False Copyright Claims

FreetoCopy writes "Teenagers downloading music may not be the worst copyright offenders. See this item (available for download in PDF file with free registration) about the growing problem of copyfraud — in which publishers, archives, and distributors make false claims of copyright to shut down free expression. From the paper: 'Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare's plays, Beethoven's piano scores, greeting card versions of Monet's Water Lilies, and even the US Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner's permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use...'"

Comments

Public Domain Can Be Re- Copyrighted

[VidEdit]

I'm very pro public domain, cc and copy-left but the FA omits some facts.

Although he's right that merely digitizing or copying a public domain work does not result in a new copyright, creating a collection of public domain works does. The individual works remain in the public domain, but you can't copy the "collection" as a whole (eg. scan and upload the book as a whole to the internet) because the creativity of selecting and assembling the work is a new copyright. This, for example, would apply to Dover books of public domain clip art.

Also, public domain music can be re-copyrighted to an extent--unfortunately--because individual arrangements can be copyrighted. You are free to use the original tune, but you can't copy a new arrangement because that arrangement is a new copyright.

Public domain is not GPL. Just because a work is public domain doesn't mean that derivative works will be public domain.

Now, that being said, the article is, otherwise, a good one. I'm tired of museums and "educational" institutions claiming copyright on the public domain works in their collection and copyright on the reproductions of those works. In those cases, no new creativity has occurred and there is no new copyright.

Re:Public Domain Can Be Re- Copyrighted

[cpt kangarooski]

Although he's right that merely digitizing or copying a public domain work does not result in a new copyright, creating a collection of public domain works does.

Well, it may, but it doesn't necessarily. A compilation is only copyrightable if the selection and arrangement is itself sufficiently creative. And the compilation copyright only pertains to the copyrightable portions of the selection and arrangement; not the materials which compromise the compilation.

Re:There should be consequence

[cpt kangarooski]

Perhaps in the interest of preserving the public domain, there should be law stating that any use of public domain material within derivative works should also fall within the public domain.

That's already the law. You can read it at 17 USC 103(b). But it only covers that portion of the derivative work. So if you, say, make a movie where there is a scene involving you reading one of Shakespeare's sonnets, then the sonnet is still in the public domain. Anyone can watch that movie and copy down the sonnet, rather than having to consult some other source to get it. However, they can't copy anything from the movie that is copyrighted, such as the video or audio of you reciting the sonnet, or the remainder of the movie; only the sonnet itself. This applies to derivatives of anything, by the way; whatever portions of the work are derived from elsewhere keep their original copyright status and do not acquire the status of the newer work. E.g. Disney's 'Fantasia 2000' is mostly going to have a copyright date of 1999, but since part of it ('The Sorcerer's Apprentice') is from the original 1940 movie, that portion is still treated as a 1940 work, and will enter the public domain before the newer parts of the movie.

It's not viral though. The use of public domain materials in a derivative work doesn't make the entire work derivative.

Re:No, you cannot have Fair Use. Not Yours.

[Anonymous Coward]

Sadly for you I copyrighted the vowel in 1999. I count well over 40 offenses in your previous post. Expect a letter from my lawyer.

Re:As an ebook publisher making pocket change

[cpt kangarooski]

But I had to spend a couple of days OCRing the material, cleaning it up, and formatting it. Anyone else wanting to sell it, or give it away, should have to do the same, not swipe my work.

The Supreme Court and the Constitution disagree with you. The authoritative case on your 'sweat of the brow' argument is Feist v. Rural. Here's the good bits, rearranged and edited a bit for clarity:

[Some] courts developed a new theory to justify the protection of factual compilations. Known alternatively as "sweat of the brow" or "industrious collection," the underlying notion was that copyright was a reward for the hard work that went into compiling facts. The classic formulation of the doctrine appeared in Jeweler's Circular Publishing Co.:

"The right to copyright a book upon which one has expended labor in its preparation does not depend upon whether the materials which he has collected consist or not of matters which are publici juris, or whether such materials show literary skill or originality, either in thought or in language, or anything more than industrious collection. The man who goes through the streets of a town and puts down the names of each of the inhabitants, with their occupations and their street number acquires material of which he is the author.

The"sweat of the brow" doctrine had numerous flaws, the most glaring being that it extended copyright protection in a compilation beyond selection and arrangement - the compiler's original contributions - to the facts themselves. Under the doctrine, the only defense to infringement was independent creation. A subsequent compiler was "not entitled to take one word of information previously published," but rather had to "independently wor[k] out the matter for himself, so as to arrive at the same result from the same common sources of information." ...

Without a doubt, the "sweat of the brow" doctrine flouted basic copyright principles. ... "Sweat of the brow" courts ... handed out proprietary interests in facts and declared that authors are absolutely precluded from saving time and effort by relying upon the facts contained in prior works. In truth, "[i]t is just such wasted effort that the proscription against the copyright of ideas and facts . . . [is] designed to prevent." "Protection for the fruits of such research . . . may, in certain circumstances, be available under a theory of unfair competition. But to accord copyright protection on this basis alone distorts basic copyright principles in that it creates a monopoly in public domain materials without the necessary justification of protecting and encouraging the creation of `writings' by `authors.'" ...

The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble or obvious" it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works, so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable.

Originality is a constitutional requirement. The source of Congress' power to enact copyright laws is Article I, 8, cl. 8, of the Constitution, which authorizes Congress to "secur[e] for limited Times to Authors . . . the exclusive Right to their respective Writings." In two decisions from the late 19th Century - The Trade-Mark Cases, and Burrow-

Scanning insufficient to establish copyright

[butlerm]

According to Bridgeman Art Library v. Corel Corporation, scanning a public domain image isn't sufficient to establish copyright on the result, even if considerable skill and expertise is required.