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Re: copyrightable vs. copyrighted (was Re: databases not copyrightable in the USA)

Andrew Suffield wrote:

> On Wed, May 12, 2004 at 02:36:14PM +0200, Martin Dickopp wrote:

> The proper terms for what you describe here are "copyright does not
> subsist in this work", where the verb is "subsist" (alternatively
> "copyright protection does not subsist", but even lawyers don't
> usually go that far).
"This work is not covered by copyright"?

>> It may, however, be
>> copyrightable, i.e. if another entity had created it, this entity would
>> have had the copyright w.r.t. the work.
> This one isn't a word either. I don't think there is a formal name for
> this one, as it's not very interesting.

Actually, I think it's extremely interesting.

We need to refer to two different distinctions:

1. There is a valid copyright on the work. ("copyrighted")
2. The work is of a class or works for which copyright "protection" is
potentially available.  ("copyrightable")

Nowadays, nearly everything in class 2 is also in class 1.  However, it used
to be that being in class 1 depended on many additional things beyond the
nature of the work itself.

In the US, determining whether something is in class 2 depends on various
tests ("original work of authorship", not "facts", etc.), and then
determining whether it's in class 1 depends on further things (did the
copyright expire, was it created by the US Government, etc.).

There are none so blind as those who will not see.

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