Copyright and the public domain

Please note that this post is from 2010. Evaluate with care and in light of later events.

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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