Just for clarification, my use of 'affirmative' right is a right that gives the holder of that right the freedom to exercise that right (or not exercise it), and raises no obligation in another except non-interference.
That being said, an excerpt from 17 USC 106:
"has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords; ..."
"has the exclusive right to do ..." appears to signal that the owner of the copyright has the affirmative right to do what is stated. Stated in another way, giving someone the right to do something is giving the holder of that right the freedom to exercise that right (or not exercise it), and raises no obligation in another except non-interference.
If someone makes copies without permission, he's interfering with the author's exclusionary right...the right to exclude others.
Your reference to remedies for copyright infringment are for those who violate the "exclusive" part of "has the exclusive right to do ...", and this is the exclusionary language.
If the right is exclusionary only, i.e. the author has *no* right to
> (1) to reproduce the copyrighted work in copies or phonorecords; > (2) to prepare derivative works based upon the copyrighted work; > (3) to distribute copies or phonorecords of the copyrighted work to the > public by sale or other transfer of ownership, or by rental, lease, or > lending; ...
but only to exclude others (a negative right only) from doing these things, then is there a remedy against the owner if he makes copies of his own work?
Moreover, if it's only a negative right, then what does the preamble to sec. 106 mean, "the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:" in light of your coment "In other words, these are rights to exclude others, not the rights to do things."
It seems like if the right was exclusionary only, the sec. 106 preamble would read something like
"the owner of copyright under this title has the right to exclude others from any of the following:"
(of course, I'd still argue that the author has a right to do all those things, but that's just me ;-) )
*shrug* I'm not a copyright attorney, and I know that other bodies of law can change plain meanings. Please send over any cites.
Peterson, Scott K (HP Legal) wrote:
The list is archived at: http://www.crynwr.com/cgi-bin/ezmlm-cgi?3 This thread began sometime near the end of January.
Your assertion that these are "affirmative" rights is misleading. The
copyright owner has the right to be the exclusive one to do those things,
but that's different from saying that the copyright owner has the
affirmative right to do them. In other words, these are rights to exclude
others, not the rights to do things. The distinction becomes apparent when
one looks at the rest of title 17, especially chapter 5 which provides the
copyright holder with various remedies. Note that those remedies do not
provide recourse against those who might prevent the copyright holder from
doing one of these acts; rather those remedies address situations where
others are doing things without the copyright owner's permission.
-- Scott
-----Original Message-----
From: Arien Ferrell [mailto:[EMAIL PROTECTED] Sent: Friday, February 06, 2004 4:49 PM
Cc: [EMAIL PROTECTED]
Subject: Re: The Copyright Act preempts the GPL
A copyright owner (owner of a wholly original work) has a number of affirmative exclusive rights:
17 U.S.C.A. � 106
UNITED STATES CODE ANNOTATED TITLE 17. COPYRIGHTS CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT � 106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
This should be current, but could be modified by case law (or other statutes), which I'd be very interested in seeing.
In any event, the author of a derivative work, which includes work other than his own, should have the same rights listed above, except 'subject to' the rights of the owners of the works other than his own. I'm not so sure that only a negative right exists at law, though, assuming everyone up the food chain gives permission. I could be wrong...I'm not a copyright attorney.
Could someone please forward a copy of the beginning of the discussion? I only came in a few emails ago. Thank you!!
Peterson, Scott K (HP Legal) wrote:
John --
I'll reply to two points:
(A) an authors positive right to copy? no.
(B) derivative works: what rights does the author of the original work have
(A)
You say: "each person has a duty not to hinder him [the author making a copy of his own work]". I am aware of no basis in US copyright law for such a duty. I am aware of no basis in US copyright law for a positive right to make a copy. By writing something down, you become a copyright owner. That ownership right does not give you any special privilege or right to copy, distribute, etc. that work. If others have rights that are infringed by such acts, they are free to assert those rights to prevent you from undertaking those acts. They have no "duty not to hinder" you.
How is this manifest in the law? The US copyright law gives remedies against those who undertake one of the exclusive actions without the copyright owner's permission (see 17 USC 501 and following). Let me know if you will not find in that copyright law any remedy against someone who hinders the author from making a copy of their own work.
(B)
Yes, the authorized creator of a derivative work will typically receive permission to copy and distribute the derivative work in the terms of the license that gives the permission to make the derivative. For the author of the derivative, I don't immediately see whether it matter if you think if that permission being a condition of creating the derivative or a permission for copying and distribution of material from the original author's work. It doesn't matter; the author of the derivative needs the original author's permission one way or the other. However, the difference can be clearly seen in those downstream. Those downstream who make unauthorized copies of the derivative work infringe both the rights of the original author as well as the rights of the author of the derivative. In other words, the permission to create the derivative is not the end of the rights of the original author. As long as their copyrightable material is present, their permission is needed. To illustrate: author of original work gives permission for a second author to create a derivative work and to publish it as chapter 26 in a particular novel; someone then makes an unauthorized copy of chapter 26; that copy of chapter 26 infringes the rights of the original author as well as the rights of the author of the derivative. The original authors claim against the copier of chapter 26 is not based on that copier having violated the original author's exclusive right to make derivative works; it is based on violation of the original author's exclusive right to make copies of their work (literal or otherwise).
The rights provided under US copyright law are negative rights (the right to exclude others), not positive rights (the right to do something yourself).
-- Scott
-----Original Message----- From: John Cowan [mailto:[EMAIL PROTECTED] Sent: Friday, February 06, 2004 1:08 PM To: Peterson, Scott K (HP Legal) Cc: [EMAIL PROTECTED] Subject: Re: The Copyright Act preempts the GPL
Peterson, Scott K (HP Legal) scripsit:
A copyright holder does not have a right to make a copy. Rather, the copyright holder has the right to prevent others from making a copy.
Of course the copyright holder has the right to make a copy of the work. That is to say that each person has a duty not to hinder him.
So, the interplay between the rights of author of an original work and
the rights of the author of a derivative work interlock as follows:
The author of the derivative work has the exclusive right to make copies of the derivative work. That means that they can prevent others
from making copies of the derivative work.
Correct.
However, the author of the derivative work does not have the affirmative right to make copies of their derivative work.
Of course he does, provided the derivative work was prepared under a license from the copyright holder of the original work.
There may be various impediments to their ability
to legally copy their own work. For example, their right to make
copies is contingent on permission from the author of the original work (because the derivative work includes copyrightable content from the original; otherwise it would not be considered a derivative work).
Not so. *Preparing* the derivative work in the first place is contingent on that permission, and of course the permission may be conditional (and often is). But once the derivative work is lawfully prepared, all the other exclusive rights in the copyright bundle attach to the copyright holder.
New Line Cinema obtained a license from Tolkien Enterprises (not the same as the Tolkien Estate) to make a derivative work based on the _Lord of the Rings_. They then have the exclusive right to distribute copies of that work, and (more relevantly) the exclusive right to perform it publicly. No further permission is required.
If you think otherwise, please point to the relevant sentence of the Copyright Act or case law.
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