6 ms·

Tragic and nonsensical decision. Just one more avenue for our cultural heritage to be locked away for eternity, when technology is on the cusp of allowing us t

by acabal 10y ago

Tragic and nonsensical decision. Just one more avenue for our cultural heritage to be locked away for eternity, when technology is on the cusp of allowing us to share that heritage with everyone worldwide for the first time in history. How would this affect things like gutenberg.spiegel.de? Would a German digital transcriber of a PD work then hold the German copyright for that digital version, until 70 years after the transcriber's death? Ridiculous!

detaro 10y ago
Important to note: the argument in this case is not "the museum owns the original artwork, thus it can stop people from freely licensing their photos of it", but "the museum owns the rights on the photo, and can decide if it releases it to the public domain or not". It's not about the rights of the owner of the artwork, but about the rights of the owner of the photo. Photographs have a slightly elevated standing in German law, with lower demands on creativity to get protection, and I'll assume that's the way the court got to this decision. We'll see if it survives in front of higher courts. I wouldn't be surprised if it doesn't. In your transcriber example (assuming transcriptions and photographs would follow the same rules, which they don't), the transcriber would have the rights to his/her transcription, but couldn't stop anybody else to transcribe the same PD work and release their transcription. I agree with wikipedia that this question shouldn't have come up, because I'd prefer if public museums were required to release such photos under some kind of free license, although I'd be fine with restrictions for commercial use.
- toomuchtodo 10y ago
  Does this mean if I create a 3D model of a physical object, I know hold the copyright to that objects digital representation? And if so, does anything prevent me from registering said copyright and providing it to the public domain?
  - Bromskloss 10y ago
    Registering a copyright? Is that something you can do in Germany? I thought that was something that existed only in the United States, and only a long time ago.
    - allendoerfer 10y ago
      You cannot. The German Urheberrecht is something a creator automatically is entitled to and which cannot be taken away from him.
    - toomuchtodo 10y ago
      Forgive me, in the US copyright exists immediately when a work is created (I'm unfamiliar with German law, I'm a US citizen residing in the US). You can still register your copyright to make it known with the US Copyright Office: http://www.copyright.gov/fls/sl35.pdf http://www.copyright.gov/fls/sl35.pdf
    - vidarh 10y ago
      It still exists in the US. Copyright is automatic in the US as just about everywhere else, but registration is necessary if you wish to seek statutory damages rather than just actual damages in the case of infringement.
  - detaro 10y ago
    "Registering a copyright" doesn't exist in German law (and if I remember correctly, it only makes enforcement easier in the US, but isn't necessary). Once you create something above the "threshold of originality", you own the copyrights to it and can freely license it if you want to (if it is a derivative of a protected work, the owner of the rights on the original gets rights as well and could potentially stop you from doing so, but in a case of a public domain work that doesn't matter). If just creating a 3D model of something is above this threshold depends on the details, generally an as-precise-as-possible replica doesn't require originality though, so probably not. For photographs there a exists a category where this threshold doesn't apply as strongly, and the court argued that in this category, the amount of expertise and work necessary to create it was enough to make it a work of it's own. This potentially conflicts with older decisions, that did not grant pure reproductions copyright protection. EDIT2: after reviewing the old case I had in mind: It denied protection to a copy of a photo of an original, explicitly citing that it is not desired to allow infinite copyright extension by creating copies. We'll see in the next round if removing one layer of indirection changes the situation. EDIT: I use "freely license" above because the concept of releasing something in the public domain doesn't exist in Germany. In practice, licensing it as e.g. CC0 is the clean way of achieving the same.
    - Natsu 10y ago
