[OpenGLAM] FW: Wellcome

Tue Jan 21 13:19:07 UTC 2014

On 21 Jan 2014, at 14:04, Hay (Husky) <huskyr at gmail.com> wrote:

> On Tue, Jan 21, 2014 at 1:58 PM, Paul Keller <pk at kl.nl> wrote:
>> thanks for the quick reply! i have heard this a number of times, but i have also heard a number op people disputing this. Now i am not really familiar with UK law (and how 19th century court cases influence things like copyright) but it would really great if someone give a fuller explanation
>> of why there is copyright in these reproductions (or point us to one).
> I guess the Wikipedia article on the NPG vs Wikimedia / Coetzee case
> might be a good starting point:
> 
> https://en.wikipedia.org/wiki/National_Portrait_Gallery_and_Wikimedia_Foundation_copyright_dispute

thanks! but not  much more than a starting point, since the welcome gallery case does not involve database rights and does not involve circumventing DRM and since the article does not really explain why there would be copyright in mere reproductions. 

but if you take it as a starting point you will see that the main argument is that these images are protected in the UK (as opposed to the situation in the US) because of the sweat of the brow doctrine (which is what Doug mentioned). if you follow that link to the corresponding wikiedia page (https://en.wikipedia.org/wiki/Sweat_of_the_brow) you will find this passage (emphasis mine): 

> UK copyright law
> 
> Under the Copyright, Designs and Patents Act 1988, for copyright to subsist in a work, that work must be original. However, courts have not adopted a literal reading of this requirement. For over a hundred years, English courts have held that a significant expenditure of labour is sufficient. The consequence of this is that if A makes a work, in which copyright subsists, and B subsequently adds his skill, judgement and labour, altering the form of A's work, B will potentially have a copyright in the work he produces. This suggests that copyright is not about protecting ideas, because one can acquire a copyright by expending skill, labour, and judgement, but no creativity or inventiveness.
> 
> However, in March 2012, a case was taken to the European Court of Justice, in which Football DataCo claimed copyright infringement over web sites which were reproducing match schedules from several major football leagues. Football DataCo asserted that these schedules were copyrighted works due to the skill and labour involved in their preparation, and that the company was given exclusive rights to license their reproduction. Based on its interpretation of British law, the court rejected the notion that labour and skill was enough to grant protection to a work, since "unless the procedures for creating the lists concerned as described by the national court are supplemented by elements reflecting originality in the selection or arrangement of the data contained in those lists, they do not suffice for those lists to be protected by the copyright laid down in the directive."[5]

this is one of the reason why i think that the reasoning that because of sweat of the brow all digital reproductions of PD artworks in the UK are protected by a new layer of copyright is somewhat questionable.
best, paul 
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