[Upd-discuss] copyrighting out of copyright properties

[Jay Sulzberger]

On Sat, 26 Nov 2005, Greg Newby <gbnewby@pglaf.org> wrote:

> On Fri, Nov 25, 2005 at 11:22:23PM -0500, Richard M. Stallman wrote:
>>     I have the idea the above scenario is possible under current copyright
>>     law.  Is t his correct?  And if it is, is it a viable solution to assume
>>     a sort of copyright on my digitized versions of the songs, and make them
>>     available via a Creative Commons "share music"  licence?
>>
>> There's nothing wrong with the that particular license, as regards its
>> terms.  But I would not use it with the "Creative Commons" label.
>> People tend to treat everything labeled "Creative Commons" as a unit,
>> so that using one of their licenses has the inevitable side-effect of
>> promoting everything Creative Commons does.
>>
>> That now includes certain licenses which do not permit people in the
>> US and Europe even to share verbatim copies.  (Specifically are the
>> Developing Nations licenses and at least some of the Sampling
>> licenses.)  When I found out about this, I decided I should not
>> support Creative Commons any longer.
>
> (Not responding to that part)
>
>> I am not a lawyer, so I will leave to others with more knowledge the
>> question whether the cleaned-up versions will be copyrightable or what
>> that might actually cover.
>
> Responding to this part: Project Gutenberg has a policy on this.  It's
> been vetted/approved by several lawyers, including those specializing in
> copyright.  While is has not been tested in court, we use it regularly
> for acquiring public domain items which have had some "sweat of the
> brow" applied.  For example, we've used it as a basis for gathering page
> images from various book-scanning projects (Google's, Yahoo's, Gallica's
> and many others) for creating Project Gutenberg eBooks.
>
>
> Here it is:
>
>
> PROJECT GUTENBERG'S POSITION ON "SWEAT OF THE BROW" COPYRIGHT CLAIMS
>
> Work performed on a public domain item, known as sweat of the brow,
> does not result in a new copyright.  This is the judgment of Project
> Gutenberg's copyright lawyers, and is founded in a study of case law
> in the United States.  This is founded in the notion of authorship,
> which is a prerequisite for a new copyright.  Non-authorship
> activities do not create a new copyright.
>
> Some organizations erroneously claim a new copyright when they add
> value to a public domain item, such as to an old printed book.  But
> despite the difficulty of the work involved, none of these activities
> result in new copyright protection when performed on a public domain
> item:
>
>   - scanning and optical character recognition (OCR)
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>   - proofreading and OCR error correction
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>
>   - recoding to new character sets, such as Unicode, or new formats,
> such as PDF
>
>
> There is some value-added content that DOES get a new copyright, but
> only for the actual new work (that is, it may be possible to remove
> the new copyrighted content to go back to a public domain document):
>
>   - translation into another human language
>
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>
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> Most recently updated April 6, 2004

And this summarizes the central precedents and settled statute law that
would be overthrown by the, extra-case-law and extra-statute, proposed
Treaty on Webcasts.  "webcasters", that is everybody who uses the Net,
would be able to grab public domain work, and also copyrighted work, just
because they have transmitted a copy of the work.  The internal and
external friction induced by such a treaty would end the present legal and
customary system of free retransmission, whose practical realization is the
Net itself.

oo--JS.