[OSGeo-Discuss] copyright question

[P Kishor]

On Tue, Dec 9, 2008 at 2:08 PM, Frank Warmerdam <warmerdam at pobox.com> wrote:
> P Kishor wrote:
>>
>> On Tue, Dec 9, 2008 at 1:11 PM, Bart van den Eijnden (OSGIS)
>> <bartvde at osgis.nl> wrote:
>>>
>>> Hi list,
>>>
>>> today I was in a meeting about GeoExt, and the following question came
>>> up:
>>>
>>> "Is it possible for OsGeo to take copyright for a project which yet has
>>> to
>>> form and has not passed incubation as such?"
>>
>> Just looking at the above question, the answer would be "no" in the
>> US. In the US, per  Title 17, Section 102, "original works of
>> authorship" have to be "fixed in any tangible medium of expression"
>> before they can acquire copyright protection. Since the said project
>> hasn't yet been formed, it can't be protected.
>
> Puneet,
>
> It appears to be a common practice to write copyright assignments and
> contributor agreements in such a way that they apply to new contributions
> as they are created.  Of course for this to work well it is necessary to
> be reasonably clear about what is being contributed.  So regardless of
> the text of title 17, section 102, reputable "intellectual property"
> lawyers have not shown any hesitation to draft agreements related to
> future creations.
>

Any right is only as good as its defense in the court. Just because
reputable IP lawyers may draft copyright assignments in works that
don't yet exist doesn't mean that actual copyrights in those works
exist.

It is also entirely possible that you and I are talking about
different things -- I am referring to the existence of rights in
something... those rights cannot exist until that thing exists, and it
has to, per US laws, be "fixed in tangible medium." There is
absolutely no doubt or wiggle room in that condition. On the other
hand, you seem to be referring to "assignment of copyrights" by which
you might mean "transfer" of rights (I could be wrong in interpreting
your statement there, but based on Bart's original question, that is
what I am leaning toward believing). Of course, for transfer of rights
to occur, the rights have to exist in the first place, and for rights
to exist in a work, the work has to exist. Back to square one.

1. First comes the idea (not copyrightable).

2. Then comes the instantiation of that idea fixed in a tangible
medium (as long as it is of sufficient creativity, it instantly, upon
creation, acquires copyright).

3. Then comes, optionally, and well-advised, registration of that
copyright with US LOC.

4. Then comes, hopefully not, defense of that copyright because
someone violated it.


Keep in mind, the ultimate yardstick is the "text of the law" as
interpreted by a judge. In this case, the text seems to be very clear.
The text of USC Title 17 § 102 is very important.

All that said, IANAL. All this is free advise based on my recent
courses at the Wisconsin Law School, so take it fwiw. For better
advise (or, at least, more mental comfort), it might be worthwhile
getting paid-for advice.

But I tell you, a semester of courses can teach a lot.

-- 
Puneet Kishor http://www.punkish.org/
Nelson Institute for Environmental Studies http://www.nelson.wisc.edu/
Open Source Geospatial Foundation (OSGeo) http://www.osgeo.org/