The public domain is the greatest resource in human history: eventually all knowledge will become part of it. Its riches serve all mankind, but it faces a new threat. Vast libraries of public domain works are being plundered by claims of "copyright". It's called copyfraud - and we'll discover how large corporations like Google, …
I stopped reading on page 2
Because it became self contradictory.
Page one asserts that Public Domain isn't enough protection, because there's nothing to stop someone relicensing the work under a proprietary license and making money out of it by threatening lawsuits (this is *not* fraud. It's called business. There is *nothing* to stop you getting a public domain copy of the work and sticking it on the web. Nothing at all).
Page two says that the solution - a free license that prevents such abuse - is somehow evil.
Make your damned mind up. You either get the freedom - and the risks - that public domain gives you, or you use a license to stop the abuse. You just can't have it both ways.
I do not disagree but...
100% in sync with you. Claiming "copyright" on material that is public domain should be punished by law.
On the subject of publishers selling public domain books though, I disagree with you. Putting together a book from public domain sources is work. Maybe only an hour of work but real work nonetheless, espacially if you do it for a collection of several thousand titles. Your claim that is costs nothing is false. That work deserves a salary. Also having a public domain text in a legible, usable edition with a table of contents, nice cover, correctly linked footnotes and so on is useful for the reader.
This has been happening for years with GNU licensed software. No one noticed.....?
"Committing copyfraud is astonishingly easy and costs nothing. I can borrow a public domain book from any library and scan it, or I could download the text from Project Gutenberg. I reformat it as a PDF, mark it with a copyright date, register it as a new book with an ISBN, then submit it to Amazon.com for sale."
If it really were that easy. Why don't people than go to the public library and scan the book they want to read themselves?
Just because information is in the public domain and access to it should be free, that doesn't mean other people or companies are forced to hand you a copy for free if you should be unable to exercise your right of free access for some reason. The reason probably being that the information just isn't widely available.
Look at it like this.
Is an adult allowed to see any movie playing in the city? Sure he is.
If he physically can't get there, am I forced to take my car and drive him? No.
Of course, it's always worth checking whether an out of copyright book has been posted on Project Gutenberg before forking out for it. As it happens, that particular one has.
Bit of a thorny one - we equally want to encourage the transfer and restoration of old works - and owning a few digitally restored pieces of 1920s cinema, I can appreciate there's a cost involved in that - and it's questionable whether the public purse would pay for restoring all work in the public domain into a usable state, before it decays.
Previously, the fact that these costs could typically be recovered through selling a physical edition - i.e. it doesn't matter if work is out of copyright if only one firm is actually printing a book.
Remove the ability to make money back, and we're back to the primary question - how do we fund this? Obviously, the academic community has failed (lacking the time/money) to scan these works ahead of a private publisher (for whom the ability to extract money from academics is acting as a motivator).
[Given that eventually the money is going to come from the same place, of course we'd be better off funding the universities to do the scanning directly]
Is it better for a work to be in the public domain but not actually available, or vice versa?
I think this is just paranoia. The vast majority of "products" are mere hype and packaging - go to the supermarket and you can buy a litre of "healthy, natural" water for 1,000 times its actual value. What's the difference between this and an idiot paying money for falsely labelled public-domain stuff?
And don't be so sympathetic about (thick) academics being exploited - students and teachers regularly, persistently and knowingly breach real copyright. The photcopiers in the university library may be strictly controlled, but every university campus has at least one flourishing photocopying shop nearby.
Copyright is, I think, not affected by any claims made for it in the published material, so it's really no more relevant that a book claims to be "copyright somebody 2009" than that a bottle of water claims to be "healthy". That fools are convinced by either claim is not, I think, a matter of great public concern.
This is why you need the GPL...
Books in the public domain need to be covered by a legislative equivalent of the GPL. It should say that books which are out of copyright can be used in anyway you wish (including charging for copies) but you also give them same rights to anyone who purchases it. So if I buy your out of copyright book I am entitled to resell the entire contents if I wish. It's important that works in the public domain do not become someone else's property by accident or intent - allowing anyone to colonise our cultural, artistic and scientific past is truly shameful.
I think you have slightly missed the point: it isn't just that people are charging for making available a public domain work: nothing wrong with that - and you would be free to make your own copies and pass them on (because it is public domain).
Rather it is that by "republishing" in this way they can claim copyright in the new version and can then not only charge for selling them but can also restrict your rights to pass it on. A bit like someone deciding they can remove the GPL license simply because they are publishing the software on a new medium. The point being that GPL software *is* protected by copyright whereas (by definition) public domain works aren't.
