Unknown Nintendo Game Gets Digitized With Museum's Help, Showing The Importance Of Copyright Exceptions

from the lost-history dept

Roughly a year ago, we wrote about how museums were requesting an exception to the DMCA's anti-circumvention provisions in order to preserve online games. While the Librarian of Congress has already allowed for exceptions for preserving non-online games, the request led to pushback by the Entertainment Software Association, which indicated preserving online games would be copyright infringement. Nintendo is a member of the ESA and the gaming giant was at the same time going around to ROMs sites all over the internet and either threatening them with legal action or scaring them into shutting down. This happened all while Nintendo also released several retro consoles, essentially cashing in on the nostalgia that the emulation sites had kept alive for the past decade or so.

All of which is to say this: Nintendo is not generally friendly to the idea of preserving Nintendo games via digitization that it does not control itself. Standing in contrast to that is the recent discovery of an otherwise essentially unknown Nintendo game from 30 years ago that, upon discovery, was swiftly digitized for posterity.

When UWC—a NES game that had been hidden from the world for 30 years—was uncovered last week, one of the first orders of business was getting the game off a cartridge and into the digital realm so that it could be properly preserved.  The new owner of the game, Stephan Reese, aka Archon 1981, said as much last week, and that job has now been completed thanks to the efforts of the Video Game History Foundation.

Saying “we were more than happy to lend our expertise and digitize the game for its owner”, the VGHF haven’t just ripped the game, but also went and finished it (as in, played to the end, not finished development), uploading gameplay footage to YouTube so we can all see some more of UWC in action.

Were it not for the exceptions that allowed the VGHF to have helped Reese out, the game could quite easily have been lost to history. Perhaps more importantly, if the general posture of companies like Nintendo led someone like Reese to believe the illegality of this wasn't even worth questioning, the world may never have seen this game at all. And, whatever you think of the importance of gaming to our culture, it cannot be argued that this would have been a cultural loss concerning the history of a popular entertainment medium.

These exceptions to copyright law are very, very important. This is just one of many examples as to why and yet another reminder that the pervasive culture of ownership and restriction carries with it a danger to literally everyone else who is living or will live. That danger is the potential to lose parts of our culture and history.

Filed Under: archives, copyright, copyright exceptions, digitization, lost content, lost games, nes, uwc, video games
Companies: nintendo

UK Throws A Copyright Crumb: Confirms That Digitized Copies Of Public Domain Images Are In The Public Domain

from the so-what-took-so-long? dept

A couple of weeks ago, Techdirt wrote about a German museum suing Wikimedia over photos of public domain objects that were in its collection. We mentioned there was a related situation in the UK, where the National Portrait Gallery in London had threatened a Wikimedia developer for using photos of objects that were clearly in the public domain. Mike pointed out that in the US, the Bridgeman v. Corel case established that photographs of public domain images do not carry any copyright, since they do not add any new expression. In a rare bit of good news, noted by Communia, the UK Intelllectual Property Office has just announced officially that it takes the same view (pdf):

Simply creating a copy of an image won't result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.

However, 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'. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.

As that makes clear, even with this latest statement, there is still a measure of uncertainty as to what constitutes an "original" work in this context. Moreover, it's pretty ridiculous that it has taken until 2015 for the UK to accept something as basic and simple as the fact that digitized copies of public domain images remain in the public domain. But as Communia points out, it could be worse:

While the IPO’s position supports our conviction that what is in the public domain must stay in the public domain, it is of limited use in countries such as Germany or Spain where institutions can claim exclusive rights over unoriginal reproductions. Remedying this situation requires a further harmonisation of the EU copyright rules -- as proposed by the European parliament earlier this summer when it adopted the Reda report.

