Re: GPL and linking (was: Urgently need GPL compatible libsnmp5-dev replacement :-()
On 5/9/05, Raul Miller <moth.debian@gmail.com> wrote:
> (1) 17 USC 101 says "A "derivative work" is a work based upon one or more
> preexisting works", Clearly, the law is in error. It should not say
> "or more". This is obvious from the definition of collective work, and
> from the concept of disjoint sets.
Let's look at both definitions:
A "collective work" is a work, such as a periodical issue, anthology,
or encyclopedia, in which a number of contributions, constituting
separate and independent works in themselves, are assembled into a
collective whole.
A "derivative work" is a work based upon one or more preexisting
works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which a
work may be recast, transformed, or adapted. A work consisting of
editorial revisions, annotations, elaborations, or other modifications
which, as a whole, represent an original work of authorship, is a
"derivative work".
So a derivative work is "recast, transformed, or adapted" from "one or
more preexisting works", while a collective work is "assembled into a
collective whole" from "a number of contributions". You can indeed
feed multiple works into either process; but assembling is not the
same as recasting, transforming, or adapting, so they're disjoint
categories.
> (2) In the Berne Convention web page, this clause is linked to by
> the phrase "Derivative works":
> Translations, adaptations, arrangements of music and other alterations
> of a literary or artistic work shall be protected as original works without
> prejudice to the copyright in the original work.
> and this clause is linked to by the phrase "Collections works":
> Collections of literary or artistic works such as encyclopaedias and
> anthologies which, by reason of the selection and arrangement of their
> contents, constitute intellectual creations shall be protected as such,
> without prejudice to the copyright in each of the works forming part of
> such collections.
>
> Now, since we're pretending that these are completely disjoint
> concepts, you can't have a work which is both a derivative work,
> and a collective work. That means, that if you have have an
> arrangement which involves two works, translations are not
> protected as original works. Protection for translations falls
> under "derivative works" and "more than one document" falls
> under "collective works".
A translation of an arrangement of two works, selected by a
non-trivial criterion, is ... wait for it ... a derivative work _of_ a
collection! "of" \neq "and". For instance, the copyright on the bit
of creative expression involved in selecting the works still dates
from the publication of the original collection. Note that if the
anthologizer's license from the original copyright holders does not
include an explicit right to authorize translation, the translator
needs license from all three to create a derivative work of their
respective contributions to the translated work.
> Clearly, this feature of the Berne Convention -- that derivative
> works and collective works are mutually exclusive -- is implied
> by the grammar of the above-quoted text. (But it would
> probably help if this were a really long post, so you could
> lose track of the argument.)
There's a person losing track of the argument in long (and short)
posts here, and it's not me.
Cheers,
- Michael
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