[OpenGLAM] FW: Wellcome (Laurel L. Russwurm)

Tue Jan 28 20:20:13 UTC 2014

Dear Daniel:

As you say, the "sweat of the brow" doctrine is merely a possibility, 
and is neither explicitly or implicitly stated in law.

Encouraging this dangerous idea lends it legitimacy, accepting such a 
possibility as a reality will help make it so.

You suggest that:

 >The question is about the possibility of copyrighting a digital 
photograph of Da Vinci's painting of Mona Lisa.

But I have to disagree.  I think there are two questions.  The first is:

*What is copyright for ? *

Queen Anne's statute claimed copyright was for the benefit of authors, 
and that has been the justification for the monopoly's existence since.  
Yet as more and more interests grab for pieces of the copyright pie, the 
people who actually create are lucky to get crumbs.  As an author 
myself, I believe perpetual copyright would be harmful to authors.  And 
while I also think any human being can be an author or creator,  I will 
never accept that the act of organizing data or setting the dpi on a 
scanner can be considered "authorship."

I am not sure why copyright law should be expected to provide a revenue 
stream for Galleries, Libraries, Archives and Museums. Although GLAMs 
own physical works, they do not own the copyright on works that are 
already in the Public Domain, because physical ownership does not confer 
copyright.

If it did, GLAMs would own the copyright on their holdings that are not 
in the public domain.

If the law allows a photographer to assert copyright ownership in a 
faithful photograph taken of a 2 dimensional public domain artwork, it 
must also allow the photographer to assert copyright ownership in the 
faithful photograph taken of a 2 dimensional copyrighted work.

If the law allows a scanner to assert copyright ownership in a faithful 
digitization of a 2 dimensional public domain artwork, it must also 
allow the scanner to assert copyright ownership in the faithful 
digitization made of a 2 dimensional copyrighted work.

GLAMs have physical control over the works they own.  This ownership is 
protected by property law.   GLAMs have the right to digitize the public 
domain works in their holdings.  Or not. GLAMs can choose to put their 
digitized public domain holdings online as tiny thumbnails, or in high 
definition digital, or not at all.  They can limit the public access to 
the works they own by keeping them locked in their own store rooms or 
vaults and carefully controlling who sees them.  Or they can display 
them in their own galleries, charging the public admission fees, and 
prevent visitors (paying customers) from taking photographs (or try).   
No one can force GLAMs to do anything they do not want to do with their 
own holdings.

Some GLAMs are discovering that hoarding their holdings runs counter to 
their stated objectives, and that if they open up their collections it 
digitally increases their stature and the public's interest in the works 
in their holdings.   Mona Lisa is the most famous, recognizable and 
probably most copied and remixed piece of art in the world; but I am 
willing to bet she is the single biggest draw to the Louvre.  People who 
are not themselves artists, or art scholars, go to art galleries to see 
the originals of works they have seen reproductions of.

If a GLAM -- let's say, the Louvre -- were to assert copyright ownership 
of its own faithful copy of a physical work in the public domain, like 
Mona Lisa, say, when Mary Jane from Mississauga visits the Louvre and 
snaps a photo of Mona on her cell phone, then goes home and posts her 
photo on Flickr, the Louvre can issue a DMCA takedown notice.  Mary 
Jane's photo gets taken down.  By the same token, anyone who sets up an 
easel in front of the painting in the gallery and makes their own 
faithful reproduction can now also be charged with copyright 
infringement, because the reproduction the artist made would infringe 
the Louvre's copyrighted photograph.

If the idea that digitizing a 2 dimensional work in the public domain 
catches on, just before an artwork's copyright protection is about to 
expire, all the owner of the work would need do is digitize it, the new 
copy resets the copyright term clock, and the copyrighted work can be 
prevented from entering the public domain forever.

The second question, and the most important, is:

*What is the Public Domain for ?*

I think the public domain must exist for the same reason GLAMs exist: to 
preserve and share the knowledge and culture of humanity.  Encouraging 
GLAMs to help further the expansion of copyright law does the exact 
opposite.

Regards,
Laurel L. Russwurm

On 01/24/2014 05:47 AM, Daniel Burckhardt wrote:
> Hi Laurel
>
>> ----------------------------------------------------------------------
>>
>> Message: 1
>> Date: Fri, 24 Jan 2014 01:34:43 -0500
>> From: "Laurel L. Russwurm" <laurel.l at russwurm.org>
>> To: open-glam at lists.okfn.org
>> Subject: Re: [OpenGLAM] FW: Wellcome
>> Message-ID: <52E20983.6070905 at russwurm.org>
>> Content-Type: text/plain; charset="iso-8859-1"; Format="flowed"
>>
>> *There is no question about it: any decision to apply CC BY to Public
>> Domain material is wrong. **
> I agree on everything you say about the copyright status of Da Vinci's 
> painting of Mona Lisa.
>
> But that is not what the discussion is about. The question is about 
> the possibility of copyrighting a digital photograph of Da Vinci's 
> painting of Mona Lisa.
>
> As you wrote:
> > While the Louvre can not legally copyright Mona Lisa, artists who 
> create
> > Mona Lisa derivative artworks are legally entitled to copyright them.
> So the question boils down to the question, if the person who took the 
> digital image of a painting in the Public Domain (such as Da Vinci's 
> Lisa) or the museum who paid him or her to take it can assume a 
> copyright on this reproduction as a derivative work or not.
>
> In some countries, the question seems to be a clear no 
> (http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.), 
> while in other countries such as the UK this might be a possibility 
> ("sweat of brow": According to this doctrine, an author gains rights 
> through simple diligence during the creation of a work, such as a 
> database, or a directory. Substantial creativity or "originality" is 
> not required., http://en.wikipedia.org/wiki/Sweat_of_the_brow) and no 
> one can say for sure until such a case has been fought up to the 
> highest courts or the laws are changed to remove this ambiguity.
>
> So specifying a license (e.g. CC-BY) for digital reproductions serves 
> a purpose in countries like the UK where the copyright status of these 
> reproductions is unclear if no explicit license is stated. On the 
> other hand, one would always expect a Public Domain license from 
> digital reproductions of Public Domain works from US institutions 
> where additional restrictions don't seem to apply.
>
> Daniel Burckhardt
>
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