National Portrait Gallery Threatens Wikimedia Developer For Downloading Public Domain Images

from the what-public-domain? dept

Derrick Coetzee, a software developer and an administrator of Wikimedia Commons, the media repository for Wikipedia is being threatened by the National Portrait Gallery in London. Coetzee admits that he downloaded about 3,000 high-resolution images from the site, but notes that they are all of paintings that are in the public domain (nearly all are over 100 years old). Coetzee is in the US, where he notes Bridgeman v. Corel suggests that photographs of public domain paintings do not carry any copyright, since the photograph does not add any new expression. However, such issues are not settled in the UK, and the National Portrait Gallery is insisting that the photos are covered by copyright.

On top of that, the Gallery is claiming a violation of its database right. Database rights are an unfortunate mistake in European law, that allows a copyright-like right to be held on a database, even if the entries in that database are uncopyrightable -- such as a collection of facts or a collection of public domain works. Finally, the Gallery is also claiming that Coetzee unlawfully circumvented protection methods designed to keep folks like himself from downloading the content -- and thanks to the UK's own anti-circumvention law, that too could make him guilty of infringement. Of course, that last one shouldn't apply if the content isn't actually covered by copyright, as Coetzee argues.

The whole thing, frankly, seems rather ridiculous, and a huge black mark on the National Portrait Gallery in the UK. Here was a chance to help educate the public and give people more reasons to go to the Gallery to see the actual photos, and they're trying to stomp out that kind of education through abuse of copyright law. The people who run the Gallery should be ashamed of themselves. They ought to go back and read their own mission statement:

Founded in 1856, the aim of the National Portrait Gallery, London is 'to promote through the medium of portraits the appreciation and understanding of the men and women who have made and are making British history and culture, and ... to promote the appreciation and understanding of portraiture in all media'.

How, exactly, does suing someone for getting those portraits more attention achieve that goal?

Filed Under: derrick coetzee, public domain, uk national portrait gallery, wikimedia

Should There Be A Penalty For Falsely Claiming Copyright Over Public Domain Material?

from the happy-birthday... dept

Slashdot and The Register point us to a new paper by Jason Mazzone about "copyfraud" -- or the ability of someone to claim copyright on something that is in the public domain. The issue, Mazzone points out, is that there's no penalty for falsely claiming copyright on something, so there's plenty of incentive to claim something is still covered even if it's not. Remember the story of "Happy Birthday"? While the common wisdom is that the copyright is owned by Time Warner, there's a lot of evidence that this is not the case at all, and the song is in the public domain. Oh, and that could be true of Mickey Mouse as well. But, of course, neither Disney nor Time Warner risks any punishment in claiming that they still hold the copyright to each of those... so who's going to challenge it?

Filed Under: copyfraud, copyright, false claim, jason mazzone, public domain
Companies: disney, time warner

EFF Launches Copyright Curriculum To Counter RIAA Propaganda Being Handed Out To Schools

from the good-news dept

It's been quite troubling that for years various schools have simply accepted propaganda and totally inaccurate "teaching materials" about copyright and used them to teach students. These programs have been created by both the RIAA and the MPAA, at times. More recently, a lobbying organization backed by both of those organizations, the Copyright Alliance (which has a long history of making up the most fantastic myths about copyright) has been pushing a copyright curriculum on schools. Tragically, unsuspecting schools have been using the pure propaganda put out by the Copyright Alliance as if it were some sort of impartial and accurate educational material on copyright. It's not. Not even close. Last year, one of the world's foremost experts in copyright, William Patry, took the Copyright Alliance's founder to task for having "chutzpah in abundance" in basically making up what copyright and fair use is about, and presenting himself as some sort of expert on the subject.

Unfortunately, schools that are using these materials often don't realize that they're simply accepting corporate propaganda, assuming that a front group like The Copyright Alliance is some sort of impartial player in the space, even though its curriculum is laughably bad, positioning any kind of copying as a high risk activity that should be avoided. Luckily, the EFF has finally launched a much more accurate and reasonable curriculum that was actually created by those who know the subject matter, rather than corporate execs and lobbyists. The EFF's curriculum is available at Teaching Copyright and is under a Creative Commons license. Unlike many of the propaganda copyright curricula, Teaching Copyright focuses on the broader picture, recognizing the fact that copyright is not for protecting creators, but is a deal between creators and the public to encourage creation within certain important limitations. It covers important concepts such as the public domain and fair use that are either ignored or downplayed in most of the curricula put out by the industry. This is a welcome addition to materials for schools to use to educate students on copyright.

