Copyfraud - public domain's fate? - Page 7

HarryT · 12-06-2010, 03:44 AM

Quote:

Originally Posted by pdurrant

This isn't a court case yet, which is what I think was being asked for. The really interesting bit about the NPG case is that they haven't taken anyone to court. My guess is that this is because they expect they'd lose such a case.

It is, though, an example of the use of a "sweat of the brow" copyright claim, something which I believe is not present in US copyright law at all.

One can understand their annoyance at having spent £1m on digitizing their collection, for the specific purposes of licensing it to raise funds for the gallery, only to have someone copy it for nothing. It's rather a kick in the teeth for them.

ypocaramel · 12-06-2010, 04:44 AM

The approaches in the Commonwealth world, as I understand it, is not watertight - there are times when sweat of the brow has been applied even if it is not generally encouraged.

HansTWN · 12-06-2010, 04:49 AM

Quote:

Originally Posted by Worldwalker

Something to consider, for the people who say "no author would write anything without a monopoly on it" -- or, nowadays, a monopoly for people who were born long after anyone who ever knew him was dead:

Copyright is a rather recent invention.

Books are not.

Copying of books in electronic form and the possibility to spread those copies instantly to thousands or millions is available for less than 10 years -- and back then hardly anything was available to copy. Even in the age of the Xerox machine it wasn't really feasible to make "do-it-yourself" copies. Copier amortization, toners, paper, and time would have added up to more than the cost for actually buying the book. (not to mention the lousy quality you get with photocopying and no binding). So, if there ever was a time when copyright was needed, it is now.

Don't forget, in the "good old days", before there was copyright, artists were kept by kings and nobles, or received large grants for particular works. Most people couldn't read, anyway. And by the 19th century many writers used to publish their works in newspapers -- a chapter a week or so, to ensure they would get paid.

murraypaul · 12-06-2010, 05:21 AM

Quote:

Originally Posted by HarryT

It is, though, an example of the use of a "sweat of the brow" copyright claim, something which I believe is not present in US copyright law at all

Anybody can claim anything, until it is settled in court it has no meaning. Even more so, anyone can have their lawyers write a threatening letter.
They may well have good points on the database copyright issue, and on whether the images were obtained in an unauthorised way, but I see nothing there to contradict "But copying, per se, however much skill or labour may be devoted to the process, cannot make an original work".
The purposes of the photographs is to reproduce, as accurately as possible, the original work. While a highly skilful act, it is not an artistic one, and the resulting photograph (as I read the cases I have found) is not considered to be an original work, and thus cannot be copyrighted.
18 months on and there still seems to be no case taken to court, and the images are still available.

Quote:

One can understand their annoyance at having spent £1m on digitizing their collection, for the specific purposes of licensing it to raise funds for the gallery, only to have someone copy it for nothing. It's rather a kick in the teeth for them.

As Google have spent a large amount of money digitising books, and volunteers have spent a large amount of time producing digital versions of PD works.

No case is cited in the NPG'sletter to support their claim, and this report by the Museums Copyright Group, which I think it is fair to say would have a vested interest in the matter, don't list any UK case as precedent for a claim to copyright, only a statement from counsel that a photograph could, as a matter of principle, qualify for copyright. The reports highly overstates what counsel has actually said. It could, or it could not, I imagine that would be a matter for the courts to determine based on the facts of the case.

DMSmillie · 12-06-2010, 06:23 AM

Quote:

Originally Posted by Worldwalker

Something to consider, for the people who say "no author would write anything without a monopoly on it" -- or, nowadays, a monopoly for people who were born long after anyone who ever knew him was dead:

Copyright is a rather recent invention.

Books are not.

True.*

Consider this, however: the existence of copyright law doesn't preclude the possibility of an author placing their work in the public domain from the moment of its first publication. How many choose to do so?

-----

*There is, however, a strong and direct link between the ease of production and copying of books, and legislation governing their production.

Before the 15th century, books were expensive and time consuming to produce and copy - only the rich could afford them, so there was little need for legislation controlling their production.

The development of the mechanised printing press and moveable type, in the 15th century in Europe, made the production and copying of books faster and easier, and resulted in a significant increase in the number of books and their availability. As printing spread, during the 16th and 17th centuries, European governments imposed significant restraints on who could print books, and which books they could print.

The European "Age of Enlightenment", in the 18th century, saw highly significant changes in the nature and intent of legislation relating to publishing - the focus shifted from controlling who could print books and what could be printed, to a focus, instead, on copyright for authors. The stated aim of the first copyright act, the Statute of Anne (UK, 1710) was the "encouragement of learned men to compose and write useful books", by assigning to the author the sole right to print and reprint a book for a set time after its initial publication (and to be able to sell that right to someone else).

