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Re: GPL as a license for documentation: What about derived works?

On Fri, Jan 28, 2005 at 07:44:38PM -0800, Michael K. Edwards wrote:
> Any given country's implementation of the Berne Convention may vary
> somewhat, but the US statute (at least as of 1986) and the case law I
> have seen are consistent with the interpretation that "compilations"
> (or the subset "collective works") are a disjoint category from
> "derivative works".  See 17 USC 101, and compare the UK CDPA sections
> 3 (1) (a) (a "table" or "compilation" is a subtype of literary work)
> and 21 ("adaptations" are defined to cover essentially the same scope
> as Berne Convention "derivative works").

The Berne Convention does not appear to use the term "derivative"
at all.  The only place I can find that uses related worde
(derived, and collection) is Article 14 and 14ter, in reference
to ("derived") cinematographic production based on other
kinds of works and ("collection") the collection of fees.

Furthermore, if 17 USC 101 is a basis for "collective works" being
disjoint from "derivative works" then it's also a basis for "computer
program" being disjoint from both.  Which is clearly not the way a court
would treat computer programs.

I think that the mathematical concept of a disjoint set misconstrues the
nature of legal definitions.  The difference is more one of focus.  There
is no need to believe that there is some precise legal difference between
"an anthology" and "a work based on one or more preexisting works".

Finally, I agree that "linking doesn't create a derivative work".
But I also feel that this statement about linking can be misleading.
Before a program can be successfully linked with some other body of work,
it is already a derivative work, or not a derivative work, of this other
body of work.


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