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/

by danso • 10 years ago

54 53 10 years ago

arstechnica.co.uk

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.)

cooper123• 10 years ago

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)

incompatible4• 10 years ago

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.

acabal2• 10 years ago

Tragic and nonsensical decision. Just one more avenue for our cultural heritage to be locked away for eternity, when technology is on the cusp of allowing us to share that heritage with everyone worldwide for the first time in history.

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!

detaro3• 10 years ago

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.

toomuchtodo2• 10 years ago

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?

acabal2• 10 years ago

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.

x5n1• 10 years ago

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.

Doctor_Fegg• 10 years ago

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.

pavel_lishin2• 10 years ago

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?

detaro3• 10 years ago

Roughly the first.

oh_sigh• 10 years ago

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.

parent5446• 10 years ago

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).

pavel_lishin2• 10 years ago

That seems completely reasonable to me.

anonbanker2• 10 years ago

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.

incompatible4• 10 years ago

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.

anonbanker2• 10 years ago

why wouldn't a scan count? Every tax agency I've ever heard of accepts scans in lieu of paper.

byuu2• 10 years ago

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.

vacri• 10 years ago

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.

byuu2• 10 years ago

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")

cooper123• 10 years ago

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.

azov• 10 years ago

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.

tssva• 10 years ago

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.

jwatte• 10 years ago

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)

incompatible4• 10 years ago

How would you even distinguish one from another, once they've been processed a bit in graphics software and copied all over the web?

germanier2• 10 years ago

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.

Animats• 10 years ago

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.

esbranson• 10 years ago

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.

germanier2• 10 years ago

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.

FeatureRush• 10 years ago

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

Digitising public domain images creates a new copyright, rules German court

Related Stories