Some of you who attended the National Digital Forum (external link) in Auckland at the end of November 2008 may have caught the discussions around copyright, public domain and Creative Commons. We presented on one aspect of that, which was about DigitalNZ's experiences with rights statements, and how users have changed what it now means to make content accessible. We talked about that a bit in our case study of the Memory Maker, and if you want to check out our NDF presentation, the slideshow "Access, rights and copyright" is available on Slideshare.
At DigitalNZ, part of our focus is to encourage contributors of content to find and share NZ content that can be tagged, reused and remixed. We believe that if Kiwis can't really use digital content they will ignore it. As a country we then miss out on opportunities for our stories and knowledge of the past to be woven into the experiences and learning of the present.
So here is an opportunity through this blog to build on the rights conversation. Let's start with frightening a couple of elephants in the room to get the ball rolling, but before we do, a disclaimer: we are not lawyers here, and cannot give you legal advice. What we can do however is build an informed debate, and who knows, bring a few lawyers along with us!
First off, have you been claiming new copyright in digitised copies put on the web? Whether you are digitising images, sound or video, in almost every case your digitised copy will not have a new copyright. New copyright is only granted to original works and to new typographical arrangements (e.g. an e-text transcription). A digital scan of an image or a digital copy of a videotape, while requiring hardware and software calibration to produce a faithful copy, lacks originality in just the same way a photocopy of a novel would. That means if it's out of copyright, you can't put a copyright licence on it like Creative Commons.
Second, does your website point users to the 1994 Copyright Act for their rights of reproduction of digitised heritage content? Where copyrights granted by the earlier 1913 or 1962 New Zealand Acts had already expired, the 1994 Act did not renew them. So for instance all photographs, sound recordings and film material created before World War II are almost certainly out of copyright, as the earlier Acts only provided a copyright term of 50 years from creation (regardless of publication status) for these items.
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You cannot copyright fact, therefore a photograph is an image of a fact because it is a fact that the subject exists/existed so I feel should not be able to have copyright. Works of art ,novels ,music and songs, and poetry are fictitious so can have copyright. A book of the history of a subject is a record of fact therefore should not have copyright other than against coping it in entirety. I also feel that once a fact either text or image is in the public domain( that is published eg in the newspaper etc ) that information should be available to all. A person creating a historical record in any form is only collecting data that is fact and usually already been made available to the public therefore just saving others the work of lengthy research on the same subject. A person that is researching Theatres should have free access to all information on theatres that ever existed in a New Zealand city or town and be free to use that information and images, both privately and publically because the theatres are /were "fact" so cannot have copyright.