Sam, As a lawyer (among other things), I felt a burning need to make quick comment; however, I have not had time to refresh my memory on all the details - but here goes anyway. As you may be aware, in Australia our copyright law has slightly different terms and interpretations - so I have to be careful making superficial observations on a topic that many others have studied in considerable depth. In Australia, we only have "adaptations" but our adaptations cover both the "adaptations" and "derivative works" found under the US Copyright Law - Title 17 of the US Code. I am unsure of current British Law in this area although much of our original precedent is based on UK decisions. In all common law jurisdictions the courts have struggled to come to grips with the digital age - so even though all of our copyright laws are based on common WIPO treaties - the US, UK, Australia all have strange decisions based on technicalities that have resulted in the various laws being "patched up" by subsequent legislative amendments (e.g. Computer Edge v Apple (1986) in Australia).
My first reaction is to disagree with you about a form based on an archetype not being an adaptation of an archetype - in my view that would be at least debatable, depending on the facts of each case. There are questions about whether copyright can subsist in a work which infringes another (it appears it can in Australia - provided that sufficient effort is expended in creating the adaptation (the form in this case) as to satisfy the requirement of originality [Redwood Music v Chappell]); whether what has been copied is the unoriginal - rather than the original - portions of a work; or whether it is the idea underlying the work rather than the expression of the idea which has been taken. In any case, there is a delicate balance and tension in the open source licensing that allows vendors to use archetypes in commercial products (expanding the appeal of openEHR) as against ensuring that work contributed to the common good remains freely available to all (ensuring ongoing community of interest support). I think that the potential problem arises when vendor A takes an archetype and renders it directly into a screen form and vendor B independently does the same thing, slightly differently. If Vendor B did this without reproducing a substantial part of Vendor A's work (and Vendor A cannot prove otherwise) - it is OK from a copyright perspective. But if Vendor A had gone and got an associated software patent or is able to mount a successful "look and feel" case against vendor B - vendor A may be able to establish a restrictive monopoly over the most obvious way of rendering the archetype - good for vendor A but not anyone else. Following Digital Communications Associates Inc v SoftKlone Distribution Corp (1988) - the threshold to succeed in a "look and feel" case in the US is very low - which is why people are worried. The situation was almost identical to rendering an archetype - and lawyers were surprised at the outcome as the screen layout was so basic that it almost appeared to be protecting the use of an idea, rather than its expression. On the other hand, vendors naturally want to protect their investments from theft - and to do this they would be well advised to develop their own look and feel, copyright unique aspects of their code and patent original software processes and use these means (along with revenues from good service and support) to secure their returns rather than to make claims on the basis of the rendering of archetypes - but even this may be difficult for them - now that clinical safety and efficiency are suggesting that we all ought be adopting standard user interfaces. Your openEHR licences need to be developed with good legal input to address the most obvious legal use cases and create the type of market that you want. Unfortunately for what openEHR Foundation is trying to achieve, there will always be people in the commercial world (some with deep pockets) who will try to take out competitors by mounting legal actions. You at openEHR Foundation and your downstream developers need the best licensing protections that you can secure, if you wish to engender strong uptake. By the way - when you take lots of pieces of IP and build them into a new work - such as a book - it is a "composition" not an adaptation. There are a whole lot of rules about compositions and the originality of compositions. Regards Richard DH At 22:23 7/10/2009, Sam Heard wrote: >Hi Eric > >An issue that I am concerned about that needs consideration is the >Collection. As a director of the openEHR Foundation, I am concerned that we >do not set up a situation where people merely collect or make minor >adaptations of an archetype and make it commercially available. > >Your concern seems largely to relate to the derivative