The Copyright Act preempts the GPL

[Peter Fairbrother]

John Cowan wrote:

> Peter Fairbrother scripsit:
> 
>> 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.
> 
> [analogous points snipped]
> 
> You sound like you are describing a collective rather than a derivative
> work.

No, a derivative work. Eg, the first author writes a book, the second author
makes a film of the book. The film is a derivative work. The film director
needs two seperate permissions from the book author: one permission to make
a derivative work, and another permission to show the first author's work
(along with his own work) as part of the whole derivative work when the film
is shown*. 

These are distinct and separate permissions to excercise distinct and
separate rights. 

For instance, it is common practice to limit the licence to distribute to
one geographical area, or one distribution channel - satellite, terrestrial,
cable, etc.. It is also common to limit the right to make derivative works
to one medium - TV, Film, HDTV, etc.

It is also very common practice to licence by individual performance - eg
take a piece of music used in a TV program. The TV program is technically a
derived** work of the music, but the performance of the music during the TV
show is licenced from the musician (and frequently licenced one-way, the
author giving anyone the right to use the music on payment of a set fee per
performance. So-called "royalty-free" songs are often distributed with the
unlimited right to make derivative works, and the right to perform them on
payment of a fee). 

None of this could not be done if the rights were somehow linked.

*In practice, he will want eg DVD distribution rights etc etc as well.

**or perhaps a compiled work, but it makes no difference, derivative and
compiled works are treated exactly the same in US law. A collective work is
slightly different, when people agree together to make a work, but none of
the works under discussion is a collective work.

>> 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.
> 
> This directly contravenes the text of the statute.

No. You have to read §103 carefully. I explain below.

> The copyright owner

say author here instead of copyright owner, it makes things simpler

> of a derivative work is a copyright owner with all the rights of a
> copyright owner, 

Yes. He has copyright in his contribution to the whole work. But he does not
have the right to make copies of the whole derivative work that include
(parts of) another's original work.

> except that he cannot prevent the creation of other
> works derivative of the original work but not based on his contribution.


§103 in full:
"Subject matter of copyright: Compilations and derivative works

(a) The subject matter of copyright as specified by section 102 includes
compilations and derivative works, but protection for a work employing
preexisting material in which copyright subsists does not extend to any part
of the work in which such material has been used unlawfully.

(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. The copyright in such work is independent
of, and does not affect or enlarge the scope, duration, ownership, or
subsistence of, any copyright protection in the preexisting material."


You might think that (a) means there is copyright in a compiled or derived
work, but it is not necessarily so. If eg a compilation (not the compiled
work, but the work of compilation) is not itself an original work os
authorship then there is no copyright. The same law applies to derivative
works. I agree that that is confusing.

What (a) really says is that if you make a derivative work without
permission from the copyright holder of the original work then you don't
even have copyright in your own work.


You might think that (a) says there can be copyright in a compiled or
derived work as a whole, but it doesn't.

(b) make the overall situation perfectly clear - any copyright in the
derived work does not extend beyond the contribution of the author of the
derived work. Any preexisting material is unaffected by the new copyright.
The only thing the second author has copyright in is his own work.

If the second author has to make copies of the original work in order to
make copies of the whole derived work (which would usually be the case), he
has to have the separate permission of the first author to do so. Only the
original author has the right to do that.


Permission to make a derivative work does not automatically (or even
usually) include permission to make copies of/distribute the original work
as part of a whole.


IANAL TINLA


-- 
Peter Fairbrother

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