How Is It That New Copyrights Are Being Claimed On Work Done By An Artist Who Died 70 Years Ago?
from the abusing-the-system dept
If you visited Google on Saturday, you may have noticed that the logo looked like the following:
I was reading that the copyright has expired on Mucha's works. What does that mean in practical terms? Does it mean that anybody can, I don't know, create a mouse pad with his images on it?That sounded wrong to our reader, who questioned how that could make sense, seeing as Mucha has been dead for over 71 years. Now, I'm certainly no expert on Czech copyright law, so anyone out there who is an expert, feel free to chime in. But I'm assuming that the situation is similar to one that we discussed a year ago. In the US, thanks to Bridgeman vs. Corel, it is mostly believed that a photograph of a copyrighted work does not receive a new copyright (technically, it only applies in the court where the ruling was made, but the ruling has been followed by other US courts as well). However, in Europe, I believe the question is more or less unsettled -- so many claim that a photograph of a work can itself get a new copyright.
"It means that the rights are in the public domain, with two exceptions. Exception one are works that have not yet been photographed or seen. And there are quite a few of those. There, once we photograph them or we make the images available, those images have their own copyright.
"The other exception is, we have the biggest and possibly best quality archive of all the images. Because these images were created within the last five years with the latest technology, they all have their own copyright of 75 years.
This seems silly, if you think about it. Copyright is supposed to cover the creative work added. Photographs, in general, are given copyright protection on the basis of the idea that the composition involved some creative choices (framing, lighting, aiming, etc.). In fact, the copyright is technically supposed to just cover those creative choices. A direct photograph of an artwork involves no such creative questions. However, as it is "unsettled" law in Europe, then some like to claim that photographs of artwork create brand new copyrights. That seems to be what the younger Mucha is claiming here, though assuming this issue hasn't clearly been settled in the Czech Republic (and I can find no detailed info either way), then such a "new" copyright on a work so old could, conceivably, be challenged.
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Filed Under: alphonse mucha, copyright, photographs, public domain
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Clearly
After all, traditional photographs are copied by printing from a negative - and that process is logically indistinguishable from the process that produced the negative itself.
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Re: Clearly
If a photographer spends the time and money to bring images of 'lost' works to the awareness of the public; should he not get something in return?
Conversely, if this is just a photograph of an original work, why can't someone else just photograph the original work and donate it to the public domain?
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Re: Re: Clearly
; P
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Re: Re: Clearly
If he's not the owner of the original painting (and by owner I mean, legal possessor of the original physical painting, not the copyright owner who has been dead for 70+ years), then hopefully he negotiated to get paid for his work to reproduce the painting.
Getting something in return for his efforts to as effectively as possible reproduce someone else's work would not be to grant him life + 70 years of copyright on the copies that he made.
In regard to the photograph of an original work, if someone else owns the physical copy, they aren't under obligation to allow a digital copy to be made.
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Re: Re: Clearly
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Re: Re: Re: Clearly
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Re: Re: Clearly
This is a slightly different issue (although it is also mentioned in the story) The legal situation with previously unpublished work is (usually - depending on jurisdiction) that there is a special copyright available for this - but the term is much shorter than usual - and it attaches to the original work - NOT to the photograph.
Conversely, if this is just a photograph of an original work, why can't someone else just photograph the original work and donate it to the public domain?
Usually because those who physically possess the original try to physically block you from doing so.
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Re: Re: Re: Clearly
"Usually because those who physically possess the original try to physically block you from doing so."
Well my assumption was that since the photographer claiming copyright was able to photograph the original piece which is out of copyright, that anyone should be able to likewise photograph it.
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Re: Re: Re: Re: Clearly
If you mean other public domain works, the point is that copyright shouldn't last so long as to ensure that very few to no one has an undistorted original before copies can be made to preserve the content.