So... you have to go back further than many might realise to reach a time when books existed but there was no copyright legislation. The perception of a need for such legislation arose in a (historically) relatively short time following the initial introduction of the technology that made the printing and dissemination of books easier, cheaper, and faster than had ever been the case before.

Given the extent to which it's even easier today than it was in the 18th century to create and distribute books, I'd need to ask - what else has changed that would make the need for copyright legislation unnecessary now, compared to then and the 300 years since then?

murraypaul · 12-06-2010, 06:29 AM

At the risk of extending the probably tedious copyright discussion, I thought it only fair to point out a more recent view in the other direction:

Hyperion Records Ltd v Sawkins [2005] EWCA Civ 565

Quote:

Both textbooks maintain that view despite what was said obiter in Interlego v Tyco [1988] RPC 343 by Lord Oliver at p. 371 :

Quote:

"Take the simplest case of artistic copyright, a painting or photograph. It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an 'original' artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality."

The authors of the Modern Law of Copyright comment on this passage at para 4.39). Although the comment is long it is worth setting it out:

Quote:

"However, whilst the remarks made in Interlego may be valid if confined to the subject matter then before the Privy Council, they are stated too widely. The Privy Council was there considering fairly simple technical drawings. This is a rather special subject-matter. While the drawing of such a work is more laborious than it looks, it is a fact that any competent draftsman (perhaps, any conscientious amateur) who sets out to reproduce it exactly will almost certainly succeed in the end, because of the mathematical precision of the lines and measurements. This should be contrasted with, eg a painting by Vermeer, where it will be obvious that very few persons, if any, are capable of making an exact replica. Now, assume a number of persons do set out to copy such a painting, each according to his own personal skill. Most will only succeed in making something which all too obviously differs from the original – some of them embarrassingly so. They will get a copyright seeing that in each instance the end result does not differ from the original yet it took a measure of skill and labour to produce. If, however, one of these renders the original with all the skill and precision of a Salvador Dali, is he to be denied a copyright where a mere dauber is not? The difference between the two cases (technical drawing and old master painting) is that in the latter there is room for individual interpretation even where faithful replication is sought to be attempted while in the former there is not. Further, a photographer who carefully took a photograph of an original painting might get a copyright and, if this is so, it is rather hard to see why a copy of the same degree of fidelity, if rendered by an artist of the calibre aforementioned, would not be copyright. These considerations suggest that the proposition under discussion is suspect. It is therefore submitted that, for example, a picture restorer may get a copyright for the result of his efforts. Be that as it may, it is submitted that the Interlego proposition is anyway distinguishable where the replicator succeeds in preserving for posterity an original to which access is difficult."

The authors of Copinger (15th Edn. 2005) likewise take the view that the passage should be read as confined (see para 3-142).
I agree with the textbooks. I do not think the comment as a generality is consistent with Walter v Lane. I think the true position is that one has to consider the extent to which the "copyist" is a mere copyist – merely performing an easy mechanical function. The more that is so the less is his contribution likely to be taken as "original." Prof. Jane Ginsberg (The Concept of Authorship in Comparative Copyright Law, http://ssrn.com.abstract_id=368481) puts it this way:

Quote:

"Reproductions requiring great talent and technical skill may qualify as protectable works of authorship, even if they are copies of pre-existing works. This would be the case for photographic and other high quality replicas of works of art"

In the end the question is one of degree – how much skill, labour and judgment in the making of the copy is that of the creator of that copy? Both individual creative input and sweat of brow may be involved and will be factors in the overall evaluation.

This view would leave it as a fact based judgement for each case.

Krystian Galaj · 12-06-2010, 07:01 AM

I don't have enough time to address the whole post today, so I'll have to focus on a few points I can comment quickly.

Quote:

Originally Posted by DMSmillie

Posting in forums is hardly comparable to writing a novel, or composing a symphony, or painting a landscape. Nor are you being hampered from posting in this way by copyright laws.

A long journey begins with a first step. The body of interesting posts made up to date by at least a few regulars in this forum would be enough to fill a book for each of them. I don't see why they should not be comparable through the amount of work out into them, and time spent on formulating thought.

Quote:

Originally Posted by DMSmillie

What do you mean "keeps being adjusted"? If you mean the length of time that copyright runs, fair enough, but that's a totally separate issue to whether or not copyright should exist. Copyright either exists, or it doesn't.

Yes, I meant extending length of copyright. I believe it would be best if copyright didn't exist, but since it does, having shorter copyright length is better than having longer one, because the memes get unlocked and return to common pool sooner, hopefully before people forget all about the vibes of old times.