      Copyright is automatic in the US, but there is a form to register a copyright with the Library of Congress and registration is a prerequisite before suing for statutory (as opposed to actual) damages for infringement. A "timely" registration has a presumption of validity, but you can register at any time, including just before filing a lawsuit. This, for obvious reasons, won't enjoy as many presumptions as one registered soon after the work was made.
  - ghij 10y ago
    You can't _register_ copyright. You automatically receive it with the creation of a new original work. You can't provide it to the public domain. You can, if you have copyright on the work, publish it under a license which permits others the freedom to re-use it. The work is still copyright protected though. The existence of copyrights on these photographs was the subject of the trial: Can these photographs be considered new (derivative) works? If so the author of the photos ―the museum― owns the copyright. If not the photos are protected by the same copyright as the paintings, although the paintings fell into the public domain as the original author has died more than 70 years ago. If you make a 3d-model of an object which is still protected under copyright it's for a judge to decide whether you've infringed on that copyright or created a derivative work. That's all, of course, completely separate from trademarks.
- acabal 10y ago
  Sure--but a faithful photographic reproduction, like a faithful text transcription, isn't something that can be really different from another faithful reproduction. Sure, I guess a few pixels would be subtly different based on scanning techniques, etc., but those would only be tangible differences to a machine, not a human. How can a person tell I was using the museum's faithfully reproduced image, and not one that I scanned myself? That's the crux of the Bridgeman v. Corel decision in the US: If I make a perfectly faithful copy of a PD work into another medium, have I really created anything? And US courts decided that no, I just copied something, and thus I don't get to enjoy my own new copyright as merely a copier of an already copyright-free work. I admittedly know nothing about German law--I certainly hope you're right in guessing higher courts will overturn it.
  - HarryHirsch 10y ago
    How can a person tell I was using the museum's faithfully reproduced image, and not one that I scanned myself? Preparing a halfway decent digital image requires a great deal of skill, in the same way that a decent transcription of a written text requires a great deal of skill. Someone transcribes a text of a manuscript, and according to Bridgeman, anyone can reproduce that text that the original transcriber established. This is precisely the same free-rider problem that legal tool of copyright attempts to solve. Of course copyright doesn't apply for a transcription because a transcription isn't a creative work, but there is still the free-rider issue and no legal tool available to solve it. For services there are trademarks, for processes there are patents, computer code is copyrightable or patentable, but for text there really is a legal hole. Back then, before the digital age, image libraries would charge for reproducible copy, but nowadays there are lossless copies, and Bridgeman is very much out of touch. The German court, thankfully, had some better sense.
    - zaroth 10y ago
      At least under US law, I don't think the level of skill required is the defining factor in copyright protection. There must be a creative work. So, for example, creating a transcript of an audio recording does not create a new copyrighted work, because it is simply documenting a fact like 1+1=2. So a US court would look at a photo reproduction of a piece of art and determine if it qualifies based on whether it meets the bar for being a creative work -- is it "original" in any way? If the photograph does nothing more than faithfully depict the work, then it could be painstaking work to create it, but it still carries no copyright. If someone transcribes a book (i.e. makes a copy of it by hand) or photocopies a book, they have not created an original work. The copyright, if any, remains with the original author. A translation or a derivative work may itself be eligible for copyright, but would also require the original copyright holder's permission, if any copyright on the original work remains.
- x5n1 10y ago
  Makes no sense considering there is very little effort which is needed, and no creativity whatsoever. So why even allow for copyright on something so trivial.

