Re: [Koha-devel] copyright holder

[Thomas Dukleth]

1.  FORM OF COPYRIGHT NOTICE AND POTENTIAL RELICENSING RISKS.

The form of copyright notices may reflect a supposition about the nature
of the type of authorship a work has and what rights individual copyright
holders have in the work as a whole.  The consequences vary by legal
system and can be counterintuitive as well as posing risks to ensuring the
work as a whole might be relicensed under a "non-copyleft" license.

Significantly more familiarity with copyright law is needed to understand
these issues than is otherwise required to understand the GPL.  I presume
that we all have a reasonable common understanding of enough copyright law
to understand the GPL and correctly apply its terms.

If you believe that you know everything of importance for how copyright
law relates to software projects, then skip to section 5.

2.  AUTHORSHIP CATEGORIES.

2.1.  GENERAL AUTHORSHIP CATEGORIES.

2.1.1.  ORIGINAL WORKS.

2.1.1.1.  ORIGINAL WORKS IN VARIOUS JURISDICTIONS.

Computer programs are generally considered a subcategory of literary
works, although, they are sometimes treated separately, especially under
French law.

2.1.1.1.1.  BRITISH LAW.

"Copyright is a property right which subsists in accordance with this Part
in the following descriptions of work—"

"(a) original literary, dramatic, musical or artistic works,"

...

Copyright Designs and Patents Act 1988 s 1.

2.1.1.1.2.  NEW ZEALAND LAW.

"Copyright is a property right that exists, in accordance with this Act,
in original works ..."  Copyright Act 1994 s 14.

2.1.1.1.3.  UNITED STATES LAW.

"Copyright protection subsists, in accordance with this title, in original
works of authorship fixed in any tangible medium of expression ..."  17
U.S.C. § 102.

2.1.1.1.4.  FRENCH LAW.

"L'auteur d'une oeuvre de l'esprit jouit sur cette oeuvre, du seul fait de
sa création, d'un droit de propriété incorporelle exclusif et opposable à
tous."  Article L111-1.

English translation:

"The author of a work of the mind shall enjoy in that work, by the mere
fact of its creation, an exclusive incorporeal property right which shall
be enforceable against all persons."  Article L111-1.

2.1.2.  DERIVATIVE WORKS.

2.1.2.1.  DERIVATIVE WORKS IN VARIOUS JURISDICTIONS.

The British legal tradition lacks an explicit treatment of derivative
works in the copyright act except for adaptation, however, the common law
tradition for other types of transformations may be presumed to be roughly
similar to what is explicitly enacted in United States and French law.

2.1.2.1.1.  UNITED STATES LAW.

"A "derivative work" is a work based upon one or more preexisting works,
such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which a work
may be recast, transformed, or adapted.  A work consisting of editorial
revisions, annotations, elaborations, or other modifications which, as a
whole, represent an original work of authorship, is a "derivative work"." 
17 U.S.C. § 101.

2.1.2.1.2.  FRENCH LAW.

"Les auteurs de traductions, d'adaptations, transformations ou
arrangements des oeuvres de l'esprit jouissent de la protection instituée
par le présent code sans préjudice des droits de l'auteur de l'oeuvre
originale.  Il en est de même des auteurs d'anthologies ou de recueils
d'oeuvres ou de données diverses, tels que les bases de données, qui, par
le choix ou la disposition des matières, constituent des créations
intellectuelles."  Article L112-3.

English translation:

"The authors of translations, adaptations, transformations or arrangements
of works of the mind shall enjoy the protection afforded by this Code,
without prejudice to the rights of the author of the original work.  The
same shall apply to the authors of anthologies or collections of
miscellaneous works or data, such as databases, which, by reason of the
selection or the arrangement of their contents, constitute intellectual
creations."  Article L112-3.

2.2.  MULTIPLE AUTHORSHIP CATEGORIES.

2.2.1.  COMPILATIONS.

2.2.1.1.  COMPILATIONS IN VARIOUS JURISDICTIONS.

2.2.1.1.1.  BRITISH LAW.

2.2.1.1.2.  NEW ZEALAND LAW.

"Compilation includes—"

"(a)A compilation consisting wholly of works or parts of works; and"

"(b)A compilation consisting partly of works or parts of works; and"

"(c)A compilation of data other than works or parts of works:"

Copyright Act 1994 s 2.

