Copyright Comments
Talking About the Public Domain
Ah, the public domain: Where creative work is supposed to wind up after a limited period during which the creator has exclusive control over distribution and copying. An ever-growing pool of literature, music, photography, video and art that we can use not only as inspiration but also as the direct basis for new works, annotating, deriving or just plain redistributing.
What a wonderful thing.
Too bad it’s basically been frozen for quite a few years now, with almost nothing new entering the pool (except government publications—which start in the public domain) and things tagged with the Creative Commons CC0 license. Oh, and probably a few cases where a creator’s been dead more than 70 years and has works produced since 1923.
Not only has it been frozen in the U.S., there are laws and treaties that would appear to shrink the public domain pool—which should, by any rational reading of the Constitution, be flatly unconstitutional.
I won’t dignify this set of notes with either a “Perspective” label or a claim of currency (note the flag: Copyright Comments, not Copyright Currents). These are just some notes on items that have accumulated over the years, with commentary where I think it’s useful.
As constant readers should know, I’ve been watching “old movies” published in large, cheap, VHS-quality DVD collections by Mill Creek Entertainment for quite a few years now. Although there are exceptions—TV movies and productions where the publisher could apparently arrange free or cheap licensing—most of these movies are in the public domain. In most cases, you could watch them from the Internet Archive or other sources; I find MCE’s packages worthwhile and reasonably priced. When I complete a disc (typically four movies), I post a set of mini-reviews to Walt at Random. When I get through half a typical collection (six discs) or, for smaller collections, the full collection (or, for one massive 60-disc set, six discs), I publish an Offtopic Perspective in this ejournal. (That’s the other essay in this short issue, for example.)
One smaller collection, given to me by Mill Creek Entertainment as part of a remarkably generous correction for a tiny problem, was Alfred Hitchcock: The Legend Begins—a four-DVD set containing 18 of Hitchcock’s pre-Hollywood films, two episodes of Alfred Hitchcock Presents and a great 55-minute extra: a collection of trailers, mostly from Hitchcock’s Hollywood era. I wrote up that collection in the September 2009 Cites & Insights.
When I posted reviews of the first disc’s movies, I got a long comment from a British reader saying that this set was legally questionable (not the term used)…because the early Hitchcock movies, clearly in the public domain in the U.S. at one point, had copyright “restored” by the Uruguay Round of IP agreements and the 1996 copyright law in the U.S…and wouldn’t re-enter the public domain until at least 2050.
I removed the first version of the comment, and paragraphs of a second version, because of legal claims that simply didn’t belong in my blog. But that left the issue: Was—Is—Mill Creek Entertainment flagrantly infringing copyright? The four-disc set is still available from Amazon, if you’re willing to lay out $5.49. Except for the trailers (an unfortunate omission), it’s also all contained within one of MCE’s 50-packs, Legends of Horror (probably the weakest collection I’ve encountered, but it’s $10 or so if you’re interested). If these are gross infringements, you’d think they’d disappear.
I commented on this situation after posting the final set of reviews—and that comment appeared during the brief period when Walt at Random was part of ScienceBlogs, so the formatting on the post is unfortunate (migrating posts back to WordPress from TypePad “simplified” some formatting and had a nasty habit of turning paragraph breaks into line breaks). Here’s part of what I had to say at the time:
Legitimate?
…Was I watching a legitimate packaged set of old movies or is this set “dodgy”?
A couple of key points up front:
I am not a lawyer. I’m interested in copyright and have written about it, but always from a semi-informed layperson’s point of view. Let me say that again: I am not a lawyer. This is not legal advice.
Mill Creek Entertainment, successor to TreeLine Films, has been around for a while. The company–a division of Digital1Stop–has a street address. It is possible to contact them. The Hitchcock set’s been for sale for at least two years, through such obscure distributors as Amazon.
Anyway…
When I posted my off-the-cuff reviews for Disc 1, one of my online correspondents from the UK objected strongly–that these movies were not in the public domain and that Mill Creek wasn’t a known licensee. The post came from someone I respect, but I had to edit the comment, as it made legal claims I wasn’t going to get in the middle of.
