Digitising public domain images creates a new copyright, rules German court(arstechnica.co.uk)
arstechnica.co.uk
Digitising public domain images creates a new copyright, rules German court
http://arstechnica.co.uk/tech-policy/2016/06/digitising-public-domain-images-creates-a-new-copyright-germany/
12 comments
Important to note: the argument in this case is not "the museum owns the original artwork, thus it can stop people from freely licensing their photos of it", but "the museum owns the rights on the photo, and can decide if it releases it to the public domain or not". It's not about the rights of the owner of the artwork, but about the rights of the owner of the photo.
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.
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.
Sure--but a faithful photographic reproduction, like a faithful text transcription, isn't something that can be really different from another faithful reproduction. Sure, I guess a few pixels would be subtly different based on scanning techniques, etc., but those would only be tangible differences to a machine, not a human.
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.
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.
How can a person tell I was using the museum's faithfully reproduced image, and not one that I scanned myself?
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.
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.
At least under US law, I don't think the level of skill required is the defining factor in copyright protection. There must be a creative work. 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.
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.
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.
There must be a creative work.
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.
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.
> This seems a strange and kind of arbitrary requirement to me.
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.
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.
I find it unreasonable people seem to think this is so obviously wrong. I happen to disagree with you, but others seem to pretend this is obviously black and white, it isn't. Creativity itself is a subjective measuring stick.
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.
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.
It really is clear when it comes to faithful reproductions of public domain 2D works in the US. US copyright law doesn't regard "sweat of the brow" as sufficient justification for a copyright.
https://en.wikipedia.org/wiki/Sweat_of_the_brow#US_copyright...
Pedantic aside: Musk didn't exactly start Tesla...
https://en.wikipedia.org/wiki/Sweat_of_the_brow#US_copyright...
Pedantic aside: Musk didn't exactly start Tesla...
I will cede you may be correct, of course the world is much bigger than America, and presumably different states and courts have different variations for coywrite, logo, ect.
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.
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.
A translation might allow for some creativity since you would be interpreting nuances of two or more languages, but transcription is just writing down the words of someone else. No creativity involved at all.
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> 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.
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.
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.
I suspect you've never done any fine art photography, because you would know that the skill involved in lighting an oil painting (which is technically a three dimensional work) is a technical skill that involves making creative decisions that are anything but formulaic.
I have and have seen it done often. Even a fair amount of sculpture photography. It isn't that difficult.
yes, but a carpenter does not own any copyright on the table he has sawed for you.
craft skills are important and very valuable but not protected by copyrights.
(the work of an interior designer to design the table might be copyrightable, though).
I don't think it matters, legally, wether two copies are identical or not. To determine guilt you just analyze other evidence. Do the museum servers have a log entry of your ip retrieving a copy at the time of the aledged crime?
One, it's almost certainly not criminal law that would be involved, and two, accessing an image doesn't mean that you didn't also create your own separate image.
Does this mean if I create a 3D model of a physical object, I know hold the copyright to that objects digital representation? And if so, does anything prevent me from registering said copyright and providing it to the public domain?
"Registering a copyright" doesn't exist in German law (and if I remember correctly, it only makes enforcement easier in the US, but isn't necessary).
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.
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.
Copyright is automatic in the US, but there is a form to register a copyright with the Library of Congress and registration is a prerequisite before suing for statutory (as opposed to actual) damages for infringement. A "timely" registration has a presumption of validity, but you can register at any time, including just before filing a lawsuit. This, for obvious reasons, won't enjoy as many presumptions as one registered soon after the work was made.
You can't _register_ copyright. You automatically receive it with the creation of a new original work.
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.
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.
Registering a copyright? Is that something you can do in Germany? I thought that was something that existed only in the United States, and only a long time ago.
Forgive me, in the US copyright exists immediately when a work is created (I'm unfamiliar with German law, I'm a US citizen residing in the US). You can still register your copyright to make it known with the US Copyright Office: http://www.copyright.gov/fls/sl35.pdf
It still exists in the US. Copyright is automatic in the US as just about everywhere else, but registration is necessary if you wish to seek statutory damages rather than just actual damages in the case of infringement.
You cannot. The German Urheberrecht is something a creator automatically is entitled to and which cannot be taken away from him.
Makes no sense considering there is very little effort which is needed, and no creativity whatsoever. So why even allow for copyright on something so trivial.
Sigh ... as much of a supporter I am of the public domain, I'm really thinking we just need to end the charade that a "public domain" even exists anymore. Because, increasingly, it doesn't.
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.
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.
>I'll never see a single work made within my lifetime make it the public domain.
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.
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.
> 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.
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")
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")
Simple, allow new copyrights on derivative works. Except wait, that's how it already is in America. I'm fine with them redesigning Mickey Mouse for new works. However, it's not cool for them to keep the public domain locked up so that their older works don't enter the public domain—heck, a lot of these are direct adaptations of stories in the public domain. They already have a trademark on Mickey Mouse so its not like other people would start stealing Mickey Mouse.