We won't know what the European Commission will propose in this area until spring next year. Let's hope it takes note of the UK's new position.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: copyright, culture, digitization, eu, public domain, uk

EU's Highest Court Allows Libraries To Digitize Books Without Rightholder's Permission

from the balancing-the-books dept

Recently, Techdirt has reported on a number of decisions about copyright being handed down by the European Union's highest court, the EU Court of Justice (EUCJ). Here's another, this time involving the digitization of books (pdf). The case concerned a university library in Germany that wanted to digitize a book that it had purchased so as to be able to make it available electronically to its visitors. The publishing house tried to sell it an e-book of the work concerned that could be used for this purpose, but the library refused. Because it involved the EU Copyright Directive, the case was referred by the Federal Court of Justice in Germany to the EUCJ, which has now released the following decision:

the Court holds, first of all, that, even if the rightholder offers to a library the possibility of concluding licencing agreements for the use of his works on appropriate terms, the library may avail itself of the exception [permitted by the EU Copyright Directive] provided for in favour of dedicated terminals; otherwise, the library could not realise its core mission or promote the public interest in promoting research and private study.

Furthermore:

the Court finds that the directive does not prevent Member States from granting libraries the right to digitise the books from their collections, if it becomes necessary, for the purpose of research or private study, to make those works available to individuals by dedicated terminals. The right of libraries to communicate, by dedicated terminals, the works they hold in their collections would risk being rendered largely meaningless, or indeed ineffective, if they did not have an ancillary right to digitise the works in question.

In other words, since the EU Copyright Directive permits libraries to be given a right to use dedicated terminals to display works they already own, that would be meaningless if they couldn't digitize those works first. Although that's an eminently sane and reasonable result, copyright maximalists will doubtless complain about the erosion of their "rights", since they seem to take it as axiomatic that every new use of material under copyright should result in a payment to them. Happily, once more the EUCJ seems to be trying to bring a little more balance to this most unbalanced of fields.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: books, copyright, digitization, eu, eu court of justice, eucj, europe, libraries

Norway To Digitize All Norwegian Books, Allowing Domestic IP Addresses To Read All Of Them, Irrespective Of Copyright Status

from the futuristic-thinking dept

Here's a pretty amazing story from Norway:

The National Library of Norway is planning to digitize all the books by the mid 2020s. Yes. All. The. Books. In Norwegian, at least. Hundreds of thousands of them. Every book in the library's holdings.

Now, in any normal country -- where "normal" means one in which copyright has reached the heights of monopolistic insanity -- if those books were still under copyright, the digitized versions (assuming publishers even allowed them to be made in the first place) would probably only be available in a specially constructed room deep in the basement of the National Library on a (small) screen, and with guards stationed either side of it to ensure that no unauthorized copies were made. Here, by contrast, is what's happening with the National Library of Norway's digital collection:

If you happen to be in Norway, as measured by your IP address, you will be able to access all 20th-century works, even those still under copyright. Non-copyrighted works from all time periods will be available for download.

As Alexis C. Madrigal points out in his entertaining article for The Atlantic, there's a rather interesting consequence of the different approaches to book digitization taken by Norway and the US, say:

Imagine digital archaeologists coming across the remains of early 21st century civilization in an old data center on the warming tundra. They look around, find some scraps of Buzzfeed and The Atlantic, maybe some Encyclopaedia Britannicas, and then, gleaming in the data: a complete set of Norwegian literature.

Suddenly, the Norwegians become to 27th-century humans what the Greeks were to the Renaissance. Everyone names the children of the space colonies Per and Henrik, Amalie and Sigrid. The capital of our new home planet will be christened Oslo.

This is what excessive copyright does to countries that impose it. It not only prevents today's artists from building on the work of their recent forebears -- something that occurred routinely until intellectual monopolies were introduced in recent centuries -- but it even jeopardizes the preservation and transmission of entire cultures because of publishers' refusal to allow copyright to move with the times by permitting large-scale digitization and distribution of the kind envisaged in Norway.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: archives, books, digitization, knowledge, libraries, norway, open access, sharing

The Great Digitization Or The Great Betrayal?

from the so-what-exactly-are-libraries-for? dept

One of the great tasks facing humanity today is digitizing the world's books and liberating the huge stores of knowledge they contain. The technology is there – scanners are now relatively fast and cheap – but the legal framework is struggling to keep up. That can be seen in the continuing uncertainty hovering over Google's massive book scanning project. It can also be observed in some recent digitization projects like Cambridge University's Digital Library:

Over the course of six centuries Cambridge University Library's collections have grown from a few dozen volumes into one of the world's great libraries, with an extraordinary accumulation of books, maps, manuscripts and journals. These cover every conceivable aspect of human endeavour, spanning most of the world's cultural traditions. While parts of the Library's manuscript collections have already been published in print, microfilm and digital formats, we are now building a substantial online resource so that our collections can be much more accessible to students, researchers and the wider public.

