Hollaar@utah-20.arpa (Lee Hollaar) (03/19/86)
From the 1976 Copyright Act (Section 101): "A 'derivative work' is a work based upon one of 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'." Translations are clearly derivative works, although the authors of the Copyright Act were undoubtedly thinking about more conventional (English to German, rather than Pascal to C) translations. Nothing is said about how such translation is performed, although it is likely that a court would hold that a work translated from English to German by a computer would be a derivative work. The gray area (and every good legal question lives in a gray area) is how similar to the original work something needs to be to be considered a derivative work. Clearly, a direct translation would be a derivative work, while a work based on the knowledge gained by a careful examination of an original program, but not copying any specific part of it, would not (since copyright doesn't protect the underlying ideas). -------
rb@ccivax.UUCP (rex ballard) (03/21/86)
In article <1918@brl-smoke.ARPA> Hollaar@utah-20.arpa (Lee Hollaar) writes: >From the 1976 Copyright Act (Section 101): > >The gray area (and every good legal question lives in a gray area) is >how similar to the original work something needs to be to be considered >a derivative work. Clearly, a direct translation would be a derivative >work, while a work based on the knowledge gained by a careful examination >of an original program, but not copying any specific part of it, would >not (since copyright doesn't protect the underlying ideas). >------- Based on one judgement, actual quote in "The Rights of Authors and Artists", if you by coincidence wrote an exact copy of "Ode to a Grecian Urn" without seeing the original (or at least being aware of reading/hearing it), you could actually copyright the work. If someone copied your version, they would have violated your copyright. If someone copied Keats' version, it would be public domain. The "Phoenix" ROM, which is almost an exact duplicate of the IBM version, was written by someone who had never seen the IBM original. Appearantly, others would read the description of a function, close the book, and describe in their own words, what the function was supposed to do. The author would write his version, test software compatibility by using programs which called routines in the Original. By examining the causes of various crashes, undocumented calls to the ROM area, and other intuitive processes, they were able to obtain 100% compatibility with bullet proof protection against any claim of copyright infringement. Apearently the original author still has not seen the IBM version, or even it's documentation. If you are looking at the code, copying and enhancing as you go, you are producing a derivative work. Appearantly, if you close the book before you start writing (describing the algorythm in your own expressive style) this code could be considered an original. One big question in my mind is, does the plaintiff have to prove that you saw the original, copied, then enhanced the original, or were aware of the original. The best practice is of course to get permission from the copyright owner of the original to produce the derivative work before you even look at the original. If you can name your referrences when you copy them, publishers will often be more willing to be reasonable about royalties (if they apply) or fees. You might want to take a look at the paragraph accompanying the copyright notice in Byte magazine. They allow libraries and schools to purchase rights to copy the original work through arangements with the Copyright Clearing House (something like that.) for about $1.50. Magazines usually try to co-operate with each other by paying royalties to each other when references are given. The protection of copyright is very new to the computer/software industry. It can be a mixed blessing. Although it improves your protection, it also improves the protection of those whose software you might have "barrowed". I wouldn't be surprised if there were a large rash of "derivative works" lawsuits before some sort of association begins arbitrating royalty disputes and handling royalty distribution. Think of it a "Copyright Insurance" :-). Think about it, how many products contain "dirivative works" based on examples in the "K&R C book". This is clearly not public domain stuff. Have you settled up with Prentice-Hall yet? How about AT&T? Digital Research? Microsoft? If manufacturers are reasonable about royalties for subroutines and dirivative works base on their products, we can expect to see a real increase in the power of the software in future products. If they are not, people will continue to "Re-invent the wheel" until things get reasonable. There is some simple economics here. If it costs more in up front or back end royalties than to have a "Blindfolded engineer" write subroutines from scratch, that's what people will do. If it costs less to pay for portions of the original, then people will pay the royalties. Would one of our lawyers out there like to comment on the possible consequences of putting a derivative work in public domain :-). Rex Ballard.