I often get questions concerning the Copyright status of items being placed into the numerous digital collections being created by libraries for the Long Island Memories Project. What is often not carefully considered is the Copyright Status covering the digital representations of the items once they are placed into the digital realm.
The idea behind passing materials no longer (or never) in copyright, into the Public Domain, was to make them freely available to the public once their creators had enjoyed the benefits of the restrictive copyright period allowed within such legislation. Or in the case of materials released under the Creative Commons License (URL: http://creativecommons.org/), everyone should have unrestricted access to such materials in addition to their public domain status. Even though derivative works can be made from both Public Domain and Copyrighted Materials, the statutes are very clear in describing exactly what a derivative work is:
“17 U.S.C. Section (103)(b):
… The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. ”.
Both statute and case law are very clear in defining a ‚derivative‘ work as one which substantially changes the content of the original work. And the new copyright protection then applies only to that part of the ‚content‘ of original work which is changed. Merely reformatting the original work does not create a derivative work and thus cannot be considered as falling under the protection of the Copyright Statutes.
What this means is that the tens of thousands of items which libraries and universities are currently digitizing and placing in Digital Collections do not fall under the protection of the Copyright Statutes particularly if the works were originally within the Public Domain. Digitizing or reformatting materials do not fall under a creative act. They merely become republishing of the original material. If a description, meta-data set, introduction, or translation is involved, only those particular additions fall under the scope of copyright protection.
For example, if a library digitizes a postcard printed and mailed in 1903, and places it in a database; the meta-data, watermark and other descriptive materials can be copyrighted; but the actual image cannot and does not receive any copyright protections. The Meta-data and descriptive materials can be considered as a derivative part of the original material (the post card itself); but anyone is free to download that image and use it for whatever purpose they would like. Such proclamations, such as “not to be used for commercial purposes” or “contact the owner of this site for permission to use this image” cannot be legally enforced and are misleading at best, since they do not fall under the letter or the intent of the Copyright Statutes.
It is particularly galling to see commercial Database services attempt to place public domain materials under their copyright protections with such misleading proclamations. They do not own the images of public domain materials, even if they created them, just as they do not own the image of a copyrighted document which they may have been given permission to publish in their database. In both cases, ownership devolves back to the original owner; IE. The public in the case of public domain materials; and, the copyright holder in the case of copyrighted materials. This must be carefully considered when such items are being placed on the Internet for public viewing.