OSD modification regarding what license can require of user

John Cowan jcowan at reutershealth.com
Fri Mar 15 04:02:25 UTC 2002

I.R.Maturana scripsit:

> This is a good point, but it need to be developed.
> Let me add that once permission is given, Copyright Law can give
> to "second" author of derivative work the SAME rights than
> the "first" author, on their respective versions.

Correct.  This is a point that is often not understood.

>   Rights of licensees on their respective work will be the SAME,
>   _without prejudice_ of the rights of the author,
>   AND ONLY IF author authorizes the derivation.

Exactly so.

> IP Laws define this protection scheme as "moral" rights. In US, the
> usual word used is "copyright". But this is the same concept and all
> these expressions (in each legal tradition) are used in conformity
> with this WIPO Convention.

"Moral rights" are a bit different (things like the right to be known
as the creator, the right to prevent mutilation of the work, etc.),
and the U.S. applies them only to visual works.

> There is no country differences under IP Laws. 

There are differences, but the ones you mentioned are not among them,
true.  What counts as fair use, for example, varies from country
to country.

> This solution fails (or will fail) because the rights on derivative
> works are not under control of "first" author. Everyone can derive a
> work, as long as it do not try to distribute his version.

No, this contradicts what you say above and is not true under either
U.S. law or the Berne convention.  The *exclusive* right to create
derivative works is one of the copyright owner's rights.  For example,
you cannot translate a novel from French to English without the
consent of the copyright owner (initially the author) of the French
version.  Nor can you make a book into a film without the agreement
of the copyright author.

> Authors cannot "grant" rights for derivation because this right is
> already given by laws. There is no society nor progress without the
> right to derive from Sources, books, ideas, or goods.

That is not correct.

> Rights
> for distribution and for derivation do not come from the same source.

They do: the Berne Convention and the various national copyright acts.

> Rights on derivation work cannot be limited: they belong entirely to
> "second" authors. A copyholder cannot define a license that make
> prejudice to the rights owned by "second authors" on their respective
> versions. In fact, a "version-holder" can legally forbid the distribution
> of its own derivative work, based on the _same rights_ than allows
> the original-holder to forbid the derivation.

This part is correct: once the derivative work is created *under license*,
the deriving author can exclude the original author.  But that original
license = permission is required, and if it is denied, the derivative
author has no right to create the derivative work.

> A license which "grant derivative rights" is almost a non-sense. Authors
> can *forbid* the distribution of the derivative work, but they cannot
> forbid the freedom of people to create derivations.

That is not the case.

> Authors cannot claim for rights on derivative works, because these
> rights belongs to the author of the version.

That is true.

John Cowan <jcowan at reutershealth.com>     http://www.reutershealth.com
I amar prestar aen, han mathon ne nen,    http://www.ccil.org/~cowan
han mathon ne chae, a han noston ne 'wilith.  --Galadriel, _LOTR:FOTR_
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