That's obviously a highly laudable aim. But the strict terms and conditions are not so praiseworthy:

Subject to statutory allowances, extracts of the Content and University Material from the site may be accessed, downloaded and printed for your personal and non-commercial use and you may draw the attention of others within your organisation to material posted on the site. Unless explicitly licensed or permitted by us, you may not:

use any part of the Content or University Material on the site for direct or indirect commercial purposes or advantage without obtaining a licence to do so from the University or its licensors

modify or alter the paper or digital copies of any Content or University Material printed off or downloaded in any way

sell, resell, license, transfer, transmit, display in any form, perform, hire, lease or loan any Content or University Material in whole or in part printed or downloaded from the site

systematically extract and/or re-utilise substantial parts of the Content or University Material from the site

create and/or publish your own database that features substantial parts of this site.

If you print, copy, download or use any part of the site in breach of these terms of use, your right to use the site will cease immediately and you must at the option of the University return or destroy any copies of the material you have made.

One of the jewels of the Cambridge University Digital Library is a collection of Newton's scientific papers. So far, a selection of important mathematical works from the 1660s has been digitized. These date are from well before the first modern copyright act, the 1710 Statute of Anne. So it's an interesting question -- what is the copyright situation of these papers and their digitized images?

Assuming that copyright dates from the "fixing" of the work, or from the date of the Statute of Anne, they would clearly have passed into the public domain long ago. One technique that libraries have tried to employ in order to maintain their control is to claim that the act of digitizing creates a new copyright, although this seems dubious. After all, the whole point of digitization is to capture as faithfully as possible the physical appearance of a text: an artistic interpretation of that physical appearance would defeat the object of the exercise. But without that artistic element there seems to be no grounds for claiming copyright.

Moreover, even if there were copyright in the digitized image, it's hard to see how there is any basis for stopping people from transcribing the text, since that is undoubtedly in the public domain. But that's precisely what Cambridge University is trying to do in its conditions quoted above.

At least the Cambridge University Digital Library allows "personal and non-commercial use" for free; the British Library's new British Newspaper Archive doesn't even permit that:

The index of the newspaper archives featured on the website can be searched for free, from any location. If you are using the website in premises owned or operated by the British Library, you can view the images of the newspapers themselves for free also. If you are using the website anywhere else and want to view the images of the newspaper archive or use some features of the website you will need to buy either a Credit Package or a Subscription. You have to register with us and be signed in to buy credits or a subscription.

Here's what the British Newspaper Archive encompasses:

The British Library's newspaper collections are among the finest in the world, containing most of the runs of newspapers published in the UK since 1800.

The scale of the newspaper publishing industry from the early 19th century onwards is enormous, with many cities and towns publishing several newspapers simultaneously, often aimed at distinct audiences depending on social status, geographical location and political affiliation. The first stage of this project focuses on runs published before 1900 and will include titles from cities such as Birmingham, Derby, Manchester, Nottingham, Norwich, Leeds and York, along with local titles from London boroughs.

Clearly, most of that material will be in the public domain. But as a result of this digitization project, the British Library is actually removing physical access to some of its public domain holdings, replacing it with virtual access through images it claims are under copyright:

We have even scanned single pages more than two feet wide! These publications are now not available for public view or access through the Library's reading rooms; however, they will be available to view on this website.

And to those who say that digitization costs money, and that those costs must be recouped in some way, consider this: holding books in a library, and making them available to the public, costs money too, but that did not prevent the great libraries of the past from providing access to their holdings for free. Those trail-blazing institutions knew that charging people to read would have been a negation of their central role in making knowledge freely available to all. And so it is today: a key part of the modern library ought to be making digital knowledge available to all, without charge, and without limitations.

This current trend to limit access to digitized versions of public domain materials is a real betrayal of the original mission of public libraries like the British Library. These made possible the opening up knowledge to huge numbers of ordinary people who otherwise would never been able to access these materials. Today's massive digitization projects, which ought to be building on and extending that great tradition, are actually reversing it by seeking to take texts out of the public domain and charge for access to them. That's not just a shame, it's a scandal.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: copyright, digitization, public domain, uk