Cp. the posting by Dennis Karjala to CNI-COPYRIGHT 16 Nov 1995:
I had assumed...that section 303 controlled all pre-1978 unpublished writings (other than those "copyrighted" by registration). However, Mark's comment made me think a bit more, especially about foreign works, such as his (and the proverbial) long lost Shakespearean manuscript. The quid pro quo for section 303's grant of copyright to very old works was the assumption that those works had perpetual protection under state copyright statutes, which was preempted by the 1976 Act. So, giving them 25 years of federal protection (plus another 25 years if published prior to 2003), it was argued, was a reasonable compromise.
This raises the question of the extent to which this assumption applies to foreign works. Did the state statutes protect such works, that is, if Mark had published his newly found old Shakespearean work in Texas prior to 1978, would that have been an infringement of Texas law? If not, the effect of section 303 in application to foreign works is to revive a long extinct copyright. Can we say that if a work was in the public domain in its country of origin on January 1, 1978, it was in the public domain for purposes of section 303?
Berne's requirement of national treatment appears to foreclose any ground for denying protection to unpublished foreign works while protecting U.S. works of the same vintage. On the other hand, Berne is not self-executing in the United States, and in any event Berne allows the "rule of the shorter term," pursuant to which a Berne member may choose to protect a work only so long as it is protected in its country of origin, even if the term in the country in which protection is sought is longer. (The EU's express adoption of this rule is essentially the entire basis of the argument for extending the term of protection in the U.S. The reasoning is false, but I've been over that before on this list.) The suggested interpretation of section 303 may therefore be in compliance with Berne.
In any event, I wouldn't be surprised to find a judge balking at trying to sort out who owns the rights to Shakespeare's works at this late date. (If I recall correctly, Shakespeare's line of descendants died out within a generation or two after his death. And, of course, there is the question whether Shakespeare was really the author . . . !) Some might even find it offensive that such very distant heirs--most likely, very distant heirs of Shakespeare's assignees by operation of law--could be allowed to control use in the United States of an important part of our cultural heritage that is in the public domain everywhere else in the world.
Vance Koven, posting to CNI-COPYRIGHT 20 Nov 1995:
No one seems to have asked the question what the nature of the copyright in the work was at the time it was written. Wouldn't it be relevant if the work entered the public domain before a law was enacted recognizing copyright in it? This might be the case of the Shakespeare ms.
811 F.2d 90, 91 (2nd Cir. 1987).
Fox, 219 (See Bibliography).
Cripps, 114 (See Bibliography; also the works by Bilder and LeFevre.)
Lee McLaird, posting to EXLIBRIS, 20 Oct 1995:
What kind of copyright does an "editor" of a text hold? For example, a person who "discovers" a 19th century guide book, reprints it, and adds an introduction. No editing was done on the original text. I know one scholar who makes a _point_ of copyrighting _only_ his introduction, and one person who believes that he can "assert" a copyright on the whole work.
Mark Olsen, posting to HUMANIST 7 Nov 1989:
The problem of ownership of electronic text, something that HUMANIST has debated time and again, was raised again by Dr. Choueka's warning that certain Biblical, Talmudic, and other Rabbinical texts were copied "in an unauthorized way" and that the University is going to consider prosecution. Without being overly flippant, I did not realize that the Bible and the ancient texts of Judaism were still under copyright protection. Who, pray tell, holds the copyright? And how has Bar-Ilan University gained rights to those texts? The problems of protecting copyrights and the integrity of textual databases are difficult enough, without thinking that texts so firmly part of the public domain as the Bible and Talmud could be protected by a single institution.On the copyright status of the Beuron Vulgate text, see Bob Kraft, posting to HUMANIST 26 July 1991 and MEDTEXTL 3 August 1993; Timothy Reuter, MEDTEXTL 26 July 1993; Peter D. Junger, MEDTEXTL 31 August 1993; James J. O'Donnell, MEDTEXTL 2 Sept 1993.
Ron B. Thomson, posting to CNI-COPYRIGHT 25 Oct 1995.
Carl Oppedahl, posting to CNI-COPYRIGHT 27 Oct 1995:
The present-day publisher of old manuscripts will, of course, in some cases have added original subject matter, perhaps by the insertion of chapter and verse numbering, annotations, provision of alternative translations of difficult words, and other scholarly activities. A concordance or index may have been added. What's more, in some cases the publisher may have drawn upon several versions of an old work, picking and choosing to try to find the best guess as to the text of the original. A court might decide that some, or none, or all of these activities added protectible original subject matter.Difference of opinion on this issue can be illustrated by the following. In defense of the creative nature of critical editing, Thomson replies (CNI-COPYRIGHT 31 Oct 1995):
To prepare a critical edition, the editor must not only search out numerous Latin copies, generally in European libraries, but collate them. The editor (1) must expand all Latin abbreviations (and the texts are highly abbreviated) in a form which makes linguistic and grammatical sense; (2) choose between alternate versions (since the copies can different quite significantly) to determine (in the editor's mind) what the original author actually wrote. There is considerable skill involved in these steps, and a great deal of judgement based on years of academic training. While the final text can be separated from the apparatus and notes (which list rejected readings) there is no proof that the final text actually was the one the original author wrote. It could be a version which never existed in the Middle Ages and exists in this format only in the late 20th-century, although obviously derived from earlier material.To which Maurice Robinson responds (CNI-COPYRIGHT 2 Nov 1995):
This matter of manuscripts and textual criticism (the process described above) is precisely one section addressed in a recent faculty lecture I presented (my field is Greek textual criticism, so there is a direct parallel). My conclusion is clearly and plainly that all the scholarly and editorial work necessary to restore (re-create) the base text of an ancient document, while commendable, is still little more than "sweat of the brow" labor, and that the restored text itself is thus NOT copyrightable. However, introductions, commentary, the contents of an apparatus and its form which accompany such texts would indeed be copyrightable.