works. I believe that >the Foundation is only concerned here about derivative archetypes. I would >not consider a form or other coded artefact to be a derivative work of the >archetype. So the 'SA' license is really there to ensure that specialised or >adapted archetypes based on openEHR archetypes remain freely available. > >I would think we could make a statement to be clear about this on the >licensing page. > >I am interested in other people's views and I am sure David and Dipak will >as well. > >Cheers, Sam > > > -----Original Message----- > > From: openehr-technical-bounces at openehr.org [mailto:openehr-technical- > > bounces at openehr.org] On Behalf Of Erik Sundvall > > Sent: Monday, 14 September 2009 7:44 PM > > To: Stef Verlinden > > Cc: For openEHR clinical discussions; For openEHR technical discussions > > Subject: Re: License and copyright of archetypes > > > > Hi Stef! > > > > On Mon, Sep 14, 2009 at 11:02, Stef Verlinden <stef at vivici.nl> wrote: > > > Personally I would like to advocate a CC-BY-SA license: everybody is > > allowed > > > to use and modify the content as long as they attribute the author > > (BY part) > > > and if If one alters, transforms, or builds upon this work, one may > > > distribute the resulting work only under the same or similar license > > to this > > > one (SA part). For more > > > information: http://creativecommons.org/licenses/by-sa/2.0/ > > > > In many cases I like the idea of SA (Share Alike) as a way of > > spreading (forcing?) openness to more areas, especially when it comes > > to certain software settings, but regarding the openEHR specifications > > and archetypes I'd suggest using just CC-BY ( > > http://creativecommons.org/licenses/by/3.0/ ) in order to avoid hard > > questions regarding what "non-open" things are to be regarded as > > derivative works, see examples below. We probably want openEHR to be > > used in all kinds of mixed private/public settings. > > > > In august 2008 I some of us had an off-list discussion regarding > > archetype licensing I quote myself (since I do not know if I have > > permission to quote others in that discussion), note that the quoted > > text below regards archetypes, not the openEHR specifications... > > > > "What kind of value do you believe the SA requirement will add in the > > case of archetypes? > > > > SA does not require you to actively submit anything to any process, > > just to license your derivative work under the same license to whoever > > happens to get hold of it somehow. People will submit works to a any > > review processes they find valuable, and most likely that will include > > openEHR's public process. > > > > Requiring SA in addition to BY might add value or it might mostly add > > complications and hard-to-interpet situations regarding what a > > derivative work is. Is data entered using the archetype a derivative > > work? > > Is a template or screen-form based on the archetype a derivative work? > > Is a book using the archetype in an example a derivative work? A > > specialization of an archetype intended for top-secret medical > > research is most likely a derivative work, is that a problem or not? It > > is issues like these that get companies uneasy regarding using things > > with SA-licencing-schemes (such as GPL) in some situations. > > > > Another question is if SA is necessary in an openEHR-based health > > record exchange system. If you want to exchange archetyped data you're > > probably in most cases requested to supply the used archetype too > > anyway. > > > > There may very well be good things in having BY-SA instead of only BY, > > but could you please clarify what you had in mind?" > > > > ...that ends the quote from 2008. > > > > Regarding the specifications additional questions like these arise with > > SA: > > - Can you write a commercial (i.e. a non CC-BY-SA) book or commercial > > presentation slides about openEHR? > > - Is an openEHR software implementation based on stubs autogenerated > > from openEHRs UML files to be considered a derivative work that can > > not be "closed" source code? Can it be released under e.g. Apache, > > MIT, or BSD license or not? > > > > Best regards, > > Erik Sundvall > > erik.sundvall at liu.se (previously erisu at imt.liu.se) > > http://www.imt.liu.se/~erisu/ Tel: +46-13-227579 > > _______________________________________________ > > openEHR-technical mailing list > > openEHR-technical at openehr.org > > http://lists.chime.ucl.ac.uk/mailman/listinfo/openehr-technical > >_______________________________________________ >openEHR-technical mailing list >openEHR-technical at openehr.org >http://lists.chime.ucl.ac.uk/mailman/listinfo/openehr-technical J. Richard Dixon Hughes Managing Director, DH4 Pty Limited 86 Cabramatta Road, Mosman, NSW 2088 Phone: +61 (0) 2 9953 8544 Fax: +61 (0) 2 9953 6695
