Museums and galleries have plenty of photographs from the 19th C that are clearly in the public domain. I've been told that the mere act of scanning the photo enables the museum to slap their own copyright on the photo in postcards, coffee-table books, and the like. That doesn't seem like an "act of creation": how much alteration of the original image would be required before the museum could claim copyright? Cleaning up some dust and scratches in Photoshop surely shouldn't count. Or is the copyright conferred just by "sweat of the brow" exertion, without any creative effort?
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Copyright claims on public domain images is certainly an area that can be vexing as there is little clear case law that deals in particular with digital copies of these images. There are some sources of guidance that can be referred to, but all require some level of interpretation. It is rare that relevant claims get to be decided in court. The question is essentially about whether making a digital copy of an image is enough to create new copyright. We would qualify that DigitalNZ is not able to give legal advice, which would need to be sought from a legal professional in specific instances. The New Zealand Copyright Act 1994 is based on the UK law, and requires that, to qualify for copyright, a work has to be original. A work is not original if it is, or to the extent that it is, a copy of another work or it infringes copyright in another work. Over the last century or more the courts (mostly in the UK) have defined "original" in several different ways. The most famous cases include: >> 'Walter v Lane' in 1900 where reporters who transcribed and published speeches made by Lord Rosebery were given copyright in their printed version >> 'University of London Press v University Tutorial Press' in 1916 where exam papers containing pre-existing mathematical problems were considered original because they were not copied from another work >> 'Ladbrooke Football v William Hill' in 1964 where football coupons composed of well-known wagers were considered to be original because considerable skill, labour and judgement was required to devise the way they were expressed and presented >> 'Interlego v Tyco Industries' in 1988 where a non-binding Privy Council decision concluded that while it took great skill, labour and judgement to produce a good copy by painting or enlarging a photograph from a print, mere skill, labour or judgement in the process of copying cannot confer originality as there has to be some element of material alteration or embellishment >> 'Bridgeman v Corel' in the US in 1999, a non-binding decision concluded that exact photographic reproductions of public domain images could not be protected by copyright as they did not have sufficient originality >> 'Sawkins v Hyperion Records' in 2005 concluded that a faithful restoration of the work of a 17th century composer by a musicologist was capable of being an original work, despite the music itself not being original These examples suggest that the "sweat of the brow" argument is important in deciding originality. This argument was used by the National Portrait Gallery in the UK when they accused Wikimedia Commons of infringing their copyright in 2009 by taking their digital copies of paintings from their website. Counter to that, the Bridgeman v Corel case suggests that "slavish copies" of public domain works do not qualify for copyright. In a third area, restoration work may well have a "sweat of the brow" case for claiming copyright in the restored work (although the original public domain work remains out of copyright). Museums, galleries and other cultural institutions such as libraries and archives are often exclusive owners of out of copyright works. Today it seems they have a choice (assuming they don't go to court): they can digitise public domain images to make them accessible and not assert copyright in the digital copy, or they can claim that the effort it takes for them to copy these images digitally qualifies as the creation of a new copyright (which is often argued in order to impose a publishing or licence fee). There at present is no one answer in law. There is a nice readable discussion of some of the relevant legal cases in relation to the National Portrait Gallery claims on the blog of Francis Davey, a UK lawyer http://www.francisdavey.co.uk/2009/07/national-portrait-gallery-photographs.html.
So what copyright assertion is made here by NLNZ? Photograph of a group of Maori in front of a meeting house at Jerusalem, taken 1885 by Burton Brothers. http://find.natlib.govt.nz/primo_library/libweb/action/display.do?ct=display&doc=nlnz_tapuhi1044282&indx=9&dum=true&dscnt=0&indx=1&vl%2841331690UI1%29=all_items&srt=rank&tab=default_tab&vl%282087478UI0%29=any&ct=search&frbg=&vid=NLNZ&vl%281UI0%29=contains&fn=search&dstmp=1286785418984&vl%28freeText0%29=burton%20brothers&mode=Basic&scp.scps= in or out of copyright (I think out...) - but hard to tell what assertion is being made - and really hard to get to reuse - I make the assumption it is copyright free - just impossible to get at http://ndhadeliver.natlib.govt.nz/view/action/ieViewer.do?from_proxy=true&dps_pid=IE357893&dps_custom_att_1=tapuhi&dps_dvs=128 or is there a secret way to get at the image?
I can't speak on behalf of the National Library in this capacity, but it would be accurate to say that the Library has not yet adapted many of its legacy of digital collections to rights statements in line with the recent NZGOAL framework from government, which would suggest using 'No known copyright'. An example where they have been modified is on the Papers Past website, http://paperspast.natlib.govt.nz, which has a new copyright guide to usage. In the absence of these statements, the user needs to make their own assessment of the rights in the digital image they see. DigitalNZ's Public Domain guide was designed to help with this. New Zealand law does not require an assertion of copyright in the way it was required in the US up to 1976. The approach in this country for digital collections has tended towards disclaimers. The low resolution image (699x511 pixels) in the example above is able to be saved with a right-click. As you have experienced, the high resolution image is not currently available through the NDHA interface. We understand the limitation is in part connected with technical issues related to the software rather than copyright.
Thanks for the clarifications, Lewis, both here and at the recent Digital BarCamp. Much appreciated.