Re: Re: Copyright Question from a Member of the Brown Faculty

From: Peter Hirtle <pbh6[_at_]cornell.edu>
Date: Fri, 12 Dec 2003 16:43:06 -0500

At 10:56 AM 12/12/2003 -0500, Vance R. Koven wrote:
>At 06:10 PM 12/11/2003, Sadler, Connie wrote (quoting an anonymous Brown
>U. faculty member):
>>Some relevant factors: An inscription is not a "fact", but the result
>>of scholarly labor and ingenuity.
>
>Sez who?

Well, the justices on Israel's Supreme Court for one. In the Dead Sea Scrolls case, they wrote about the actions of Elisha Qimron, the philologist who brought a copyright infringement suit for misuse of his reconstruction of one of the Dead Sea Scrolls texts: "Qimron's work was . . . not merely technical [or] 'mechanical.' These were the fruits of a process in which Qimron used his expertise, specialty and imagination, exercised judgment and considered several options . . . these clearly indicate Qimron's original contribution." If the Dead Sea Scrolls can be copyrighted, I suspect the inscriptions could be as well.

I have never been happy with this decision, however, and I would like to think that the inscriptions (and their transcriptions) might be in the public domain. The translations and commentary would certainly be copyrighted, however, and hence would need to fall within the statutory limitations on the rights of the copyright owner. Fair use is the obvious limitation.

I might argue the fair use factors in a slightly different way than Vance Koven does. The purpose is educational and it is potentially transformative, if the collection of inscriptions does not substitute for the original publications but instead creates a new, different, scholarly resource (much as the visual index in the Arribasoft case was different than the images by themselves). The nature of the copied works might be creative (if one follows Israel's Supreme Court, or if a lot of it is translation and/or commentary) or it might be factual - more detail is needed about what is actually being taken. Again, the amount taken is going to be dependent on the specifics of each case - taking one inscription from a collection of 150 might not be infringing. And as for the market impact, there is unlikely to be any licensing mechanism that authorizes the use of specific inscriptions. If scholarly practice is such that republishing inscriptions is considered a scholarly norm, that, too, might argue against any market impact. CCC can give permission to copy an entire article; I am not sure that they can provide permission to prepare a new derivative work based in part on a published work. In short, I think a strong fair use argument could be made, depending on the specifics of the use.

The best answer of course is to check with counsel at Brown University. They are the ones who are likely to have to defend the faculty member against any copyright infringement suit, and they should be the ones to advise.

---

Peter B. Hirtle
CUL Intellectual Property Officer/
Director for Instruction and Learning
Instruction, Research, and Information Services Cornell University Library
309 Uris Library
Ithaca, NY 14853
pbh6[_at_]cornell.edu

607/255-4033 (ph)
607/255-2493 (fax)
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Received on Sat Dec 13 2003 - 02:43:06 GMT