
Digitising public domain images creates a new copyright, rules German court - danso
http://arstechnica.co.uk/tech-policy/2016/06/digitising-public-domain-images-creates-a-new-copyright-germany/
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acabal
Tragic and nonsensical decision. Just one more avenue for our cultural
heritage to be locked away for eternity, when technology is on the cusp of
allowing us to share that heritage with everyone worldwide for the first time
in history.

How would this affect things like gutenberg.spiegel.de? Would a German digital
transcriber of a PD work then hold the German copyright for that digital
version, until 70 years after the transcriber's death? Ridiculous!

~~~
detaro
Important to note: the argument in this case is not "the museum owns the
original artwork, thus it can stop people from freely licensing their photos
of it", but "the museum owns the rights on the photo, and can decide if it
releases it to the public domain or not". It's not about the rights of the
owner of the artwork, but about the rights of the owner of the photo.

Photographs have a slightly elevated standing in German law, with lower
demands on creativity to get protection, and I'll assume that's the way the
court got to this decision. We'll see if it survives in front of higher
courts. I wouldn't be surprised if it doesn't.

In your transcriber example (assuming transcriptions and photographs would
follow the same rules, which they don't), the transcriber would have the
rights to his/her transcription, but couldn't stop anybody else to transcribe
the same PD work and release their transcription.

I agree with wikipedia that this question shouldn't have come up, because I'd
prefer if public museums were required to release such photos under some kind
of free license, although I'd be fine with restrictions for commercial use.

~~~
toomuchtodo
Does this mean if I create a 3D model of a physical object, I know hold the
copyright to that objects digital representation? And if so, does anything
prevent me from registering said copyright and providing it to the public
domain?

~~~
Bromskloss
Registering a copyright? Is that something you can do in Germany? I thought
that was something that existed only in the United States, and only a long
time ago.

~~~
toomuchtodo
Forgive me, in the US copyright exists immediately when a work is created (I'm
unfamiliar with German law, I'm a US citizen residing in the US). You can
still register your copyright to make it known with the US Copyright Office:
[http://www.copyright.gov/fls/sl35.pdf](http://www.copyright.gov/fls/sl35.pdf)

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byuu
Sigh ... as much of a supporter I am of the public domain, I'm really thinking
we just need to end the charade that a "public domain" even exists anymore.
Because, increasingly, it doesn't.

Let's face it ... I'll never see a single work made within my lifetime make it
the public domain. And copyrights are just going to keep getting extended and
extended. Mickey Mouse is never making it to the public domain. And as if
having to go back to pre-World War II to find public domain works wasn't
enough, now they're trying to undermine even that!

If I thought there were any chance we could change the laws toward our favor,
I wouldn't advocate this. But I just don't see any hope at all anymore. So
let's just call a spade a spade, and state that the public domain doesn't
exist: everyone owns everything, forever.

We'll reclassify historians and preservationists as unquestionably being
"pirates". Most of us already are. But the few left that are trying to play
within the confines of the law, only to continually have the rug pulled out
from under them, can get to work with the rest of us on the wrong side of the
law. Civil disobedience is the only recourse we have left. It's that, or we
give up our very history to corporate interests.

~~~
vacri
> _I 'll never see a single work made within my lifetime make it the public
> domain._

Plenty of work makes it to the public domain; it just need to be noted as such
by the creator, and creators do do that from time to time.

On Mickey Mouse specifically, I don't really have a problem with that one.
Mickey Mouse isn't something created by someone who is riding on their past
successes and whose descendants are riding on the coattails of. It's an
actively developed and organised bit of intellectual property, which is
responsible for literally thousands of jobs. They are actively working their
IP, rather than merely sitting back and demanding a cut if other people want
to work it. As such, I think protection for that is reasonable, as it is a
going business concern.

I have far more problem with IP not making it to public domain if it's not
actively worked. An example from Australia: there was an iconic song "Land
Down Under" in the 80s, in which a 12-note melody was in the bridge. That
melody was "Kookaburra sits in the old gum tree", a very recognisable
Australiana kids/folk tune. The original owners didn't pursue damages, but
nearly 20 years after the pop song made it, a business group bought the rights
to Kookaburra and sued the creators of the pop song. This business group
didn't 'value add' to the IP - they didn't actively work it. The case turned
out with a relatively sensible ending - the judge gave some minor royalties to
the rights holders because while the melody was clearly in use (it was the
point of using that melody, after all), it wasn't the main theme of the song.

So I think copyright should be a bit more complex - if you're actually
actively working the IP to a reasonable (yes, 'define reasonable...') amount,
you should be able to extend it. Otherwise, expiry as it used to be. Some
protection would need to be figured out to prevent trivial token 'working', of
course.

