Scanning of Public Domain Works?

[ekka]

I've recently come across some commercial CDs that had scans of Public Domain books on them. Can the scanned files themselves be copyrighted? I find conflicting information all over the place.

The license agreement on the CD says it forbids the reproduction and distribution of "software", a word which is very vague (as there is actually some software on the CD). On the other hand, I looked through Wikipedia's page on Public Domain, and it said works based on public domain works can only be copyrighted if it contains relatively major modifications, which wouldn't be the case here since the only thing they did is scan the books.

Anyone have any advice?

[stapel]

If, by "scans", you mean "images of the pages", then I would suspect that, as "artwork" (or at least "graphics"), the scans could be copyrighted. You would need to re-typeset the books yourself in order to use what you're seeing in the scans (or OCR the scans, maybe?).

Eliz.

[ekka]

Yes by "scans" I mean images. Thanks for the info! I simplified it to "book" but it's really a musical score, which can't really be OCR'd :/ Guess I'll just have to go with other non-copyrighted scans of the works (less scanning quality though).

[Nick Jachelson]

I'm not sure I agree with stapel. They can't really scan a public domain work and claim to have copyright to it. However, just to be safe, I would recommend running them through some sort of a batch image processing program so that they can't argue you are distributing their whole CD online.

[ekka]

Hmm... that's an interesting idea. But apparently they claim to have rights over the files as "software"... does that change anything?

[stapel]

Nick Jachelson said:

They can't really scan a public domain work and claim to have copyright to it.

There is a difference between owning the copyright to a picture of a thing, and owning the copyright to the thing itself. I would doubt that the owner of the scans is claiming to own the public-domain work, but the owner can claim ownership of his original graphical work.

It's like photographers who create images for posters. Say a photog takes a splendid wide-angle picture of the Grand Canyon. He can claim the copyright to his image of the Grand Canyon, but that doesn't mean he's claiming to own the Canyon itself.

ekka: If you're wanting to post scans of that public-domain work, that's fine. But you'll need to obtain a copy of the work and make your own scans, to be sure of their ownership.

Eliz.

Naturally, you'll want to consult with an attorney for iron-clad advice.

[Nick Jachelson]

A picture of the Grand Canyon is not a good example because it is a work of art that you created and it wouldn't be realistically possible to reproduce it without stealing your work.

This case is more like walking up to the Mona Lisa in the Louvre and snapping a photo of it with your digital camera. Just because you took the photo doesn't make you own the copyright to it, because you do not own the copyright to the work that is featured in it.

If you put up this Mona Lisa photo on your website, anyone could come and "steal" it and you can't do anything about it. Just because you reproduced a public domain work either using a scanner or a digital camera does not give you copyright on it, or the reproduced version (if it is substancially the same as the original).

[Pfui]

Specific fact patterns mean your legal mileage may vary but generally speaking, stapel's well-presented info is correct and applies whether or not federal copyright registration exists (i.e., common law copyright).

That means Nick, at least in the U.S., your info is incorrect, sorry.

You'll find loads of info at the U.S. Copyright Office [copyright.gov] and in its very helpful FAQ [copyright.gov]. For example:

"Copyright in General [copyright.gov]: When is my work protected?

"Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device."

So ekka, if you're in the U.S., your safest course of action would be to make your own scans. And your safest and best course of action would be to consult with an attorney for professional legal advice. Because online, there are just too many "Dewey, Cheatham and Howe" (say that out loud) types, and/or the well-intentioned but confidently ill-informed, and/or folks like m'self who passed a state Bar a long time ago but do not practice law and do not argue legal issues online:)

(Oh, and because even finding a reputable lawyer can be confusing, if you, or anyone, ever wants/needs to consult with an attorney, local and state Bar associations will be able to refer you to licensed members with different areas of emphasis (e.g., Family Law, Litigation, etc.), including those offering pro bono (free; or low-cost) services, and Lawyers for the Arts kinds of groups.)

[Nick Jachelson]

Pfui, from the same FAQ (http://www.copyright.gov/circs/circ1.html#wnp):

"WHAT IS NOT PROTECTED BY COPYRIGHT?

Works consisting entirely of information that is common property and containing no original authorship"

Scanning a page of a public domain book would not contain any original authorship, and would make the scan public domain as well (just the same way as scanning and distributing a copyrighted book would violate the copyright). It is simply transforming it from one medium to another.

I would still consult with an attorney but I'm almost entirely sure I'm correct in this case.

