Digitising public domain images creates a new copyright, rules German court
arstechnica.co.uk
arstechnica.co.uk
How would this affect things like gutenberg.spiegel.de? Would a German digital transcriber of a PD work then hold the German copyright for that digital version, until 70 years after the transcriber's death? Ridiculous!
Photographs have a slightly elevated standing in German law, with lower demands on creativity to get protection, and I'll assume that's the way the court got to this decision. We'll see if it survives in front of higher courts. I wouldn't be surprised if it doesn't.
In your transcriber example (assuming transcriptions and photographs would follow the same rules, which they don't), the transcriber would have the rights to his/her transcription, but couldn't stop anybody else to transcribe the same PD work and release their transcription.
I agree with wikipedia that this question shouldn't have come up, because I'd prefer if public museums were required to release such photos under some kind of free license, although I'd be fine with restrictions for commercial use.
Once you create something above the "threshold of originality", you own the copyrights to it and can freely license it if you want to (if it is a derivative of a protected work, the owner of the rights on the original gets rights as well and could potentially stop you from doing so, but in a case of a public domain work that doesn't matter). If just creating a 3D model of something is above this threshold depends on the details, generally an as-precise-as-possible replica doesn't require originality though, so probably not.
For photographs there a exists a category where this threshold doesn't apply as strongly, and the court argued that in this category, the amount of expertise and work necessary to create it was enough to make it a work of it's own. This potentially conflicts with older decisions, that did not grant pure reproductions copyright protection.
EDIT2: after reviewing the old case I had in mind: It denied protection to a copy of a photo of an original, explicitly citing that it is not desired to allow infinite copyright extension by creating copies. We'll see in the next round if removing one layer of indirection changes the situation.
EDIT: I use "freely license" above because the concept of releasing something in the public domain doesn't exist in Germany. In practice, licensing it as e.g. CC0 is the clean way of achieving the same.
You can't provide it to the public domain. You can, if you have copyright on the work, publish it under a license which permits others the freedom to re-use it. The work is still copyright protected though.
The existence of copyrights on these photographs was the subject of the trial: Can these photographs be considered new (derivative) works? If so the author of the photos ―the museum― owns the copyright. If not the photos are protected by the same copyright as the paintings, although the paintings fell into the public domain as the original author has died more than 70 years ago.
If you make a 3d-model of an object which is still protected under copyright it's for a judge to decide whether you've infringed on that copyright or created a derivative work.
That's all, of course, completely separate from trademarks.
How can a person tell I was using the museum's faithfully reproduced image, and not one that I scanned myself?
That's the crux of the Bridgeman v. Corel decision in the US: If I make a perfectly faithful copy of a PD work into another medium, have I really created anything? And US courts decided that no, I just copied something, and thus I don't get to enjoy my own new copyright as merely a copier of an already copyright-free work.
I admittedly know nothing about German law--I certainly hope you're right in guessing higher courts will overturn it.
Preparing a halfway decent digital image requires a great deal of skill, in the same way that a decent transcription of a written text requires a great deal of skill.
Someone transcribes a text of a manuscript, and according to Bridgeman, anyone can reproduce that text that the original transcriber established. This is precisely the same free-rider problem that legal tool of copyright attempts to solve. Of course copyright doesn't apply for a transcription because a transcription isn't a creative work, but there is still the free-rider issue and no legal tool available to solve it. For services there are trademarks, for processes there are patents, computer code is copyrightable or patentable, but for text there really is a legal hole.
Back then, before the digital age, image libraries would charge for reproducible copy, but nowadays there are lossless copies, and Bridgeman is very much out of touch. The German court, thankfully, had some better sense.
So a US court would look at a photo reproduction of a piece of art and determine if it qualifies based on whether it meets the bar for being a creative work -- is it "original" in any way? If the photograph does nothing more than faithfully depict the work, then it could be painstaking work to create it, but it still carries no copyright.
