Development of Creative Commons licenses

["Dana Powers" <dpk AT stanford.edu>]

The proposed argument:

1) simple transformations (like taping a radio broadcast) infringe the reproduction right, not the derivative work right
2) therefore creation of a simple transformation is a "reproduction" not a "derivative"
3) and also therefore licensing a work for reproduction necessarily implies licensing all simple transformations

this is a straw man.  i don't think anyone disputes that licensing a work under CC-ND still allows a user to do simple transformations - compression, for example.  this should be uncontroversial.

the question is whether a user with a license to reproduce a work may freely copy anyone else's simple transformations without obtaining extra permission.  the fallacy in the above argument is the assertion that a "reproduction" will not contain additional creative _expression_.  This is simply not true (in the 
U.S. at least).  Take movie soundtracks, for example.  In order to put music in a movie, the producer has to get a sync license, which is a license to reproduce the work in synchronization with the movie.  Although this constitutes a reproduction it doesn't imply that the movie as a whole is not also independently copyrightable.

The distinction an infringement of the reproduction right and an infringement of the derivative work right is simply not the issue here.  What we are interested in, rather, is whether a higher resolution work has additional creative _expression_ which is protectable under copyright law.  Because it is so easy to reach this threshold  in the 
U.S., I believe it does.

I should also mention that White-Smith was a case about whether piano rolls were protected by copyright as reproductions of a musical work.  The court ruled that they were unprotected because they were not plainly perceivable by a human as the original work.  But this human perception test has been overturned by statute.  See Apple Computer v. Franklin Computer, 714 
F.2d 1240 at 1248 (3d.Cir. 1983); 17 USC 102.  Moreover, the White-Smith decision occurred well before the current derivative work right was enacted in 1976.

Dana

On 1/26/07, drew Roberts <zotz AT 100jamz.com> wrote:

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
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