2.2.1.1.1.  UNITED STATES LAW.

"A "compilation" is a work formed by the collection and assembling of
preexisting materials or of data that are selected, coordinated, or
arranged in such a way that the resulting work as a whole constitutes an
original work of authorship.  The term "compilation" includes collective
works."  17 U.S.C. § 101.

2.2.1.1.2.  FRENCH LAW.

"Est dite composite l'oeuvre nouvelle à laquelle est incorporée une oeuvre
préexistante sans la collaboration de l'auteur de cette dernière." 
Article L113-2.

English Translation:

"“Composite work” shall mean a new work in which a preexisting work is
incorporated without the collaboration of the author of the latter work." 
Article L113-2.

2.2.1.2.  COMPILATION SUBTYPES.

2.2.1.2.1.  COLLECTIVE WORKS.

2.2.1.2.1.1.  COLLECTIVE WORKS IN VARIOUS JURISDICTIONS.

The British legal tradition treats joint works as a subcategory of
collective works.  United States and French law does not include
collaborative joint works as subcategory of collective works which are not
necessarily collaborative.

2.2.1.2.1.1.1.  BRITISH LAW.

""collective work" means--"

"(a) a work of joint authorship, or"

"(b) a work in which there are distinct contributions by different authors
or in which works or parts of works of different authors are
incorporated;"

Copyright, Designs and Patents Act 1988 s 178.

2.2.1.2.1.1.2.  NEW ZEALAND LAW.

"Collective work means—"

"(a)A work of joint authorship; or"

"(b)A work in which there are distinct contributions by different authors
or in which works, or parts of works, of different authors are
incorporated:"

Copyright Act 1994 s 2.

2.2.1.2.1.1.3.  UNITED STATES LAW.

"A "collective work" is a work, such as a periodical issue, anthology, or
encyclopedia, in which a number of contributions, constituting separate
and independent works in themselves, are assembled into a collective
whole."  17 U.S.C. § 101.

2.2.1.2.1.1.4.  FRENCH LAW.

"Est dite collective l'oeuvre créée sur l'initiative d'une personne
physique ou morale qui l'édite, la publie et la divulgue sous sa direction
et son nom et dans laquelle la contribution personnelle des divers auteurs
participant à son élaboration se fond dans l'ensemble en vue duquel elle
est conçue, sans qu'il soit possible d'attribuer à chacun d'eux un droit
distinct sur l'ensemble réalisé."  Article L113-2.

English Translation:

"“Collective work” shall mean a work created at the initiative of a
natural or legal person who edits it, publishes it and discloses it under
his direction and name and in which the personal contributions of the
various authors who participated in its production are merged in the
overall work for which they were conceived, without it being possible to
attribute to each author a separate right in the work as created." 
Article L113-2.

2.2.2.  JOINT WORK.

2.2.1.1.  JOINT WORKS IN VARIOUS JURISDICTIONS.

2.2.1.1.1.  BRITISH LAW.

"In this Part a "work of joint authorship" means a work produced by the
collaboration of two or more authors in which the contribution of each
author is not distinct from that of the other author or authors." 
Copyright, Designs and Patents Act 1988 s 10(1).

2.2.1.1.2.  NEW ZEALAND LAW.

"In this Act, the term work of joint authorship means a work produced by
the collaboration of 2 or more authors in which the contribution of each
author is not distinct from that of the other author or authors."
Copyright Act 1994 s 6(1).

2.2.1.1.3.  UNITED STATES LAW.

"A "joint work" is a work prepared by two or more authors with the
intention that their contributions be merged into inseparable or
interdependent parts of a unitary whole."  17 U.S.C. § 101.

2.2.1.1.4.  FRENCH LAW.

"Est dite de collaboration l'oeuvre à la création de laquelle ont concouru
plusieurs personnes physiques."  Article L113-2.

English Translation:

"“Work of collaboration” shall mean a work in the creation of which more
than one natural person has participated."  Article L113-2.

3.  MORAL RIGHTS OF AUTHORS.

Moral rights of authors are part of the legal foundation of rights over
intellectual production in many European countries and the legal systems
of other countries based upon them.  Copyright law countries have
increasingly been adopting author moral rights into their own copyright
laws.