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Re: Re: Re: Re: Clearly
The owner of the actual work then uses the supposed photographer's copyright to effectively impose copyright on the original public domain work. (The photographer just gets a one off fee - his efforts are treated as "work for hire".
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Re: Re: Clearly
I think the point is that copyright shouldn't last long enough to cause works to become lost or so utterly distorted from the original that it takes a lot of effort to restore them.
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Re: Re: Clearly
It's not much, we admit, but more than enough to satisfy your exceedingly vague definition of "something". You can take receipt of this payment via any of the trash cans (or gutters) that we - the public - have graciously provided.
It's been a pleasure doing business with you, Mr. Advocate. And good luck in billing your client.
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Re: Re: Re: Clearly
What exactly is your point?
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Re: Re: Clearly
There are lots of things he can get in return, but it shouldn't be a copyright. Copyright has nothing to do with "sweat of the brow" arguments about spending time and money. It is only designed to protect the creative decisions made by the producer. That's why, as noted in the post, it's only supposed to cover choices the photographer made. If they're merely photographing an entire artwork, then there are no choices being made.
Conversely, if this is just a photograph of an original work, why can't someone else just photograph the original work and donate it to the public domain?
Conceivably, if the work is kept in a private museum or private place where photography can be restricted, then this is not possible.
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Re: Clearly
This is how companies have been claiming copyright of mozart's works - it's been what, 500 years? Literally if you get a copy of anything composed by mozart it will carry a copyright from the publisher and cost an extortionary fee.
It's not like it's anything ethical (clearly it's not), but greed is clearly overwhelming the intent for it to be public and beneficial.
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Re: Re: Clearly
Fortunately there is Mutopia
http://www.mutopiaproject.org/cgibin/make-table.cgi?Composer=MozartWA
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Re: Re: Re: Clearly
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"Mucha" do about nothing.
Anyhoo, another story of "copyright" running wild after leaping its traditional boundaries. Dead authors / artists have *no* rights, and this endless "estate" notion (including foundations) must be ended because it's distorting society. Enduring legacies is another remnant of feudalism, and not coincidentally being pushed by those who wish to return to *full* feudalism because they'd be even more privileged.
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I can take a picture of a tree and copyright the photo I took, but the tree itself has no copyright.
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Re:
After all, what's the point of placing a work in the public domain if every copy of that work has a new copyright. If an original is in the "public domain" and there are only a limited number of originals and they are still protected by physical property laws (effectively copyright) and if all copies are re - copyright then that negates the purpose of something entering the public domain, so that everyone can freely have an non-copyright copy.
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Re:
Yes - but if you take a photograph of a two-dimensional image with the intention of reproducing it exactly then there is no new copyright because you have made no new artistic input.
Your tree photograph involved lots of artistic choices, angle, exposure, lighting, focal length etc etc. It is those choices that create the copyright. A photograph of a 2D painting involves none of those kind of choices - although it might involve considerable skill an effort - and so it does not get a new copyright.
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Not in the U.S. Southern District of New York (but broadly accepted, yet unchallenged, in the rest of the country). Bridgeman vs. Corel ruled that reproductions of old work are not eligible for copyright because of the lack of originality.
I think Mike is forgetting the National Portrait Gallery vs. Wikipedia issue of about a year ago when (a user of) Wikipedia did the same thing. He published high resolution reproductions which the gallery said violated their copyright. And, I think the conclusion was that it might in the UK. But it clearly doesn't in the U.S. Is it stupid? Yes. But so is much of copyright law. Luckily on this point the U.S. is better.
(And I think it's not even contested that our copyright law starts at time of publishing, not creation, so I think the first point is straight forward--as long as they really are being published for the first time.)
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What year was the Mona Lisa published?
But also, paintings aren't published or publishable, so the distinction is irrelevant. The copyright exists as soon as the work is set in a fixed medium.
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Re:
The NPG case is not resolved yet AFAIK.