On the other hand, the post did alert me to something I’d never heard of before: Copyright restoration. Apparently, thanks to the wonders of international treaties, some UK material that was definitely in the public domain within the U.S. (and maybe even in the UK) had copyright restored retroactively–with a clause allowing distributors, who had released the PD material in good faith, to sell out existing stocks for a year after being notified by copyright-holders that the works were now once again protected.
So, well, other than saying “that’s appalling if true”–as it seems to violate not only the spirit of U.S. law but also the Constitutional basis for copyright–I could only fall back on the second point above: The material’s being sold openly by a legitimate company with a known U.S. address; if there’s a problem, it’s up to the copyright-holders to address it.
But wait! There’s more!
More recently, I heard about Golan v. Holder, a case in the U.S. District Court for the District of Colorado, decided on April 3, 2009.
Briefly, the 10th District Court found that the copyright restoration (Section 514 of the Uruguay Round Agreements) was unconstitutional.
Which would appear to put these movies (back?) in the public domain. At least for now. At least in the 10th district. Subject to appeal, of course. And to possible new Congressional acts–but it’s getting a little tougher for Congress to keep imposing longer and tougher copyright in the assumption that nobody’s looking.
Why the licensees might step back
I don’t believe it should be legitimate to restore copyright in materials that legally, properly fell into the public domain. I believe copyright is too long in the U.S. anyway–and this particular restoration means that materials created by non-U.S. citizens actually have an advantage over U.S. creations, within the U.S. (The act didn’t restore any native-U.S. materials to copyright.) That also seems odd.
But there’s another issue to consider–namely, that for movies, at least, proper license holders with actual access to original materials shouldn’t worry too much about public domain versions. Why?
Because the license holders can offer something the PD vendors can’t: Fully-restored DVDs created from the masters, rather than from whatever prints happen to be available. The movie may be in the public domain, but the masters continue to be the physical property of whoever owns them.
Having watched the Mill Creek set of 18 movies, 2 TV episodes, and 19 trailers (the 19 trailers being one of the most charming aspects), I would think that any true Hitchcock enthusiast would spend the $156 extra to get the “proper” versions of ten of the 18 movies from Criterion, Lions Gate or MGM after spending the $8 for this set. You’d presumably get better print quality, extras and expert commentary. (Not that these prints are all terrible–most of them are actually pretty good.)
Would I pay the extra money? No, because I’ve realized I’m never going to be a great fan of early Hitchcock. But I wouldn’t have paid that money anyway–and at least I’ve been exposed to some interesting flicks I’d have never heard of otherwise.
I probably picked up my information from an ars technica story from April 2009, “Court: Congress can’t put public domain back into copyright,” written by Nate Anderson. Excerpts:
In 1994, Congress jammed a batch of foreign books and movies back into the copyright closet. They had previously fallen into the public domain for a variety of technical reasons (the author hadn't renewed the rights with the US Copyright Office, the authors of older works hadn't included a copyright notice, etc.) and companies and individuals had already started reusing the newly public works. Did Congress have the right to put a stop to this activity by shoving the works back into copyright? On Friday, a federal court said no…
Lawrence Lessig and a team from Stanford have been arguing for years in Golan v. Gonzales (now Golan v. Holder) that Congress overstepped its authority when it [restored copyright in these works]. A federal court disagreed and issued a summary judgment against Golan, a music teacher who had been freely using Prokofiev sheet music before it reverted back into copyright. But the 10th Circuit Court of Appeals said back in 2007 that the case should be reconsidered on First Amendment grounds. Last week, the federal judge who oversaw the trial changed his ruling and agreed that URAA violated the First Amendment….
In the new ruling, Judge Lewis Babcock conducted his First Amendment analysis and concluded that URAA did change the "traditional contours of copyright" in one important sense: it meant that the copyright sequence no longer moves only from protection to public domain. Indeed, at the whim of Congress, public domain works can now migrate into copyright. "Such an alteration is inconsistent with the copyright scheme as designed by the Framers and as implemented by Congress in the ensuing years," wrote Babcock…
While further appeals are likely in such a prominent case, Lessig & Co. can at least take some momentary comfort from confounding the naysayers and finding the edge of Congressional authority to tinker with copyrights.
