Home » Copyright » The Great Digitization Or The Great Betrayal?

The Great Digitization Or The Great Betrayal?

31 December 2011

From TechDirt:

One of the great tasks facing humanity today is digitizing the world’s books and liberating the huge stores of knowledge they contain. The technology is there – scanners are now relatively fast and cheap – but the legal framework is struggling to keep up. That can be seen in the continuing uncertainty hovering over Google’s massive book scanning project. It can also be observed in some recent digitization projects like Cambridge University’s Digital Library:

Over the course of six centuries Cambridge University Library’s collections have grown from a few dozen volumes into one of the world’s great libraries, with an extraordinary accumulation of books, maps, manuscripts and journals. These cover every conceivable aspect of human endeavour, spanning most of the world’s cultural traditions. While parts of the Library’s manuscript collections have already been published in print, microfilm and digital formats, we are now building a substantial online resource so that our collections can be much more accessible to students, researchers and the wider public.

That’s obviously a highly laudable aim. But the strict terms and conditions are not so praiseworthy:

Subject to statutory allowances, extracts of the Content and University Material from the site may be accessed, downloaded and printed for your personal and non-commercial use and you may draw the attention of others within your organisation to material posted on the site. Unless explicitly licensed or permitted by us, you may not:

use any part of the Content or University Material on the site for direct or indirect commercial purposes or advantage without obtaining a licence to do so from the University or its licensors

modify or alter the paper or digital copies of any Content or University Material printed off or downloaded in any way

sell, resell, license, transfer, transmit, display in any form, perform, hire, lease or loan any Content or University Material in whole or in part printed or downloaded from the site

systematically extract and/or re-utilise substantial parts of the Content or University Material from the site

create and/or publish your own database that features substantial parts of this site.

If you print, copy, download or use any part of the site in breach of these terms of use, your right to use the site will cease immediately and you must at the option of the University return or destroy any copies of the material you have made.

. . . .

Assuming that copyright dates from the “fixing” of the work, or from the date of the Statute of Anne, they would clearly have passed into the public domain long ago. One technique that libraries have tried to employ in order to maintain their control is to claim that the act of digitizing creates a new copyright, although this seems dubious. After all, the whole point of digitization is to capture as faithfully as possible the physical appearance of a text: an artistic interpretation of that physical appearance would defeat the object of the exercise. But without that artistic element there seems to be no grounds for claiming copyright.

. . . .

And to those who say that digitization costs money, and that those costs must be recouped in some way, consider this: holding books in a library, and making them available to the public, costs money too, but that did not prevent the great libraries of the past from providing access to their holdings for free. Those trail-blazing institutions knew that charging people to read would have been a negation of their central role in making knowledge freely available to all. And so it is today: a key part of the modern library ought to be making digital knowledge available to all, without charge, and without limitations.

This current trend to limit access to digitized versions of public domain materials is a real betrayal of the original mission of public libraries like the British Library. These made possible the opening up knowledge to huge numbers of ordinary people who otherwise would never been able to access these materials. Today’s massive digitization projects, which ought to be building on and extending that great tradition, are actually reversing it by seeking to take texts out of the public domain and charge for access to them. That’s not just a shame, it’s a scandal.

Link to the rest at TechDirt

Passive Guy is most definitely not an expert on British copyright, but US law requires some degree of originality on the part of the creator of a work for the work to qualify for copyright protection.

A US Supreme Court case, Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), involved Feist copying a phone book created by Rural Telephone. The Court held that Rural had no copyright to its white pages.

Black letter copyright law says that, while facts cannot be copyrighted, a collection of facts can be copyrighted. However, for any copyright, there must be some component of creativity or originality. In the Feist case, the court found an alphabetic listing of the names and phone numbers involved no creative expression. Even if it had, Feist would have been free to take the information in the phone book and organize it in a different way without violating the copyright.

While the organization of digitized versions of out-of-copyright works might qualify for copyright protection, picture-perfect copies of the the works themselves almost certainly include no originality giving rise to copyright protection.

The fact that putting together a collection of information is expensive or labor-intensive makes no difference in the analysis of whether the results are a proper subject for copyright protection.

Again, this is US copyright law. The law of other countries may differ.


8 Comments to “The Great Digitization Or The Great Betrayal?”

  1. UK copyright law has a “publication right”, whereby if the copyright in an unpublished work has expired, the first publisher of it can claim copyright protection for 25 years after it was first published.

    There is also the “database right”, which resembles a “sweat of the brow” provision. It lasts 15 years after the database was first made public, and exists “if a substantial amount of work was required by the maker of the database to obtain the data in the database, to verify the data, or to present the database’s contents.” It “is infringed if most or all of a database is extracted and reused without the consent of the owner, or if small portions of a database are repeatedly extracted and reused without the consent of the owner.”

    (Source: http://en.wikipedia.org/wiki/Copyright_in_the_United_Kingdom )

    At least some of the early lending libraries charged a fee for borrowing books. They’re free nowadays, of course, but most of the ones I’ve visited charge for borrowing other items, such as CDs and DVDs.

  2. Broadly speaking, I do not believe this is a copyright issue. Assuming the work in question is public domain, people can copy it without the original copyright owner having a right of action.

    My feeling is any right of action would rest in contact law. Basically, the institution has the right not to lend a book that it owns, and is offering a particular eBook to individuals only under the terms of a contact.

    On the face of it, such an agreement would be enforceable.

    These terms restrict the use of the material loaned by the library. But these restrictions only extend to material loaned by the library: it can not extend to the same material if obtained from a separate source.

  3. This brings to mind old stories of museums claiming reproduction rights to artworks by long dead artists in their collections. While I’m sympathetic to the financial strain many such institutions are under, those sorts of rights grabs always struck me as unethical at the very least. Off hand I don’t know the current legal status of such claims in the US or UK.

    • Most museums are private property, and so the management has a lot of leeway in deciding who they admit (or who they ask to leave if you do something they don’t like). They usually tell you that you’re not allowed to take photos in the galleries, so if you want a reproduction of one of the works of art that they hold, you have to buy theirs.

      They’re not usually bothered about grainy, blurry photos from camera phones that end up on Facebook pages (or they accept there’s nothing they can do to stop them). They are bothered about commercial-quality reproductions that they don’t control, so sometimes they say you’re allowed to use a camera, but you mustn’t use flash and/or a tripod. That usually limits the quality of photos to below what most people will pay for.

      • I don’t begrudge them the right to prohibit photography, though I’ve read stories of people being prohibited from sketching, which strikes me as insane. And I don’t think they are under any obligation to permit access for anyone seeking to photograph or scan an object or image for the purpose of reproduction. But when they attempt to stomp all over people using images that are already out there “in the wild” so to speak, for any purpose, I don’t think they have a leg to stand on ethically.

    • I’m no lawyer, but I believe the pertinent case is Bridgeman Art Library v. Corel Corp.



      • Excellent, thanks for the link. I’m glad to see the sense prevailed in that case. I half expected to find some law had been passed giving museums special privileges. It also seems directly relevant to the issue of scanned books, though I also am no lawyer.

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