Quote:

Originally Posted by DMSmillie

Why should authors, songwriters, painters, playwrights, etc, not be entitled to make a living from their artistic work?

I think they should, but not at the expense of creativity of society as a whole.

Quote:

Originally Posted by DMSmillie

Do you really believe that all artistic endeavour should be a hobby, squeezed into whatever time people have left over after doing a regular job, cleaning the house, looking after children, etc, etc, etc?

I believe it would bring more gain than loss to the society. If the approach to the work was rather a "let me try to modify it a bit and see if I can" than "it's made by someone else, so it's not my 'property' and taboo", many more people would at least try to be creative. There was a time, in ancient Greece and again in 18-19th century when sports was something people just did, not a domain of professionals who spent their lives and wrecked their bodies to get results. Sure, the best results weren't as high as they are today, but people did it, not just watched it being done. I'm afraid writing books, stories, essays becomes similarly disconnected from average Joe - and it might be better for Joe if he tried to write or modify a story sometime.

Quote:

Originally Posted by DMSmillie

Many, perhaps most, of the artistic works we value in the western world wouldn't exist if their originators had had to do all that. Historically, most artists of all kinds were only able to be artistically creative because either they were born into a family with sufficient money to free them from these day to day needs, or they were lucky enough to attract a rich patron whose money similarly freed them from the need to earn a living in some other way. Even as things are now, there's still a long "apprenticeship" with little money coming in for most who seriously try to be creative, whether that's writing, painting, composing, etc. You would make that "apprenticeship" a permanent state of affairs. How many do you think would persevere without at least the dream of being the next Jane Austen, or Asimov, or J K Rowling, with the possibility of being able to earn a decent living from their writing, and be free to write all of the time, instead of an hour here, an hour there, when other commitments allow?

So you believe people write only to have the book written, and be famous and rich, instead of having pleasure of writing? Many times I have read on these forums that writers write because they like it, or feel they have to. Surely, if people looked at written stories as they look at free source code now, many of those who write just for fame wouldn't start, but many of those who like to play with words would. I don't see why you think the net result would be a loss.

Quote:

Originally Posted by DMSmillie

What is currently preventing those who might only be good at some aspects of writing a novel, to use that example, from getting together with others who are good at other aspects, and writing a novel together? Why does it have to be based on something someone else wrote? There are many examples of books being written collaboratively, for many different reasons. A recent and well known example is DRACULAS, written collaboratively by four authors.

I don't say people don't do it, only that many more people would do it. DRACULAS is written by four authors already established, not by people who just think they might do well if they tried to modify an aspect of the story.

Quote:

Originally Posted by DMSmillie

Also - why does the argument "If something else pays better, you're free to go and do it instead" only apply to those with the ability to create a whole novel, and not equally to those who are only good at one aspect of writing?

It does, but there are many more of those who are only good in one aspect of writing than those who have potential in all aspects. When people have to write the whole thing themselves, from scratch, how many more will be discouraged, and will never try to see if they can write?

Quote:

Originally Posted by DMSmillie

The growing access to "print on demand" publishing for individual authors means that any new author, with minimum outlay, can publish their book both in print and as an ebook, without having to wait for someone else to "cherry pick" it from the ebook bestseller lists. And, indeed, with no copyright laws, what would there be to prevent those doing the "cherry picking" from publishing their own version of the book and keeping all the proceeds? What benefit would there be, there, to the original author?

I believe the benefit would be the satisfaction that their work is there, forming a part of culture, read and worked upon and not fogotten. But there's definitely no guaranteed financial benefit. Thomas Jeefferson once wrote "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me." I'm looking at physical things, goods that can't be replicated in such way as property with all that applies. But ideas in my mind can't be such property, are fundamentally different, belong to all of mankind. So I don't see why "cherry picking" should be prevented, and why there should be tangible financial benefits to author. I believe there should be the right to consider the author the creator of this particular mote of ideas for all eternity - but no creative control once the idea is published, leaves the author's brain.

Quote:

Originally Posted by DMSmillie

Ummm... I'd suggest that that is already happening, as more and more independent authors take the self-publishing route. The knowledge that their investment of time and effort to write the book is protected by copyright law is encouraging more and more people to write and publish books. I wonder how many would do so if they knew that as soon as others started to buy their books, those others would be free to produce their own versions?