Groklaw also had an item on this holding, published April 6, 2009, including the text of the decision itself and links to some other commentaries and resources. A key sentence about the decision: “I read it as saying that nothing, not any treaty, not even the Berne Convention, can trump the US Constitution.” You might find the rest of the item worth reading. Do note that the case is about scores for musical works, not old movies—but it applies to a great many works created outside the U.S., including the Hitchcock flicks.
The decision was, of course, appealed—and on June 22, 2010, Mike Masnick published this item at techdirt: “Terrible News: Court Says It’s Okay To Remove Content From The Public Domain And Put It Back Under Copyright.” Excerpts:
Warning: this one is depressing if you believe in the public domain. You may recall that last year, a district court made a very important ruling on what appeared to be a minor part of copyright law. The "Golan" case asked a simple question: once something is officially in the public domain, can Congress pull it out and put it back under copyright?... Getting a second crack at this, the district court got it right -- and was the first court to point out that massively expanded copyright law can, in fact, violate the First Amendment.
But, of course, it couldn't last.
On Monday, the appeals court reversed the lower court's ruling and said there's no problem with the First Amendment because copyright law "addresses a substantial or important governmental interest." This is, plainly speaking, ridiculous. The argument effectively says that the government can violate the basic principles of the First Amendment any time it wants, so long as it shows a "substantial or important government interest." But that makes no sense. The whole point of the First Amendment was to protect citizens' interests against situations where the government's interests went against citizens' interests. It should never make sense to judge a First Amendment claim on whether the government has "substantial or important" interests.
On top of that, the court basically said "Congress knows best" on this issue. Again, this seems to go against the entire point of the First Amendment and the important judicial protections of the First Amendment. The whole point of court oversight of Congress is because Congress doesn't always know best. But here, the court has no problem deferring entirely to Congress…
Most worrying of all? The court says that it should keep out of this discussion because it involves international relations and international treaties. See why you should be scared to death of ACTA? The courts are effectively admitting that once you get these "international obligations" in place, the courts should mostly stay out of the discussion, even if it violates the basic tenets of US law. That's downright scary. The court gives a lip service defense to this, saying that it can still review international agreements to make sure they abide by the First Amendment... but... for the most part, it'll just defer to Congress….
In this particular case, a very serious issue was raised: works that clearly were in the public domain, and which some publishers were relying on as public domain documents suddenly are no longer in the public domain. If you have any respect at all for the core notion of copyright -- which was originally supposed to be about getting more works into the public domain -- the idea that you can then take works back out of the public domain is downright ludicrous. It goes beyond being a violation of the basic contours of copyright law. It goes against the very Constitutional principles behind copyright law -- and does so in a way that is a clear violation of the First Amendment.
Which part of "Congress shall make no law... abridging the freedom of speech" does this court not understand?
All in all this is an incredibly frustrating ruling. It feels like the court didn't actually want to address the admittedly difficult question of how the First Amendment and copyright law come into conflict, so it just punted and said "well Congress knows best, so it's okay." The case will almost certainly be appealed, potentially for an en banc (full appeals court review) or directly to the Supreme Court. So this most certainly is not over yet. But after a reasonable ruling last year to this year's reversal, it's definitely a step backwards for anyone who believes in the importance and sanctity of the public domain….
There’s quite a bit more to the post, including some other arguments and a viewable version of the decision itself. You might even want to read the 161 comments—or maybe not.
The good news? As reported by Marc Perry in a May 29, 2011 Chronicle of Higher Education article, “Supreme Court Takes Up Scholars’ Rights.” Which is to say: The Supremes did agree to hear this case. It’s an interesting article, focusing primarily on plaintiff Lawrence Golan, who conducts the University of Denver’s student orchestra (he’s a tenured professor) and relies on scores in the public domain to stretch the group’s tiny budget. A key excerpt:
The change was surprising from a philosophical point of view: Under copyright law, the Constitution grants authors a limited monopoly over their works as an incentive to promote creativity. Over the years, Congress has often delayed the passage of works into the public domain by lengthening the duration of copyright terms. But removing pieces already there was different, Mr. Golan's lawyers argue, a radical change in what one scholar describes as the basic "physics" of the public domain.
That may sound abstract, but the impact on Mr. Golan was direct. When a work is in the public domain—that Puccini opera, say—an orchestra can buy the sheet music. Symphonies typically cost about $150. And the orchestra can keep those pages forever, preserving the instructions that librarians laboriously pencil into scores. But works under copyright are typically available only for rent. And the cost is significantly higher: about $600 for one performance. With the flip of a switch, the new law restored copyright to thousands of pieces.
