RE: FW: Windows Live and Privacy

[Drsolly <drsollyp () drsolly com>]

On Wed, 6 Dec 2006, Peter Kosinar wrote:

> First, I am not a lawyer (and definitely not an expert in UK law), but 
> this kind of discussion always attracts my attention, as it sometimes 
> reveals the amount of absurdity hidden in most laws.
>
> Alan claims that:
>
> > I am a work of artistic craftsmanship, irrespective of artistic quality.
> >
> > A photo of me is a derivative work.
>
> Could you provide any reference in laws which mentions the term 
> "derivative work"? Unfortunately, I wasn't able to find anything even 
> vaguely resembling a definition of what can be classified as "derivative 
> work".

As in many statements of law, the law itself does not define "derivative 
work". This is left to the courts to decide, on the basis of what "the man 
on the Clapham omnibus" would consider derivative.

So, for example, a copy of Microsoft Word in which the paper clip was 
removed, would be considered to be derivative of Microsoft word, and 
therefore a breach of copyright. A photocopy of a boog is a derivative 
work. A photograph of an oil painting is a derivative work. I'm no oil 
painting.
 
> However, let's ignore the doubts of whether you are a copyrighted work or 
> not for a while and have a look at parts 30 and 31 of CDP Act 1988
> (http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880048_en_4.htm#mdiv31):
>
>      (3) No acknowledgement is required in connection with the reporting of 
> current events by means of a sound recording, film, broadcast or cable 
> programme.
>
>      (1) Copyright in a work is not infringed by its incidental inclusion 
> in an artistic work, sound recording, film, broadcast or cable programme.
>
>      (2) Nor is the copyright infringed by the issue to the public of 
> copies, or the playing, showing, broadcasting or inclusion in a cable 
> programme service, of anything whose making was, by virtue of subsection 
> (1), not an infringement of the copyright.

The above would appear to fall under "fair use". So, if (for example), an 
oil painting was hung on a garden wall, the inclusion of that oil painting 
n the street scene would not be a breach of copyright. But a picture of 
just that oil painting, would be.
 
> So, if I'm reading it correctly, even if you -were- a copyrighted work, 
> you could be photographed, as long as the photos would be taken 
> incidentally. In other words, if I was going to take a photo of the street 
> and you were walking through it, just by chance, it wouldn't be an 
> infringement. On the other hand, if I was trying to photograph -you-, this 
> exception wouldn't apply. Also, if you get shown in the TV newsflash, it's 
> okay...
>
>
> In fact, part 32 seems even more funny:
>
> (3) Copyright is not infringed by anything done for the purposes of an 
> examination by way of setting the questions, communicating the questions 
> to the candidates or answering the questions.
>
>
> So, if I was going to make an exam related to Alan, I could take as many 
> photos of him as I want, right? ;-)

The existing examinations in Solomania are free from all pictures of me.
 
> <absurd>
> If we wanted to take it to absurdum (under the assumption that one owns 
> the copyright to his or her outfit), Scotland Yard would not be permitted 
> to make a photo of a criminal and send it to police stations around the 
> country without infringing the criminal's copyright. Moreover, assuming 
> that evidence obtained through illegal means cannot be used in the court, 
> they also wouldn't be allowed to take any pictures at the crime scene of a 
> homicide (at least for the next 20 years, as it would infringe the 
> victim's rights) and use them to prove the guilt of the suspect.
> </absurd>

Fair use again.


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