~~~
byuu
> Plenty of work makes it to the public domain; it just need to be noted as
> such by the creator, and creators do do that from time to time.

Every time I try and release my source code to the public domain, I invariably
get people telling me it's not possible to do this due to laws in various
countries, and that I should use the ISC/MIT license instead.

I've taken to releasing a lot of my work as "public domain where applicable;
ISC where not."

> So I think copyright should be a bit more complex

My general idea of copyright would be that it's 14 years from the date of
creation, with a one-time possible extension to 28-years that is not automatic
(basically, what copyright used to be.)

The problem is abandoned works. If you produce a game on some volatile medium
like a CD-R, then use DRM to protect it, it's quite possible that in 28 years,
not a single working copy will exist. The only way it can enter the public
domain is thus through breaking the law initially. And let's not even get into
things like online servers required to use software =(

Ideally, there'd be a forfeiture of copyright for "abandoned works" (works the
author will no longer sell to anyone); but I recognize that a legal framework
for such a concept would be damn near impossible to create (you'd get artists
saying, "sure I'll sell you a copy still ... for $100,000,000")

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thaumasiotes
> The General-Director of the Reiss Engelhorn Museum, Prof. Dr. Alfried
> Wieczorek, told Ars why the museum had decided to take legal action: "As far
> as we are concerned this case is not about harming Wikipedia, or of us
> fundamentally disagreeing with this project. On the contrary: we have great
> sympathy for the Wikipedia project, and share with Wikipedia the object of
> spreading knowledge. But in this case, the question for us is who should
> decide whether and especially how our holdings should be made available.
> Even if one supports the free public accessibility of cultural items on
> Wikipedia, it is difficult for us to comprehend that a single Wikipedia
> author claims the right to decide on their own to release to everybody the
> results of work created with public funds on Wikipedia for free and thus
> also for commercial use."

So, while it might be ok for wikipedia to publish images of public-domain
work, it is unconscionable for wikipedia to publish images of public-domain
work that someone else subsequently makes commercial use of. (And it's
important that the museum get a veto over whether the public should be allowed
to see certain works at all.)

~~~
cooper12
The stupid part about this is that this ruling will only affect stuff hosted
on German servers, so only dewiki will be affected. Even then, someone will
likely go in and sneak a few pictures that are "good enough" for Wikipedia
purposes. All they've accomplished here is further restricting the public
domain in Germany while not stopping Wikipedia from using their images. (We
call that "cutting off the nose to spite the face") Now Germans will need
intimate physical access to a work in the public domain to be able to get
their own copyright to share it. Very disappointing for a museum, especially
one which takes pride in receiving public funds. (Though of course the court
shares more blame for making such a decision)

~~~
incompatible
I though all the Wikipedia servers were hosted in the US, regardless of
language. de.wikipedia.org has address 198.35.26.96, which seems to be in the
US. That would make it easy to ignore German court rulings if desired.

~~~
cooper12
Whoops, you're right. Looks like I misread the relevant passage:

> The German court dismissed the case against Wikimedia Deutschland on the
> grounds that it was not legally responsible for the files in question, which
> were held by Wikimedia Commons in the US, which in turn are managed by the
> Wikimedia Foundation.

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Animats
It will be interesting to see how this plays out in German law. US and UK
courts have already established that in those countries, copying an image does
_not_ establish a new copyright. In the US, this is a Constitutional
limitation: "To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries." The key US rulings are Feist vs. Rural
Telephone (telephone directories cannot be copyrighted because they're just
collection of facts, not creative works) and Bridgeman vs. Corel (photos of
public domain images cannot be copyrighted because they are not creative
works.) There's also Meshwerks vs. Toyota, which reaffirms Bridgeman at the
circuit court level and extends it to 3D scans. (scans of 3D objects create no
new rights.)

In the US, databases of facts are not copyrightable. The European Union,
though, has a 15 year copyright-like right for databases.

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azov
There's an infinite number of ways to digitize a painting. What if you
invented, say, a new algorithm to calculate colors from bayer pattern? Or an
entirely new sensor (as, e.g. Foveon, did)? Or, maybe, a new lighting scheme
that produces more accurate colors? Should you be denied the copyright on your
work because you "sought to reproduce the paintings as exactly as possible"? I
don't think so. In this respect the court decision makes sense to me.

On the other hand, I agree that preventing sharing of public domain works runs
counter to the mission of public museum and, while legally entitled to, they
probably shouldn't exercise their copyright in this way.

