On Sunday I raised a hypothetical about what rights I would have in a photograph I took of the Mona Lisa, and wondered whether Bridgeman v. Corel played a role (see my most previous post above.)

On Tuesday copyright attorney William Patry posted an announcement on his blog for a New York City Bar Association workshop on “thorny issues of the scope of copyright in photographs of public domain works of art.” One of the presentations on the program is entitled, “Who owns the Mona Lisa? In Bridgeman Art Library Ltd. v. Corel.”

The lesson I take from this is that despite our good intentions, any assertions we armchair lawyers advance here should definitely be taken with a very large grain of salt.

2. public domain material that is currently being offered by some publisher. You get to read all of it, page by page, but the ‘download PDF download txt’ links are not included. This I guess is Google trying not to step on publishers’ toes, maybe with the hope that Google Books will one day be an online, for-pay library

Frankenstein by Mary Wollstonecraft Shelley is offered by multiple publishers today. I just did a Google Book search for the book and found that the first link result was to a public domain edition from 1869. The pages were readable online and all of the scanned text was downloadable as a PDF.

Dracula by Bram Stoker has a large number of commercial editions by publishers today. An advanced search with the date restricted to precede 1920 yielded a public domain edition that was downloadable and fully viewable online.

Adventures of Sherlock Holmes by Arthur Conan Doyle has publishers today. I performed a search for “adventures sherlock holmes” and the first link was to a public domain edition that was downloadable and fully viewable online.

These were the first three books I attempted to find. It appears that there are examples of “public domain material that is currently being offered by some publisher” that is available and downloadable using Google Book search.

From my experience, Google Books turns up 3 kinds of books:

1. copyrighted material never in public domain. You can have limited access to some of this. (Google asks the publisher’s permission for this, and there are a choice of options. Publisher can grant permission for full view, snippets view which is limited to a few pages, or no preview available, in which case we see nothing but the online equivalent of a library catalog card.)

2. public domain material that is currently being offered by some publisher. You get to read all of it, page by page, but the ‘download PDF download txt’ links are not included. This I guess is Google trying not to step on publishers’ toes, maybe with the hope that Google Books will one day be an online, for-pay library? I have found at least one book that was published in America in the 1890s that did not have a download; the Google Books page offered links to places where the book might be bought from its present-day reprinter.

3. public domain material that is not currently being offered by some publisher. You get to read all of it, or download the images-based PDF, or the uncorrected, full-of-scannos OCR version of those images in text format.

For #3, Google includes a cover page on the PDF; it includes the following text:

“Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we have taken steps to
prevent abuse by commercial parties, including placing technical restrictions on automated querying.

“We also ask that you…”

…there follows a series of guidelines. But these are explicitly guidelines! ‘We *ask* that you…’ is the proper way to state this.

Nothing prevents PGDP from sending these PDF files through OCR software and then correcting the results. Nothing prevents you me or anybody from taking the PDF files and printing them out or selling them.

Google acknowledges they have no copyright to those public domain works, and never has had.

In HeavyG’s example, I believe commentary and annotations would be considered a creative work, althought I’m not sure about an index, especially if the index was created through some sort of automated process. However, there seems to be a database provision that may apply in the UK/EU.

Again, IANAL, but I believe that it’s pretty clear that the if Google and U Mich cannot copyright their digital images of PD works. They don’t have to make them available to the general public, and if they wanted to, I suspect that they would be able make them only available to people who sign a contract limiting what they are allowed to do with the images.

Take a Dickens work and reproduce it literally word for word. You have not created a new work. Yet if you provided original commentary, annotations, indexing, etc. you have created a new copyright-able EDITION.

Also, if you just create a new unique design - typeface, layout, page borders,cover image, etc. that unique look/feel is copyrighted and someone cannot make an identical copy of all that.

Certainly the original verbatim text is still public domain and others can do whatever they want with it but your original additives are what make your specific edition protected by copyright.

Now, if all you have done is take the original text (say from Project Gutenberg) and made an ebook format out of it then you have not done anything to create a new work.

Or so I have been told.

> For sheet music is the actual engraving counted as
> creative work in it’s own right rather than just a
> means of reproduction?

Consider this: I take a photograph of the Mona Lisa and publish it on my web site. Are you free to use my photograph in any way you wish because the “content” is in the public domain, or is my “reproduction” protected by copyright law? As I understand things, it is.

To complicate things even further, does Bridgeman v. Corel play any role in this? Is my photograph an exact digital copy, or do factors like lighting, ISO setting, aperture setting, and exposure time make it an original or derivative work protected by copyright?

Ain’t copyright law a ton of fun? No wonder there are entire law firms that do nothing but interpret these vagaries!

> I believe Brian is referring to the Bridgeman v. Corel
> decision which ruled that exact photographic copies of
> public domain images could not be protected by
> copyright because the copies lack originality.

Thanks for the reference, Bruce — I’ll definitely check it out.

This issue has arisen with regard to an online app I’m developing for distributing free brass music. Most of the content consists of original arrangements of music in the public domain that are offered under a Creative Commons license. Some, however, is scanned commercial arrangements published before 1923, the “magic” date that assures a work is out of copyright under the ridiculously convoluted U.S. copyright law. At issue is whether or not this scanned material should also be offered under a CC license, or whether it should simply be labeled as public domain. That’s why I’m interested in Bridgeman v. Corel, which would appear to address the matter.

> I presume that engraving a new version of sheet
> music of a musical work that is in the public
> domain is considered creative work.

And that’s why I assume the same factors apply to modern print editions of public domain works; page design, font selection, etc. would also seem to constitute creative work.

I make my own arrangements available under a creative commons BY-NC-SA license. Musicians are free to copy them, share them, perform them, and record them. The only right I wish to retain is publication for profit; in the (unlikely) event that a publisher wished to compile these arrangements into a print edition and sell them under his imprimatur, I would expect to share in the revenue it generates.

In the case of literature, the reason why you see a copyright notice is usually because the publisher has paid someone to write an introduction or something similar, and that’s the only bit that’s actually copyrighted, but the publisher isn’t obligated to indicate that the introduction is the only part under copyright.

> > Google or UMich has every right to copyright a
> > digital edition of a work in the public domain.
>
> Actually, no, they don’t. This is actually fairly
> settled law.

I’d be interested in citations that support this statement, Brian.

My experience in this area is mostly with sheet music. If I publish an edition of a Beethoven symphony or a Mozart sonata and copyright the edition, you may not photocopy my engraving and sell it yourself. I own the rights to my engraving, which in itself constitutes a creative work that’s protected by copyright law. My copyright does not extend to the notes themselves, of course, and anyone who cares to do so may make his own engraving of those same notes.

If this is not also the case with literature, it’s news to me. Take a look at the front matter in any modern edition of a work in the pubic domain and you’ll see a copyright notice. If it doesn’t apply to the edition itself, then what does it pertain to? Are the Google editions at issue here somehow different because they are exact copies of other editions on which the copyright has elapsed?

Actually, no, they don’t. This is actually fairly settled law.

With all due respect to Brewster Kahle, a person for whom I have great admiration and who has been at the forefront of issues like this for many years, I’m not sure I understand how this constitutes “public domain lock-up.” Anyone with sufficient interest and a fondness for data entry can always type the content of one of these editions into a text editor or word processor and share them freely.