The Copyright Act preempts the GPL

John Cowan cowan at
Fri Feb 6 18:07:41 UTC 2004

Peterson, Scott K (HP Legal) scripsit:

> A copyright holder does not have a right to make a copy. Rather, the
> copyright holder has the right to prevent others from making a copy. 

Of course the copyright holder has the right to make a copy of the work.
That is to say that each person has a duty not to hinder him.

> So, the interplay between the rights of author of an original work and
> the rights of the author of a derivative work interlock as follows:
> The author of the derivative work has the exclusive right to make copies
> of the derivative work. That means that they can prevent others from
> making copies of the derivative work. 


> However, the author of the
> derivative work does not have the affirmative right to make copies of
> their derivative work.

Of course he does, provided the derivative work was prepared under a
license from the copyright holder of the original work.

> There may be various impediments to their ability
> to legally copy their own work. For example, their right to make copies
> is contingent on permission from the author of the original work
> (because the derivative work includes copyrightable content from the
> original; otherwise it would not be considered a derivative work). 

Not so.  *Preparing* the derivative work in the first place is contingent
on that permission, and of course the permission may be conditional
(and often is).  But once the derivative work is lawfully prepared,
all the other exclusive rights in the copyright bundle attach to the
copyright holder.

New Line Cinema obtained a license from Tolkien Enterprises (not the same
as the Tolkien Estate) to make a derivative work based on the _Lord of the
Rings_.  They then have the exclusive right to distribute copies of that
work, and (more relevantly) the exclusive right to perform it publicly.
No further permission is required.

If you think otherwise, please point to the relevant sentence of the
Copyright Act or case law.

John Cowan      jcowan at
Be yourself.  Especially do not feign a working knowledge of RDF where
no such knowledge exists.  Neither be cynical about RELAX NG; for in
the face of all aridity and disenchantment in the world of markup,
James Clark is as perennial as the grass.  --DeXiderata, Sean McGrath
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