Terrible Ruling In Germany: Digitizing The Public Domain Creates New Copyright
from the no,-no,-no,-bad-court,-bad dept
A court in Berlin has made a very bad ruling, saying that digitizing images in the public domain creates a new copyright. We wrote about this case last year, involving the Reiss Engelhorn Museum in Mannheim suing Wikipedia because users had uploaded 17 images of the museum's public domain artwork. Ridiculously, the German court sided with the museum:The court ruled against the Wikimedia Foundation and in favour of the Reiss Engelhorn Museum. 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.This is not a particularly new issue -- it's come up many times in the past. In the US, thankfully, we have a nice precedent in Bridgeman v. Corel that states clearly that exact photographic copies of public domain works are not protected by copyright, because they lack the originality necessary for a copyright. Of course, that hasn't stopped some US Museums from looking to route around that ruling. Over in Europe, where there is no Bridgeman-like ruling, we tend to see a lot more of these kinds of attempts to relock down the public domain by museums. There have been similar attempts in the UK and in France, though as far as I can tell, neither case went to court.
Wikimedia says that it will appeal the ruling, which is the right move, but really an even larger question is why museums, which should want to more widely share such artwork with the world, are being so overprotective of these works. It's not as if someone seeing a digitized image of the Mona Lisa makes anyone less interested in seeing it in a museum.
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Filed Under: copyright, germany, museums, public domain, scanning images, wikipedia
Companies: reiss engelhorn museum, wikimedia
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The "problem" is that a first-quality reproduction requires considerable effort in want of monetization. The better the reproduction is, the fewer individual recognizable elements it contains, and the less suitable copyright is a suitable tool for the monetization of the reproduction alone.
I don't think it makes sense to make sense to incentivize bad reproductions, so in my opinion reproductions should not be copyrighted at all.
Which means that monetization should not occur via state-guaranteed exclusive reproduction rights. A good photographer will still get paid for his work. Once.
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Reproduction
Unfortunately, the more faithful the reproduction, the less transformative the work is. But then, that was the purpose of copyright, to protect the original art, not the reproducing process and / or distribution. The whole point was, copyright was never about perpetual control of distribution rights (we hope) but about protecting the brainwork and skill of the original artist. I don't get a new copyright for transforming someone else's work to digital, say; neither do they. (We hope). The copyright started and is timed with the original expression.
But then, museums as public institutions do have this dilemma - they are a publicly accessible facility, their items on display will always be part of what the public sees and gets to enjoy in whatever medium. It "goes with the territory".
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Re: Reproduction
Wrong, it in the name copyright, which is the right to produce and distribute copies of an original work. Protection of the actual original work is covered by trespass and theft laws.
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This is an excellent ratchett mechanism: As soon as someone is interested enough to take a picture, the owner get a new 70-year copyright without having to do anything!
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Yes and no
I guess some photographer was hired by the museum to take high quality pictures which were then used in the catalog which is sold by the museum. To get those pictures the photographer used I assume some kind of lighting setup. And if a lighting setup can be patented then there is some kind of originality involved.
As for the argument "you can't take pictures in most museums", true but 1) you can always ask if you can use a picture from their site/catalog for the wiki and 2) you can send a request to take your own picture which is granted rather often.
But in my opinion it would be nice to have some low res versions available with non commercial CC license.
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Re: Yes and no
The lighting set-up needed to photograph flat objects is well known, and almost as old as photography itself. Basically it is a set of lights around the camera, and is the ancestor of ring lights, where the 'ring', can be larger than the camera, unlike a ring light for macro work, where the camera would cast a shadow, and the lights have to surround the front of the lens.
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Re: Re: Yes and no
In Germany to get a copyright you have to proof you created the photograph with some kind of specific technique. If that technique is well known or not doesn't matter. You can give a random person without knowledge about photography a camera and some lights and more often than not the end result will be different from the professional version.
To be honest I'm not sure how to explain this... The photo needs a degree of "Schöpfungshöhe" I'm not sure how to translate this the 1:1 translations is "creation height" I guess you can understand the idea as a creation that needed some form of specific knowledge to be created. The creation needed some king of height/amount of knowledge? Not sure but maybe you get what I mean.
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' It's not as if someone seeing a digitized image of the Mona Lisa makes anyone less interested in seeing it in a museum.'
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Re: ' It's not as if someone seeing a digitized image of the Mona Lisa makes anyone less interested in seeing it in a museum.'
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Re: ' It's not as if someone seeing a digitized image of the Mona Lisa makes anyone less interested in seeing it in a museum.'
Copyright is for commercially copyable matter. A painting is merely a motive for photography. At least until replicators become commercially viable.
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Re: ' It's not as if someone seeing a digitized image of the Mona Lisa makes anyone less interested in seeing it in a museum.'
Maybe you want to ask the estate of "insert artist name" in the US what they think about it. Just to point out that this is not a German problem
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They want to invent a new hammer, let them feel the pain when it gets used on them.
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Un-enforceable in the US?
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If It’s A New Copyright ...
So digitizing a work that is still in copyright also creates a new copyright, right?
So how could it be infringing the original copyright?
No, don’t bother answering that. The answer is “because copyright maximalists want to have it both ways”.
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Uh no? They are making money from exhibiting actual physical possessions. They don't just put up digital picture frames and pump content through.
What we are talking about (yet) is the side business of souvenirs rather than the actual artwork. Which, due to the arbitrary replicability of the raw data, can be rather lucrative.
Physical possession is still a non-trivial expense if we are talking about something like the Mona Lisa or Nu Couche. But if you had sole reproduction rights, you could likely come out ahead and have a nice painting.
Of course, the people writing the laws are more likely to be able to afford physical possession of such items than the people interested in copies.
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Spot on. The museum usually doesn't care about people taking photos of the actual exhibit so much as long as there's no flash photography or other activity that can harm the original. But, once you get into the side business of prints, postcards, books, etc. then all of a sudden there's more profit at stake than whatever is afforded by the entrance fee.
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I came.
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These people are... taking a picture of a picture. There's no new flavor or nuance, no new interpretation, no new creativity. It's a picture deliberately taken to look exactly like the original picture. This is hardly transformative in the way Andy Warhol's picture of Marilyn Monroe was.
Tell me... how do you expect an automated algorithm to be able to differentiate this new copyrighted image from another almost identical image taken by someone else? Three people can after all take three pictures of the same public domain work, and the end result will have to be three unique copyrights on three almost identical images, right? In this day and age of automated copyright robots trolling websites for infringing content, this point alone should be enough to move this ruling from the "silly" category, and file it straight under "fucking stupid and impossible to police."
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In the same manner as recording a Beethoven symphony. That recording is copyright. It doesn't mean you have a copyright on the original work, just the current recording.
Now, for this case, you have a couple of things in play here: There are not very many pictures of the works in question, the museum has only apparently allowed on photographer to take the shots. This shot BY DEFINITION are copyright in and of themselves. The original work is still "public domain" but you cannot use the recently produced images without permission.
Sort of sums up the Techdirt world. try very hard to make it sound very confusing when the reality is pretty clear anyway.
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Meanwhile, some people completely miss the point that the reality that's quite clear is highly questionable in the first place. But, some people ignore that in an attempt to pretend the discussion is about something else.
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Inference
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