[cc-licenses] cc-licenses Digest, Vol 41, Issue 19

Peter Brink peter.brink at brinkdata.se
Tue Aug 15 10:28:35 EDT 2006


rob at robmyers.org skrev:
> Quoting Jessica Coates <j2.coates at qut.edu.au>:
> 
>> - re the 'adaptation' debate - this term definitely has a clear legal
>> definition in Australia, which probably wouldn't include all the uses
>> intended to be covered by the CC licences. I'd say there's a real risk that
>> using this word would import a whole lot of legal baggage into the
>> interpretation in many countries - I don't think we could use it in our
>> jurisdiction licence. That being said, it might be difficult to come up with
>> a clear, simple term that doesn't have the same effect somewhere.
> 
> Rather than refer to "derivatives" or "adaptations", the GPL 3 draft uses the
> following generic definitions:
> 
> ``A "modified" work includes, without limitation, versions in which 
> material has
> been translated or added. A work "based on" another work means any modified
> version, formation of which requires permission under applicable copyright
> law.''
> 
> http://gplv3.fsf.org/gpl-draft-2006-07-27.html
> 

Unfortunately (in Europe at least) this definition extends the rights of 
the copyright holder at the expense of the licensee. One side effect 
being that unknowledgeable licensees could be fooled to think that they 
need to use the license when they really don't.

Here's why:
a) adding the new content B to A creating the work C is under European 
copyright law the same as creating a collective work. All additions to a 
work are (as long as the addition is an independent work - which in most 
cases is true) are the property of the author to the addition and thus 
not dependent on any other copyright. A preface (common in e.g. 
scientific literature) is thus under European copyright law an 
independent work, for which the author of the preface is the copyright 
holder.

b) You _do not_ need any permission to create a derivative work in 
Europe. You do need permission to publish such works.

So while you'll need at permission to _publish_ a collective work or an 
adaptation, the copyright holder to the original work does not gain any 
rights to the collective work or the adaptation.

To my mind, it is important not deceive the users of the license about 
the scope of their rights. It is better, IMHO, to explicitly list uses 
that would have been fully under the control of the copyright holder, 
but who is treaded by the license as if they were adaptations (and thus 
enabling the user to sublicense). For example, state in the license that 
all sampling is - as far as the license goes - treated as if they were 
adaptations etc.

There is one problem that cannot be solved though, the license will 
never be able to give licensees who are not creators of "real" 
adaptations any moral rights. That power is held by the law maker alone.

/Peter Brink



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