Possible Antitrust Aspect Re Digital Representations & Bettman Threads

Re: Possible Antitrust Aspect Re Digital Representations & Bettman Threads

One point that, I believe, has not been made in the DIGITAL REPRESENTATION and BETTMAN threads is that THE MAKING OF HIGH QUALITY PHOTOGRAPHIC REPRODUCTIONS OF PAINTINGS IS NOT NECESSARILY JUST A SIMPLE MATTER OF MECHANICAL SCANNING. Collectors of quality art books, etc. are well aware of the difference between good and bad reproductions. There can be "art" involved in this exercise. Having said that, there is also danger from a public policy standpoint, if the real purpose is to recapture the public domain.

Another point is that THERE SHOULD BE NO PUBLIC POLICY PROBLEM WITH VERY
"THIN" COPYRIGHT (as Prof. Karjala calls it) FOR SUCH REPRODUCTIONS,
PROVIDED THAT THERE ARE NO MONOPOLISTIC PRACTICES INVOLVED. It I were rich enough to buy Leonardo's Mono Lisa and put the painting away in my basement with armed guards, denying access to all art publishers of digital images, I should justly be accused of being eccentric, selfish and probably economically stupid. However, if I could somehow buy all of the paintings in the Louvre (or at least exclusive digital rights thereto), and especially if I do this with other museums and collections and I have a great deal of market power already in the digital arena/information highway sectors, perhaps THE ISSUE SHOULD SHIFT TO ANTITRUST LAW. THE U.S. ANTITRUST LITERATURE IS FULL OF CASES DEALING WITH ATTEMPTS TO EFFECTIVELY PROLONG PATENT PROTECTION BEYOND ITS NORMAL TERM, TIED DEALINGS, AND OTHER ILLEGAL LICENSING PRACTICES AND MISUSES, ETC. PERHAPS SUCH DOCTRINES COULD APPLY IN THIS TYPE OF SITUATION, IF IT CAN BE SHOWN THAT THE MUSEUM AND/OR THE EXCLUSIVE LICENSEE OF THE DIGITIZED IMAGES OF PD WORKS HAVE SUFFICIENT "MARKET POWER" TO ESTABLISH DOMINANT OR MONOPOLISTIC BEHAVIOUR. The other legal hurdles to be crossed are complex. These issues are often raised as defences to infringement actions. Antitrust law as it intersects with copyright is probably a coming area of intense activity.

IN MANY CASES THERE MAY ALSO BE PUBLIC FUNDING INVOLVED AT SOME STAGE, AND THIS MAY ALSO SUGGEST NEW LINES OF ARGUMENT. THERE MAY ALSO BE
"FAIR USE", "FAIR DEALING" (IN CANADA) OR EVEN FREEDOM OF
SPEECH/EXPRESSION ARGUMENTS IN MANY CASES IF ONLY ONE IMAGE OR A FEW OF THOUSANDS OR MILLIONS ARE COPIED. Interestingly, for decades, if not more, some music publishers have made a business of copying the old plates of even older public domain entire editions of Bach, Beethoven, etc. Sometimes, but not always, they put
"added value" into the new edition in the form of frequently annoying
marks, minor editorial accretions, etc. Occasionally, the additions are useful. Often, they are probably a supposed basis for "thin" copyright assertions. It is often ironic how those who copy the efforts of others (even legally) want to get copyright protection for their own slim efforts.

Even before digitalization, when marginal costs of reproduction and marketing reproductions of paintings and photos were presumably much higher, anecdotal experience suggests that there has never been any shortage of quality reproductions of old and even recent masters. Despite the limitless amount of remainders, the art book publishers remain in business. To be devil's advocate with my own suggestion, this makes one wonder why the issues currently raised about re-assertion of copyright in PD art have not proven to be a big problem before.

Clearly, it is possible and INDEED DESIRABLE FOR THERE TO BE COPYRIGHT IN NEW AND ORIGINAL COMPILATIONS of public domain work and in value-added additional material to the works themselves. However, this should not serve as a pretext for protection of the works themselves. Also, it would be an interesting matter of both fact and law in many cases as to whether the copyright in the compilation aspects (i.e. selection, coordination arrangement), if applicable, of a particular collection belongs to today's CD or database publisher, or the often legion number of curators and others who assembled, catalogued and otherwise managed the collection(s) over the years. Is there a traceable and properly documented title?

The above comments are not, of course, in relation to any particular event or transaction.

) Howard P. Knopf 1995

Howard P. Knopf is an intellectual property lawyer, lecturer and author in Ottawa, Canada.
Phone: 613-761-1735
Fax: 613-761-1584
E-Mail: hknopf[_at_]magi.com Received on Thu Oct 26 1995 - 02:14:19 GMT