(And I think it's not even contested that our copyright law starts at time of publishing, not creation, so I think the first point is straight forward--as long as they really are being published for the first time.)
Copyright now starts to run out when the author dies - publication date is irrelevant - except for corporate works.
Special rules apply for works first published after the copyright on the author's published work has expired. There is anew copyright - but the term is much shorter (25 years in the UK I think).
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Re:
Not forgetting it at all. That's what the link to "a year ago" points to, and the following discussion is all based on that.
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The article quoted makes sense.
There's been a lot of harmonisation in Europe so it may be the same, but I can only speak for Ireland..
Section 34 of the Copyright and Related Rights Act 2000
"Making available of a work not previously made available.
34. — Any person who, after the expiration of the copyright in a work, lawfully makes available to the public for the first time a work which was not previously so made available, shall benefit from rights equivalent to the rights of an author, other than the moral rights, for 25 years from the date on which the work is first lawfully made available to the public."
The leading case on copyright in photographs is an English case:
Antiquesportfolio.com v Rodney Fitch [2001] FSR 345
In that case copyright was breached by reproducing photos of furniture. They were reported as simple photos with low degree of skill and judgement and labour. The court held that the standard of originality required for copyright is very low and any modicum of skill, judgement and labour will suffice (e.g. lighting a photo so there's no flash shine). The case didn't really discuss where things are not original, but this is usually tracing or photocopying. A photograph is debatable but arguably requires skill as opposed to a photocopy.
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Re: The article quoted makes sense.
Antiquesportfolio.com v Rodney Fitch [2001] FSR 345
Had a look at that - doesn't seem especially relevant to me. No-one is disputing the copyright on photographs of 3D scenes - however when a camera is effectively being used as a photocopier the results cannot be copyrightable.
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wtf
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Sweat of the brow
Under a "sweat of the brow" doctrine, the creator of a copyrighted work, even if it is completely unoriginal, is entitled to have his effort and expense protected, and no one else may use such a work without permission, but must instead recreate the work by independent research or effort. The classic example is a telephone directory. In a "sweat of the brow" jurisdiction, such a directory may not be copied, but instead a competitor must independently collect the information to issue a competing directory. The same rule generally applies to databases and lists of facts."
_____________
Thats why my physics text books, that contain raw facts, equations and information, but formated and presented in a specific format, and narrative. Is subject to copyright.
That facts are not subject to copyright, you cannot copyright an equation, but you can copyright a book that explains, and interprets and displays those equations.
That copyright belongs to the creater of the book, not the creator of the equations..
And in Europe, aggrigation (sweat of the brow) is copyrightable.
But so also is my US written university physics text book, are protected by copyright.
The artist did not copyright his "style" either, so if you create something in the style of.. that does not mean you break copyright.
Picasso does not and never has had a copyright on Qubeist style painting, only on specific works in that style.
And just like you do not have a patent on "the transistor" you have a specific method of achieving a specific result, as outlined in your patent.
Same applies here, just because it is "in the style" does not make it fall under copyright laws.
I know copyright, patent and IP law seems confusing, but really its not that hard.. !!!
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Re: Sweat of the brow
No, that's wrong. The physics textbook is covered by copyright not because of sweat of the brow, but because of the creative choices in the written text, the layout, the formatting, etc. It's the creativity that is covered, not the labor and effort.
And in Europe, aggrigation (sweat of the brow) is copyrightable.
Yes, a true travesty. Research on this matter has shown that the impact in Europe of allowing seat of the brow copyright on things like databases has greatly harmed the European database industry, while the US database industry -- with no such protections, has thrived and is many times the size.
You're really going to defend limiting an industry?
But so also is my US written university physics text book, are protected by copyright.
Again, not for sweat of the brow arguments.
I know copyright, patent and IP law seems confusing, but really its not that hard.. !!!
Funny, then, that you seem to get it wrong so often.
