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Re: GPL and other licences


From: Alexander Terekhov
Subject: Re: GPL and other licences
Date: Mon, 13 Feb 2006 16:06:24 +0100

Bernd Jendrissek wrote:
> 
> -----BEGIN PGP SIGNED MESSAGE-----
> Hash: SHA1
> 
> In article <address@hidden> Alexander Terekhov
> <address@hidden> wrote:
> >You seem to misunderstand. The resulting overall program containing
> >independent works for all its components is indeed "still just a
> >compilation". But it now contains a derivative program (among other
> >computer program works) -- a derivative set of instructions to
> >eliminate FSF.
> 
> So all compilations of independent works are also derivative works in
> their own right?  Is that what you are saying?

Not at all. An independently created compilation is never a 
derivative work. It may contain derivative works (i.e. modified or 
transformed works... and even include smaller derivative 
compilations -- modified set of works) but that doesn't make a 
whole work (overall compilation) a derivative work. See also HOUSE 
REPORT NO. 94-1476:

-----
Section 103 complements section 102: A compilation or derivative
work is copyrightable if it represents an ''original work of
authorship'' and falls within one or more of the categories listed
in section 102. Read together, the two sections make plain that
the criteria of copyrightable subject matter stated in section 102
apply with full force to works that are entirely original and to
those containing preexisting material. Section 103(b) is also
intended to define, more sharply and clearly than does section 7
of the present law (section 7 of former title 17), the important
interrelationship and correlation between protection of preexisting
and of ''new'' material in a particular work. The most important
point here is one that is commonly misunderstood today: copyright
in a ''new version'' covers only the material added by the later
author, and has no effect one way or the other on the copyright or
public domain status of the preexisting material.

Between them the terms ''compilations'' and ''derivative works''
which are defined in section 101 comprehend every copyrightable
work that employs preexisting material or data of any kind. There
is necessarily some overlapping between the two, but they basically
represent different concepts. A ''compilation'' results from a
process of selecting, bringing together, organizing, and arranging
previously existing material of all kinds, regardless of whether
the individual items in the material have been or ever could have
been subject to copyright. A ''derivative work,'' on the other
hand, requires a process of recasting, transforming, or adapting
''one or more preexisting works''; the ''preexisting work'' must
come within the general subject matter of copyright set forth in
section 102, regardless of whether it is or was ever copyrighted.

The second part of the sentence that makes up section 103(a)
deals with the status of a compilation or derivative work
unlawfully employing preexisting copyrighted material. In
providing that protection does not extend to ''any part of the
work in which such material has been used unlawfully,'' the bill
prevents an infringer from benefiting, through copyright
protection, from committing an unlawful act, but preserves
protection for those parts of the work that do not employ the
preexisting work. Thus, an unauthorized translation of a novel
could not be copyrighted at all, but the owner of copyright in
an anthology of poetry could sue someone who infringed the whole
anthology, even though the infringer proves that publication of
one of the poems was unauthorized.
-----

regards,
alexander.


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