by acabal 10y ago

detaro 10y ago

Important to note: the argument in this case is not "the museum owns the original artwork, thus it can stop people from freely licensing their photos of it", but "the museum owns the rights on the photo, and can decide if it releases it to the public domain or not". It's not about the rights of the owner of the artwork, but about the rights of the owner of the photo. Photographs have a slightly elevated standing in German law, with lower demands on creativity to get protection, and I'll assume that's the way the court got to this decision. We'll see if it survives in front of higher courts. I wouldn't be surprised if it doesn't. In your transcriber example (assuming transcriptions and photographs would follow the same rules, which they don't), the transcriber would have the rights to his/her transcription, but couldn't stop anybody else to transcribe the same PD work and release their transcription. I agree with wikipedia that this question shouldn't have come up, because I'd prefer if public museums were required to release such photos under some kind of free license, although I'd be fine with restrictions for commercial use.

toomuchtodo 10y ago
Does this mean if I create a 3D model of a physical object, I know hold the copyright to that objects digital representation? And if so, does anything prevent me from registering said copyright and providing it to the public domain?
- Bromskloss 10y ago
  Registering a copyright? Is that something you can do in Germany? I thought that was something that existed only in the United States, and only a long time ago.
  - allendoerfer 10y ago
    You cannot. The German Urheberrecht is something a creator automatically is entitled to and which cannot be taken away from him.
  - toomuchtodo 10y ago
    Forgive me, in the US copyright exists immediately when a work is created (I'm unfamiliar with German law, I'm a US citizen residing in the US). You can still register your copyright to make it known with the US Copyright Office: http://www.copyright.gov/fls/sl35.pdf http://www.copyright.gov/fls/sl35.pdf
  - vidarh 10y ago
    It still exists in the US. Copyright is automatic in the US as just about everywhere else, but registration is necessary if you wish to seek statutory damages rather than just actual damages in the case of infringement.
- detaro 10y ago
  "Registering a copyright" doesn't exist in German law (and if I remember correctly, it only makes enforcement easier in the US, but isn't necessary). Once you create something above the "threshold of originality", you own the copyrights to it and can freely license it if you want to (if it is a derivative of a protected work, the owner of the rights on the original gets rights as well and could potentially stop you from doing so, but in a case of a public domain work that doesn't matter). If just creating a 3D model of something is above this threshold depends on the details, generally an as-precise-as-possible replica doesn't require originality though, so probably not. For photographs there a exists a category where this threshold doesn't apply as strongly, and the court argued that in this category, the amount of expertise and work necessary to create it was enough to make it a work of it's own. This potentially conflicts with older decisions, that did not grant pure reproductions copyright protection. EDIT2: after reviewing the old case I had in mind: It denied protection to a copy of a photo of an original, explicitly citing that it is not desired to allow infinite copyright extension by creating copies. We'll see in the next round if removing one layer of indirection changes the situation. EDIT: I use "freely license" above because the concept of releasing something in the public domain doesn't exist in Germany. In practice, licensing it as e.g. CC0 is the clean way of achieving the same.
  - Natsu 10y ago
    Copyright is automatic in the US, but there is a form to register a copyright with the Library of Congress and registration is a prerequisite before suing for statutory (as opposed to actual) damages for infringement. A "timely" registration has a presumption of validity, but you can register at any time, including just before filing a lawsuit. This, for obvious reasons, won't enjoy as many presumptions as one registered soon after the work was made.
- ghij 10y ago
  You can't _register_ copyright. You automatically receive it with the creation of a new original work. You can't provide it to the public domain. You can, if you have copyright on the work, publish it under a license which permits others the freedom to re-use it. The work is still copyright protected though. The existence of copyrights on these photographs was the subject of the trial: Can these photographs be considered new (derivative) works? If so the author of the photos ―the museum― owns the copyright. If not the photos are protected by the same copyright as the paintings, although the paintings fell into the public domain as the original author has died more than 70 years ago. If you make a 3d-model of an object which is still protected under copyright it's for a judge to decide whether you've infringed on that copyright or created a derivative work. That's all, of course, completely separate from trademarks.
acabal 10y ago
Sure--but a faithful photographic reproduction, like a faithful text transcription, isn't something that can be really different from another faithful reproduction. Sure, I guess a few pixels would be subtly different based on scanning techniques, etc., but those would only be tangible differences to a machine, not a human. How can a person tell I was using the museum's faithfully reproduced image, and not one that I scanned myself? That's the crux of the Bridgeman v. Corel decision in the US: If I make a perfectly faithful copy of a PD work into another medium, have I really created anything? And US courts decided that no, I just copied something, and thus I don't get to enjoy my own new copyright as merely a copier of an already copyright-free work. I admittedly know nothing about German law--I certainly hope you're right in guessing higher courts will overturn it.
- HarryHirsch 10y ago
  How can a person tell I was using the museum's faithfully reproduced image, and not one that I scanned myself? Preparing a halfway decent digital image requires a great deal of skill, in the same way that a decent transcription of a written text requires a great deal of skill. Someone transcribes a text of a manuscript, and according to Bridgeman, anyone can reproduce that text that the original transcriber established. This is precisely the same free-rider problem that legal tool of copyright attempts to solve. Of course copyright doesn't apply for a transcription because a transcription isn't a creative work, but there is still the free-rider issue and no legal tool available to solve it. For services there are trademarks, for processes there are patents, computer code is copyrightable or patentable, but for text there really is a legal hole. Back then, before the digital age, image libraries would charge for reproducible copy, but nowadays there are lossless copies, and Bridgeman is very much out of touch. The German court, thankfully, had some better sense.
  - zaroth 10y ago
    At least under US law, I don't think the level of skill required is the defining factor in copyright protection. There must be a creative work. So, for example, creating a transcript of an audio recording does not create a new copyrighted work, because it is simply documenting a fact like 1+1=2. So a US court would look at a photo reproduction of a piece of art and determine if it qualifies based on whether it meets the bar for being a creative work -- is it "original" in any way? If the photograph does nothing more than faithfully depict the work, then it could be painstaking work to create it, but it still carries no copyright. If someone transcribes a book (i.e. makes a copy of it by hand) or photocopies a book, they have not created an original work. The copyright, if any, remains with the original author. A translation or a derivative work may itself be eligible for copyright, but would also require the original copyright holder's permission, if any copyright on the original work remains.
x5n1 10y ago
Makes no sense considering there is very little effort which is needed, and no creativity whatsoever. So why even allow for copyright on something so trivial.