"Nowhere does it state that just any type of derivative work can be"
considered as an original work. Since these are not the types of works
generally being produced under the OGL, the discussion really needs to no
further.
I'd have to look at the legislative history of the last few copyright acts passed, but in context "new" and "original" in Title 17 refer, I believe (though I could certainly be wrong), to the copyright status (i.e., a brand new copyright is to be issued), and do not primarily connotate "novel" and "not derivative".
Before it was repealed and restructured the copyright law used to say:
U.S.C. S 7 (repealed effective 1978)
Compilations or abridgements, adaptations, arrange-ments... or other versions of ... of copyrighted works when produced with the consent of the proprietor of the copyright in such works, or works repub-lished with new matter, [i.e., derivative works ] ... shall be regarded as new works subject to copyright under the provisions of this title.
The reference to "derivative works" was internal to the statute (unless the case I'm citing from added it).
At least this part of the old version of Title 17 (I couldn't find a lot more of the old copyright act) had no specific language requiring that a "new" work be novel. I think that "original" may have similar meaning, as binding and publishing a series of copyrighted journal articles with permission can generate an "original" work of authorship under Title 17, and I believe we have no reason to conclude from the plain language of the statute the it was the intent of Congress to place a much higher bar on copyright origination for a work that includes a single other person's work than it does on a journal, which contains multiple other people's works.
---
If, within the statute or the legislative history of the revised copyright Title, "original" and "new" refer to the reissuance of a copyright as opposed to a literary quality of the content as being wholly "novel", then I think the can of worms is still open.
<<But it's perfectly possible for something to be a complete
'work' on it's own but when put together with other items it is then
called 'material' or 'part". For example an article is a complete work
when the author prints it out and distributes it but the same article is
material when presented in a journal.>>
I wholly agree, but I think that it is contextual. I think "work" is probably determined by commercial notions of what a "work" is, which shall vary from industry to industry. I just contend, that except in instances where a couple of paragraphs might be a whole commercial unit (as might be the case for a poem, which could be entirely contained within that length), that a paragraph or two is rarely referred to as a "literary work".
A work is that in which the copyright subsists. Since an individual author might copyright his article before sending it into a journal, it meets a commercial notion of "a work".
The commercial notion of "a work" was the closest thing I could find after a brief bit of research for anything approaching a definition for the term. I think it was left vague so as to be broadly applicable across multiple types of human endeavor.
So this is probably, as Ryan has thoughtfully instructed, a term of art whose meaning will vary from case-to-case and is subject to broad interpretation by the courts.
<<As for your logic tree, since PI can never be a subset of derivative
material I don't see the problem. The license explicitly requires that
all derivative material is OGC and that what is OGC cannot be PI.>>
I disagree. And as I've noted elsewhere, perhaps this is due to the fact that I have not taken a contract/statutory construction course, and this is a result of my ignorance. The exclusion clause in the OGL takes a variation of this form:
"My shopping list includes fruit, but specifically excludes strawberries."
The form 'A includes B, but specifically excludes C', does not, at least in common parlance, provide us specifications about the relationship of B and C, save to say that if B contains any C, then that part of B will not be found in A.
1000s of examples could be provided, but suffice it to say, that in such a grammatical construction "includes" means "includes entirely" or "includes some of" depending on the context. But the construction does not always, under all circumstances, yield the notion that B & C are exclusive.
Perhaps (and I've noted this lack of knowledge elsewhere and said I would withdraw this particular point at least), statutory/contractual construction requires a specific interpretation of this form. Without specific assumptions read into the language however, "A includes B, but specifically excludes C" is not a logical construct with one and only one interpretation.
If the law requires that "includes" _always_ means "wholly includes" then there is a level of specificity to the interpretation that would cause me to withdraw this particular point without further challenge.
Otherwise, it appears that the construction is ambiguous re: the relationship between B & C above.
<<The OGL says that the parts of
your lawfully derivative material that are derivative of others work must
be OGC.>>
As I've noted above, I find the construction of that exclusion clause to be ambiguous, only because, from the moment I saw it, I could immediately imagine half a dozen exceptions with parallel linguistic construction.
<<
The problem is the license does not permit PI-declared derivative
material. Any attempt to do so means you haven't complied with the terms
of the OGL and the entire work is now a copyright violation.
>>
If it can be demonstrated that, in the law, there is only one way to read the following structure...
"A includes B, but specifically excludes C"
... then you are unquestionably correct, and on this point, I am in error. But the structure itself, in normal written and conversational English, is at best ambiguous and can only be resolved contextually, instead of as a result of the pure logical structure. If it could be resolved by logic alone, then I should be able to replace those variables with any words that make up a logical, intelligible sentence and always come to the same conclusions about the relationship between C & B, but such is not the case.
Lee
