Development of Creative Commons licenses

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

Dana Powers skrev:
> 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

I'm not arguing for a theory of mine, this is basic copyright law 101. 
Note that (reasonably) only those copies that carries a license 
statement are actually licensed.

> 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.  

If A licenses his work X (a text) and B modifies X, for example by 
changing the paper size and includes the license provided by A, 
producing the text Y, then C and D may of course freely copy Y (provided 
they follows the terms of the license). A (not B) owns the copyright to Y.

> 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).  

If you reproduce a work in such a way that an fictional "every person" 
would agree that your reproduction is the same expression of the same 
idea as the original then you have made a copy. And making copies is a 
an exclusive right of the copyright holder. An creative expression must 
express an idea. Adding information to a digital file to make up for 
data lost when, for example, an image has been scaled down is not the 
same thing as an original expression of an idea. The notion that a 
"upgraded" low-resolution copy that looks exactly like the original 
could be anything but a copy is, honestly, absurd.

> 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.

An derivative work is a transformation or adaptation of an original 
work. There must be a change in the expression that is perceivable to a 
objective viewer (or listener etc.). If that is not the case then the 
result must be a copy.

> 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.

That was not the point - the definition of the concept "copy" was the point.

/Peter Brink