[ekka]

I thank everyone for the input! I've decided upon this: I will use what other scans I can find for a particular book if they exist (even if they are lower in quality). I'm pretty sure that since the scans (other than the ones on the CD) are non-commercial anyway, it won't be too much of a problem (I don't have a scanner nor the amount of books needed). If they don't, I'll use the scans on the CD (though that'd come later, so I might be able to ask a real lawyer about it in the meanwhile).

[Woz]

>Scanning a page of a public domain book would not contain any original authorship, and would make the scan public domain as well

Actually, no, that is not the case. Even when copyright has lapsed in the original work, a new copyright would exist in the scan of the work, owned by company/person responsible for the scanning. Note that this new copyright of the scan would not affect the copyright of the work itself.

Similar to Music, where there is a difference in a composer's copyright in a song or musical work, and the recorder's rights in a recording of that song/work.

But, as always, the best advice is, consult a Copyright Lawyer.

Onya
Woz

[Pfui]

ekka, the fact you have neither scanner nor books doesn't matter a bit. Here's what does, and it ain't rocket science:

The scans belong to some else. Using them is stealing them. Period.

Whether you use scans/graphics from a CD or that you find online, regardless of what you think may be non-commercial or that you think what you're doing is fair use, the bottom line is you're using someone else's work, the work they put into making the scans -- their scans. And unless the owners give you permission, their scans are not yours to use just because you want to.

Doing the right thing, or not doing the wrong thing, should ideally compel you to at least ask the owners for permission or rethink your decision. But even if it doesn't, why should you care? Because if/when you're caught, consequences happen.

For example, if you put the scans online, the copyright-holder can file a "Digital Millennium Copyright Act" (DMCA) complaint against you with your ISP (or blog or group host) and you risk every single page upon which any scan appears getting axed. Period. Your ISP/host may also simply decide close your account. Period.

And, online or off, the copyright-holder may also opt to sue you and you'll end up paying more than the price of a good scanner for a lawyer because you have to.

The decision to use someone else's stuff without right or permission is yours, of course. Here's hoping you rethink rather than risk it.

That's all. I'm done.

[ekka]

I could go so much into how lawful!=moral and how that is probably the farest removed from what you call "stealing", but I don't want to since there is no point (I've argued enough about this online to get tired of doing so).

I found these scans on ed2k. There is no indication of ownership on the scans. I also have not found similar scans on websites. If they want to sue they have to first establish their ownership of the scan. Not to mention I put up a DMCA contact on the front page of the website, so if they don't want their stuff on my site (after they've established ownership), they can just e-mail me and I'll remove it. Simple as that.

FYI, I'm not a total noob at this. I've read TONNES on copyright laws. Just not quite sure how this case fits in, because of the public domain origin work, and the fact that derivative works cannot be copyrighted unless there is substantial change (even minor edits don't count). What "substantial change" means is anyone's guess (unless your a lawyer and know of a precedent).

Edit: And yes, theoretically I could rescan 10000 pages worth. That'd nicely prove the stupidity of humanity though.

[stapel]

In other words, your original question was posted, as seems usual in these cases, in hopes of having others tell you that yes, it's okay for you to take what you want.

You should hope that the source of "your" content doesn't find this thread and put two and two together, as you may find it very difficult, in light of your statements here, to defend your actions in court and/or to your server host.

Eliz.

[ekka]

No, I believe the information given is perfectly fine. And like I said several posts ago I also have reached a decision. Also, if you had read my first post closely you'd have noticed how the question I asked was whether to use the scans on the CD, not whether to use any scans at all. The input from this forum have made me decide against such a course of action.

I thank everyone again for the input.

Edit: Btw, the chances of the person who actually scanned the files reading this is less likely than getting hit by lightning or winning the latest $10 billion lottery. Just a note.

[Woz]

ekka, you could always contact the CD Authors/Owners for permission to use the scans, they may be agreeable should you give them due credit, or perhaps for other more financial arrangements.

Onya
Woz

[ekka]

Thanks woz for the suggestion, but I find it very hard to believe that they will allow me to use their scans on my webpage since they are still selling them :/ However, since nothing is lost by asking, I might give it a try. I'd be willing to pay a certain amount of money, but then again they are selling the CDs at quite a high price, so I doubt the amount they demand from me will be an amount I would want to pay. Btw, I always give full credits whenever I can (i.e. when I can actually find a name somewhere in the file) :)