OK a blog isn't the best tool for this but here goes.
Open Digital will be submitting a response to the UK Government consultation on copyright reform. I have a lot of views on this subject so have spent the last few months listening to what other groups are fighting for so I can narrow my own submission to the areas not so well covered by other groups.
For various reasons I've chosen to focus on preserving the public domain (works for which the copyright has expired) and ask for the law to be clarified so that if can not claim a new copyright when I take a picture of a public domain artwork or digitise a public domain sound recording.
This will bring the law in line with US law as regards photographs of 2-D art works, and I see a strong parallel between a photo of a 2-D artwork and a format-shift of a sound recording.
I would dearly welcome comments, corrections, suggestions and any other feedback on the following. Please use the comments section below, email
review@opendigital.org for ping us on twitter
@Open_Digital
Thanks,
James
DRAFT SUBMISSION TO HARGREAVES
Update 16:19 clarified New York (ht
@Copyrightgirl) and added paragraph about Wikimedia (private comment via email).
Open Digital calls on the Government to clarify the
copyright situation as to faithful reproductions of existing works and in
particular protect the public domain by removing any copyright protection for
faithful photographic (including digitally scanned) reproductions of
2-dimensional art works and faithful copies of musical works that are in the
public domain.
In parallel to the debate around format shifting, online
businesses and individuals who make use of digital self-publishing tools are
finding online uses for works already in the public domain.
But they face a threat from copyright claims made by the
individuals or organisations responsible for photographing or scanning the
original works.
UK case law in this area is not clear, so whether or not
the Government and Parliament agrees with my suggestion set out below, there is
opportunity to clarify the law in this area to provide clear guidance to the
public on their rights.
In other jurisdictions such as
United States New York, case
law is clear (Bridgeman v Corel Corp, 1999) and does not grant
copyright protection to photographs of 2-dimensional public domain art works,
and I argue UK law should mirror this.
Wikimedia foundation has unilaterally declared a global policy (
ref) mirroring the legal situation in New York, potentially opening itself up to legal challenges in other jurisdictions.
I argue a strong analogy exists between a digitising (format shifting) or re-recording of a sound recording and faithful photographic reproduction.
Allowing a copyright to exist in a faithful
representation of a public domain work such as a painting, drawing or sound
recording can have the effect of substantially prolonging the effective release
into the public domain of certain published works. This appears contrary to public domain
provisions in copyright law.
Whilst there is one seemingly powerful argument in favour of
providing protection for reproductions - that copyright acts as an incentive
for those wishing to invest in digitising our cultural heritage - this must be
balanced against the potential for organisations to abuse their monopoly of
ownership, resulting instead in fewer works appearing online for public
consumption; instead appearing behind paywalls or protected in some other way.
Whilst there is no research I'm aware of in this area,
anecdotal evidence shows volunteer documenting and archiving efforts by groups
such as Wikimedia Foundation and Project Gutenberg receive incredible public
support. Individuals seem motivated to
work for free to reproduce the public domain in digital format, questioning
whether a financial incentive in the form of a market intervention (copyright)
is necessary.
As well as my main argument - that the public domain
should be accessible to the public without restriction - providing protection
for reproductions via copyright questions a fundamental principle of
copyright.
Copyright is intended to support the creative industries
by providing protection for creators and those who invest in creation. Creation must include some element or
originality, and faithful reproduction by definition minimises originality.
Copyright is not intended to reward skill, it is intended to reward creativity. Even if it
were, modern photographic reproduction techniques involve little if any skill
and in some cases the reprographic process can be completely automated.
By allowing a copyright to exist in a scan of
a drawing provides a reward for merely pressing a button.
Therefore if incentives are needed to encourage digital
archiving activities, copyright is not the right method to provide these
incentives.
Allowing copyright to exist in a faithful reproduction
also causes public confusion. It can be
difficult even for a skilled person to differentiate between a copy of a copy
and a separate copy of the original.
This is also true for automated digital identification
and copyright enforcement techniques. It
is likely to cause false-positive matches for online automated content
identification and protection systems.
Such systems are used by online publishers to detect suspected copyright infringement and are unlikely to make a distinction between a separate copy
of the original and a copy of a copy.
This will cause particular problems for users of services
such as YouTube, a service which provides a semi-automated mechanism to alert
content owners that a video with a similar soundtrack has been uploaded.
The semi-automated nature of content protection procedures
couples with the high volume of notifications handled today by large rights
holders creates a real risk that an "authorised" public domain copy
could be improperly blocked by the copyright owner of another similar almost
indistinguishable copy.
In summary I believe allowing a reproduction of a public
domain work to have its own separate copyright results in a situation nothing
short of a farce, where multiple almost indistinguishable copies coexist, with multiple owners and each with differing protection terms.
One legislative option which would minimise the impact on
existing businesses reliant on layered copyrights in mechanical reproductions as well as other unforeseen and unintended consequences is to design
legislation such that it only affects public domain works.
For example, the copyright protection term of any
faithful reproduction could be limited to the unexpired term in the original,
thereby allowing mechanical recording rights to coexist until the original
performance enters the public domain.
My primary interest is to ensure public domain works are
widely available to access and re-use, as is the intention of limited-term copyright law.
ENDS
