[OpenGLAM] FW: Wellcome

Wed Jan 22 11:14:31 UTC 2014

We have been following this area in the UK in relation to the scanning of historical documents.  

Many people would like to see these questions settled in law. One option in the UK, instead of risky litigation, is to get a “court declaration”. If someone working in the field is seriously considering this path, I am happy to discuss this off-list with some of our lawyers. It has to be a real case of someone making use of the images, not a campaigning/policy group.

The following is an excerpt of an email from one of the lawyers in our advisory board to a similar question raised by Communia folk:

"Sweat of the brow" is phraseology that is a bit alien in UK copyright discourse. It is not usually a concept that courts resort to in deciding whether or not something is protected by copyright. For roughly the last century the sine qua non of copyright has been "originality". There has been a lot of debate as to what exactly is needed for something to be original. That argument has included whether (say) a photograph of a public domain work is protected by copyright and, if it is, to what extent.

I dealt with the matter in a blog post from a long time ago:

http://www.francisdavey.co.uk/2009/07/national-portrait-gallery-photographs.html

The story is more complicated than that I'm afraid. I have a research paper on it if you are really interested.

The first difficulty is: what does UK law say? This isn't clear. There's authority that a photocopied enlargement of a design drawing *doesn't* have a fresh copyright (Reject Shop v Manners). On the other hand a digital photograph of antique objects *did* have a fresh copyright (Antiquesportfolio v Fitch) because the photographer had to choose angles of shot, lighting and so on that meant that the photograph was his "original" work. But, interestingly, the fresh copyright in the photograph only extended to that contribution of the photographer - low resolution outlines (for use as icons on a website) generated from the photographs were not infringements of the photographer's copyright. He only had protection for his original contribution.

Where the boundary lies is very unclear. Many textbooks and the (now retired) leading IP judge in the UK think that exact copies can have fresh copyrights, but I suspect they are wrong :-).  

The second difficulty is, we are in the EU. The harmonised EU copyright law requires that a photograph is its author's "own intellectual creation". That means the photographer has to have taken advantage of "formative freedom" in creating the photograph. There has to be creative choice being made by the photographer.  

However, the Term Directive (which is the first harmonisation of EU copyright law over images) allows "other photographs" to be protected by member states even if they are not "intellectually creative" photographs protected by EU copyright. In other words there is possible a low level of protection for uncreative photography that could exist at the member state level. That leaves open the question as to whether UK law does or does not require creative choice by the photographer or not.

I would dearly love to see this matter either litigated, or reformed by the government. We have an intellectual property bill going through Parliament right now, so now would be a great time to see if we could reform it.

--  
Javier Ruiz
javier at openrightsgroup.org (mailto:javier at openrightsgroup.org)
+44(0)7877 911 412
@javierruiz
www.OpenRightsGroup.org (http://www.OpenRightsGroup.org)

On Wednesday, 22 January 2014 at 08:06, Lars Lundqvist wrote:

> Isn't this issue to important to let legal people handle it? ;)
>   
> L
>  
> >>> Rob Myers <rob at robmyers.org (mailto:rob at robmyers.org)> 2014-01-22 07:59 >>>
> On 21/01/14 04:58 AM, Paul Keller wrote:
> > 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).  
>  
> http://en.wikipedia.org/wiki/Sweat_of_the_brow#UK_copyright_law
>  
> http://commons.wikimedia.org/wiki/Commons:Reuse_of_PD-Art_photographs#United_Kingdom_.2F_UK
>  
> I believe this principle is untried with faithful reproductions of
> public domain paintings in the UK.
>  
> I would dearly like it to be, with a competent legal team opposing it.
>  
> - Rob.
>  
> _______________________________________________
> open-glam mailing list
> open-glam at lists.okfn.org (mailto:open-glam at lists.okfn.org)
> https://lists.okfn.org/mailman/listinfo/open-glam
> Unsubscribe: https://lists.okfn.org/mailman/options/open-glam
> _______________________________________________
> open-glam mailing list
> open-glam at lists.okfn.org (mailto:open-glam at lists.okfn.org)
> https://lists.okfn.org/mailman/listinfo/open-glam
> Unsubscribe: https://lists.okfn.org/mailman/options/open-glam
>  
>  

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.okfn.org/pipermail/open-glam/attachments/20140122/728e5764/attachment-0003.html>