Collective and Derivative Works

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The terms collective works and derivative works will be the subject of more rigorous explanation later in the book. For now, it is important only to understand these terms in the context of open source software, as a way of describing what the participants in open source development and licensing actually do.

Before I define these terms, note one thing: Collective works and derivative works are also original works of authorship, and copyright subsists in them. (17 U.S.C. § 103.)

The subject matter of copyright as specified by section 102 includes compilations and derivative works.... (17 U.S.C. § 103.)

The term "compilation" includes collective works. (17 U.S.C. § 101.)

A collective work is:

...A work ... in which a number of contributions, constituting separate and independent works in themselves , are assembled into a collective whole. (17 U.S.C. § 101.)

In the nonsoftware context, think of a collective work as an encyclopedia or an anthology. In the software context, a collective work is usually an aggregation of separately written software that is distributed as a single package or on one disk. An office productivity suite, for example, may contain separately written components such as a word processor, a spreadsheet program, and an email client. Each of those components is an original work of authorship as is the collective office suite as a whole.

The copyright in a collective work is a reflection of the originality of the collection and its organizational structure rather than of the individual components. Most software is a copyrightable collection of modules. The arrangement and organization of the collection of individual modules are often the most original aspects of a software program.

A derivative work is:

...A work based upon one or more preexisting works, such as a translation...or any other form in which a work may be recast, transformed, or adapted . (17 U.S.C. § 101.)

Since there are so many varieties of derivative works, the statute merely lists examples of derivative works, including translations, editorial revisions, elaborations, modifications, or any other form in which a work may be recast, transformed, or adapted. This leaves it for the courts to sort out whether a specific work is or is not a derivative work. How the courts do that is the topic for much later in this book. For now, in the software context, think of derivative works as programs that have been improved or enhanced from earlier versions of a program. Distributors of open source software often create successive versions containing improvements contributed by many programmers. Those successive versions are derivative works of earlier versions, and each such version is itself an original work of authorship.

It may be helpful to view ownership of open source software as being represented by a chain of title . An original work of authorship is the first link in the chain. That chain is elongated during the collaborative open source development process. People take original works of software, aggregate them with other such works, and make modifications, in the process creating collective and derivative works ”each a new original work of authorship.

Title to each successive aggregation or modification is subject to the ownership rights of the copyright owners of the previous contributions and modifications, as each new derivative or collective work forges the next link in the chain of title.

Software improves through such aggregation and modification. This dynamic, fluid evolution of expressions and ideas in the open source community, manifested by evolving collective and derivative works, results in the creation of ever more powerful software. That process is described eloquently in Eric Raymond's book, The Cathedral and the Bazaar . Its observations and predictions about software quality have been proven applicable in a wide variety of open source projects. All this has been made possible by the free creation of collective and derivative works authorized by open source licensors.

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Open Source Licensing. Software Freedom and Intellectual Property Law
Open Source Licensing: Software Freedom and Intellectual Property Law
ISBN: 0131487876
EAN: 2147483647
Year: 2004
Pages: 166

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