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July 30, 2004

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Update: a historical society that licenses public domain images has been sued. Discussion continues at LibraryLaw Blog August 25, 2005

I don't think that's even possible under current laws..? i may be wrong tho..

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Public Domain Books: Online - http://www.PDBooksOnline.com

Re NGA(nee NIMA, nee DMA) copyright claims. These claims to protection for works of the U.S. Government are, I believe, based on House Report 94-1476 http://www.title17.com/contentLegMat/houseReport/houseReport.html on the 1976 copyright act. The House Report is a sort of a gloss by the House of Representatives (one of the chambers of the U.S. Congress) on the legislation before them. It says in part:
"The prohibition on copyright protection for United States

Government works is not intended to have any effect on protection

of these works abroad. Works of the governments of most other

countries are copyrighted. There are no valid policy reasons for

denying such protection to United States Government works in

foreign countries, or for precluding the Government from making

licenses for the use of its works abroad."

Since the law as passed makes no mention of this, it's a somewhat teuous basis but there it is. I guess that the idea is that while the U.S. doesn't grant works of the U.S. Government copyright, they may be granted copyright in other countries. Why then have any statement, since notice is no longer required? Possibly bureaucratic intertia, but perhaps it is because the Dutch government publications are uncopyrighted UNLESS there is a copyright notice on them. Therefore under the national treatment principle, this claim wouldn't be possible in the Netherlands without notice.

All of the usual disclaimers apply, I am not a lawyer etc...

Sorry I thought public domain is public domain and not non-commercial domain. I do not see any difference to
http://blog.librarylaw.com/librarylaw/2004/07/declaration_of_.html

The copyright notice to which Klaus Graf refers says the following:

"© This work is the property of the University of North Carolina at Chapel Hill. It may be used freely by individuals for research, teaching and personal use as long as this statement of availability is included in the text."

My guess is that Klaus may be troubled by UNC claiming copyright in a work published in 1863. My take would be that UNC is claiming copyright in the mark-up they have done (including encoding the text as per TEI level 4), and possibly in OCR and maybe even the scanning.

UNC allows free reign for personal use. They have invested a lot in making the scanned and marked-up text, and would seem not to want a commercial service to come along, grab their work, and then sell it. That position does not seem to me to be unreasonable. While the copyright on the mark-up may be "thin," I suspect there is protectible content there. Of course, I don't think this has been tested in court yet.

What do you think about this (c)-Note:
http://docsouth.unc.edu/imls/bartlett/bartlett.html ?

Dr. Graf asks about the legality of contracts for visiting web sites. This is a very complex question, with few definite answers. My best guess is that in states that have passed UCITA laws (such as Maryland and Virginia), there is a good chance that a click-through license is binding. Whether a "terms of agreement" license is also binding is less clear - and it becomes even murkier when one moves outside of those states (or overseas).

Part of the issue here is preemption. The copyright law says that copyright rights are protected by federal law, not state contract law. My reading of the preemption clause and some court cases citing it is that if one is only interfering with the right of reproduction, then preemption might apply and there would be no cause for state action. On the other hand, I think most preemption cases have found that non-copyright rights are usually implicated in these cases, and the courts have allowed these cases to proceed in state courts.

Most of all, I think the issue is moot. Johns Hopkins University, for example, has a web site devoted to reproductions of manuscripts of the Roman de la Rose. Since JHU is in Maryland, the click-through license on the web site would create a binding contract in Maryland. I just don't see JHU or its museum partners ever suing someone for using one of the images - unless for some reason it became a huge commercial product. The question that each individual must answer is whether he or she wishes to ignore the stated desire of the museums that actually own the manuscripts to control the use of reproductions. If one does ignore the museums' desires, it seems less likely to me that they would digitize new items.

I fully agree that a valid contract would be necessary to control images of public domain work, even if a lot of time and expense goes into making them. Digital Restrictions Management (DRM) is the only other way I know of to protect the works.

Copyright law is not likely to protect the images. The Bridgeman case is only a district court case, but its reasoning is sound, and even counsel for museums agrees (below).

Peter writes: "Digital photographers with whom I have spoken assure me that their work is both skilled and creative, and hence worthy of copyright protection - though I am not so sure."

I'd say that the more skilled the photographer is, the less creative it is. The Bridgeman court put it rather starkly, saying that 'slavish copying,' "although doubtless requiring technical skill and effort" to make transparencies of the two-dimensional works lacked any original authorship as required by U.S. copyright law.

To readers not familiar with the case: Corel was selling a CD-ROM with images of well-known paintings by European Masters, including some that Bridgeman claimed to have sole authorization to reproduce. Bridgeman lost, since the Court said there were no valid copyrights to the individual images, making any copyright infringement impossible.
Bridgeman Art Library v Corel ,36 F. Supp. 2d 191 (S.D.N.Y. 1999) http://www.constitution.org/1ll/court/fed/bridgman.html

Barry G. Szczesny, Esq., Association of American Museums Government Affairs Counsel gives further insight into the case at http://www.panix.com/~squigle/rarin/corel2.html

He said that museums tried to get Bridgeman to drop the suit since it was expected to get a decision harmful for museums that want to "copyright" their digital images. He noted that "Just about every museum attorney looking at the case objectively thinks it came out the correct way according to U.S. copyright law ­ that's why no museum had ever brought such a suit. The U.S. Copyright Office informally agrees. Thus, no one saw any real chance for reversal on appeal. In addition, an affirmation by the Second Circuit, arguably the most influential court on copyright issues, would be even more damaging."

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Side note: If you click on the Bridgeman link, you'll notice it's a LEXIS printing of the case. This seems to be a good illustration of contracts having inadequate control over public domain works. LEXIS took a public domain work, a court decision. It then licensed that work to its customers, holding them to a contract that governed its use. Someone who had LEXIS access apparently went ahead and posted it. Not me, by the way. I happened to find it when I googled the case. I'm not bound by that LEXIS license, and could have reprinted it here. Actually, all I did was put in a link and links are FACTS, not subject to copyright. I'm not linking to a site that I know is infringing copyright - though it could be violating is a private contract agreement that LibraryLaw blog readers are not party to.

http://www.library.yale.edu/special_collections/copyright.html

This source doesn't mention Bridgeman v. Corel!

Physical access to public domain works is one thing, visiting a website is another. I would appreciate to hear a clear lawyer's statement that there is a valid contract between the institution and the visitor which urges the visitor to seek permission to publish public domain works.

I wonder on which legal ground http://www.nga.gov forbidds any use of all images on their website without permission. There is no own copyright it can claim. NGA is not a private institution like Cornell.

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