Filed Under: copyright, copyright alliance, curriculum, education, eff, fair use, propaganda, public domain
Companies: eff

But How Would Steinbeck Feel About The Public Domain?

from the questions,-questions... dept

Earlier this year, we wrote about a lawsuit involving John Steinbeck's heirs and their attempt to regain the copyright on his works. The specifics of the case were very, very much inside baseball, having to do with interpretations of certain changes to copyright law. The specifics aren't really worth bothering with here (though you can drill down if you want to know). The news this week was that the Supreme Court rejected the appeal by Steinbeck's heirs, meaning that the appeals court ruling stands and the heirs don't get the copyrights back. However, what struck me as most interesting was the statement those heirs released:

John Steinbeck's granddaughter, Blake Smyle said, "This is about family. My grandfather would be deeply saddened to know that his contributions are now in the hands of strangers."

Mr. Steinbeck vows to continue to seek proper delegation of his father's legacy and to press forward on behalf of the families of other authors similarly situated to his position.

"If artists and their families cannot protect their rights, then everyone will ultimately suffer."

Now... that all sounds good and righteous, but is completely misleading. After all, if copyright law hadn't been changed and copyright extended greatly, Steinbeck's works would be in the public domain by now (actually, quite some time ago). In fact, as far as Steinbeck knew, both at the time he wrote his works and at the time of his death in 1968, almost everything he wrote would be in the public domain by now (some of his later works would likely still be covered, but the vast majority would be public domain). So, I find it odd to have his heirs claiming that he'd be "deeply saddened to know that his contributions are now in the hands of strangers." After all, he would have expected exactly that. That also makes the final quote hard to square with reality as well. Steinbeck knew the deal he was making with the public domain when he wrote his works. In fact, most of his works shouldn't be protected at all any more. So how can his heirs claim that everyone will suffer if those works aren't protected?

Filed Under: copyright, john steinbeck, public domain, supreme court

Putting Ideas And Inventions Into The Public Domain

from the an-idea-who's-time-has-come dept

A few months back, we wondered why it was so difficult to opt out of copyright. Soon after that, Creative Commons added its CC0 license, which gets you a long way towards putting your content in the public domain (there are a few issues related to it, but it's better than nothing). With patents, the issue isn't quite the same. With copyright, you're automatically given a copyright on creative works. Obviously, that's not the case with patents. However, people have wondered how they can put their invention in the public domain, such that (a) others can benefit from it and (b) it prevents others from patenting it at a later date. Tragically, the US Patent Office tends to look pretty narrowly at what counts as prior art and requires that the information be "published," (something that is also defined very narrowly) so simply declaring an invention to be in the public domain isn't always good enough to prevent others from making a claim on it.

I was thinking about the Slashdot post above for a bit, wondering if it was worth writing this post up, when someone else pointed out that some folks have now set up Public Domain Ideas, a wiki designed for just this purpose: to put your ideas into the public domain by publishing them in that wiki. There have been some efforts in the past to create a database of obviousness, but that's pretty difficult. The big problem with obvious ideas is that they're often so obvious, no one even thinks to put them down, until it's too late, and someone has patented an "invention" based on that idea. But the idea of a wiki for public domain ideas is much more interesting -- if people really do decide to make use of it -- and if the Patent Office recognizes it as a source of published inventions for prior art. In the meantime, if you've got some good ideas to share, why not check it out?

Filed Under: ideas, inventions, patents, prior art, public domain, publishing, wiki
Companies: public domain ideas

Going Too Far In Kowtowing To Copyright Holders

from the public-domain-and-fair-use-exist... dept

In the past, we've used the website Scribd to upload documents that we want to show readers here -- usually things like court filings. It's a decent solution, and often better than providing a link to a pdf which annoys some people (myself included). Recently, the company has come under some misguided fire by copyright holders, falsely accusing the company of somehow making it easy to infringe on copyrights. The company has pointed out that beyond its existing DMCA safe harbors, the company goes above and beyond in helping copyright holders stop unauthorized use. In fact, we've defended the company against unfair attacks. However, it looks like the company has ramped up its attempts to appease copyright holders, and in some cases may be going too far. We already pointed out how it took down a public domain book (though it was quick to fix that mistake).

The latest, though, is that I just went to upload another document (a public domain court ruling), and as I did, I saw that Scribd now requires me to check off a box saying: "I certify that I own the copyright to these documents." That was troubling to me, because I do not own the copyright on this particular document... no one does. As I moved to upload the document at a competing site (DocStoc), I Twittered the dilemma, noting that I wasn't sure what to do. To Scribd's credit, it took a company representative all of three minutes to respond that public domain documents were okay, and that they would update the language of the uploader to make this clear. A quick response, which actually makes me feel good about Scribd, but... at the same time highlights the problem.

