What is "Copying"... [LWN.net]

What is "Copying"...

Posted Apr 26, 2013 9:50 UTC (Fri) by mpr22 (subscriber, #60784)
In reply to: What is "Copying"... by aleXXX
Parent article: Dynamic linking and derivative works

My understanding (I am not a lawyer and this is not legal advice) is that translating the JS code into Ruby code would be translation, which is derivation, which is an act restricted by copyright law. Reimplementing the external interface of the JS program from scratch in Ruby without looking at the internal implementation details of the JS program, on the other hand, would not in general be derivation covered by copyright.

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What is "Copying"...

Posted Apr 28, 2013 2:56 UTC (Sun) by giraffedata (guest, #1954) [Link] (8 responses)

I think that's exactly right. I'm not a copyright lawyer either, but I've studied copyright plenty. This is a direct analogy to age-old settled copyright law that says translating a novel from English into Russian is preparing a derivative work, and therefore requires the permission of the copyright holder of the English novel. It's also why distributing object code you compiled yourself from source requires the permission of the person who wrote the source code.

What's especially interesting about the copyright owner's right to restrict preparing derivative works is that you don't even have to distribute, perform, or make a copy. You need permission just to prepare it. I know of a case where a video editor made a business of editing VHS copies of the movie Titanic, removing two pieces of tape to change it from PG-13 to PG. This was almost the opposite of copying - the customer got back less material than he started with. The copyright owner said the editor needed its permission for that, and it was a plausible enough claim that the editor stopped doing it.

What is "Copying"...

Posted Apr 28, 2013 4:23 UTC (Sun) by Cyberax (✭ supporter ✭, #52523) [Link] (7 responses)

>What's especially interesting about the copyright owner's right to restrict preparing derivative works is that you don't even have to distribute, perform, or make a copy. You need permission just to prepare it.
Nope. You can prepare derivative copies without owner's permission (in USA and Russia, can't speak for other countries).

For example, you can get a piece of Titanic, translate it into Klingon and use it in a classroom (fair use).

You can't automatically _redistribute_ the result, though.

What is "Copying"...

Posted Apr 28, 2013 7:13 UTC (Sun) by giraffedata (guest, #1954) [Link] (6 responses)

Nope. You can prepare derivative copies without owner's permission (in USA

For example, you can get a piece of Titanic, translate it into Klingon and use it in a classroom (fair use).

If your point is that there are exceptions to the restriction in US law on preparing derivative works, I agree. So my blanket statement that you need permission was incorrect (oversimplified, actually).

It's worth noting that the exceptions are not unique to derivative works. They apply to public performances and plain old copies as well.

What is "Copying"...

Posted Apr 28, 2013 8:18 UTC (Sun) by Cyberax (✭ supporter ✭, #52523) [Link] (5 responses)

No. It's a fundamental stuff - you are NOT limited in creation of derivative works. However, you are definitely limited in their distribution (including public performances).

What is "Copying"...

Posted Apr 28, 2013 18:18 UTC (Sun) by giraffedata (guest, #1954) [Link] (2 responses)

No. It's a fundamental stuff - you are NOT limited in creation of derivative works.

Perhaps you would like to provide a shred of an argument for this? Otherwise, no one reading this thread, including me, is going to believe you, because the thread contains multiple shreds of argument that the opposite is true.

I wonder if you're confusing copyright in general with GPL, because GPL gives everyone permission to create derivative works with no strings attached as long as they don't distribute the result.

In fact, there's another shred of evidence for the proposition that you need permission to create a derivative work. GPL is full of clauses explicitly giving people permission to modify the program. That strongly suggests the copyright lawyers who wrote it believed permission was required.

What is "Copying"...

Posted Apr 28, 2013 19:23 UTC (Sun) by sfeam (subscriber, #2841) [Link] (1 responses)

Here is a shred of an argument. Taking a photograph of a copyrighted work is considered to constitute creation of a derivative work. Nevertheless in most cases it is permissible to do so if the photograph is not distributed. Quoting from WIPO: "In most countries, you are allowed to take photos without authorization, if you use them purely for private purposes. For example, taking a photo of a painting to post on your home refrigerator will generally not constitute copyright infringement."

What is "Copying"...

Posted Apr 28, 2013 21:55 UTC (Sun) by giraffedata (guest, #1954) [Link]

Thanks. That helps a little, but since we've already established that there are exceptions, it doesn't go very far toward proving that in general one doesn't need permission to create (and not distribute) a derivative work. The refrigerator photo could be an application of the fair use exception in copyright.

I also think it's strange that taking a photo of a painting is creating a derivative work as opposed to making a straight-up copy (like photocopying a book), but I'll take your word for it. I guess there is some art involved in taking the photo and that may make the difference.

You piqued my interest in the application of copyright to photography enough to read the web page you cited, and happened to come across this, giving more weight to the proposition that you do generally need permission to create a derivative work:

One of the exclusive rights of a copyright owner is the right to create derivative works from his work – that is, new works based upon or adapted from the original work. You should take care when you digitally manipulate other’s images, as this is likely to be a copyright infringement unless you have obtained the copyright owner’s prior permission.

What is "Copying"...

Posted May 2, 2013 13:02 UTC (Thu) by Wol (subscriber, #4433) [Link] (1 responses)

It is my understanding - of UK law at least - that you ARE limited.

Creating a derivative work without permission is verboten. End of! (Obviously, we have the Performing Rights Society and other means of enforced licencing - I'm not sure whether that's a good thing or not.)

The fact that prosecution is unlikely doesn't affect the fact that it is illegal. There's also the civil/criminal dichotomy. Creating a derivative work is a civil tort, for which the copyright holder can sue for damages. Given our "loser pays" rules, a lawsuit is likely to end in tears for said copyright holder. However, creating a derivative work for profit is a criminal offence - not a good idea.

(Loser pays - if I make an illegal copy and, when sued, offer to settle for say, £100, I'm gambling that a jury will set damages lower. If I gamble right, the copyright holder will be liable for my defence costs...)

Cheers,
Wol

What is "Copying"...

Posted Jun 4, 2013 22:19 UTC (Tue) by hummassa (guest, #307) [Link]

Brazilian Author's Rights law also expressely states that any creation of derivative works is dependent on expressed author's consent. OTOH, the Software Law restricts those author's rights, saying that it's not a violation of those "the integration of a program, keeping its essential characteristics, to an application or operational system, technically indispensable to the necessities of the user, for the exclusive use of who promoted it" (translation mine).