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Re: Sweat of the brow
I'm not aware of anywhere that actually has such a doctrine. The US has a "no mere sweat of the brow doctrine". Europe has some specific rules that appear to amount to such a doctrine - but in reality they are not (although as Mike says they are still a bad idea).
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Re: Sweat of the brow
No it isn't.
It may attract "Database Right" but that is MUCH weaker than copyright (only lasts 15 years) AND requires that a substantial investment must be made both the gathering of the information AND in its organisation.
See http://www.out-law.com/page-5698
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RE: sweat of the brow, and creative input. (physics textbook).
No, that's wrong. The physics textbook is covered by copyright not because of sweat of the brow, but because of the creative choices in the written text, the layout, the formatting, etc. It's the creativity that is covered, not the labor and effort.
Im confused, my statement in that case was not related to 'sweat of the brow' but more to the point you were getting at that you can have copyrighted works, and is full of essentually uncompyrightable information.
You called it "creative choices in the written text, the layout, the formatting etc"
I called it "but formated and presented in a specific format, and narrative. "
It is that format and narrative that is copyrightable, and not the equations, or physics principles.
WE AGREE !!!..
As to your reference to the database laws between Europe and the US, I have your reference PDF here, I downloaded it to study, and it does not back up your claims that databases are much better or more prolific that in Europe, and that report says there is no real indications that it makes much difference.
It also says, most database companies AGREE with the copyright (type) laws in Europe as it provides them a higher degree of certainty..
But dont take my word for it, read the report yourself, it will take an hour or so..
You can cherry pick and selectively qouote things from it, and in isolation it sounds bad, but if read in context the actual means is the opposite to what Mike claims it to be.
Im sure Mike, you can re-link that report for anyone to read, to check for themselves.
All I was saying that in Europe there is "sweat of the brow" legislation, and I do know its not recognised in the US.
Much like "fair use" is virtually a US only construct, due to the first amendment. Fortunately, the US is not the centre of the Universe.
That is also why you cannot copyright something "in the style of" something allready known
But im glad you can disagree with me, even when I said exactly the same thing as you did.
You quoted me, and then yourself saying the same thing !!, just after saying "No, im wrong".
But your exact description is the same as mine, but im wrong and your right ? :)
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Re: RE: sweat of the brow, and creative input. (physics textbook).
Shocking.
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Re: Re: RE: sweat of the brow, and creative input. (physics textbook).
You gave two paragraphs describing what 'sweat of the brow' is and then said: "That is why my physics text books, that contain raw facts, equations and information, but formated and presented in a specific format, and narrative. Is subject to copyright". How can you then claim that your statement was not referring to 'sweat of the brow'? If you were speaking English (grammar aside, you were), then yes you were referring to 'sweat of the brow'.
Honestly, I cannot see how you can really be so ignorant. If you're trolling then well done for bringing the other side down by making them look so bad, though I'd prefer to do without your help.
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Re: Re: Re: RE: sweat of the brow, and creative input. (physics textbook).
Sorry, are you that stupid, I mean, can you not understand that there are OTHER methods for gaining IP and copyright protection for your works.
Yes, that might include "sweat of the brow" OR,
OR being a subsitute or means that something *OR* SOMETHING ELSE can be used as a defense.
So yes, sweat of the brow, AND/OR original (but not creative) input can be considered of Value, and is considered in many places as INTELLECTUAL PROPERTY..
So, I was saying you CAN create a copyright works, that contains essentually NON-copyright information.
This could be because (in europe) it might be sweat of the brow, ,,,
******* OR **************** (meaning either / OR )
It can be because of the creative input from the Author, or the work in collating the information.
So again, my physics text book is a book full of NON-copyrightable information, FACTS, EQUATIONS and so on.
But the book itself is protected by copyright
Can you understand that yet, or do you want me to try to making it simplier for you..
Mabey you can ask someone else to explain it to you, mabey Mike can explain it to you.
