Re: Assignment of Copyright II

On 4/9/98, Juli Krute <juliann[_at_]people-are.strange.com> wrote:
>
> OK, let's make matters a bit more confusing. Assuming that Author A has
> given a license to make a derivative work to Author B, who has assumed
> the responsibility and writing for the web pages.
>
> 2 years pass. Author B has updated the site almost daily, and the
> content has changed almost entirely. The theme, name and format remain
> the same, but every other detail has been altered throughout the years.
>
> Author A comes to Author B and demands that B stop work on the pages,
> because Author A wants them back.
>
> Can Author B continue to do B's version of the web pages or must B cease
> all work? Is there an argument that Author B can redo the pages with the
> same content but under a different format? B's pages are a derivative,
> yes, but is there a point at which the work resembles only tangentially
> the original that a license is no longer necessary?
>
> This question is asked with respect to all jurisidictions, not just the
> US or Canada. Also, we may not assume that Authors A and B are in the
> same country.

My commments are based on Brazilian Law, but I think the reasoning is not too different from Prof. Lemley's.

The main issue is to define which kind of work will do the "b" person. Is it a straight maintenance job? Just bringing the new facts or data to include them into a structure already conceived and implemented? Or "B" will just take over the site, refurbish it entirely and provide a new form for the same theme? Or, as a third alternative, would it keep some elements of the old site, and change the rest on a substantive manner?

I think that the first and third alternative could be dealt as an assignment of copyright, as a license, or as an authorization for creating a derivative work. It would depend on the actual will of the parties, and I think that in their silence as to what they were intending, the legal alternative most protective to the first author would rule. I think that under Brazilian Law, this would be the license, as it is temporary in nature, and subject to the moral rights of integrity of work.

On the other hand, the third alternative brings into light the most interesting issue - which is not exactly a copyright problem. If "B" is not intenting to keep any portion of "A",s work, but the theme, I would think we have just an assignment (or other transfer) of the site. Which kind of Law would govern it? I think that in any case of the three mentioned, the same transfer of possession exists, obscured or not by the copyright issue.

Is the site an object of property? Is it just a posession? Are we in the presence of a personal right (as in the case of a promissory note?). I would suppose that under Brazilian Law, it could not be property, as we are under the principle of numerus clausus - only those cases stated in law are properties, and a site is not defined in law as subject to property. Neither it has the nature of a personal right. Quite a difficult issue, as in thesis, you cannot have posession where you cannnot have property.

Denis Borges Barbosa - Rio de Janeiro
<denisbarbosa[_at_]bbs.unikey.com.br> Received on Mon Apr 13 1998 - 15:07:31 GMT