My suggestion would be to place as many copyrightable notes and comments as you can on every page, and make the profits that way. If it were the text of Augustine's "On Christian Doctrine" or the "City of God", the original Latin -- restored as it might be through the kind labors of critical scholars -- should remain part of the public domain for all to use freely. There is no need to attempt to lock up the great treasures of the past in their original forms merely for a profit motive. Translate the works and make money that way, or publish a complete apparatus, etc.; but the texts themselves belong to all of us.There is no case law on the issue, needless to say.
Michael North, posting to EXLIBRIS 18 Oct 1995.
John Hudson, posting to EXLIBRIS 19 Oct 1995.
Michael S. Hart, posting to HUMANIST 10 July 1989:
Am I to understand that it might be possible, for example, to remove all the "markup" from something like the CD-ROM OED, so that it resembles nothing more than a scanned version of the first edition, and that this electronic edition would then be in the public domain - as a copy of the first edition which is, I have heard, public domain due to its having been published in 1888 and years following, but always prior to dates having current copyright protection? Can anyone clarify such position on the texts made from works certainly in the public domain, such as BYU/WordCruncher's editions of Tom Sawyer, etc?On the contrary side, with respect to minimal markup, cp. the remarks of Lou Burnard, posting to HUMANIST 10 July 1989:
With reference to scanning texts, it's my understanding that the simple process of making a text machine-readable confers no rights at all on the owner of the resulting electronic text, any more than making a xerox copy or a manual transcript would. To own electronic rights in something you have to have created something analagous to an original work.
Michael Sperberg-McQueen, posting to HUMANIST 18 July 1989:
Ruth Glynn makes excellent sense in her note on publishers and permissions. But if I ask permission to do something which by law I have the right to do, and receive the reply that I may not do it (because, say, the publisher believes I have no such right, and does not wish to give any ground) -- have I not conceded in advance that it is something that I do *not* have the right to do? Otherwise why did I ask permission? Whereas if I rudely do not ask permission, I at least have the chance of arguing that I have not already conceded that what I do is not fair use.
Peter D. Junger, posting to HUMANIST 20 July 1989.
Tim Seid, posting to HUMANIST 18 October 1989:
I have been adding entries to a German dictionary I started and now have about 1400 entries. I want to make it available to members of HUMANIST but I need to be reassured about any possible copyright infringement. A small number of entries were taken from Vis-Ed Vocabulary Cards. The rest have been gleaned from Harrap's Concise German-English Dictionary. I have not quoted exact citations or copied the form of the dictionary.Some more complex cases are suggested by Jean Veronis, posting to HUMANIST 13 Nov 1991:
Years ago I typed in a list of words from a published book, the "Echelle Dubois-Buyse d'Orthographe Usuelle Francaise" (2nd edition, 1977, OCDL). In its printed form, the list gives a DIFFICULTY INDEX for spelling for each of 3730 frequent words in French. As I said, I typed in that list, and added information for each word, such as PHONETIC TRANSCRIPTION, PART-OF-SPEECH, etc. It occurs to me that this information could be of some value to other colleagues, but there is obviously a copyright problem. My assumption is that what specifically belongs to the "Echelle Dubois-Buyse" is the association between words and a difficulty index. This is the only reason why people would want to buy the book, I think. Therefore, I have the feeling that if I remove the DIFFICULTY INDEX from my data, and I distribute a file containing for example WORD FORM--PHONETIC--PART-OF-SPEECH I would be safe as far copyright is concerned. However, I have a slight doubt: people might argue that the SELECTION of those particular 3730 words has by itself some intellectual value, and is protected by a copyright... Of course, I could ask the publishers what they think about it, but I think the problem is more general. It occurs all the time when word lists are concerned. For example: [1] Is the list of words in a given dictionary protected by copyright (I mean just the headwords, with no other information)? [2] If I start with a corpus (e.g. the Brown Corpus) and I compute some data (for example, the frequency list of lemmas), can I distribute this result freely? etc.
See postings to HUMANIST by Peter Junger (2 April 1991), Adam Engst (3 April 1991), and Lorne Hammond and Judy Koren (17 November 1991).
James J. O'Donnell, posting to HUMANIST 23 Oct 1990:
In the absence of copyright permission, does it violate the author'\ s and/or publisher's rights to provide facilities to others to do word searches via TELNET from remote locations?
Brian Kahin, posting to HUMANIST 31 Oct 1990:
Under the copyright law, providing for this kind of access constitutes a public display, which requires the permission of the copyright owner. There is an exception (part of the first sale doctrine) that says that the owner of a copy can display a work publicly at the place where the copy is located (but no more than one image at a time). Although there is also an argument that such an online display constitutes the preparation of derivative work -- as macrakis@gr.osf.org suggests in a subsequent note, it is so clearly a violation of the public display right that the derivative works argument is of little significance. Note that in either case, we have been assuming that it was okay to put the text into digital readable form in the first place. The question is, once you have something legitimately in the computer, can you make it available for others to look at over the network? Basically, no, unless there is a fair use defense. Macrakis does present an interesting argument for the particular case of remote searching to locate a particular passage in a local copy. But the correct analogy to the Roxbury vs. New York Times case which he refers to would be to identify page numbers for the text rather than actually show the text.
Mark Olsen, posting to HUMANIST 7 Nov 1989:
Another related point is the question of international law. Is it a crime to copy an electronic text across national borders? Is this kind of copying subject to international copyright agreements...?