Therefore, if the copyright holder gives someone a license to create a derivative work, the holder retains the copyright to the original work. In other words, only the derivative rights are being licensed. Copyright protection doesn't last indefinitely—it expires after a certain length of time. If copyright protection to the original work has expired, that work is considered in the public domain.
Anyone may use a work that's in the public domain. If you take a work in the public domain and modify it somehow, the modified work is a derivative work that's entitled to copyright protection.
Others may still use the original work in the public domain, but they may not use it with your modification. Copyright doesn't protect against all use of the work or use of derivative works. There are a few exceptions that fall under what's commonly known as the fair use doctrine:. It's not always easy to determine whether a work is a derivative work or whether it comes under the fair use doctrine. To be safe, it's best to obtain the original copyright holder's permission or seek professional legal advice.
Contents 4 min read. Edward A. Haman is a freelance writer, who is the author of numerous self-help legal books. He has practiced law in Hawa… Read more. Here's how to avoid accidentally stepping on the rights of another's creative work. In order to qualify for copyright protection, an original creative work must exist in tangible form—in other words, written down or in a form you can touch. More US Law. The key to knowing how to copyright a song is to know what copyright protects.
Formally registering your script for a copyright protects your work from unlawful copying or other use of your original creative expressions. Parody and satire not only have different meanings, they are also treated differently under the law.
Inequitable Conduct. International Trade Commission. Intervening Patent Rights. Patent Civil Procedure. Patent Claim Interpretation. Patent Damages. Patent Eligibility. Patent Exhaustion. Patent Experts. Patent Infringement. Patent Licenses. The First Circuit expressly rejected the AFC test and, instead, takes a much narrower view of the meaning of derivative work for software.
Several circuits, including most notably the Fourth and Seventh, have yet to declare their definition of derivative work and whether or not the AFC, Analytic Dissection, or some other test best fits their interpretation of copyright law.
Therefore, uncertainty exists with respect to determining the extent to which a software program is a derivative work of another in those circuits.
However, one may presume that they would give deference to the AFC test since it is by far the majority rule amongst those circuits that have a standard for defining a software derivative work. The views expressed herein are personal to the author and should not be imputed to any of his clients or his firm. Court of Appeals, 12 regional Circuit Courts of Appeal have geographically distinct jurisdiction and the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in cases involving the patent laws.
Structural Software, Inc. Leadership Software, Inc. Bando Chem. Iqtel, Inc. Arce Engineering Co. About Us. Sign in. Forgot your password? Get help. Password recovery. The Copyright Act The copyright act is of little, if any, help in determining the definition of a derivative work of software.
Abstraction, Filtration Comparison Test As mentioned above, the AFC test for determining whether a computer program is a derivative work of an earlier program was created by the Second Circuit[iii] and has since been adopted in the Fifth[iv], Tenth[v] and Eleventh[vi] Circuits.
Abstraction The first step courts perform under the AFC test is separation of the work? Filtration The most difficult and controversial part of the AFC test is the second step, which entails the filtration of protectable expression contained in the original program from any unprotectable elements nestled therein.
The most difficult and controversial part of the AFC test is the second step, which entails the filtration of protectable expression contained in the original program from any unprotectable elements nestled therein. In determining which elements of a program are unprotectable, courts employ a myriad of rules and procedures to sift from a program all the portions that are not eligible for copyright protection.
However, implementing this rule is not as easy as it first appears. The courts readily recognize the intrinsic difficulty in distinguishing between ideas and expression and that, given the varying nature of computer programs, doing so will be done on an ad hoc basis. The first step of the AFC test, the abstraction, exists precisely to assist in this endeavor by helping the court separate out all the individual elements of the program so that they can be independently analyzed for their expressive nature.
A second rule applied by the courts in performing the filtration step of the AFC test is the doctrine of merger, which denies copyright protection to expression necessarily incidental to the idea being expressed. The reasoning behind this doctrine is that when there is only one way to express an idea, the idea and the expression merge, meaning that the expression cannot receive copyright protection due to the bar on copyright protection extending to ideas.
If so, then that particular code or structure is not protected by copyright and, as a result, it is filtered away from the remaining protectable expression.
A third rule applied by the courts in performing the filtration step of the AFC test is the doctrine of scenes a faire, which denies copyright protection to elements of a computer program that are dictated by external factors. Such external factors can include:. Any code or structure of a program that was shaped predominantly in response to these factors is filtered out and not protected by copyright. Lastly, elements of a computer program are also to be filtered out if they were taken from the public domain or fail to have sufficient originality to merit copyright protection.
Portions of the source or object code of a computer program are rarely filtered out as unprotectable elements. However, some distinct parts of source and object code have been found unprotectable. For example, constants, the invariable integers comprising part of formulas used to perform calculations in a program, are unprotectable. Further, although common errors found in two programs can provide strong evidence of copying, they are not afforded any copyright protection over and above the protection given to the expression containing them.
The issue will be whether any of the protected expression is copied in the second program and, if so, what relative importance the copied portion has with respect to the original program overall. The courts admit that this process is primarily qualitative rather than quantitative and is performed on a case-by-case basis.
In essence, the comparison is an ad hoc determination of whether the protectable elements of the original program that are contained in the second work are significant or important parts of the original program. If so, then the second work is a derivative work of the first. If, however, the amount of protectable elements copied in the second work are so small as to be de minimis, then the second work is not a derivative work of the original.
The Ninth Circuit has adopted the analytic dissection test to determine whether one program is a derivative work of another.
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