The Great Digitization Or The Great Betrayal?

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.

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