Re: This is why you need the GPL...
No, the point of the public domain is that anyone can use it in any way they want, including producing a "closed"/"proprietary" derivative product -- eg the film version of Sleepy Hollow with Johnny Depp. Just because it's based on a public domain work, doesn't make it a public domain work.
Eicher's article falls on its face when it chastises the small publisher for profiting from public domain works -- isn't the point of the public domain that anyone can do what they like from it -- and as others have said, many of these books have actually been retypeset to provide a clean, modern, legible version rather than the grubby scans and flaky OCR coming off Google's virtual presses. The high price is not just about having a monopoly, but is an attempt to offset the cost of that typesetting against the small number of customers.
@AC (13:57): That's already how the public domain works. These guys CAN sell books, and get whatever they can for them. However, as much as they may want to pretend, they are still not copyrighted* and the purchaser CAN just copy the whole book and sell it too if they want.
I don't know what Google's problem is that they won't publish clearly public-domain works, but that's left up to them. Anyone else is permitted to scan or copy the entire book; if they don't wish to, we are just back to the pre-Google situation.
*New cover and interior art would have a fresh copyright, though.
Fraud = crime/felony?
Surely this is already covered? If I claim something to be be mine when it is not and gain pecuniary advantage by telling others they must pay me for copies, surely this is fraud and therefore, a criminal matter?
@Tony Hoyle and others: Yes - it is fraud. It is no more legitimate than fencing of sections of public land and selling them as your own. We are not talking about publishers being paid for the physical media on which they publish public domain material, we are talking about when they claim copyright and tell others that they cannot make copies. It's a scam, not business.
@The Indomitable Gall
Small publishers are free to charge what they like for printing public domain material - I guess the market will determine the price. If their business model does not work unless they also claim copyright for the material, then they are conmen.
Modified versions of copyfraud
There's a variant when an older work is "updated" - maybe to "correct" old spellings or political incorrectness, and then re-published as a "new" work. Certainly happens with old hymns - just compare the words you used to remember with the latest text.
Now would that apply if the republished work had deliberate misprints to try to create a new copyright version?
I'm fairly sure the English language has a word for taking a work, not properly crediting the source, and claiming it as one's own.
Nothing New Is Happening Here
The example on page 1 of Lafcadio Hearn collecting classic Japanese ghost stories (public domain) in a book (copyright) is exactly the same thing being claimed to be Copyfraud.
I have book in my possession with expired copyright so that it is now PD. I don't have to share it with you. If I scan it into a shareable format then that is my work and my right (copyright) to control its distribution to my profit. It doesn't change the copyright status of the original work, only of my scan.
The misguided claims of copyfraud are ignoring the history of converting PD work into something of value. The originals are not being removed from PD, but new copyrighted works are being created which will eventually be PD.
Note that a particular copy of a public domain book owned by a local public library can't be scanned and distributed without that library's permission. After all, the coffee stains and so on that make each copy unique are themselves a copyrightable work.
But one can always retype the text.
OT - That's not right, about Alexandria
First, the Alexandrian Library was not the single portal to written knowledge, there were other great libraries at the time. Ptolemy II had the ambition that the library should contain a *copy* of every book that existed, not that it should contain all the world's books, His son Ptolemy III is alleged to have been an obsessive collector for the library, borrowing other collections and returning only copies.
Secondly, it did not all burn down at once. Julius Caesar "liberated" a good deal of it, but much remained in the city after that. Its eventual fate is unknown, and thus unlikely to have been any one cataclysmic destruction. The myth that it was finally destroyed by the Arab conquerors in the 7th century CE is also discredited.
Your scan isn't necessarily copyrighted
In a book there are two pieces of copyright, one is the text and the other is the layout or typesetting.
The text of a book goes out of copyright 70 years after the death of the author. The layout of a particular edition goes out of copyright 90 years after the date of publication (I'm assuming it was typeset and published by a company.)
It's therefore possible for a company to print an edition 69 years after the death of an author; it would still be in copyright of the author's estate and the company would have to licence the text. by waiting a year and a day they can use the text for free, but so can anyone else. If they now print a new edition, it will still be in copyright for 90 years. If someone buys a copy and scans it as imgaes, the scans are a derivative work of the layout, and their copyright does not belong to the person who scanned them. However, someone could OCR scan the book, and the text is not copyrighted.