After getting so much pressure from copyright holders, Scribd feels the need to be extra proactive in "protecting" copyright, even to the point where its default decisions go too far. While it will now clarify that public domain documents are okay... what about cases where the document would be fair use? Someone should still be able to upload the document without declaring that they own the document or that it's in the public domain if it's a fair use case. This certainly isn't putting any of the blame on Scribd, who seems to be bending over backwards to satisfy everyone. But that's a part of the problem. The copyright holders are clearly pushing well beyond what copyright allows them to do, and it's putting pressure on Scribd to respond -- with the early response going so far as to wipe out certain user rights. The copyright supporters love this, because they don't care much about trampling user rights, but it shows just how screwed up things are that a company like Scribd even needs to be put in this position.

Filed Under: copyright, fair use, kowtowing, public domain
Companies: scribd

Court Rules Part Of Copyright Act Unconstitutional

from the wow dept

A year and a half ago, we were quite surprised when the 10th Circuit Court of Appeals actually sided with Larry Lessig, concerning how a part of copyright law that pulled foreign works out of the public domain was potentially unconstitutional. This was in the "Golan case," the third of three big copyright cases Lessig had championed. The appeals court had sent the case back to the lower court, and that lower court has now decided that, indeed, a trade agreement (URAA) that pulled foreign content out of the public domain is unconstitutional as it violates the First Amendment. While it may seem narrowly focused, this is the first case that has successfully challenged a part of copyright law as being unconstitutional. The ruling will almost certainly be appealed, so it's not over yet -- but it's still a rare and important win for those who are fighting to keep copyright law from destroying the public domain.

The specifics may seem a bit down in the legal weeds, but they're quite important. In the famous Eldred case, which challenged the constitutionality of continual copyright extension, the Supreme Court held that this was within Congress' purview, so long as it didn't muck with "the traditional contours of copyright law." The two later cases that Lessig was involved in both focused on this claim, trying to note that changes in the law did not, in fact, stick with the traditional contours of copyright law, and in removing content from the public domain actually violated First Amendment rights. In this case, the plaintiffs had relied on previously public domain works, that were suddenly pulled back under copyright by this treaty. They argued that taking content back out of the public domain went against the traditional contours of copyright law. While the lower court initially disagreed, the appeals court reversed the decision, and sent it back to the lower court -- noting that since the traditional contours of copyright law had been changed, the new law had to be reviewed as to whether or not it violated the First Amendment.

This latest ruling said that, yes, it appears that it did in fact violate the First Amendment -- pointing out that while Congress did need to comply with international treaties, it did not have to do so in the way it did here (i.e., it could have created an exception for those who were already making use of these works in the public domain):

Congress has a legitimate interest in complying with the terms of the Berne Convention. The Berne Convention, however, affords each member nation discretion to restore the copyrights of foreign authors in a manner consistent with that member nation's own body of copyright law. In the United States, that body of law includes the bedrock principle that works in the public domain remain in the public domain. Removing works from the public domain violated Plaintiffs' vested First Amendment interests. In light of the discretion afforded it by the Berne Convention, Congress could have complied with the Convention without interfering with Plaintiffs' protected speech. Accordingly--to the extent Section 514 suppresses the right of reliance parties to use works they exploited while the works were in the public domain--Section 514 is substantially broader than necessary to achieve the Government's interest.

So, yes, this is a narrowly focused issue (and likely to be appealed right back up), but just the fact that a court has finally realized that copyright law can violate the First Amendment is a big win. Where this could get more interesting is if it eventually gets appealed up to the Supreme Court, and the court recognizes (as it hopefully will) that there's a discrepancy between this ruling and the ruling in another of Lessig's cases, Kahle v. Gonzales (which happened in the 9th circuit), and decides to look into whether or not certain changes in copyright law really did change the traditional contours of copyright law.

Filed Under: copyright, first amendment, golan, larry lessig, public domain

Google 'Requests' That We Not Copy Works That Are Already In The Public Domain

from the yeah-right dept

Computer scientist Steven Bellovin notes a troubling trend: companies that republish public domain works are increasingly trying to use contract law to place restrictions on their use. For example, Google is apparently in the habit of "requesting" that people only use the out-of-copyright works they've scanned for "personal, non-commercial purposes." Even more troubling, works like this one that were produced by the US federal government—and have therefore never been subject to copyright—come with copyright-like notices stating that any use other than "individual research" requires a license. Fundamentally, this is problematic because copyright law is supposed to be a bargain between authors and the general public: we give authors a limited, temporary monopoly over their works, in exchange for those works being created. But in this case, the restrictions are being imposed by parties—Google and Congressional Research Services, Inc., respectively—who had nothing to do with the creation of the works. The latter case is particularly outrageous because taxpayers already paid for the works once, through our tax dollars.