Author's moral rights at some level generally survive assignment of rights
or the copyright being held by an employer.

3.1.  IDENTIFICATION RIGHT.

Authors moral rights law includes the right to be identified as the author
of their work.

3.1.1.  IDENTIFICATION RIGHT IN VARIOUS JURISDICTIONS.

Under United States law, moral rights of identification only cover authors
of works of visual art.

3.1.1.1.  FRENCH LAW.

"L'auteur jouit du droit au respect de son nom, de sa qualité et de son
oeuvre."

"Ce droit est attaché à sa personne."

"Il est perpétuel, inaliénable et imprescriptible."

"Il est transmissible à cause de mort aux héritiers de l'auteur."

"L'exercice peut être conféré à un tiers en vertu de dispositions
testamentaires."

Article L121-1.

English translation:

"An author shall enjoy the right to respect for his name, his authorship
and his work."

"This right shall attach to his person."

"It shall be perpetual, inalienable and imprescriptible.  It may be
transmitted mortis causa to the heirs of the author."

"Exercise may be conferred on another person under the provisions of a will."

Article L121-1.

3.1.2.  EXCEPTION TO IDENTIFICATION RIGHT.

Among the exceptions to the identification right are often computer
programs and computer-generated works.

3.1.2.1.  EXCEPTION TO IDENTIFICATION RIGHT IN VARIOUS JURISDICTIONS.

3.1.2.1.1.  BRITISH LAW.

Computer programs and computer-generated works are specific exception to
the moral rights of authors to be identified, Copyright Designs and
Patents Act 1988 s 79(2)(a) and (c).

3.1.2.1.2.  NEW ZEALAND LAW.

Computer programs and computer-generated works are specific exception to
the moral rights of authors to be identified, Copyright Act 1994 s
97(2)(a-b).

3.2.  EXPLOITATION RIGHT.

3.2.1.  EXPLOITATION RIGHT IN VARIOUS JURISDICTIONS.

Under French law, an author has the right to withdraw from an assignment,
however, the original assignee has the right of first refusal when.if the
author later attempts to exploit the work withdrawn.

3.2.1.1.  FRENCH LAW.

"Nonobstant la cession de son droit d'exploitation, l'auteur, même
postérieurement à la publication de son oeuvre, jouit d'un droit de
repentir ou de retrait vis-à-vis du cessionnaire. Il ne peut toutefois
exercer ce droit qu'à charge d'indemniser préalablement le cessionnaire du
préjudice que ce repentir ou ce retrait peut lui causer.  Lorsque,
postérieurement à l'exercice de son droit de repentir ou de retrait,
l'auteur décide de faire publier son oeuvre, il est tenu d'offrir par
priorité ses droits d'exploitation au cessionnaire qu'il avait
originairement choisi et aux conditions originairement déterminées." 
Article L121-4.

English translation:

"Notwithstanding assignment of his right of exploitation, the author shall
enjoy a right to reconsider or of withdrawal, even after publication of
his work, with respect to the assignee.  However, he may only exercise
that right on the condition that he indemnify the assignee beforehand for
any prejudice the reconsideration or withdrawal may cause him. If the
author decides to have his work published after having exercised his right
to reconsider or of withdrawal, he shall be required to offer his rights
of exploitation in the first instance to the assignee he originally chose
and under the conditions originally determined."  Article L121-4.

4.  CONTROL OF COPYRIGHT.

4.1.  GENERAL CONTROL OF COPYRIGHT.

4.1.1.  GENERAL CONTROL OF COPYRIGHT IN VARIOUS JURISDICTIONS.

Copyright rests first with authors.  Employers are often naive in holding
a belief that they have an automatic right to the copyright of works
created by their employees.

United States case law is filled with instances where works which were
created outside the direct control of the party commissioning the work or
independent of a commission by an employer were not considered works for
hire, therefore, the employer was not found to have a claim on copyright
ownership in those instances.

French law seems to read as if a specific contract assigning copyright to
the employer is required for employers to control copyright.

In all instances, a specific contract stating that the work is a work for
hire and assigning copyright to the employer, which may include a grant
back to the employee, is important for assuring that the employer will
have a copyright interest the work.  A specific contract is especially
important for the employer interest in the case of independent contractors
or employees who's employment scope does not ordinarily cover creating
such works for the employer.