If someone transcribes a book (i.e. makes a copy of it by hand) or photocopies a book, they have not created an original work. The copyright, if any, remains with the original author. A translation or a derivative work may itself be eligible for copyright, but would also require the original copyright holder's permission, if any copyright on the original work remains.
This seems a strange and kind of arbitrary requirement to me.
So, for example, creating a transcript of an audio recording does not create a new copyrighted work, because it is simply documenting a fact like 1+1=2.
If I put effort into creating a transcription of an audio recording, then why shouldn't I be the one that decides what others can do with this transcription? What does it matter that it did not take any creativity? End everybody else is free to create his own transcription and do with that whatever he wants, my control over the usage of my transcription does not affect them in any way.
The intent is to protect creative expression that provides society with something new, not to protect any easily reproducible duplication effort.
If you choose not to make a transcript of an audio recording, someone else will do so if there is a demand for a transcription, hence the benefit to society in providing protections for your transcription is minimal.
In your example, literally writing down the words spoken during a film would be to transcribe it. If I, or another, took the time to do such a thing, it would be identical presuming we both did this correctly. This would not be creative as we are simply doing something as procedural as doing weights and measures.
I find these things somewhat arbitrary, because, conversely if I were to read aloud a book and make an audio recording, presumably that would be copywritable. If I had the rights to make such a recording, or if the work was in the public domain, I believe my voice & intonation would constitute either creativity/originality and the uniqueness would allow me to apply.
I am not a lawyer, nor am I sure whether there is precendent. The point is, that these are very similar things and it is treated very ambiguously. Should I own my own voice? Should I be allowed to simply read something and consider it a creative work? Does intonation and enthusiasm matter in the delivery of the work?
It is all a bit rediculous, and frankly copywrite should be limited substantially. However, it is clearly a case by case basis and thus super difficult.
Certainly, we would want to promote people like Elon Musk to create things like the Tesla (ironically much of it is open sourced) but at the same time, would want people to build on innovations and enjoy these things unhindered, or what is the point.
https://en.wikipedia.org/wiki/Sweat_of_the_brow#US_copyright...
Pedantic aside: Musk didn't exactly start Tesla...
You are correct Musk didn't start Tesla. However, he did create it and Eberhard basically sank the company. Also, I meant to put the Model s instead of Tesla. I will also, correct myself to say that certainly Musk himself didn't create the model s, Tesla, ect alone. The point was that patents, trademakrs and copywrite are there to protect the people who build and create things, however the system is obviously very broken.
No it does not at all and as said already it needs to be a creative work(meaning transformative work that deviates from an obvious conclusion) as opposed to simply being difficult. And again, it is definitely not difficult.
Let's face it ... I'll never see a single work made within my lifetime make it the public domain. And copyrights are just going to keep getting extended and extended. Mickey Mouse is never making it to the public domain. And as if having to go back to pre-World War II to find public domain works wasn't enough, now they're trying to undermine even that!
If I thought there were any chance we could change the laws toward our favor, I wouldn't advocate this. But I just don't see any hope at all anymore. So let's just call a spade a spade, and state that the public domain doesn't exist: everyone owns everything, forever.
We'll reclassify historians and preservationists as unquestionably being "pirates". Most of us already are. But the few left that are trying to play within the confines of the law, only to continually have the rug pulled out from under them, can get to work with the rest of us on the wrong side of the law. Civil disobedience is the only recourse we have left. It's that, or we give up our very history to corporate interests.
Plenty of work makes it to the public domain; it just need to be noted as such by the creator, and creators do do that from time to time.
On Mickey Mouse specifically, I don't really have a problem with that one. Mickey Mouse isn't something created by someone who is riding on their past successes and whose descendants are riding on the coattails of. It's an actively developed and organised bit of intellectual property, which is responsible for literally thousands of jobs. They are actively working their IP, rather than merely sitting back and demanding a cut if other people want to work it. As such, I think protection for that is reasonable, as it is a going business concern.