At least in this case he seem to understand what im saying,
Even though he could not get beyone disagreeing with me, then stating the exact same thing as I said.
And 'formatting, narrative, layout, research in finding the information".
IS Sweat of the brow.... Geeeezzzzzzzz..
Are you saying it can only be sweat of the brow, or creative input,, geezzzz.. how that world would really SUCK..
Honestly, I cannot see how you can really be so ignorant. If you're trolling then well done for bringing the other side down by making them look so bad, though I'd prefer to do without your help.
Sounds like your running out of arguments, ive shown several ways, and LEGAL methods of gaining copyrights over material that is not itself copyrightable.
At least two examples, one is sweat of the brow, and the other is creative input to non-copyrightable works.
1. is the effort in gathering data (usefull data)
sweat of the brow,/B>
2. is the effort of collating, aggrigating, narrating, formatting, presenting, publishing, printing non-copyrightable works.
Making the works themself copyrightable, but containing content that itself is not subject to copyright protection.
(like equations and facts)..
So if you cannot understand, there is more than one dimention to existance, and that there is not just **ONE** way to do things.
that is your problem,, not mine..
So once again, when you have something that makes sense to say, I will be interested to see what you have to say..
But so far you are just showing a major lack of understanding of even the most simple concepts.
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Re: Re: Re: Re: RE: sweat of the brow, and creative input. (physics textbook).
Then why did you refer to sweat of the brow specifically? I have to ask, is English your native language? If it is not then that might explain why you appear to be talking a different language.
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Re: Re: Re: Re: Re: RE: sweat of the brow, and creative input. (physics textbook).
That facts are not subject to copyright, you cannot copyright an equation, but you can copyright a book that explains, and interprets and displays those equations.
That copyright belongs to the creater of the book, not the creator of the equations..
And in Europe, aggrigation (sweat of the brow) is copyrightable.
But so also is my US written university physics text book, are protected by copyright.
Im (not really) sorry, that you cannot understand the meaning of the word and.
What that **AND** means, that apart from creative input into texts and text books containing facts and otherwise material that in not subject to copyright.
AND
In europe and other places, there is also the 'sweat of the brow' legal definition.
So you can obtain a form of IP, copyright on works that otherwise cannot be protected by such IP rights, by several methods. I explained 3 of them.
AND
I explained that you can have one, two or ALL three different types of IP rights.
AND
You can have one AND another, and in some places you can have one AND another AND another.
If english is not my first language, at least I know what *or* and *AND* mean.
but I am surprised that I find myself explaining it to you !! :)
My physics book was published and copyrighted in the US as well, so it is possible to have non-copyrightable material, as the basis for the bulk of a text that is in itself subject to copyright..
AND..
in some places.
You can ALSO have 'sweat of the brow' blah blah,,
Dont forget what AND means, please.
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Re: Re: Re: Re: Re: Re: RE: sweat of the brow, and creative input. (physics textbook).
If that was not what you meant (see how I referred to the previous paragraph there, using 'that') then why do you keep trying to explain around your bad English when you can just admit your English is bad and move on? It is hard to have a conversation with someone who fervently argues that what they said was, in fact, not true. If you had meant to refer to something else, like the preceding post, then you should have explicitly said so or put 'that' at the start of your post.
If you'd said in the first place 'that is not what I meant', instead of trying to argue that I had somehow misinterpreted your words then we might be discussing the issue at hand, instead of arguing over whether you meant what you actually said.
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Re: Re: RE: sweat of the brow, Read the report !!
Shocking.
Read the report !!! ya wally..
and then find out what a monopoly is !!
IF it was a monopoly it would have been a survey of ONE company ... !!!! yes ??
well just read the report, if you can, I know it has some big words, and some things that are a bit hard to understand.
But im sure if you try, and maybe ask for some help you can understand it
Even if you were right, and your not,
Why should the major players in an industry NOT be allowed to comment on how they feel their industry is best regulated and run ?