I must dispute the assumption that the copyright law is protecting those independent authors. It can protect big coprorations once law firms and money are involved, but in case of independent authors they're more protected by obscurity (no one ever heard about them), and the the quality of their works (if those suck). If the thing is good, it's on the darknets. J.A.Konrath's works are there and he admits he isn't doing anything to eradicate them and he doesn't see what can be done. Harry Potter is there, despite the fact that Rowling prohibited the sale of ebooks of HP, saying those should be enjoyed only on paper (example of creative control). Even Rowling can't do anything to get HP off darknets, off the first search page of Google - so how exactly is copyright law protecting independent authors? What you're seeing is what would be if there was no copyright law, in everything but public perception and expectations.

Quote:

Originally Posted by DMSmillie

What is the problem with her not wanting to publish the books in ebook format? The books are still out there for people to read and enjoy, the films are there for people to watch and enjoy. Nothing has been kept unavailable. She gets paid, we get to read her books. What isn't working there?

She believes the ebooks are an abomination and shouldn't exist, and that books should only be enjoyed on paper. She has the creative control to do that - and also to prohibit the sale of Harry Potter in every conceivable form, should she wish to, for as long as she lives and 70 years after that (in most countries). I believe that's crazy, and people who do create ebooks of Harry Potter and trade them on the Internet, violating copyright, seem to agree, if only unconsciously.

Krystian Galaj · 12-06-2010, 07:10 AM

Quote:

Originally Posted by tubemonkey

One of the strangest notions society has is that the exclusive rights an author (or copyright holder) has to a book, should have an expiration date.

One of the strangest notions society has is that author should have any exclusive rights to a book, save for being considered its author.

HansTWN · 12-06-2010, 07:38 AM

Quote:

Originally Posted by Krystian Galaj

One of the strangest notions society has is that author should have any exclusive rights to a book, save for being considered its author.

It is not strange. The product of my work belongs to me -- that is one of the most basic notions of almost any society. Zimbabwe and North Korea come to mind as the only notable exceptions. Why should an author only give to society and get nothing back? Why is it good for society if you don't have to pay for your books? The author/copyright holders will pay taxes on the money they make off you and that is much better for society than feeding authors with social security money.

tompe · 12-06-2010, 08:27 AM

Quote:

Originally Posted by HansTWN

It is not strange. The product of my work belongs to me -- that is one of the most basic notions of almost any society.

Well, no. Since most societies have taxes.

Quote:

Why should an author only give to society and get nothing back? Why is it good for society if you don't have to pay for your books? The author/copyright holders will pay taxes on the money they make off you and that is much better for society than feeding authors with social security money.

You seem to be mixing arguments. Either you argue from rights and than it is irrelevant if it is good for society or not. Or you argue based on utility for th society. That will make the discussions better since it is meaningless to argue with people that seems to have a religious belief in rights.

DMSmillie · 12-06-2010, 08:56 AM

Quote:

Originally Posted by Krystian Galaj

Quote:

Originally Posted by DMSmillie

Many, perhaps most, of the artistic works we value in the western world wouldn't exist if their originators had had to do all that. Historically, most artists of all kinds were only able to be artistically creative because either they were born into a family with sufficient money to free them from these day to day needs, or they were lucky enough to attract a rich patron whose money similarly freed them from the need to earn a living in some other way. Even as things are now, there's still a long "apprenticeship" with little money coming in for most who seriously try to be creative, whether that's writing, painting, composing, etc. You would make that "apprenticeship" a permanent state of affairs. How many do you think would persevere without at least the dream of being the next Jane Austen, or Asimov, or J K Rowling, with the possibility of being able to earn a decent living from their writing, and be free to write all of the time, instead of an hour here, an hour there, when other commitments allow?

So you believe people write only to have the book written, and be famous and rich, instead of having pleasure of writing? Many times I have read on these forums that writers write because they like it, or feel they have to. Surely, if people looked at written stories as they look at free source code now, many of those who write just for fame wouldn't start, but many of those who like to play with words would. I don't see why you think the net result would be a loss.

Some people only have the skills and knowledge to do a few simple plumbing jobs. Would you use that as an argument to deny those with the skills and knowledge to provide a professional plumbing service the right to earn a living from that work? That's essentially what you're arguing for, with regard to creative work.

And no, I didn't say, and don't believe, that people write only to "be famous and rich". I pointed out that it's difficult to be creative when you've just worked for 10 hours, then cooked dinner and cleaned the house, and have to get up early the next morning to do it all again. Providing those with the skill to create, protection for the fruits of their creative work, and thus helping to ensure that those whose work is valued sufficiently by "society" are paid for the creative work they create, will help to ensure a constant stream of new creative work. Remove that protection, and very very few would be able to earn a living from their creative work, which would result in fewer genuinely creative works being created. You'd end up with a load of fan fiction and derivative works from material already in existence, but the production of new, original works for others to play with and cannibalise would be severely diminished.