Golan’s group gets about $4,000 a year to rent and buy music—and many colleges have a lot less than that to spend on music, sometimes as little as $500. “When the Conductors Guild surveyed its 1,600 members, 70 percent of respondents said they were now priced out of performing pieces previously in the public domain.” Again, there’s a lot worth reading in the full CHE article—and, sigh, comments that are in some cases exactly what you’d expect, including those from copyright extremists, although there are also some thoughtful comments.
This situation isn’t unique to the U.S. There is an International Music Score Library Project, a Wiki offering scores that were in the public domain in Canada—because Canada has a term of life plus 50 years, not the life plus 70 years of the U.S. and some European countries. According to “The Public Domain is Offline,” posted October 21, 2007 at copy this blog, the Wiki was shut down after Universal Edition, a European music publisher, sent IMSLP a cease & desist letter to stop offering scores from publishers within that 20-year window (and some who’d been dead more than 70 years). “There are many issues brought up by this situation. One of the most worrying is that the most restrictive copyright law in the world can potentially become the de facto copyright law of the Internet, particularly for those with few resources.” In fact, the library (the Petrucci Music Library) is still there, with nearly 100,000 scores from more than 5,800 composers (as well as more than 2,500 recordings), but it’s fair to assume that a fair amount of stuff was removed. Still, even reduced, IMSLP is a good example of what the public domain can do for you—as is, of course, the Internet Archive. Returning PD material to copyright does nothing to increase creativity but does much to mess things up in general.
Where will this end? Possibly in this year’s Supreme Court decisions—and given the current court’s attitudes regarding corporations and citizens, I’m less than sanguine about the outcome.
Here’s a topic that deserves a big, fat, controversial essay by somebody who’s done the research and isn’t afraid to call a spade a bloody shovel. I’m not that person, but here are a few posts related to one big aspect of copyfraud: Claiming that public domain material is actually under copyright.
Steve Lawson posted this discussion at See Also… on February 5, 2009. He links to a post on Sage Ross’s blog—but that blog’s moved. Here’s a link to the current home of “Libraries and copyfraud,” posted January 30, 2009.
The situation: Sage Ross, a Wikipedian, was working on a list of portraits of Darwin for Darwin Day 2009, and ran across a photograph at the Huntington Library taken in 1881 and “possibly the last [photo] before Darwin’s death.”
Press releases and exhibition descriptions invite people to contact the Huntington to request images, so I requested the Darwin photo. The response I got was typical of how libraries and archives deal with digital copies of rare public domain material.
The Huntington quoted distribution fees for the digital files (different sizes, different prices), and also asked for specific descriptions of how the image would be used, so that the library could give explicit permission for each use. Had I wanted to use it for more than just publicity (e.g., in a publication) more fees would apply. Apparently the curators were not used to the kind of response they got back from me: I politely but forcefully called them out for abusing the public domain and called their policy of attempting to exert copyright control over a public domain image “unconscionable.”
The post continues regarding Ross’s exchange with the Huntington, wherein he argued that, while charging fees for distribution itself is fine, the library “has neither the moral nor legal right to pretend authority over the image”—and that “everybody does it” isn’t a defense. In the end, Ross was told to contact Yale libraries and museums to see whether they do things differently—again the “everybody does it” defense for what Ross considers copyfraud.
Unfortunately, the Curator is right that copyfraud is standard operating procedure for libraries and archives. Still, I think it’s productive to point out the problem each time one encounters it; sooner or later, these institutions will start to get with the program.
In this case, there’s clearly no question about the status of the image. The photograph was taken in 1881. The photographer died in 1896. The version at the Huntington is from a postcard published around 1908. By any standard, this is public domain material. Oh, and by the way, “Everybody does it” with a finger pointed at Yale turned out to be the wrong response: Yale’s libraries and archives (as noted in comments) understand the distinctions.