Some legal systems treat the party retaining first control of copyright as
if that party is the author of the work whether or not that party is the
actual author of the work.

4.1.1.1. BRITISH LAW.

"(1) The author of a work is the first owner of any copyright in it,
subject to the following provisions."

"(2) Where a literary, dramatic, musical or artistic work is made by an
employee in the course of his employment, his employer is the first owner
of any copyright in the work subject to any agreement to the contrary."

Copyright Designs and Patents Act 1988 s 11.

"Copyright is transmissible by assignment, by testamentary disposition or
by operation of law, as personal or moveable property."  Copyright Designs
and Patents Act 1988 s 90(1).

4.1.1.2. NEW ZEALAND LAW.

"(1)Subject to the provisions of this section, the person who is the
author of a work is the first owner of any copyright in the work."

"(2)Where an employee makes, in the course of his or her employment, a
literary, dramatic, musical, or artistic work, that person's employer is
the first owner of any copyright in the work."

"(3)Where--"

"(a)A person commissions, and pays or agrees to pay for, the taking of a
photograph or the making of a computer program, painting, drawing,
diagram, map, chart, plan, engraving, model, sculpture, film, or sound
recording; and"

"(b)The work is made in pursuance of that commission,--"

"that person is the first owner of any copyright in the work."

"(4)Subsections (2) and (3) of this section apply subject to any agreement
to the contrary."

Copyright Act 1994 s 21.

"Copyright is transmissible, as personal or moveable property, by--

"(a) Assignment; or"

"(b) Testamentary disposition; or"

"(c) Operation of law."

Copyright Act 1994 s 113(1).

4.1.1.3. UNITED STATES LAW.

"(a) Initial Ownership. - Copyright in a work protected under this title
vests initially in the author or authors of the work.  ..."

"(b) Works Made for Hire. - In the case of a work made for hire, the
employer or other person for whom the work was prepared is considered the
author for purposes of this title, and, unless the parties have expressly
agreed otherwise in a written instrument signed by them, owns all of the
rights comprised in the copyright.

...

"(d) Transfer of Ownership. - "

"(1) The ownership of a copyright may be transferred in whole or in part
by any means of conveyance or by operation of law, and may be bequeathed
by will or pass as personal property by the applicable laws of intestate
succession."

"(2) Any of the exclusive rights comprised in a copyright, including any
subdivision of any of the rights specified by section 106, may be
transferred as provided by clause (1) and owned separately. The owner of
any particular exclusive right is entitled, to the extent of that right,
to all of the protection and remedies accorded to the copyright owner by
this title."

17 U.S.C. § 201.

4.1.1.4. FRENCH LAW.

"La qualité d'auteur appartient, sauf preuve contraire, à celui ou à ceux
sous le nom de qui l'oeuvre est divulguée."  Article L113-1.

"L'auteur d'une oeuvre de l'esprit jouit sur cette oeuvre, du seul fait de
sa création, d'un droit de propriété incorporelle exclusif et opposable à
tous."

"Ce droit comporte des attributs d'ordre intellectuel et moral ainsi que
des attributs d'ordre patrimonial, qui sont déterminés par les livres Ier
et III du présent code."

"L'existence ou la conclusion d'un contrat de louage d'ouvrage ou de
service par l'auteur d'une oeuvre de l'esprit n'emporte pas dérogation à
la jouissance du droit reconnu par le premier alinéa, sous réserve des
exceptions prévues par le présent code.  ..."

Article L111-1.

English translation:

"Authorship shall belong, unless proved otherwise, to the person or
persons under whose name the work has been disclosed."  Article L113-1.

"The author of a work of the mind shall enjoy in that work, by the mere
fact of its creation, an exclusive incorporeal property right which shall
be enforceable against all persons."

"This right shall include attributes of an intellectual and moral nature
as well as attributes of an economic nature, as determined by Books I and
III of this Code."

"The existence or conclusion of a contract for hire or of service by the
author of a work of the mind shall in no way derogate from the enjoyment
of the right afforded by the first paragraph above.  ..."

Article L111-1.

