OSD modification regarding what license can require of user

I.R.Maturana irm at myrealbox.com
Fri Mar 15 23:44:49 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.

> > This solution [The OS mechanism] 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.

You are right. I am not using correctly the English words (I know).
Help me to explain this little, but very important difference:

When using the expression "derivative work" you are including
publication/distribution: That is: you read my phrase as if I was
describing a "published-distributed-derivative" work".
This way, an author _may_ forbid derivation.

But I used the expression "derivation" with a more restricted
meaning: I did not included the "publication/distribution" step.

Let us choice the word "transformed", rather than "derived".
This will clarify the point.

While the transformed work is not made publicly available,
an author cannot forbid transformation. This would be an absurd.
If an author wants seriously to forbid people to transform his
work, the only solution is to do not publish nor distribute
his work.

The point is that once the work is published, once it is made
publicly accessible, this "public" work determines rights for
authors AND users. These rights are slightly different, but are
_equally_ protected by laws.

For example, an author cannot forbid an user to make reverse
engineering, look inside the source, modify and even "create"
locally, on his home computer, a new version of the source work.
For this same reason, he cannot forbid the _translation_ of his
work. (Can you believe seriously that States will adhere to a
Convention that allows authors to forbid translation of works ?

Hope that now, my last message can be better understood. I was
trying to show the difference between the distribution rights
and the right of users to investigate in any way they like,
to assimilate and to transform the original work. This last
right is the _same_ for authors and users. IP Laws are not
a religion, an author is not the Pope.

BTW, the actual attempt to adopt Software patents arise because
companies have discovered that they were unable to forbid
the reverse engineering. They cannot sue anybody for this.
There is a crime, only if the folk try to publish his research.

There is a fundamental difference between the citizen's right
to "open", "look inside" (and of course, translate) a work without
permission of the author, and the author's right to forbid the
distribution/publication of the possible derivatives.

When Software companies understood this boundary of the IP law, and
discovered that IP law would not let them manage the information
and ideas as other companies can manage goods, they changed their
The solution is simply to change the protection scheme for software
and they are consequently trying to place the software under the
"industrial patent" protection scheme.

Anyway, their first attempt to modify IP Laws at the end of 90'th
introduced serious limitations to the rights of software authors.
Today, software authors rights are really "light", compared to
artists: number of years before the work fall under public domain,
protection Law for companies against developpers, etc.

> > Rights
> > for distribution and for derivation do not come from the
> same source.
> They do: the Berne Convention and the various national copyright acts.

Berna Convention recognizes 2 agents:
Authors, who own their respectives versions, and States from which the
authors are also citizens
(Les auteurs, du fait de leur creation respective, et les Etats dont
ils sont aussi des citoyens/Autores, por el hecho de su creacion respectiva,
y los Estados, de los que tambien son ciudadanos)

Rights on distribution are rights attached to the author. This is nothing
else that the well-know right of property, attached to intellectual goods.

On the other side, the right to learn, free speech, "open access"
to sources and ideas, are citizen rights protected by States. These rights
define in fact the boundaries of the "public space" in each country Laws.

Strictly speaking, Berna Convention simply defines that each State will
guarantee the reciprocal protection of both rights to foreign citizen as
they do for nationals.
Berna Convention does not create the IP rights, and does not discover
the "public domain". Instead, Berna guarantees that the definitions
for "private" and "public" will be compatible for all the adherent States.

If you do not make clear the difference between these 2 rights, property
and knowledge/information, when applied to software, the consequence is
that you must keep away the protection that IP laws grant to software works.
You are doing exactly what Companies wants to do, as in the Achille Paradox.

> > 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.

Ok. This is the same comment than above. I think you got my point now.

I suppose you are a lawyer. I am only studying these laws since 1998.

Please, help us to understand all this questions, they are very important.

(And I am sure your explanations will be shorter than mine !
- Sorry for the bandwith)

Natxo (Is A Name)
[I.R.Maturana -- Trad En>[ES<>FR] - http://www.in3activa.org ]

[Note: IRM= I.Robredo Maturana. I only use my fist last-name for
 administrative needs :-)

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