Development of Creative Commons licenses

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

On Friday 26 January 2007 04:30 pm, Dana Powers wrote:
> 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.

If it does work this way, should it then be registered as a separate work?

>
> 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.2d1240 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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-- 
(da idea man)
National Novel Writing Month
Sayings (Winner 2006)
http://www.ourmedia.org/node/262954