Development of Creative Commons licenses

[Peter Brink <peter.brink AT brinkdata.se>]

Terry Hancock skrev:
> Henri Sivonen wrote:
> >  I have photos of famous places sitting on my hard drive. I think they
> >  might be more useful if they were available for anyone to use.
> >  Hence, I've been considering PD, CC-by and CC-by-sa. I am trying to
> >  understand what ShareAlike means when applied to photos.
>
> Crop, combine, collage, phototint, add animated characters, use
> as backdrop or rear projection in film, just about anything you can
> do with it in Gimp or Inkscape, etc, etc.
>
> All of those imply a derivative or combined work.

Ah - but this issue is not so simple in Finland... One needs to be aware 
of the differences between photographic works that are original (and 
thus copyright protected) and unoriginal photographic works under 
Scandinavian law.

A original photographic work is an "artistic" photograph where the 
photographer have had control over the setting, the lighting, the 
subject etc. of the photograph. A typical example would be a studio 
photograph.

A unoriginal photographic work, on the other hand, is a photo where the 
photographer has just pointed the lens toward a subject and pushed a 
button. A tourist photo would be a good example of such a photo.

The rules regarding unoriginal photographic works can be found in Art. 
49 a. of the Finnish Copyright Act. Art 49 a. excludes art 1 and 4 from 
the list of articles that applies to unoriginal photographs; therefore 
such photos are not protected against derivative works!

There is a Finnish case (cited in Per Jonas Nordell, Rätten till det 
visuella, p. 111) in which the Finnish supreme court ruled that a 
painting, that had quite faithfully copied the subject of a photographic 
picture, was not an copy of the photographic picture and therefore did 
not infringe upon the copyright in the photographic picture (HD 1979 II 
64). The painting was quite clearly an adaptation of the photographic 
picture, but that was not enough (under Finnish law).

The term "derivative work" has in fact a more "narrow" scope in Europe 
(IMO) than in the U.S. In the U.S. a derivative work can be anything 
from an edited or cropped version of a work to a translation of the 
work. In Europe a derivative work must be an original work of authorship 
in itself. While the required level of originality is lower than for 
independent works the originality requirement is definitely still there. 
Under European law edited works are copies - not derivatives, and thus 
fully under the domain of the copyright holder.

It should be noted that it is, IMO, fully possible to escape the scope 
of a photographic picture by altering it so that the original picture is 
not readily identifiable as the origin of the new picture. You could for 
example cut up a several pictures in small enough pieces and use those 
pieces to create a collage, without infringing upon anyone's copyright. 
Or you could cut out the skyline from one picture and use it in your own 
picture.

The distinction between original and unoriginal photographs does of 
course have an effect on the usage of the CC-license. An end user of an 
unoriginal photograph, who lives in Finland, Sweden, France or any other 
country which jurisdiction makes a difference between original and 
unoriginal photos,  doesn't need a CC-license if he wants to adapt such 
a photo – he does need the license if he wants to use the photo as is or 
in an edited form.

/Peter Brink