1709 Blog: for all the copyright community

Tuesday, 20 December 2011

Scanned public domain works: what's the position in Europe now?

"As an avid reader of the 1709 Blog, I was wondering if perhaps you could spend some time on an analysis of the copyright status of Newton's notebooks", writes  Dutch IT lawyer Arnoud Engelfriet (who incidentally blogs in Dutch at http://blog.iusmentis.com/).  Arnoud continues: "Recently Cambridge released scans of Sir Isaac Newton's notebooks at http://cudl.lib.cam.ac.uk/collections/newton -- but with a notice stating 'Zooming image© Cambridge University Library, All rights reserved' at the bottom of the scan, e.g. at
http://cudl.lib.cam.ac.uk/view/MS-ADD-03996/. Can under English law such a copyright claim be made, where the scan appears to be a purely functional reproduction without intellectual activity by the scanning person? I would be grateful for any insights you could provide".

My immediate thought was that not only Cambridge University Library but numerous other institutions have asserted copyright in similarly-created works. Bridgeman Art Library's assertion of copyright in photographically reproduced images was litigated in the US, where the court, having considered English law on the subject, refused summary dismissal of the plaintiff's action but subsequently rejected Bridgeman's claim (there's a handy note on the background and litigation of Bridgeman's claim here).

I wondered whether, following recent Court of Justice rulings on copyright in Infopaq, Premier League and
Painer, the fact that the accurate scanning of public domain works is not the result of the author's own intellectual creation would lead to the conclusion that, under modern European copyright doctrine, there would be no copyright in the scans. Arnoud seems to be thinking along the same lines, it now appearing that the Court of Justice's approach is dispensing with the old notion of categories of protected works and replacing them with a more general concept: that of the author's own original creation.

Arnoud agrees with me that no harm would be caused by throwing this issue open to readers of this blog, in case we've missed something obvious or they have some valuable insights to add.


Robert Scott Lawrence said...

I don't know why Bridgeman Art Library v. Corel wouldn't apply. It's still good law and the verbatim scanning of pages is pretty much the definition of slavish copying. Not much original thought in turning on the scanner and uploading to the cloud.

Andy J said...

The argument in Bridgeman was that photographing a painting entails a good deal of skill on the part of the human photographer. He needs to ensure that the original is correctly illuminated (an oil painting will have an uneven and often highly reflective surface, for example) and that the colours are accurately reproduced, taking into account the light source(s) used. This process involves considerable additional skill, experience and creative input (cf Hyperion Records v Sawkins [2005] EWCA Civ 565) on the part of the photographer if it is to be done properly.
This is not a mechanical reproductive process of the sort involved in book digitisation, photocopying and earlier forms of archiving such as microfilming.
And of course, to be pedantic, the decision in Bridgman can't apply here in the UK because it was a decision of the Court of the Southern District of New York, albeit one which tried to reflect UK copyright law in its finding.

David Sanger said...

Whether or not a scanned page of a public domain printed text is subject to copyright. it would seem apparent that a subsequent input of the scan file into an OCR program to abstract the original text (letters and words) of the source document, would not produce a derivative work, but merely recreate the original work in digital form.

Those very elements that could arguably make the scan copyrightable (lighting, accuracy of color reproduction, etc.) are the very same elements that an OCR program would seek to ignore in order to correctly identify the original public domain text.

Anonymous said...

And the argument in Bridgeman was bunkum.

Assuring correct illumination levels, etc. *is* a purely "mechanical" exercise that can, if you just happen to prefer using a human to do the task instead of software and a photosensor, be performed by a human.

The British notion that you can obtain copyright merely for spending "effort, skill and time" (Hyperion, 36) rather than originality is simply an exercise designed to protect established (read: obsolete) technologies.

The copyright status of a photocopy should surely not depend whether the copier preferred to use a biological circuit or a silicon circuit to carry out the algorithm.

(In any case, Hyperion was surely decided according to the notion that music is more than just notes; it is interpretive; and every recital is different, the very antithesis of photocopying in which case the aim is to ensure everything is the same)

Richard Gallafent said...

Am I being very stupid? Section 1(1)(a) of the CDPA1988 includes the word "original". What originality can a scan have?

Or extremely stupid: My physics says that the scan is not a photograph as defined in Setion 4(2) because it's not a recording of "light or other radiation"

or is it if you choose to scan to an optical disc?

Anonymous said...

Richard - a digital image (whether via a scanner or digital camera) is indeed a photograph because it is the product of recording light - light is detected by the CCD and converted to digital data. Those Newton images will almost certaily have been produced by a digital camera or a professional camera body with a scanning back, rather than a photocopier/flatbed. This sort of photography requires quite a lot of skill and is not analogous to the slavish copying achieved by wacking something on a photocopier

Andy J said...

On the subject of photographic vs mechanical reproduction, it is worth noting the difference between having your portrait taken by a professional photographer (which I was) and going into a Phot-Me booth to get a passport photograph done. The former would entail copyright while the latter would not.
Anyone who has seen the output from mass digitisation of books and manuscripts (Google Book project comes to mind) will know this is a process with virtually no human intervention, such that the gutters of larger books frequently distort the reproduction of the text and this leads to poor OCR where distortion has occured.

Andy J said...

Just to follow up on my last post, here's a video showing how books are digitised. Youtube

Vagelis Papakonstantinou said...

The issue, to my knowledge, of proprietary rights over digitised out-of-copyright material is still open and very much debated; see for instance the May 2011 (European Commission) report "The new Renaissance" of the "Comité des Sages" on bringing Europe's cultural heritage online (at http://ec.europa.eu/information_society/activities/digital_libraries/comite_des_sages/index_en.htm, particularly 4.1.5).

Anonymous said...

The Kirtas (in YouTube video) or similar robotic technologies are only going to be suitable for robust printed books - the kind Google has been doing. Manuscripts have to be handled manually. I've found a couple of photographs online showing Cambridge's digitisation of the Principia
. Obviously set up for press photos, but no reason to believe that this is not how they were digitised - it looks like they are using a high-end camera with a very sophisticated book cradle and paying attention to lighting, colour reprodcution and the reduction of curvature. This is quite a skilled process - a considerable leap from photocopying or automated scanning.

Anonymous said...

Hmm - if I take a photograph of an item, irrespective of the underlying item being a work of copyright or not, do I not create and own copyright in the photograph?

Since the law makes no difference whether it's a snap shot as in just click, or "photography" as akin to "art", why should the results from a scanner be different?

There's nothing stopping others getting the source material and photographing or scanning it and creating their own copyright?

Anonymous said...

Except that getting your hands on some of this source material might be a bit difficult when the source material is unique and the owner declines you access to photograph or scan it. But that's about ownership rights rather than copyright. The question on copyright still stands.