Who else would you like making the rules, im sure if you let all the bank robbers make up the rules for theft then the rules would be much different to those made up by the banking industry..
And the fact is, those trying to subvert the system, are not the players in the industry, they have NO SAY in the going on of companies that actually DO THINGS.
As opposed to those who just whine about people making a living and providing a service for their clients.
If these people, companies or groups want more certainty in their industry, certainty by more clearly defined rules and guidelines, then who are you to argue with them..
What have YOU dont to gain a place at the table in this debate ?
Did the report ask you for your input ? NO... I wonder why..
They did not ask me either, maybe that is because I do not work in the industry, just like you..
So read the report Mike linked too, about the database and copyright issues, and then make your silly comments..
But at least do it from a point of actually knowing what is going on..
read the report
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Re: RE: sweat of the brow, and creative input. (physics textbook).
The term "fair use" comes from the US - but the concepts exist elsewhere under different name. (Usually called fair dealing.)
All I was saying that in Europe there is "sweat of the brow" legislation,
But not copyright. Database right which includes such a provision was specifically invented to get around the originality requirements of copyright
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Re: copyright
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Re:
I totally agree with your logic - unfortunately the law does not - thanks to lobbying.
SO we have the stupid deadlock situation where the owner of the only physical copy of a work (eg a painting) does not have the copyright and so cannot make copies - but the person who holds the copyright (the original artist) cannot make copies because he has no access to the work!
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copyright duration
General provision on duration is found in Article 1: The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after his death, irrespective of the date when the work is lawfully made available to the public.
Article 6 says:
Photographs which are original in the sense that they are the author's own intellectual creation shall be protected in accordance with Article 1. No other criteria shall be applied to determine their eligibility for protection. Member States may provide for the protection of other photographs.
Upshot: it doesn't matter when the work was made available to the public, it's 70 years from the date of the author. Photos have to be 'original' and where they're not, member states may make other provisions.
In any case, only the photograph would be protected, not the subject matter of the photograph. Clearly Google has not reproduced a photograph that in any case, must be subject to special legislation (since it's not original, I would guess, but only a 'cataloging of the work') which is only applicable within the legislating state. What's all the fuss?
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Once again
That facts are not subject to copyright, you cannot copyright an equation, but you can copyright a book that explains, and interprets and displays those equations.
That copyright belongs to the creater of the book, not the creator of the equations..
And in Europe, aggrigation (sweat of the brow) is copyrightable.
But so also is my US written university physics text book, are protected by copyright.
Yes, I am talking about more than one thing,
I explained how content, narrative, formatting, layout is in itself copyrightable.
AND,
in Europe, 'sweat of the brow', with NO creative input is also subject to intellectual property laws.
AND thirdly,
As you know you can get copyright on original works themselves.
that makes at least three (3) different methods for gaining IP rights (in this cast, copyright or modified copyright)
Lets recap:
Method 1.
Create an original works,
Method 2.
Take non-copyright information (physics equations) and aggrigate, format, explain, display that information is a creative and original way, and gain IP protection..
Method 3. (Europe).
Input no creative effort, but simply aggrigate common information, (sweat of the brow), as you input no creativity, you get less (shorter) protection period.
(most probably because of the lifespan of the aggrigated information more than protecting the creator).
A database with 15 year old data is not that handy !!
The 15 year protection on sweat of the brow, for databases is meaningless anyway.
Databases are dynamic, that databases would not change their content for a period of 15 years ?
Most databases would have data changing in it every 15 seconds, making it a new database, (its the data and not the structure of the database).
So having 15 years of protection on a telephone directory listing is pointless.
Those listing would and could change daily, hours, or by the second..
Im glad we live in a world that is not as one dimentional as most here seem to see it.
And im glad when these laws are made and the decisions are made the law makers ask the people involved in the industries.
Not the one who want to get their stuff for free, or whatever.
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alphonse mucha copyrite
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