[open-humanities] The First Folio

[James Cummings]

On 24/04/14 16:25, Seth Woodworth wrote:
> Let me begin by thanking Bodleian for releasing this resource
> online, and for creating this wonderful TEI edition.

Hi Seth,

Let me be clear that I do not speak for the project, nothing 
below is legal advice, and I am not a lawyer. I merely provided 
the project with TEI encoding advice and a few bits of XSLT to 
help further enrich, correct, or enable some planned searching of 
the data.

> Thank you doubly for licensing this work under a license
> compatible with free cultural works (unlike the current
> quartos.org <http://quartos.org>).

There were some common members of both projects. I believe that 
the quartos.org XML files have a non-commercial (CC+By+NC) 
restriction on them and the images might be even more restricted. 
I would be tempted to think this was an artifact of a 
multi-national multi-institutional project. I do not work for the 
Bodleian (but University of Oxford's IT Services), but believe 
that the Bodleian has been increasingly working towards an 
open-by-default policy in their digital materials.

> I will, of course, cite your organization as requested in any
> projects where I might use your works.
> But, I believe you are mistaken in your licensing on the scans.

I understand that you believe there was no new work in 
photographing the the Bodleian First Folio. The work was unbound, 
conserved, and photographed, all of which are quite skilled 
stages in conservation, curation, and preservation. They were 
photographed in raw then converted to tiff then even lower-res 
but still quite high jpg that you can download fully from the 
site). I would be unsurprised if the Bodleian wanted to argue 
that these are not mere scans but high quality photographs with a 
lot of work and thought put into them.

> In the UK and US there is a doctrine that states that there is no
> sweat-of-brow copyright.
> Transcribing the work into a new format (.jpg) does not grant a
> fresh copyright on the work.
> Ownership of copyright is a prerequisite to licensing it to third
> parties, under a CC license or otherwise.
> Wikipedia has a policy about scans of PD works
> <http://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-Art_tag>,
> that may be relevant.

This may confuse the intellectual property right of the text (FF 
is pre-copyright) with that of the digital images. I do not 
believe that any new copyright in the First Folio has been 
created, or indeed ever existed, but digital images of out of 
copyright works _do_ attract IPR. If I stood outside the Bodleian 
building and took a photo of the building, you would not argue (I 
suspect) that I did not have copyright over my digital image. I 
chose how to frame it, what time of day to take it, whether to 
have someone cycling by with an Oxford gown on, and indeed how to 
post-process it to make it look sunny. Likewise if I was in front 
of a different object that happens to be a book and took a 
photograph of that, then I should still have copyright in that 
photograph. (Presuming I didn't sign away this right by 
conditions of access or something, c.f. British Museum.) I 
haven't changed the copyright of the original.  You are right, 
however, that it is possible to argue that the First Folio (as a 
pre-copyright work) should not be able to be subject to a 
creative commons license because no one owns the copyright in it. 
This is not true, many would argue, of the carefully crafted 
digital images of the conserved object. I suspect that if 
resource holding institutions were told that they had to openly 
release any image they took of an out of copyright work as public 
domain it would be disastrous for the future of (and future 
research on)  our cultural heritage objects. They'd just stop 
taking the images (or make it so costly as to be prohibitive). At 
least these images are available for download under a really 
quite permissive license.

I do happen to know that, because the project to create the 
images was crowd-funded by the public, the desire is and was 
always to have the images available with the fewest restrictions 
possible for the public. I believe those involved with the 
project went out of their way to ensure a not more-restrictive 
(e.g. +NC) license was applied. That the Bodleian is moving in 
the direction of releasing more of its digital materials under 
open licenses is a good thing, IMHO. And has come a long way 
compared to a decade ago (compare the restrictions on 
http://image.ox.ac.uk/show?collection=balliol&manuscript=ms238a 
for example). It is better than the alternative (because the only 
real alternative is more restrictive, it will be a while, I 
suspect, before CC0 and/or public domain is a default with 
resource-holding institutions). Only time will tell.

> I am unclear if a TEI document is a new creative work, or a
> faithful conversion into a new format, implying it isn't
> copyrightable either.

A TEI XML marked up work is almost *definitely* a new creative 
work. The encoding or annotation of texts is almost always an 
intellectual activity in itself given the amount of 
interpretation and choice of encoding that digital editors have. 
To suggest that such encoding could ever be an uncontested 
'faithful conversion' shows that I should be pointing you to the 
TEI Guidelines to see the vast array of choices and possibilities 
for interpretation that exist: 
http://www.tei-c.org/release/doc/tei-p5-doc/en/html/  (All TEI 
Consortium materials are dual-licensed CC+by and BSD 2-clause if 
you are interested.)

> But I would be very curious to hear people's positions on the matter.

While I dislike cultural resource holding institutions of any 
kind imposing limitations on access to their digital materials, 
CC+By is an open enough license for me.

> Again, your licensing terms are 100% agreeable to me, and I will
> respect your wishes for attribution regardless.

Again, not mine, but the Bodleian's and I believe they were the 
best the project could get within current policy. In the end it 
is better to have them available than not available, and citation 
is a very low barrier to use. I'm sure that feedback would be 
appreciated to shakespeare at bodleian.ox.ac.uk.

Again, I'm only tangentially involved in the project, do not 
speak for them or the Bodleian library, and have no legal basis 
for any of my personal comment or musings above. ;-)

-James

-- 
Dr James Cummings, James.Cummings at it.ox.ac.uk
Academic IT Services, University of Oxford