home *** CD-ROM | disk | FTP | other *** search
- Path: sparky!uunet!mcsun!uknet!newcastle.ac.uk!tuda!dph3gds
- From: Graham.Shaw@newcastle.ac.uk (G.D.Shaw)
- Newsgroups: misc.int-property
- Subject: Copyright and Derivative Works
- Message-ID: <Bt375A.By0@newcastle.ac.uk>
- Date: 16 Aug 92 17:27:09 GMT
- Organization: University of Newcastle upon Tyne, UK NE1 7RU
- Lines: 51
- Nntp-Posting-Host: tuda
-
- The ongoing discussions about Usenet and Copyright have made me wonder
- about some of the fundamental assumptions that underly copyright law,
- and whether copyright as a concept is even workable.
-
- The problem I see lies in determining whether a text (or file or
- whatever) is a derivative work. There are two options:
-
- A) By comparing the two texts.
-
- This is the method that the courts would normally use to determine
- whether there had been a copyright violation.
-
- It works well enough for verbatim copies, and (usually) for derivative
- works created by people, because the types of transformation you are
- looking for are quite limited. It does however break down completely
- in the general case.
-
- (Put formally, given a text A, you can create a (potentially useful)
- derivative work B which (given access only to the texts) cannot be
- proved to be a derivative work, even on the balance of probabilities).
-
- B) By looking at the past history of the text.
-
- This is the method that is favoured by the law, at least in theory.
-
- While it is theoretically sound, it is totally unenforceable.
- Suppose I took to selling pirate software - imagine if the company
- had to actually prove, step by step, that the data originated from
- one of their disks. Convictions (or their civil equivalents) would
- be almost impossible to obtain, as computer copying normally leaves
- little if any evidence of the past history of the data.
-
- Can anyone see a way out of this paradox? (Similar problems occur
- in other legal areas, including the libel laws).
-
- One final point to consider. Given the impossibility of determining
- whether something is a derivative work, for Usenet even putting a human
- into the loop to censor each article would not be enough: publishing
- the work of a third party would inevitibly carry a substantial risk,
- and in general there would be _NOTHING_ that you as the publisher could
- do to eliminate or even reduce that risk.
-
- (For the record: I do not object to copyrights on moral grounds -
- indeed, I support them in principle. What I would like to see is
- a far more well-defined legal basis for defining copyright that
- is both enforceable and consistent with reality. I do not know
- whether this is possible, but I do not believe it exists at the
- moment).
-
- Graham Shaw (dph3gds@tuda.ncl.ac.uk)
- Department of Physics, Durham University, England.
-