4.2.  AUTHORSHIP CATEGORIES CONTROL OF COPYRIGHT.

4.2.1.  MULTIPLE AUTHORSHIP CATEGORIES CONTROL OF COPYRIGHT.

4.2.1.1.  COMPILATIONS.

4.2.1.1.1.  COMPILATIONS IN VARIOUS JURISDICTIONS.

4.2.1.1.1.1.  FRENCH LAW.

"L'oeuvre composite est la propriété de l'auteur qui l'a réalisée, sous
réserve des droits de l'auteur de l'oeuvre préexistante."  Article L113-4.

English translation:

"A composite work shall be the property of the author who has produced it,
subject to the rights of the author of the preexisting work."  Article
L113-4.

4.2.1.1.2.  COLLECTIVE WORKS.

4.2.1.1.2.1.  COLLECTIVE WORKS IN VARIOUS JURISDICTIONS.

4.2.1.1.2.1.1.  UNITED STATES LAW.

"(c) Contributions to Collective Works. - Copyright in each separate
contribution to a collective work is distinct from copyright in the
collective work as a whole, and vests initially in the author of the
contribution.  In the absence of an express transfer of the copyright or
of any rights under it, the owner of copyright in the collective work is
presumed to have acquired only the privilege of reproducing and
distributing the contribution as part of that particular collective work,
any revision of that collective work, and any later collective work in the
same series."  17 U.S.C. § 201.

4.2.1.1.2.1.2.  FRENCH LAW.

"L'oeuvre collective est, sauf preuve contraire, la propriété de la
personne physique ou morale sous le nom de laquelle elle est divulguée."

"Cette personne est investie des droits de l'auteur."

Article L113-5.

English translation:

"A collective work shall be the property, unless proved otherwise, of the
natural or legal person under whose name it has been disclosed."

"The author’s rights shall vest in such person."

Article L113-5.

4.2.1.2.  JOINT WORKS.

4.2.1.2.1.  JOINT WORKS IN VARIOUS JURISDICTIONS.

Under United States law, each author of a joint work has an undivided
copyright over the work as whole and can act independently upon his
interest in the work as a whole independently of the other joint authors.

Under French law, the authors of a joint work are required to act in
common agreement with respect to their copyright interest in the work as a
whole.

4.2.1.2.1.1.  BRITISH LAW.

"References in this Part to the author of a work shall, except as
otherwise provided, be construed in relation to a work of joint authorship
as references to all the authors of the work."  Copyright Designs and
Patents Act 1988 s 10(3).

4.2.1.2.1.2.  NEW ZEALAND LAW.

"References in this Act to the author of a work shall be construed in
relation to a work of joint authorship as a reference to all the authors
of the work."  Copyright Act 1994 s 6(3).

4.2.1.2.1.3.  UNITED STATES LAW.

"The authors of a joint work are coowners of copyright in the work."  17
U.S.C. § 201.

4.2.1.2.1.4.  FRENCH LAW.

"L'oeuvre de collaboration est la propriété commune des coauteurs."

"Les coauteurs doivent exercer leurs droits d'un commun accord."

"En cas de désaccord, il appartient à la juridiction civile de statuer."

"Lorsque la participation de chacun des coauteurs relève de genres
différents, chacun peut, sauf convention contraire, exploiter séparément
sa contribution personnelle, sans toutefois porter préjudice à
l'exploitation de l'oeuvre commune."

Article L113-3.

English translation:

"A work of collaboration shall be the joint property of its authors."

"The joint authors shall exercise their rights by common accord."

"In the event of failure to agree, the civil courts shall decide."

"Where the contribution of each of the joint authors is of a different
kind, each may, unless otherwise agreed, separately exploit his own
personal contribution without, however, prejudicing the exploitation of
the common work."

Article L113-3.

5.  COPYRIGHT LAW AND LICENSING ISSUES FOR A SOFTWARE PROJECT.

5.1.  MULTIPLE AUTHORSHIP CATEGORY FOR SOFTWARE PROJECTS.

The multiple authorship category applying to a software project may be
quite uncertain under law.  Good arguments may be made to treat the
software released by a project as either a collective work or a joint
work.

5.1.1.  PROJECTS AS COLLECTIVE WORKS.

Software projects might be considered collective works when a release
maintainer selects individual contributions to appear in a release.  In a
collective work without any assignment for licensing purposes, the release
manager would be understood to be the party designated to control any
relicensing.  The release managers designated designated relicensing
authority could only come from the authority granted by each and every
individual copyright holder without exception if the work is a collective
work.