Quote:

Originally Posted by Krystian Galaj

Quote:

Originally Posted by DMSmillie

What is the problem with her not wanting to publish the books in ebook format? The books are still out there for people to read and enjoy, the films are there for people to watch and enjoy. Nothing has been kept unavailable. She gets paid, we get to read her books. What isn't working there?

She believes the ebooks are an abomination and shouldn't exist, and that books should only be enjoyed on paper. She has the creative control to do that - and also to prohibit the sale of Harry Potter in every conceivable form, should she wish to, for as long as she lives and 70 years after that (in most countries). I believe that's crazy, and people who do create ebooks of Harry Potter and trade them on the Internet, violating copyright, seem to agree, if only unconsciously.

As I said before, the length of time copyright lasts is a totally separate and different issue to the question of whether or not copyright should exist in the first place.

I'd suggest that different people create and distribute pirate ebook copies of the Harry Potter books for many different reasons. For some of them, that's the belief that if they want something, they're entitled to have it, free, regardless of any other considerations.

I can only repeat what I said originally - "Nothing has been kept unavailable. She gets paid, we get to read her books. What isn't working there?"

Sil_liS · 12-06-2010, 10:50 AM

Quote:

Originally Posted by murraypaul

The purposes of the photographs is to reproduce, as accurately as possible, the original work. While a highly skilful act, it is not an artistic one, and the resulting photograph (as I read the cases I have found) is not considered to be an original work, and thus cannot be copyrighted.
18 months on and there still seems to be no case taken to court, and the images are still available.

What about the Sistine Chapel?

Quote:

But the worst problem with this painstaking restoration was the expense. It would cost the Vatican a fortune. They issued a call for public sponsorship, the Japanese TV network NHK stepped forward with a proposal. NHK would pay for the restoration, in return for exclusive film and publication rights. Harper's Magazine writer Eric Scigliano's 2005 report "Inglorious Restorations" asserts that NHK paid between $3 and $4 Million.

The Vatican could only license the copyrights of a public domain work due to an old quirk of copyright law. The original artwork may be in the public domain, but a photograph of that artwork may be copyrighted as a new unique work. The photograph taken today becomes a new copyrighted work with new intellectual property rights. Museums often charge for photographs of works in their collection, and publication royalties provide a modest income stream to fund conservation.

murraypaul · 12-06-2010, 10:56 AM

Quote:

Originally Posted by Sil_liS

What about the Sistine Chapel?

Not currently located in a jurisdiction where English law would apply.

Sil_liS · 12-06-2010, 11:04 AM

Quote:

Originally Posted by murraypaul

Not currently located in a jurisdiction where English law would apply.

I didn't realize that you were only talking about English law.

Kali Yuga · 12-06-2010, 11:21 AM

The "hobbyists rule" argument is somewhat chimerical.

Absolutely nothing about contemporary copyright laws prevents amateurs from producing as much work as they like. The only thing they can't do is make derivative works without permission.

Within those confines, derivative works like fanfics are often tolerated, as long as the fan-author does not try to charge for the work. Even Rowling, who has meted out numerous IP-based lawsuits, has given tacit approval to fanfics (http://www.prweb.com/releases/2008/07/prweb1080574.htm0)

So, other than actually selling fanfics, there is no reason why amateurs can't do as much work as they want right now. Yet somehow, most of the art that people buy is still professionally produced. Go figure....

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12-06-2010, 04:44 AM	#92
ypocaramel Connoisseur Posts: 64 Karma: 10 Join Date: Nov 2010 Location: Hong Kong Device: Sony Reader PRS-700, Barnes and Noble NOOKcolor)	The approaches in the Commonwealth world, as I understand it, is not watertight - there are times when sweat of the brow has been applied even if it is not generally encouraged.

12-06-2010, 11:21 AM	#105
Kali Yuga Professional Contrarian Posts: 2,045 Karma: 3289631 Join Date: Mar 2009 Device: Kindle 4 No Touchie	The "hobbyists rule" argument is somewhat chimerical. Absolutely nothing about contemporary copyright laws prevents amateurs from producing as much work as they like. The only thing they can't do is make derivative works without permission. Within those confines, derivative works like fanfics are often tolerated, as long as the fan-author does not try to charge for the work. Even Rowling, who has meted out numerous IP-based lawsuits, has given tacit approval to fanfics (http://www.prweb.com/releases/2008/07/prweb1080574.htm0) So, other than actually selling fanfics, there is no reason why amateurs can't do as much work as they want right now. Yet somehow, most of the art that people buy is still professionally produced. Go figure....

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