Re: copyright in the digitized object?

On Wed, Mar 01, 2000, Roland J. Cole <cole[_at_]spi.org> wrote:
>
> On Wed, Mar 01, 2000, Don Roemer <droe2[_at_]earthlink.net> wrote:
> >
> > On Tue, 29 Feb 2000, Roland J. Cole <cole[_at_]spi.org> wrote:
> > >
> > > We at SPI do thousands of pages of OCR on public domain documents.
> > > We know all the careful and sometimes very creative work that goes
> > > into choosing how to OCR, what to OCR, how to represent in text what
> > > was a picture, etc. I have no question that you have a copyright in
> > > the electronic version as a derivative work.
> >
> > It is a shame that few courts agree with you. Where is your originality?
> > You discuss "sweat of the brow" issues that were dispensed with a long
> > time ago. The overruling of "copying a copy" in Alfred Bell sounded
> > the death knell for rights in a work that may have cost someone untold
> > amount of dollars to [re]produce.
>
> 1. I agree that it is a shame that few courts would agree with me.
> However, I am not sure you and I are talking about the same thing.

Exactly. And so there probably is no way to predict how a court might rule in a case of claiming copyright on a digitized work that previously was in the public domain. The details are essential.

There is a whole business engaged in by literature scholars to re-edit classic public domain texts, change a few punctuation marks, add a few notes, sell it to a university press, and slap a new copyright on the thing. As far as I know this has not been challenged. In many cases the notes are not sufficient to use the new text to reconstruct the original text. Thus to avoid controversy, one ought to digitize the original edition that is known to be in the public domain.

It seems to me there is a good argument that after a certain point of new creative work, the new work becomes a derivative work rather than a copy.

But then when doing this new digitization one goes through just the same steps as the scholars who put out new copyrighted print editions, doing editing, arrangement, compilation, adding a brand on it to stamp some authority, and so on. If they can do it, why not us? And then web pages are copyrighted when they are mostly lists of links to other sites; often a public domain text on the web will have links to other sites as well; why should not that be copyrighted?

True, the copyright only applies to the new material, not the material that was copied from the old. But a straight copying of the new material does not correspond exactly to a copying of the old. For example, when placing the material in new format, one has to eliminate end-of-line hyphenation, a matter that seems trivial until one has to do it properly. There are a host of other matters that an editor has to do to present the text; attributing all the rights to the dead author may not encourage the proper type of innovation of new creative works that are really not copies but derivative works from the old.

A court would have to decide on the basis of these details, weighing originality and needed incentives. Since these texts often are not economically valuable, other aspects of copyright should be considered than just who makes the money. And since intellectual property lawyers are expensive, it doesn't seem likely to me that anyone will pay to force a decision in such cases.

I give away my works, but I do object to having others sell them without crediting me. I object to the new "eBook" reader appliances because they lock up books with licensing and encryption instead of just copyright. So I don't want to give permission to the manufacturers of them to copy my works and have an instant wealth of content to help sell the appliances. Let them fail on their own!

Thus I have written a couple of webmasters who tried to use my works in such ways, and I have persuaded them to stop their practices. But without a court decision that backs up my ideas of copyright, my efforts have to be just persuasion so far.

-- 
"Eric"  Eric Eldred  Eldritch Press
mailto:Eldred[_at_]EldritchPress.org
http://www.eldritchpress.org/EricEldred.vcf