Re-uploading a scan

[cannonking]

To my knowledge, published works from back in the ninteenth century are well out of copyright. Yet a number of journal and online access providers claim that their plonking an out of copyright item on top of a flatbed scanner generates a new copyright for that image specifically; even though it is as close a copy of original as is possible (indeed, that's the intent when scanning it). So I have two queries.

1. As far as I am aware, such claims have not been tested in court. Is the case so laughably weak (as indeed, it appears to me) that a judge would throw it out? If not,

2. Assuming that their interpretation of the law is correct; would it not be equally legal in that case to simply photograph a screen with the image of their scan up, or make a minor modification to the image of their scan? Technically, by their own interpretation of the law, you would surely have generated your own copyright in doing so?

After all, they cannot claim ownership over the contents (pictures/text), so all that is left is their specific image. Once you modify it slightly by running it through another copier/image adjustment programme, it is no longer the 'scan' that they claim copyright over. A minor resolution shift/sepia overlay or somesuch could visibly alter it quite considerably whilst leaving the meaning of the original black and white content untouched. Would that prove sufficient to generate a new copyright using their own interpretation?

[AndyJ]

Hi cannonking,

Yes your analysis is perfctly sound. You will find several threads on the forums here where I have mentioned this practice. You are right that there have been no cases in court to test such claims in the specific issue of mechanical copying. But since it is not illegal to make false claims* to copyright ownership where none exists, coupled with some strong economic reasons for asserting control over items which are technically in the public domain, I think it is unlikely that this practice will cease.

On your second point, the situation is not entirely the same. Assuming that there is a valid copyright held by a museum or archive, your making of a copy, albeit with slight modification, would be a derivative work and so would need permission from the copyright owner. Of course this doesn't apply when the archive make their copy because the work they wish to copy is already out of copyright.

That is the situation with regard to purely mechanical copying or scanning. Where a work, such as a three dimensional work, has been photographed, there is a stronger case for a new copyright having been created due to the skill and effort of the photographer. This has been tested in court with mixed results. In the USA there is the Bridgeman Art Library v Corel Corp decision, in the UK there was the case Antiquesportfolio.com v Rodnet Fitch Ltd, and most recently the German court's decision in Wikimedia v Reiss Engelhorn Museum. Each case had different facts and the outcomes also differed, but the fact that they didn't all result in the copyright claim being thrown out, means that the law is not yet settled as far as photographic copying is concerned. Here's what a well respected academic, Dr Eleonora Rosati of Southampton University, said recently on this topic:
[quote] Another example – which I always make when discussing originality with students (in Germany this issue has also been litigated) – concerns digitized images of public domain artworks. This has become common practice in several cultural heritage institutions. What is questionable is suggesting that such institutions own a valid copyright in the digitized images. It is difficult to see in what sense the author of the digitized image below made free and creative choices, and impressed their personal touch in digitizing this (public domain) portrait of the Brontë sisters as realized by their brother Branwell …



* it is possible that in some circumstances involving a great deal of money, making such a claim coud amount to a criminal fraud by deception.

[cannonking]

Firstly, thank you for the succinct reply. Since you indicate that it is not entirely clear cut; it seems to me to be worth further consideration. You think that modification of an image would technically qualify as a derivative work, and I can see the reasoning.

Flipping it around then, rather than editing an existing image, would it not be legal to use an OCR software technology to extract the text from out of copyright articles which have been scanned and uploaded to one of these services; and then merely upload that as a new file? The image itself, after all (being the specific object under copyright), would be completely untouched/unreplicated. You'd simply have extracted and replicated the meaning of the text, which is specifically within the public domain. So there would be absolutely nothing derivative of the new 'copyright' contained within it.

[AndyJ]

You are now moving into even murkier waters! Yes, if you were to use OCR software to extract just the original text that would not infringe any claim to copyright in the scan, just as typing out the text manually would not infringe. However when it comes to reproducing an image in this way, you would inevitably be copying the reproduction (ie the digital image) not the original work so this could amount to infringement assuming that the 'new' copyright is held to be valid. Say for example you wanted to reproduce an old postcard from 1870. Undoubtedly the original is out of copyright. But the only example of the card that you can locate is a digital scan made by a commercial company which claims copyright in its scanned version. The only way you can avoid using their scan is to find an original copy of the postcard and scan it yourself. The fact that your digital file and company's would be very similar is irrelevant, and yours would be a legal version.

[cannonking]

Ha, well, I'm thinking of trying to set up a site with certain historical documents from a variety of sources for educational/collaborative research purposes. Being the careful fellow that I am though; I'm trying to ensure that nobody has a legal leg to stand on for challenging what I put onto it.

From what you're saying above, the OCR workaround would seem to be the best bet here if I avoid images; given that it effectively functions the same way as typing it out by hand (but works a lot quicker!). So long as the text is accurate; few people care about the precise layout.

Also Andy, you're being very patient with me here and dealing with my many questions. So thank you for that!