Derivative works (Was: Re: Software to Block Ads)

Ari Kahan <akahan[_at_]netcom.com> wrote:
>
> But I would ask, Is "reproduction or sale" REALLY implicit in making
> derivative works?
>
> If Martin's right, then what's the point of the "derivative work"
> clause (except perhaps to say that you're not off the hook for
> copying, even if you first modify the work you're copying)?

My understanding was that the point of reproduction was to create another copy of the same work and that the derivative work (or adaptation) was there for works based on the original work but in a different form (like a translation, a dramatic form of a novel etc). A reproduction is essentially an exact copy of the same work while a derivative work is a different work but created by copying some aspects of the original work. Reproduction is narrower than copy.

> I think it's possible, by creating a derivative work, to deprive the
> copyright holder of income, even if you do not copy or distribute the
> derivative work.

But is that income generated from the copyright or is it from other unrelated sources. In the Westlaw/Eastlaw example you describe, Westlaw is not deprived of the income purtaining to the copyrighted work i.e. users still buy the Westlaw software. The deprivation of income comes from failure of the users to connect to the service Westlaw provides its on-line users, not in their creation of the derivative work that is the modified software. That is what I think should be the result but I am not confident that a court will go for this.

Now if the shrink-wrap licence agreement states that the software may only be used to access Westlaw and not competing services, does this change? Should it?

I don't think so but others may disagree.

And of course, under current law the licence is probably not binding, but under the new 2B it is.

Tim Arnold-Moore, LL.B. (Melb)        | Multimedia Database Systems, RMIT  |
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