One of the more interesting copyright court cases—and one of the few that’s been on the side of broader usage—shows up here: Bridgeman Art Library v. Corel Corp. You can read about it at Wikipedia. In brief, the decision ruled that exact photographic copies of public domain images are not protected by copyright: They lack originality. By inference, an exact digital copy of a public domain item should also be in the public domain. (How did Corel get involved? Corel used to sell CD-ROMs containing excellent high-resolution photographs of artworks, obtained from a company that’s since disappeared—and Bridgeman Art Library, which licenses copies of similar photos of artworks, sued Corel, claiming that the photos could only have come from Bridgeman and were therefore copyright infringements.)
I’ll leave Lawson’s post for you to read on your own, if only because I don’t find that I have much to say about his comments.
With some trepidation, I’ll point to “Copyfraud: Poisoning the public domain” posted on June 26, 2009 at The Register by Charles Eicher. Why trepidation? Because it’s The Register, for one—but also because I’m not at all sure that Eicher isn’t confusing copyfraud (“plundering the public domain”) with legitimate enhancement—that is, building new works based on public domain works. Eicher certainly asserts that the examples he gives are “nothing but excerpts” of public domain material and that Google Books is complicit with copyfraud by suppressing access to the PD originals. (How is it that Google Books can be legally required to make scanned material available?) There are some interesting links in Eicher’s piece and it’s worth reading—but I do believe a distinction needs to be made between pure reproduction and new editions of public domain works. A new edition adds value, even if that value is only in the new cover and the typography used. Yes, if the publisher claims copyright over the original text, that’s copyfraud—but I think that’s a subtler issue.
Otherwise—if we claim that any work based on public domain material is itself public domain—there’s another slippery slope: There’s no economic motive for someone to produce new work based on PD material. That would be an odd perversion of the whole idea of the public domain.
An April 5, 2009 post by Jason Griffey at Pattern Recognition, “Ebooks, copyright, and the University of Virginia,” appears to deal with a situation similar to Sage Ross’s—a reasonably pure case of claiming copyright where copyright probably can’t be claimed. Part of the conditions of use for UV’s ebooks collection:
While many of these items are made publicly-accessible, they are not all public domain — the vast majority of the images, and a number of the texts, including all of those from the University of Virginia Special Collections Department, are copyrighted to the University of Virginia Library, for example, and a number of other texts are still copyrighted to their original print publishers and made available here with permission.
Griffey has “no qualms with the texts that are copyrighted by their original publishers” but is taken aback by the rest of the claim.
Really?
I had my suspicions here…it’s not like the UVA Special Collections Department are writing books, right? After look around, I found this text: Po’ Sandy by Charles W. Chestnutt. Published in 1888 in the Atlantic Monthly in New York, it is clearly in the public domain in the United States. But there it is, in the front matter:
Copyright 1999, by the Rector and Visitors of the University of Virginia
Looking around just a bit, it looks like this shows up on all sorts of texts that UVA digitized. My favorite is The Autobiography of Benjamin Franklin, completed in 1788 by Franklin but the particular version republished by UVA was published in 1909 by P. F. Collier & Son Company in New York. Also, without any doubt, in the Public Domain in the US. It also has the note:
Copyright 1999, by the Rector and Visitors of the University of Virginia
What gives UVA the right to claim copyright on these texts? They couldn’t have legally digitized them if they weren’t in the Public Domain at the time of their digitization, and changing the form of something doesn’t give you the right to claim a copyright, especially on the bits that make the work up. Even stranger, they aren’t just claiming copyright, but including a EULA!
After a couple of other questions, Griffey ends: “Can anyone explain to me how they could possibly have legitimate copyright claims on things that they didn’t create and are beyond the time limit for copyright protection in the US?” The handful of comments—one of which notes the Corel decision—doesn’t provide any satisfactory answer, and none seems to have emerged from UVA.
There’s your organizing principle: These are all about the public domain, but don’t necessarily have much else in common, so the “roughly chronological” organizing method applies. First, though, there’s one I’d like to link to but can’t: John Wilkins’ “Discovering the Undiscovered Public Domain.” It’s from 2008 and about a modest University of Michigan project to determine the copyright status of works published between 1923 and 1963—but Wilkins prunes his blog, and I can’t find this post anywhere. Too bad: It was an interesting project, and I was mostly going to say “Go read it.”