With that said, there are a couple of reasons to think that things aren't as bad as Bellovin suggests. It's hardly unusual for companies to claim rights they don't have in creative works—that doesn't mean those claims will stand up in court. The fact that Google "requests" that users limit how works are used doesn't mean they can stop people who ignore their requests. And especially in the case of government works, there's a strong case to be made that copyright law's explicit exemption of government works from legal restrictions should trump any rights that private companies might claim to limit the dissemination of such works. Moreover, a few courts have recognized the concept of copyright misuse, the attempt to extend a copyright holder's rights beyond those that are specified in the law. So it's not at all clear that these purported contractual restrictions would actually be binding. Companies might say that you need permission to reproduce the works, but they're unlikely to try to enforce those requirements in court. Nevertheless, government officials and librarians should do a better job of policing these kinds of spurious claims. As Bellovin says, government agencies that hire firms to manage collections of public domain works should ensure that the private firms are contractually obligated not to place additional restrictions on downstream uses of those works.

Filed Under: contracts, public domain
Companies: google

Creative Commons Adds A 'No Copyright At All' Option

from the go-go-public-domain dept

Just two months ago, we were pointing out how difficult it was to opt-out of copyright and put content into the public domain. We noted that it wasn't solved by Creative Commons -- who had a series of licenses that all relied on copyright, and none that removed all restrictions. Looks like the CC folks were listening (not to me, necessarily, but to others who raised similar issues). They have now released a new offering to help content creators declare their work to be in the public domain. They're calling it CC0. While it looks just like other CC licenses, it's not actually a "license," but a waiver/declaration that the content is in the public domain. This is a fantastic move, and we'll certainly be checking it out in more detail to see if it makes sense for us and the content posted here.

Filed Under: copyright, creative commons, public domain
Companies: creative commons

Can You Re-Copyright Photos In The Public Domain?

from the not-good dept

Davis Freeberg wrote in to tell us about how a small publishing company, Summertown Sun, had issued takedown notices for public domain photographs that were put on Flickr. What appears to have happened is that a user, by the name of "Dazzlecat," posted some photos to Flickr that she believed were public domain photographs (vintage photographs from over a century ago). However, Summertown Sun sent a takedown claiming copyright ownership of those photos. That seems odd, since public domain is... public domain. Either way, Yahoo/Flickr obeyed the takedown notice and then also took down a followup altered image and blog post that trashed Summertown for the takedown, saying that it violated Flickr's terms of service. Yahoo is, of course, free to do what it wants -- and has the right to takedown whatever it feels violates its terms of service, but what's more interesting is the question of whether or not the images are in the public domain, and whether or not Summertown's takedown was actually legal.

In a response to the original complaint about the takedowns, Summertown tried to defend itself by claiming:

We claim copyright on images we have creatively altered, which includes hundreds in our collections; such alterations remove them from the public domain. In addition we offer all of our images under the terms of a license agreement, regardless of copyright status, which is common practice in the image industry in recognition of considerable expenditure of production work, money, and other resources in making our products available.

That seems troubling -- and not quite right to me. You can't "remove" something from the public domain (Congress can apparently, but that's another issue). You can alter a work and then copyright the alterations if they are significant changes. Minor tweaks and alterations are not copyrightable and certainly the underlying original image is still very much in the public domain. Now, looking over the Victorian photographs that Summertown offers, many of them do not seem to have major alterations at all. Some appear to be colorized, so perhaps (maybe?) they could claim that the colored part of the images are copyrighted, but even that might be a stretch.

Furthermore, the fact that Summertown engages in the "common practice" of putting forth a license, regardless of copyright status, is rather meaningless. If it's in the public domain, it's in the public domain. You can't pretend the public domain doesn't exist just because you add a license to something. If that were the case, there would be no public domain at all.

I've run this by a few copyright lawyers I know, and most agreed that Summertown's position seems tenuous, though it really does depend on what photos, specifically, were uploaded to Flickr. So, without knowing exactly which images were placed in the Flickr stream, it's not 100% clear that Summertown violated the DMCA with a false takedown (it's against the law to send a takedown if you don't actually own the copyright), but if the photo in question really did not have significant alterations, then it seems likely.

Filed Under: alterations, copyright, flickr, photographs, public domain
Companies: summertown sun, yahoo