Development of Creative Commons licenses

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

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