You can go read and use this piece, by Peter Hirtle at Cornell, which I flagged in 2009 but which has been updated as recently as January 1, 2011. It’s a heavily-footnoted table that shows where each category of material should stand—starting with the strangest case, “Never Published, Never Registered Works” (which can be protected for as long as 120 years from the date of creation in some conditions).
I can but point and say “This is good stuff,” available as an HTML page or printable PDF version. A key point: If a work was first published in the U.S. without a copyright notice between 1923 and 1977, it’s in the public domain—but that “first published in the U.S.” had better be certain. Oh, and think 120 years is bad? Sound recordings published prior to February 15, 1972 won’t fully enter the public domain until February 2067! So, for a recording published in 1923 (the equivalent of a book that’s definitely PD), that’s 144 years of protection…and sound recordings go back quite a few years before 1923.
This one’s by Mark Pilgrim, posted October 19, 2009 at dive into mark. Technically, it’s not about public domain—but the GNU Free Documentation License has similar effects. It’s a form of “copyleft” that allows for republication and derivation but requires that the new work carry the same terms.
The situation: Pilgrim wrote a book Dive Into Python, published by Apress. The book has always been freely available online in several forms and as a priced print paperback (and, now, not at all free Kindle ebook). Somebody else published their own version of the book and got it on Amazon.
This apparently caused a small firestorm within Apress, the exact details of which I am not privy to, but which (I am told) became a somewhat larger firestorm after the Apress executives realized they had no legal recourse, and asked my opinion on the matter.
His opinion, in brief: He deliberately used a Free Software/Free Culture license, so there’s no real issue here.
Still, there’s a qualitative difference between letting people download your own work from your own site, and watching other people try to profit from it. But it is precisely this difference that strikes at the heart of the Free Software/Free Culture ethos. Part of choosing a Free license for your own work is accepting that people may use it in ways you disapprove of. There are no “field of use” restrictions, and there are no “commercial use” restrictions either. In fact, those are two of the fundamental tenets of the “Free” in Free Software. If “others profiting from my work” is something you seek to avoid, then Free Software is not for you. Opt for a Creative Commons “Non-Commercial” license, or a “personal use only” freeware license, or a traditional End User License Agreement. Free Software doesn’t have “end users.” That’s kind of the point.
You’ll find Price’s response to Apress interesting. As to the “anonymous soul” who published another edition of the same book? “I am grateful…” and he explains why:
Grateful, because it afforded me the opportunity to remind myself why I chose a Free license in the first place. My Zen teacher once told me that, when people try to do you harm, you should thank them for giving you the opportunity to forgive them. In this case it’s even simpler, because there’s nothing to forgive, just explain. She’s redistributing the work that I explicitly made redistributable. She’s kind of the point.
The comments are also interesting—including the “unfortunate side of this story:” At Apress’s request, Amazon took the “mystery publisher’s edition” off its market.
This may be a useful lesson for those using CC0 (explicitly placing work in the public domain) or most other CC licenses—and for fair use issues as well: People will use your material in ways you may not entirely like, and you need to be able to deal with that. Pilgrim does this admirably.
Laura N. Gassaway wrote this article, which appeared in the Fall 2009 Law Library Journal in revised form. The link takes you to an abstract, where there’s a Download button for the 39-page (double-spaced) PDF itself. Here’s the abstract:
Much has been written for librarians about copyright law. Despite the importance of the public domain, it has attracted much less scholarly attention than has copyright law generally, and yet a healthy and robust public domain is crucial to our society. It provides the building blocks for authors, composers, artists and movie makers who can borrow from public domain works without seeking permission of copyright owners. Unfortunately, the public domain is under attack from expanding the term of copyright, to making it more difficult for works to enter the public domain in the United States. Some librarians have asked if vigorous application of fair use cannot substitute for the shrinking public domain. It cannot. Fair use is a defense to copyright infringement and is very fact determinate. A court's finding of fair use applies only to the two parties to the litigation while the public domain is available to everyone from individual users of works, to artists and authors and to publishers and producers. It is crucial that the public domain be energetically defended. Today, it is not clear whether an author can even place his or her work in the public domain since copyright attaches automatically. A statutory method must be developed for authors to place their works in the public domain.
