Copyright and the public domain

Alice in Wonderland, from Google Books

Randy Pickerhas a fas­ci­nat­ing post on the Faculty Blog of the University of Chicago’s law school of the copy­right sta­tus of scans (by Google, for exam­ple) of pub­lic domain works. Does the effort of dig­i­tiz­ing the work qual­ify as enough orig­i­nal effort to cre­ate a new copyright?

Where does that put Google (and Dover) with its dig­i­tal scan­ners? We are start­ing to see skir­mishes over pho­tographs and scans of pub­lic domain works. The British National Portrait Gallery got into a spat with Wikipedia when Wikipedia uploaded onto its web­site dig­i­tal images cre­ated by the NPG of pub­lic domain works in its col­lec­tion. Actual caselaw is scarce, with Bridgeman Art Library v. Corel Corp., a 1999 fed­eral dis­trict court deci­sion, as a lead­ing case. The court char­ac­ter­ized the dis­pute as one over “‘slav­ish copies’ of pub­lic domain works of art” and con­cluded that such copies lacked the spark of orig­i­nal­ity and there­fore could not be copy­righted. via The University of Chicago Law School Faculty Blog: Scanning the Public Domain.

In my (lim­ited, pro­vi­sional) opin­ion scan­ning works and putting them online is indeed essen­tially a “slav­ish copy.” Even the OCR of the text into a search­able for­mat – which might well require effort and inven­tive­ness – would not, in my mind, pro­duce text that was any more copy­rightable than the orig­i­nal public-domain work. It doesn’t mat­ter how much effort Google or oth­ers invest – only cre­ative effort is rewarded, not effort gen­er­ally. Perhaps the man­ner in which Google dis­plays the works might be pro­tected intel­lec­tual prop­erty (but maybe not); cer­tainly the soft­ware used to scan, OCR, and index the text has a good chance of receiv­ing pro­tec­tion. But the text itself? I don’t think so.Picker points out that Google has tried to include lan­guage to try to pro­tect their effort and limit the poten­tial uses of the file:

That isn’t to say that an owner of such a dig­i­tal file couldn’t try to con­trol use of it through some means other than copy­right. Go to Google Book Search and down­load Alice in Wonderland. The first page is from Google, not Lewis Carroll, and it offers a strong defense of the pub­lic domain: “Public domain books belong to the pub­lic and we are merely their cus­to­di­ans.” Then we get to the next word “nev­er­the­less” and you can guess what fol­lows: dig­i­ti­za­tion is expen­sive — as indeed it is — so Google has imposed a series of lim­its on how the dig­i­tal file can be used.

But what­ever they try, I just don’t think legally  they’ve entered the realm of copy­right — con­tract law, maybe, but not copy­right. Of course, there’s ongo­ing efforts to strengthen copy­right pro­tec­tion and extend it, but fail­ing that — sim­ply dig­i­tiz­ing books, how­ever much work it requires, sim­ply shouldn’t meet the min­i­mum level of cre­ativ­ity required for copy­right.

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