I have far more problem with IP not making it to public domain if it's not actively worked. An example from Australia: there was an iconic song "Land Down Under" in the 80s, in which a 12-note melody was in the bridge. That melody was "Kookaburra sits in the old gum tree", a very recognisable Australiana kids/folk tune. The original owners didn't pursue damages, but nearly 20 years after the pop song made it, a business group bought the rights to Kookaburra and sued the creators of the pop song. This business group didn't 'value add' to the IP - they didn't actively work it. The case turned out with a relatively sensible ending - the judge gave some minor royalties to the rights holders because while the melody was clearly in use (it was the point of using that melody, after all), it wasn't the main theme of the song.
So I think copyright should be a bit more complex - if you're actually actively working the IP to a reasonable (yes, 'define reasonable...') amount, you should be able to extend it. Otherwise, expiry as it used to be. Some protection would need to be figured out to prevent trivial token 'working', of course.
Every time I try and release my source code to the public domain, I invariably get people telling me it's not possible to do this due to laws in various countries, and that I should use the ISC/MIT license instead.
I've taken to releasing a lot of my work as "public domain where applicable; ISC where not."
> So I think copyright should be a bit more complex
My general idea of copyright would be that it's 14 years from the date of creation, with a one-time possible extension to 28-years that is not automatic (basically, what copyright used to be.)
The problem is abandoned works. If you produce a game on some volatile medium like a CD-R, then use DRM to protect it, it's quite possible that in 28 years, not a single working copy will exist. The only way it can enter the public domain is thus through breaking the law initially. And let's not even get into things like online servers required to use software =(
Ideally, there'd be a forfeiture of copyright for "abandoned works" (works the author will no longer sell to anyone); but I recognize that a legal framework for such a concept would be damn near impossible to create (you'd get artists saying, "sure I'll sell you a copy still ... for $100,000,000")
So, while it might be ok for wikipedia to publish images of public-domain work, it is unconscionable for wikipedia to publish images of public-domain work that someone else subsequently makes commercial use of. (And it's important that the museum get a veto over whether the public should be allowed to see certain works at all.)
> The German court dismissed the case against Wikimedia Deutschland on the grounds that it was not legally responsible for the files in question, which were held by Wikimedia Commons in the US, which in turn are managed by the Wikimedia Foundation.
In the US, databases of facts are not copyrightable. The European Union, though, has a 15 year copyright-like right for databases.
On the other hand, I agree that preventing sharing of public domain works runs counter to the mission of public museum and, while legally entitled to, they probably shouldn't exercise their copyright in this way.
In short, digitalising creates new "pole eksploatacji" (~field of exploitation/utilisation) for image, and by the law each such field needs to be explicitly named in agreement with the author. And no, you CAN NOT give rights to all of them, either known or invented in the future. All of them have to be explicitly named, and the law itself does not contain any list of them, just some examples. For example even if tablet, PC and console all are just a computer for the purpose of distributing video they could be counted as something different even if video is streamed from the same source. Other circumstances like if consumers are buying the copy or just renting it, or if it can be viewed at restricted or any time etc. may also be important. By default author is entitled to payment even if agreement doesn't mention it. Finally apart for the above part (called "autorskie prawa majątkowe") there are also "autorskie prawa osobiste" ( https://en.wikipedia.org/wiki/Moral_rights ) which can not be licensed away, and at least from my point of view seem to be less popular in US.
I've heard this law (mostly explicitly naming fields of utilisation) creates some issues with digitalisation of old archives here in Poland, but I don't remember the details.
I'm not a lawyer, it's couple of years after I learned it so there might be mistakes, if someone could correct me I would be grateful.
EDIT: better example
Does this merely mean that if I take a photo of something in the public domain, I hold the copyright on that particular reproduction?
Or that if a museum takes a photo of something in the public domain, they can restrict others from offering/using their own photos of that work?
The Mona Lisa is in the public domain. You can include an image of it in whatever you are creating without asking anyones permission. However, lets say you take a picture of the Mona Lisa. That image is not in the public domain, and it is your image and you can prevent people from using your image without consent.
And even if you can't tell those two images apart you can often trace the image back to its origin.
Better the citizenry do it than corporations.