I would like to assure you that I’ve read this in great detail, fully understand every point Gassaway is making, and can offer comments on areas as appropriate. That would, unfortunately, be a pack of lies. I’ve skimmed the article. Gassaway is a respected copyright scholar; I’m not likely to critique her assertions. The article’s definitely worth reading. I do wonder about her seeming assertion that CC0 does not, in fact, place works in the public domain—but here again, where someone with her expertise is involved, “do wonder” is as far as I’m likely to go.
This post by John Mark Ockerbloom appeared February 8, 2010 at Everybody’s Libraries. Ockerbloom notes cases in which he gets requests for licenses to reproduce images (in the University of Pennsylvania Libraries) from books published more than a century ago.
In those cases, I respond that the image is in the public domain (and our digitization, which adds no originality, is also in the public domain), so no license is necessary or appropriate.
Usually that response receives a thankful reply, sometimes with signs of surprise that an image can be reused without permission. But sometimes I’ll get back a more alarmed reply. “My publisher says I need a license for every image in my book, or I can’t use it,” it might say, followed by a plea for help in tracking down some long-defunct 19th century publisher.
There’s quite a bit more to this post—leading up to Ockerbloom’s announcement of scans for all active copyright renewals for artwork. (That link is to a page that includes links for year-by-year scans and original copyright registrations and some summaries and indexes.) Ockerbloom notes that less than 1% of images with copyright registered in 1923 were renewed in 1951, when they came up for renewal. With these new tools, it’s plausible to expand the range of images demonstrably in the public domain.
So we have a rich treasure trove of images in the public domain that’s been largely buried under presumptions and uncertainties about copyright. By finding and sharing information about their copyrights, we can protect and enjoy these images in the commons of the public domain, where they can be viewed freely, included in new works, and reused in any way we can imagine. If you find this prospect intriguing, I hope you’ll help bring these images to light.
No real comment other than “good stuff.”
Mary Minow’s April 8, 2010 post at LibraryLaw Blog is fascinating reading. Some 11 days earlier, Minow had posted speculations as to what copyright-protected work was oldest and what work will have the longest protection. At the time, she offered a line of reasoning that concluded that John Adams’ diary from 1753 met both criteria. The second post discusses some issues as to whether that diary really is under copyright—and her best guess at this point is that it is not: that it’s in the public domain. It’s an interesting and fairly complex discussion that you need to read in the original.
That’s the title of a December 9, 2010 post by John Dupuis at Confessions of a Science Librarian, and the ellipsis is followed by “...Instead of a different Creative Commons license, such as CC-BY? Or just with normal copyright restrictions?”
Set aside Laura Gassaway’s suggestion that CC0 doesn’t actually waive copyright. It’s still an interesting discussion—and, in some ways, an odd one, given that data as “a set of facts” is not protectable by copyright in the U.S. (of course, Dupuis is in Canada). Indeed, one online resource quoted concerns exactly that situation: Some jurisdictions allow copyright over database design and structure, offering an odd form of protection for facts that aren’t themselves copyrightable.
Dupuis also links to items that point out why you should not use something like CC-BY for data itself: It just gets in the way of creating new datasets.
Let’s close with this generally hopeful post by John Mark Ockerbloom on January 2, 2011 at Everybody’s Libraries. Public Domain Day is the day on which a year’s worth of copyrights expires—when a nation’s laws allow for any expirations at all. In some nations, including Canada, that’s still life+50…although in a few others, such as Mexico, it’s now extended even beyond the ridiculous life+70.
Go read the post. I like winding up on a positive note. One of these days I’ll figure out how I can legally do what I’d just as soon do: Follow Ockerbloom’s lead and dedicate my own writing to the public domain after it’s been published for 14 years. Does anybody want to republish, say, MARC for Library Use or Technical Standards: An Introduction for Librarians or my other books up to and including Desktop Publishing for Librarians and The Online Catalog Book? If so, tell me how I can explicitly waive copyright and I’ll be happy to. (That offer does not hold for Future Libraries, which has a coauthor and may still be in print. I’ve regained the rights to all of my earlier books, all of which are out of print.)
And, without a full discussion, I must mention Hathi Trust’s work to identify items that are in the public domain. This Library Journal story provides a good starting point.
Cites & Insights: Crawford at Large, Volume 11, Number 7, Whole # 142, ISSN 1534-0937, a journal of libraries, policy, technology and media, is written and produced by Walt Crawford.
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