Re: devirative works

From: Chris Lemens <chrislemens_at_yahoo.com>
Date: Wed, 27 Apr 2005 10:28:04 -0700 (PDT)


> From: donald_at_grove.demon.co.uk (Donald R. Oddy)
> [derived material]
>
> >Issaries isn't trying to steal anything,
> > especially someone's copyright, but they
> > do, under most country's laws, have the
> > right to stop you from publishing works
> > based on their intellectual property
> > without their permission.
>
> This is simply wrong.

I think you might want to burn an HP here.

> While US copyright law specifically gives
> the author the right to prevent derivative
> works UK law allows them. Given that copyright
> law is one of the things the EU is
> standardising it is likely that the same
> applies in other EU countries which would
> mean the the US is pretty much on their
> own.
>
> Here's a link to a detailed explanation of UK
> copyright law -
> http://www.jenkins-ip.com/patlaw/cdpa1.htm
> Section 16 lists the copyright holders rights.

And it says that you may not copy or adapt, which is pretty much the same as US law. So, if you take "any substantial part" of copyrighted work and copy them. That is straighforward infringement. If you adapt the work by, say translating it into a different language, that is also infringement. Typically, countries consider extensive paraphrasing to be either copying or adaptation, but I have usually understood that to be determined by caselaw. (Section 60 of the UL act strongly implies that paraphrasing is infringement because it makes an exception for abstracts of technical and scientific articles.)

So, I don't see how UK law permits derivative works. Perhaps we are misunderstanding each other when we say "derivative works". Compare the definition of a derivative work in US law with an adaptation in UK law. -- "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”. -- Most of this is either an adaptation under UK law or would be treated as copying of a substantial portion. The last sentence, concerning an edited work would probably be treated as a joint work under UK law, which I think comes back to the same result as US law -- neither party can publish without the other's permission.

Simply using ideas from a prior work is not usually a copyright problem. (E.g., a scientific article can freely discuss ideas in another scientific article, even in the absence of fair use provisions.) The difficulty lies in national treatment of whether fictional characters and places are copyrightable separately from the words used to describe them. For example, can you write a James Bond novel? I don't know the answer to that one from a copyright perspective.

Chris Lemens

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