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cc-licenses - Re: [cc-licenses] Text and Derivative Works

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Subject: Development of Creative Commons licenses

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  • From: James Grimmelmann <james AT grimmelmann.net>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] Text and Derivative Works
  • Date: Mon, 12 Feb 2007 16:45:20 -0500

S. Massy wrote:
Hello,

While the concept of "derivative work" seems pretty clear to me when
applied to media such as audio, video, imaging, or source code, I find
it difficult to comprehend it when attempting to apply it to the idea
of written work (text), which is my main medium. Could any body
attempt to clarify the meaning of "derivative work" in such a context?
For instance, does the license cover the only text itself (the
encoding, so to speak), or does it cover the ideas it represents as
well (e.g if someone wrote a story based on a story of mine licensed
under by-sa, would he be bound by the terms of the license?) Would
some minor modification of the language, such as mere changes in
punctuation and wording, suffice for one to claim the resulting
version as "derivative work"? I like and believe in the idea of free
culture and the work the CC licenses are doing, and I would very much
like to be able to support it as much as I can, but I have thus far
felt obliged to limit myself to a by-nc-nd license when licensing
text, as I am none to sure what allowing derivation would entail.

Any light you might throw on the matter will be greatly appreciated,
S.M.

Under U.S. copyright law, a "derivative work" is any work sufficiently similar to the original that it would constitute an infringing copy (that is, would ordinarily require the permission of the original author) but which also contains sufficient new originality to make the changes copyrightable.

Something based only on the ideas in the original would not be a derivative work, since it wouldn't copy the copyrightable aspects of the original (ideas are not copyrightable; only their particular expression). It would also would not require the CC license at all; one can always take the ideas without permission.

Something with changes in punctuation in wording might be a derivative work. Something which had been reformatted from 80 columns to 70 probably wouldn't be one. Both are, on their face, infringing, and would require the author's permission. The difference is that changes in wording might be original, but that a change in column layout almost certainly isn't.

The canonical example of a derivative work is a translation into a new language; that involves both almost all of the protected expression in the original, along with a significant amount of new creativity.

James




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