~~~
tssva
Your work is the sensor, algorithm or lighting scheme and you should own the
relevant patents and/or copyright to those. The exact copy of an image in the
public domain that you take using those should not be copyrighted.

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FeatureRush
This is kind of similar to how thing are in Poland, so maybe other countries
in EU work the same way?

In short, digitalising creates new "pole eksploatacji" (~field of
exploitation/utilisation) for image, and by the law each such field needs to
be explicitly named in agreement with the author. And no, you CAN NOT give
rights to all of them, either known or invented in the future. All of them
have to be explicitly named, and the law itself does not contain any list of
them, just some examples. For example even if tablet, PC and console all are
just a computer for the purpose of distributing video they could be counted as
something different even if video is streamed from the same source. Other
circumstances like if consumers are buying the copy or just renting it, or if
it can be viewed at restricted or any time etc. may also be important. By
default author is entitled to payment even if agreement doesn't mention it.
Finally apart for the above part (called "autorskie prawa majątkowe") there
are also "autorskie prawa osobiste" (
[https://en.wikipedia.org/wiki/Moral_rights](https://en.wikipedia.org/wiki/Moral_rights)
) which can not be licensed away, and at least from my point of view seem to
be less popular in US.

I've heard this law (mostly explicitly naming fields of utilisation) creates
some issues with digitalisation of old archives here in Poland, but I don't
remember the details.

I'm not a lawyer, it's couple of years after I learned it so there might be
mistakes, if someone could correct me I would be grateful.

EDIT: better example

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pavel_lishin
I'm confused.

Does this merely mean that if I take a photo of something in the public
domain, I hold the copyright on that particular reproduction?

Or that if a museum takes a photo of something in the public domain, they can
restrict others from offering/using their own photos of that work?

~~~
parent5446
To clarify, because the original article doesn't really mention this: the
photos that were uploaded to Wikimedia Commons were taken by a photographer
hired by the museum, not Commons users. The museum is claiming that they hold
copyright over the photos because even though the original artwork is in the
public domain, the photo taken of it has its own copyright, held by the
museum's photographer (and thus the museum).

~~~
pavel_lishin
That seems completely reasonable to me.

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Doctor_Fegg
Very curious given that the UK, which has always taken a maximalist view on
this, quietly rowed back last year and said that maybe it doesn't create a new
copyright after all.

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esbranson
This decision only binds these parties with relation to these pictures in
these circumstances. No one else. Other courts, even this Berlin trial/appeals
court or an inferior Berlin court, need not pay any attention to this legal
reasoning in other cases.

~~~
germanier
They don't _need_ to but more often than not they do if the legal argument
holds any merit at all. And this is not the first time a court has argued that
way creating a substantial risk that the next time the decision will be
similiar.

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jwatte
I think there's nothing wrong with mechanical rights for the digitization.
Each person shooting their own picture gets their own mechanical copyright.
(This is the same as difference between the specific recording, and the
written song, in music)

~~~
incompatible
How would you even distinguish one from another, once they've been processed a
bit in graphics software and copied all over the web?

~~~
germanier
You can usually tell the images apart if you have some resolution to play
with. Taking such pictures in sufficient quality takes some skill (e.g. with
regards to lighting) that two different photographers usually end up with two
different picture of the same painting.

And even if you can't tell those two images apart you can often trace the
image back to its origin.

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anonbanker
So germans should be running to their local library, in order to digitize
everything and claim new copyright?

Better the citizenry do it than corporations.

~~~
incompatible
They'd only have copyright over their own photo (and it's not clear a scan
would count). Anybody else could still make another photo with a separate
copyright.

~~~
anonbanker
why wouldn't a scan count? Every tax agency I've ever heard of accepts scans
_in lieu of paper_.

~~~
incompatible
Because the German ruling applied specifically to photographs, if I understand
correctly.

