Development of Creative Commons licenses

[James Grimmelmann <james AT grimmelmann.net>]

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