Development of Creative Commons licenses

[drew Roberts <zotz AT 100jamz.com>]

On Friday 26 January 2007 01:56 pm, Peter Brink wrote:
> 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
>

So, taking this all into consideration, does this mean you disagree with Mia? 
Or do you agree with her and I am too dim or too ignorant at this point to 
see it?

all the best,

drew
-- 
(da idea man)
National Novel Writing Month
Sayings (Winner 2006)
http://www.ourmedia.org/node/262954