Development of Creative Commons licenses

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

This part of the thread "What does NC means?" has become quite OT for 
the community list, it's somewhat more on topic for the license list, 
which is why I moved it here. I've edited the post a bit and only 
bothered to include parts that might be of some general interest.

drew Roberts skrev:
> On Monday 17 September 2007 11:39 am, Peter Brink wrote:
[large snip]>
> > An adaptation, on the other hand, is an example of an 
> > _dependent_ copyright. Do note that in Europe, as opposed to the US, the
> > creator of an adaptation is the sole copyright holder of the rights to
> > the adaptation. He do need permission from the copyright holder of the
> > work that has been adapted when he wants to publish his adaptation.
>
> So the European BY-SA licenses grant this permission on the condition that the 
> new work is BY-SA?

Yes, but (sadly) in many cases it's not mentioned that one does not need 
any permission to create an adaptation only to publish it.

> How do they get an independant work to be BY-SA? Refuse permission to even 
> copy unless the related work is BY-SA? Or does the license just choose not to 
> address this?

Independent works are not included in the scope of the license (as they 
are the property of their creator and no one else).

> > An arrangement can be said to express the same ideas that are expressed
> > in the score but with different means. 
>
> Would different notation be enough to be different means?

Sorry - bad choice of words on my behalf.

What I meant was that a music score expresses an idea with one set of 
tools (notation generally), while an arrangement uses other tools. An 
arrangement is more of an expression of _how_ to express something than 
an direct expression _of_ something.

A different notation (I take it that you mean that you would use a 
different notation system to express the same sounds) would not do. Such 
a would in most cases just be a copy.

To put it differently. Assume that A is translating a scene from a novel 
written in Japanese by X to English. The scene is set in the living room 
of a small flat in a large Japanese city. The characters are a small 
girl and her beloved puppy. The girl's name is "Miko" and the puppy is 
called "Li". Anyone is obviously free to express these ideas. Such 
expressions are free and independent works. But if A is including every 
single detail found in the Japanese text and faithfully translates the 
descriptions in Japanese to English, trying the express the very same 
ideas using the very same methods but expressed in English instead of 
Japanese, then A's text would be an adaptation of X's text. X cannot 
deny A the right to do the translation but A needs X's permission in 
order to publish the text.

If the two texts would be read out loud only those who understands both 
English and Japanese would realise that texts where the same. To someone 
who neither understands English nor Japanese there would be no way of 
knowing that the two texts where the same, in fact to such persons the 
texts would appear to be two different works because the sounds the 
texts produce when being read out loud would be completely different.

Now let us return to the case with two different notations expressing 
the same music score. If one would let two musicians play the piece of 
music, one using the original set of notes and the other using the 
"translated" set, everyone would hear that it's the same piece of music 
that is being played. Because of this an transformation of a score of 
music from one notation to another is not an adaptation it's a copy.

An adaptation "contains" another work (it incorporates recognisable
elements of the original work) but is also clearly a work in it's own 
right. When there is no difference at all between two works, one of them 
has to be presumed to be a copy of the other.

[snip]

> > > > The performing artist gets a independent performance neighbouring right
> > > > (which is not a work) if the set of works are publicly performed.
> > > Performed? zEven if it is not fixed? And in the US, doesn't this work get
> > > a (P) when fixed?
> > Fixation is not an requirement under the Berne convention...
>
> So, in Europe, every water cooler conversation that is original is 
> copyrighted?

The concept of "originality" is another of these concepts we use in 
copyright law that differs across the globe. For something to be 
copyright protected that something must be an expression that is the 
result of a human beings individual personal creation. The question then 
is - when is something an individual personal creation? Obviously the 
style used; the time or money invested; or the data, ideas or thought 
used when creating the expression falls outside the copyright. They are 
either not an expression or are not created. To answer the question of 
when an expression is considered an individual personal creation you 
have to turn to the lawmakers comments and to case law. The lawmaker has 
stated that an expression must reach a certain (unspecified) level of 
originality - or to put it differently: it must not be trivial.
Here in Sweden our Supreme court has created an help-rule, it goes like 
this: an expression is not copyrightable if the probability of someone 
independently double-creating the expression is not improbable. That is 
- if the probability of independent double-creation is large then the 
expression is not original enough. Similar methods are used (I'm sure) 
in other parts of Europe.

So - no not every water cooler conversation is copyrighted in Europe, 
because such conversations are not original.

[snip]

> > > > There is no requirement of
> > > > originality. This is thus _not_ a copyright (since a copyrightable work
> > > > needs to be original). The duration of the right is 50 years counting
> > > > from the publication date. The producer needs to secure a permission to
> > > > make the recording from the copyright holder of the work being recorded.
>
> How do they figure there is no originality in making a recording?

A recording only record something. It's like an non-artistic photograph. 
The camera just records something without any creative input from the 
human being who presses the trigger.


/Peter Brink