Subject: Re: The Copyright Act preempts the GPL
From: John Cowan <cowan@ccil.org>
Date: Sat, 7 Feb 2004 00:47:27 -0500

Peter Fairbrother scripsit:

> No, a derivative work. Eg, the first author writes a book, the second
> author makes a film of the book. The film is a derivative work. The
> film director needs two seperate permissions from the book author:
> one permission to make a derivative work, and another permission to
> show the first author's work (along with his own work) as part of the
> whole derivative work when the film is shown*.

"Show it"?  The only way to show a book is to hold up the pages one at a
time.

> For instance, it is common practice to limit the licence to distribute
> to one geographical area, or one distribution channel - satellite,
> terrestrial, cable, etc.. It is also common to limit the right to make
> derivative works to one medium - TV, Film, HDTV, etc.

Sure, I said licenses were often conditional.  But if you want a license
to distribute, you go to the copyright holder of the film, not the
copyright holder of the book.  If you want to make derivative works
based on a book, you go to the copyright owner of the book.

> **or perhaps a compiled work, but it makes no difference, derivative and
> compiled works are treated exactly the same in US law. A collective work is
> slightly different, when people agree together to make a work, but none of
> the works under discussion is a collective work.

I think you are mixing the terms: when people agree together to make a
work, that is a joint work, and each author has the undivided copyright,
so all must agree.   A compilation work contains individual works by
other copyright owners embedded in it unchanged, and the only copyright
on it is the minimal one covering order and selection.  A tarball that
contains works by various authors is a compilation work; a compiled
program made from that tarball is a derivative work of the individual
files of the tarball, but probably not of the tarball itself, because
ordering has been lost.

> say author here instead of copyright owner, it makes things simpler

Okay, though of course the copyright owner may wind up being someone
different from the author.

> What (a) really says is that if you make a derivative work without
> permission from the copyright holder of the original work then you don't
> even have copyright in your own work.

Correct.  But if you do have permission (your work is a lawful derivative),
then you are the author of the derived work with all the author's rights.

> You might think that [section 103] (a) says there can be copyright in
> a compiled or derived work as a whole, but it doesn't.

That is just what it says.

> (b) make the overall situation perfectly clear - any copyright in the
> derived work does not extend beyond the contribution of the author of the
> derived work. Any preexisting material is unaffected by the new copyright.
> The only thing the second author has copyright in is his own work.

No.  He has no exclusive rights over the material taken from the origina
work, since of course the original work's author has that.  But over the
derived work he has full rights.

> If the second author has to make copies of the original work in order to
> make copies of the whole derived work (which would usually be the case),

Not at all.  It *is* true of a compilation work, but you don't have to make
copies of a book in order to make copies of a movie based on it.

> IANAL TINLA

Likewise.  "Infinite are the arguments of mages."

-- 
"I could dance with you till the cows           John Cowan
come home.  On second thought, I'd              http://www.ccil.org/~cowan
rather dance with the cows when you             http://www.reutershealth.com
came home."  --Rufus T. Firefly                 jcowan@reutershealth.com
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