The Copyright Act preempts the GPL

Peter Fairbrother zenadsl6186 at
Fri Feb 6 20:54:26 UTC 2004

Arien Ferrell wrote:

> I think I'm a latecomer to this thread, but I'd be interested in seeing
> the first few messages relating to the subject heading.  How does the
> Copyright Act preempt GPL?
> A couple minor points of clarification relating to the message I received:
>>> 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.
> The cprt holder is the owner, with the full bundle of ownership
> rights...make copies, sell, etc.  The copyright protection prevents
> others from exercising those rights, without permission.

Yes. In a derivative work, the second author has the right to make copies of
his contribution to the derivative work, but he has no right at all to make
copies of the whole derivative work.

Granting permission to _make_ a derivative work does not necessarily imply
anything at all about the right to _distribute_ the derivative work.
>>> 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.
>> Correct.

No. He has the exclusive right to make copies of his contribution to the
derivative work only, but he has no rights at all in the pre-existing

He also has no rights in the derivative work as a whole - such rights don't
exist. There is no copyright in the work as a whole, only seperate
copyrights in the pre-existing work, and in the added 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.

Where on earth did you get that idea from?

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

US Title 17 § 103 (b): "The copyright in a compilation or derivative work
extends only to the material contributed by the author of such work, as
distinguished from the preexisting material employed in the work, and does
not imply any exclusive right in the preexisting material."

UK law is similar, but not so easily quotable. But let's try: Copyright
Designs and Patents Act 1988, s 1.‹(1) "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,"

Note that copyright only subsists in _original_ works, and not in
_derivative_ works. A derivative work does not per se have any associated
copyright - though the parts of it may have associated copyright.

That situation is the same in the US - Title 17 § 102. "Subject matter of
copyright: In general (a) Copyright protection subsists, in accordance with
this title, in original works of authorship fixed in any tangible medium of

I am not a lawyer. This is not legal advice.
Peter Fairbrother

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