped into a different "outer" form. Such as a novel being transformed into a play which in turn gets translated into a screenplay and then transformed into a motion picture.

The last sentence of 1.b ("For the avoidance of doubt, where the Work is a musical composition or sound recording, the synchronization of the Work in timed-relation with a moving image ("synching") will be considered a Derivative Work for the purpose of this License.") is a clarification of that while one should not treat collective works in general as derivative works, the special case of a compilation of music and a motion picture is to be handled as _if it was_ a derivative work. NB! that does not mean that the compilation _is_ a derivative work.

Certainly transformation would be sufficient as a measure of derivation,
but it's not necessary.

It is necessary. If there is _no_ transformation then we have a mere copy. If the "inner form" is changed beyond recognition then we have a new, independent, work.

Were transformation the defining characteristic
separating collections from derivations, then that could easily have been
stated in the CC license. It is not. Moreover the inclusion of music synced to
a movie in the definition of Derivation -- not as an "exemption" or "special
case", but merely as a "clarification" -- clearly indicates that it is not
necessary for a work to be transformed in order to count as derivative.
(Syncing doesn't transform the music, it merely places the move within the
movie, the same way an image tag places an image within a web page.)


Sorry, but it is a special case. See above.

But if there was just the single article and
the images were selected and matched to the text to illustrate and strengthen
the points of the text, then the text would no longer be independent of the
pictures. I.e., the work of text + photos would be a derivative work of the
original photo.

Nope - that would be a compilation...

If we return to the US copyright act we learn that: "[a] ''collective work'' is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole."

And also that "[a] ''compilation'' is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term ''compilation'' includes collective works."

In these cases the collected or complied works have not been altered, they have just been added together and have become parts of a new work. The collector/compiler can claim a copyright in the selection he has done but he has no claim in the copyrights of the "parts", that copyright is retained by the creators.

/Peter Brink






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