Terrible Ruling In Germany: Digitizing The Public Domain Creates New Copyright

from the no,-no,-no,-bad-court,-bad dept

Thu, Jun 23rd 2016 10:40am — Mike Masnick

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

28 Comments

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Anonymous Coward, 23 Jun 2016 @ 10:59am

Does this mean that by photographing, or scanning a public domain work, nobody else can do the same because the first person to do so has a new copyright?
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Petex (profile), 23 Jun 2016 @ 11:08am

This won't survive appeal. Here's what the UK IPO says about EU law on this:
According to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’.
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Adam (profile), 23 Jun 2016 @ 11:14am

Re:
I would imagine the copyright is on the photo of the artwork not a new copyright on the artwork. Taking your own photo should result in yet another new copyright. That being said... if you're restricted from taking photographs, as many museums do, you have no way to display a photo of an artwork that isn't, in some way, a violation of the photographers copyright. Very poor ruling indeed.
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Anonymous Coward, 23 Jun 2016 @ 11:36am

Re: Re:
How are near identical copies of the same object distinguished then, when it comes to a copyright fight. This will very likely happen when pictures are photographed, or image scans taken of ancient books? I can see this ruling making German copyright lawyers very rich.
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Anonymous Coward, 23 Jun 2016 @ 11:44am

Yes and no
The photos used in the wiki article were taken from a catalog which someone scanned, cut, and uploaded.

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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Anonymous Coward, 23 Jun 2016 @ 11:55am

' It's not as if someone seeing a digitized image of the Mona Lisa makes anyone less interested in seeing it in a museum.'
You missed the point. It's to incent the creator to produce more art. What sort of motivation would Leonardo da Vinci have to create more works without this sort of protection, I ask you.
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Anonymous Coward, 23 Jun 2016 @ 11:57am

Re: Yes and no
I assume some kind of lighting setup.

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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Anonymous Coward, 23 Jun 2016 @ 12:05pm

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.'
Being alive right now to do so seems like a great motivator for Da Vinci! Too bad the court can't repeal his death certificate. Too late judges!
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David, 23 Jun 2016 @ 12:30pm

Re: Re: Re:
Watermarks, metadata, signatures of digitization artifacts particular to some digitization.

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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Steerpike (profile), 23 Jun 2016 @ 12:58pm

Asinine decision. There's no new "authorship" happening here. No new creative aspect to the photocopied work. You can see how a photo of, say, a sculpture might have independent copyright based on photographer decisions about angles, lighting, photo settings, and so forth. Running pages through a scanner has none of that.
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UniKyrn, 23 Jun 2016 @ 1:13pm

Visit the museum, take pictures, digitize them. If the museum is ever mentioned in an article that includes pictures of anything you photographed, file a copyright claim.

They want to invent a new hammer, let them feel the pain when it gets used on them.
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David, 23 Jun 2016 @ 1:22pm

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.'
Oh come on. Leonardo da Vinci smeared pigment paste on canvas. That's such a pitiful approximation of modern means of digital reproduction that assigning copyright would seem rather absurd. In particular since the results of such a primitive process are not usefully replicable, so where is even the point of copyright with that? It's sort of like a manuscript, not a product in want of serial reproduction.

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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afn29129 (profile), 23 Jun 2016 @ 1:29pm

Un-enforceable in the US?
"...files in question, which were held by Wikimedia Commons in the US,..." and we have the Bridgeman v. Corel decision in the US. So does this mean that this Germany court's ruling is toothless?
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Lawrence D’Oliveiro, 23 Jun 2016 @ 2:34pm

If It’s A New Copyright ...
... then it’s separate from the original copyright, right?

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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Anon, 23 Jun 2016 @ 2:59pm

Reproduction
> 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.

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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Anonymous Coward, 23 Jun 2016 @ 3:19pm

Re: Re: Yes and no
That is why I make the point of patent(s) granted based on setups which is/are rather well known to professionals.

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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Anonymous Coward, 23 Jun 2016 @ 4:08pm

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.'
"What sort of motivation would Leonardo da Vinci have to create more works without this sort of protection, I ask you."

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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Anonymous Coward, 23 Jun 2016 @ 6:19pm

The purpose of that museum is to make money from public domain, yet its visitors can't take photos of works in public domain. Long live greed.
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Whatever, 23 Jun 2016 @ 7:15pm

Yes! YES! You go, Reiss Engelhorn! I want your copyright up my filthy public domain. All of it! Life plus seventy years! Ah, ah...!

I came.
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Anonymous Coward, 23 Jun 2016 @ 11:31pm

Re: Reproduction
But then, that was the purpose of copyright, to protect the original art, not the reproducing process and / or distribution.

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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Anonymous Coward, 24 Jun 2016 @ 1:38am

If you takes some notes of a Mozart piece, get an orchestra together, find a good conductor with a vision, play the piece to the conductors liking, and make a recording - you get a copyright on that expression of an old idea. I don't much approve, but I can at least understand it.

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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Yes, I know I'm commenting anonymously, 24 Jun 2016 @ 4:07am

Re:
It means that the owner of an object gets a new copyright every time someone (else) photographs the object.
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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David, 24 Jun 2016 @ 5:00am

Re:
The purpose of that museum is to make money from public domain,

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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Wendy Cockcroft, 24 Jun 2016 @ 5:41am

Re: Re:
Who says copyright isn't eternal and everlasting? The Germans just made that happen! Here's the fun part: each iteration has a copyright of its own, but how can you tell digital ones apart? Imagine the fun we're going to have with licensing if someone snaps a sneaky photo in a museum and uploads it to Flickr on a CC licence, then Wikimedia picks it up. Butter the popcorn, people, this is about to get interesting.
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Whatever (profile), 24 Jun 2016 @ 6:49am

What I guess you dance around here is that it does not make the original work copyright, only the picture taken of it.

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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They don't let us forget, 24 Jun 2016 @ 9:18am

Inference
How many of those works were stolen during WWII that don't belong to the museum or Germany?
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PaulT (profile), 25 Jun 2016 @ 5:23pm

Re: Re:
"What we are talking about (yet) is the side business of souvenirs rather than the actual artwork."

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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PaulT (profile), 25 Jun 2016 @ 5:25pm

Re:
"Sort of sums up the Techdirt world. try very hard to make it sound very confusing when the reality is pretty clear anyway."

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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