5.1.2.  PROJECTS AS JOINT WORKS.

Software projects might be considered joint works which the authors
collaborate in producing.  The designation joint work may seem especially
appropriate when individual contributions do not have a functional purpose
independent from the work as a whole.  An authorship interest is a
question of importance for the work as a whole independent of the relative
size of the contribution.  Each joint author is considered to hold an
equal interest over the work as a whole.

Different legal systems differ in how joint work copyright is controlled
for the purpose of relicensing in the absence of assignment of copyright. 
The hazard under United States copyright law is that any joint author
could relicense the work as a whole without consultation under any license
with only the obligation to provide royalties to the other authors. 
Dependency issues might limit that risk but some money could be used to
obtain other licenses for some needed dependencies.

5.2.  DERIVATIVE WORKS IN SOFTWARE.

5.2.1.  FUNCTIONALLY DERIVATIVE WORKS.

Any software code which is linked or combined with any other code so as to
establish a functional dependency is a derivative work of the other code. 
Copyright law itself provides very little guidance on this question
because it seldom treats software specifically.  Many issues relating to
software have seldom been litigated in court because all sides wisely
avoid the expense and uncertainty of litigation when one misguided judge
may set a bad precedent.

Many lawyers disagree with this Free Software Foundation interpretation of
derivative works.  Those who disagree cite examples such as hyperlinking
of data as cases where linking is obviously no different from a citation
in a strictly literary work which is not derivative.  Those objections
rest on the false premise that there is no qualitative difference between
linking data and linking functionality.  When functionality is linked, the
derivative work cannot function as intended without the dependent code.  A
failure from absent functionality is of an entirely different nature from
a possible failure due to missing data.

5.2.2.  DEPENDENCIES UNDER THE GPL.

The GPL frees us from worry about the derivative works problem as long as
all dependencies allow licensing under the version of the GPL being used
in the project.

Just released GPL 3 and AGPL 3 when it is released will allow even broader
linking with software under other non-GPL licenses.  There are many
advantages of both licenses for both users and developers.  However,
everyone has to check to be certain that no code is GPL 2 only before it
can be linked with code under GPL 3 or forthcoming AGPL 3.

I will have much more to say about the merits of GPL 3 and AGPL 3 for both
users and developers at a later time.  I will argue in due course that
AGPL 3 or a later version with its 'copyleft' protections for network
services programs such as Koha is the only license with should be used for
Koha in future.  As a network services program Koha has no effective
'copyleft' protection under GPL 2 or GPL 3.

5.3.  ASSIGNMENT FOR SOFTWARE PROJECTS.

The only way to resolve the problems of the category of multiple
authorship for software projects is to have copyright assignments to a
trusted entity with a grant back of rights for authors' own individual
contributions.

Assignment is also the only way to ensure that there will be an entity
with legal standing to act to protect the copyright interest in all the
code in case of a GPL violation.  Individual copyright holders may be
constrained in only being able to defend that portion of the code which
they contributed.  Gentle persuasion is actually the best remedy for GPL
violations in the experience of the Free Software Foundation but such
persuasion is always backed by an understanding that they have the legal
capacity to pursue other means to protect the software code assigned to
them.

I will have a specific proposal for how assignments with a grant back
should work for Koha but we first need an inclusive trusted entity with
good governance.  Such an entity should include protecting the 'copyleft'
nature of the Koha code as a fundamental part of its charter.

In the absence of any other organisation, I am happy to consider that
Kohala may be a suitable entity.  Kohala does have the advantage of being
based in a country which has not yet become a regime which recognises
business method and software patents.

5.4.  PATENT LITIGATION RISKS.

I will post a text explaining the hazards for business method and software
patents along with an evaluation of the strategies to avoid their worst
effects.  GPL 3 and AGPL 3 will sadly offer little protection because
doing any more than what they will do for protection from patent abuse
would have led to a fork of GPL code by major business interests which
want to preserve the advantages they have in abusing the patent system.


Thomas Dukleth
Agogme
109 E 9th Street, 3D
New York, NY  10003
USA
http://www.agogme.com
212-674-3783