Selling Public Domain Products

'Is it legal', 'can I do this' type questions and discussions.
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Fluoresce
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Selling Public Domain Products

Post by Fluoresce » Tue Oct 21, 2014 1:37 pm

Hi.

I'm new here and I'm very new to copyright laws. I would very much appreciate assistance on this matter.

I have a website. I want to sell a package of ebooks on the website. The ebooks aren't mine; they are scans of books that are very old.

I'm trying to figure out which ones I can legally sell. Obviously, I can only sell the ones that are in the public domain. The problem is, I don't know which country's copyright laws I have to abide by.

I live in the UK, but my website is physically hosted in the USA. My customers will be from all over the world, though mostly from the USA.

Since I am physically located in the UK, I assumed that I had to follow the UK's copyright laws, in which case books fall into the public domain 70 years after the death of the author.

However, someone told me that I might have to follow the USA's copyright laws because my site is physically hosted in the USA and my customers are mostly American. Is that true?

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AndyJ
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Post by AndyJ » Tue Oct 21, 2014 3:36 pm

Hi Fluoresce,
Use UK law as your guide. The main problem from the fact that your site is hosted in the US is that the US Digital Millennium Copyright Act (DMCA) can be used to require US companies to take down allegedly infringing material, without the matter having been decided in court. However such takedowns can be challenged and the takedown reversed.
As for establishing whether an author's works are in the public domain, find out where the work was first published, and then apply that country's copyright law. This should reduce the possibility of claims of infringement being raised against you. And if someone in the US does decide to go after you (whether or not they have a legitimate claim) you would only be at risk if you put yourself within the jurisdiction of the US courts (ie by going to the USA). So even if a US court found against you, all that they could do would be to order that your website was shut down. Civil penalties cannot be implemented in other jurisdictions. You would not face criminal charges or extradition (which was the problem for Richard O'Dwyer, David Rock, and Hew Griffiths).
As a general guide, you will find that more books are in the public domain in the US because, although currently the US and the UK have the same term for copyright (the lifetime of the author plus 70 years as you mentioned), when the US 1975 Copyright Act was brought in, many older works lost their protection due to not being correctly registered at the time of first publication, or because the registration was not renewed. And of course all works published there before 1923 are now in the public domain, irrespective of when the author died.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

Fluoresce
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Post by Fluoresce » Tue Oct 21, 2014 5:34 pm

Hi, AndyJ.

Thanks for the reply. You sound (and look) like a wise owl. :wink:

Please tell me if I understand you correctly.

I, a UK citizen, living in London, have to determine what books I can legally sell on my website, which is physically hosted in the USA. The books that I sell have to be in the public domain.

What I should do when determining if a book is in the public domain is neither follow UK nor US copyright law but instead the copyright law of the country in which the book was published.

Since most of the books were published in either the USA or UK, I should abide by US law for the US books and by UK law for the UK books.

Is that correct?

What if I sell a book that is in the public domain in the USA but not in the UK? Will I not be breaking UK law?

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Post by AndyJ » Wed Oct 22, 2014 5:49 pm

Hi Fluoresce,
I have probably made things seem more complicated than they need to be.
Determining the copyright status
When dealing with books published in the UK or the rest of world excluding the USA, use the UK copyright term (author's lifetime + 70 years) and you can't go too far wrong. For determining the term for books first published in the US, the slightly more complicated approach I briefly referred to in my last posting, applies. That said there are a number of useful sources (eg the Hathi Trust) which you can use to help determine whether or not a literary work is in the public domain.
Application of the law
If you remain in the UK and anyone wants to sue you, realistically they would need to use the UK courts. The UK court will apply the copyright law which applies in the UK, which when it comes to the copyright term, means which ever is the shorter between: the UK (life+70) or the term available in the country of origin.
Implications of having your server in the USA
If an author or publisher in the US wished to complain to your hosting company about a US work available via your site, then they only need to make out their case based on US law for a DMCA Takedown to be valid. They would not be able to commence litigation in the UK on that basis.

I hope that clarifies things a bit.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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Post by Fluoresce » Sun Nov 23, 2014 12:42 pm

Thank you very much for the clarification, AndyJ! I am grateful to you. :D

I have noticed that you help a lot of people on this website. I, for one, appreciate it.

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Post by CliveB » Sun Nov 23, 2014 9:29 pm

Just to throw a couple of spanners in the works. While AndyJ gives you the advice that you are based in the UK, so you have to worry about UK law, you also have to consider that you have also said that most of your customers will be in the USA.

I do not know the ins and outs of it, but I do have a few friends who were exceedingly worried about a similar civil issue in the USA, who were told in no uncertain terms that they could be pursued in the UK.

The second issue is this: I don't know what the sources of your ebooks are, but if you have scans of pages of actual books you may find that there are contractual terms attached to those files, that preclude distribution. So, you need to ensure that you can be certain of the source of any data you have.

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