> The General-Director of the Reiss Engelhorn Museum, Prof. Dr. Alfried Wieczorek, told Ars why the museum had decided to take legal action: "As far as we are concerned this case is not about harming Wikipedia, or of us fundamentally disagreeing with this project. On the contrary: we have great sympathy for the Wikipedia project, and share with Wikipedia the object of spreading knowledge. But in this case, the question for us is who should decide whether and especially how our holdings should be made available. Even if one supports the free public accessibility of cultural items on Wikipedia, it is difficult for us to comprehend that a single Wikipedia author claims the right to decide on their own to release to everybody the results of work created with public funds on Wikipedia for free and thus also for commercial use."
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.)
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 stupid part about this is that this ruling will only affect stuff hosted on German servers, so only dewiki will be affected. Even then, someone will likely go in and sneak a few pictures that are "good enough" for Wikipedia purposes. All they've accomplished here is further restricting the public domain in Germany while not stopping Wikipedia from using their images. (We call that "cutting off the nose to spite the face") Now Germans will need intimate physical access to a work in the public domain to be able to get their own copyright to share it. Very disappointing for a museum, especially one which takes pride in receiving public funds. (Though of course the court shares more blame for making such a decision)
I though all the Wikipedia servers were hosted in the US, regardless of language. de.wikipedia.org has address 198.35.26.96, which seems to be in the US. That would make it easy to ignore German court rulings if desired.
Whoops, you're right. Looks like I misread the relevant passage:
> 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.
> 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.
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It will be interesting to see how this plays out in German law. US and UK courts have already established that in those countries, copying an image does not establish a new copyright. In the US, this is a Constitutional limitation: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The key US rulings are Feist vs. Rural Telephone (telephone directories cannot be copyrighted because they're just collection of facts, not creative works) and Bridgeman vs. Corel (photos of public domain images cannot be copyrighted because they are not creative works.) There's also Meshwerks vs. Toyota, which reaffirms Bridgeman at the circuit court level and extends it to 3D scans. (scans of 3D objects create no new rights.)
In the US, databases of facts are not copyrightable. The European Union, though, has a 15 year copyright-like right for databases.
In the US, databases of facts are not copyrightable. The European Union, though, has a 15 year copyright-like right for databases.
There's an infinite number of ways to digitize a painting. What if you invented, say, a new algorithm to calculate colors from bayer pattern? Or an entirely new sensor (as, e.g. Foveon, did)? Or, maybe, a new lighting scheme that produces more accurate colors? Should you be denied the copyright on your work because you "sought to reproduce the paintings as exactly as possible"? I don't think so. In this respect the court decision makes sense to me.
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.
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.
Your work is the sensor, algorithm or lighting scheme and you should own the relevant patents and/or copyright to those. The exact copy of an image in the public domain that you take using those should not be copyrighted.
This is kind of similar to how thing are in Poland, so maybe other countries in EU work the same 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
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
I'm confused.
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?
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?
To clarify, because the original article doesn't really mention this: the photos that were uploaded to Wikimedia Commons were taken by a photographer hired by the museum, not Commons users. The museum is claiming that they hold copyright over the photos because even though the original artwork is in the public domain, the photo taken of it has its own copyright, held by the museum's photographer (and thus the museum).
That seems completely reasonable to me.
The first one.
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.
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.
Roughly the first.
Very curious given that the UK, which has always taken a maximalist view on this, quietly rowed back last year and said that maybe it doesn't create a new copyright after all.
This decision only binds these parties with relation to these pictures in these circumstances. No one else. Other courts, even this Berlin trial/appeals court or an inferior Berlin court, need not pay any attention to this legal reasoning in other cases.
They don't need to but more often than not they do if the legal argument holds any merit at all. And this is not the first time a court has argued that way creating a substantial risk that the next time the decision will be similiar.
I think there's nothing wrong with mechanical rights for the digitization.
Each person shooting their own picture gets their own mechanical copyright.
(This is the same as difference between the specific recording, and the written song, in music)
How would you even distinguish one from another, once they've been processed a bit in graphics software and copied all over the web?
You can usually tell the images apart if you have some resolution to play with. Taking such pictures in sufficient quality takes some skill (e.g. with regards to lighting) that two different photographers usually end up with two different picture of the same painting.
And even if you can't tell those two images apart you can often trace the image back to its origin.
And even if you can't tell those two images apart you can often trace the image back to its origin.
So germans should be running to their local library, in order to digitize everything and claim new copyright?
Better the citizenry do it than corporations.
Better the citizenry do it than corporations.
They'd only have copyright over their own photo (and it's not clear a scan would count). Anybody else could still make another photo with a separate copyright.
why wouldn't a scan count? Every tax agency I've ever heard of accepts scans in lieu of paper.
Because the German ruling applied specifically to photographs, if I understand correctly.
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!