As far as I understand it, if an edition of a book is out of copyright, scans (or reprints) of the edition are also out of copyright, unless a substantial amount of creative work has been put in to creating a new work. The edition being out of copyright would not stop the publisher of the facsimile from charging for it, but he could not claim the copyright.
Google Books is a service voluntarily provided by Google. They have no obligation whatsoever to make any particular book available to any extent, or even to keep running it. Also, no one is forced to use Flickr. There are other photo-sharing sites, and if you really want control you can buy a domain and make your own site.
As for selling public-domain work, let's look at some definitions:
Public domain: "not subject to copyright"
Copyright: "the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same."
There's nothing about having to make it available freely, and people sell copies of public-domain works all the time (e.g., classic books, Shakespeare, hardcopy of the US Code). At the same time, you still can't claim it as your own work - plagiarism still applies, as Fibanocci8 pointed out.
The public domain
This whole issue comes about only because the volume of material being published each year overwhelms any attempt at administering it, or rather administering the laws governing it.
Passing new laws to regulate this area within the current framework of "intellectual property rights" is futile. The public domain is managed with public money, which is in rather short supply at the moment (or at any moment for that matter). Private ownership is driven by the profit motive and will almost always win out in the "land grab" for creative output.
If there is a solution to all of this, it lies in rethinking the whole idea of monetising culture and what the true value of the Public Domain is. (No, I'm not a socialist/pinko/leftie multinational hater. Monetising may make perfect sense and the profit motive is as valid a driver as any as long as it is subject to the norms of civilised behaviour. It's just that I believe we have to change the whole model of how we as a society pay for our culture.)
By the way, thank you all for your thoughtful and informative input on this subject which I believe is part of one of the most important issues of our times: the plundering of the Public Domain.
Logical inconsistency 2.0
Attention must be drawn between the *text* contained within a book and an *imprint* thereof. The works of William Shakespeare are sufficiently old to be public-domain, but you'd still expect to pay for a printed copy because of the effort that's been vested in producing the layout, pagination, choice of fonts, binding etc.
The printed copy is copyright; the actual *words* contained therein are PD.
Same goes for sheet-music: the works of Beethoven Bach and Thomas Tallis are in the public domain but the likes of Boosey & Hawkes will still come after you if you photocopy their copyrighted sheet-music imprint.
The printed copy of the score is copyright, the *notes* in Spem in Alium aren't.
Title goes here
One thing I learned recently that it is not only the textual content that can be copyrighted (i.e. the original work) but also the formatting and presentation.
When someone takes something in the PD, packages it up in a PDF or goes as far as to bind it and slap a © on it all they are protected against is the work _in that format_ someone else can easily come along, take the same PD work and re-package it, change the font, etc. and as long as they do it from an original PD source and not a copyrighted re-package both are perfectly legal.
Is “the Complete Works of Shakespeare”, packaged in printed book form copyfraud?
What about when it's an iPhone application? Or in nicely-formatted PDF?
Actually, the only point at which it's copyfraud is if somebody takes a public domain work, republishes it in some way, and then uses that to claim copyright over the original public domain version. The author here doesn't seem too bothered by that scenario, however; more the fact that Google's system makes the assumption that if a copyrighted edition exists, then that precludes a public domain version existing, until some manual intervention tells it otherwise. This is called “making sure you don't get sued for unauthorised redistribution of copyright-protected works”. Google Books is not Project Gutenberg.
In Flickr's case, it's taken—what—4 years for this to crop up? And even then, it's an issue with ONE site with one very specific class of images—those which legally CANNOT be copyrighted at any point. That's a pretty rare occurrence in the world of Flickr, and it's good that they both recognised it and made provision for it.
Creative Commons’ stance is quite obviously about recognition more than anything. Huge numbers of people don't know what “Public domain” actually means, and this is confused even more by the use of terms like "copyleft" (which is often assumed by the layman to mean 'not copyrighted' rather than 'a license which deliberately subverts the usual protections of copyright'). In contrast, "Creative Commons" has become recognisable as "you may, possibly with some conditions depending upon who you are, do various things with this work including modification and redistribution"—with different variants of CC indicating who is permitted to do things and what they're permitted to do. CCPD, therefore, neatly fits into this with a variant that indicates “anybody” and “anything” respectively.
Thanks for a really good article.
We don't get these often at the Reg.
People don't get it.
The article is not trying to stop people selling copies of out of copyright works, it is against people who are doing that using the copyright on their editions to deny public access to other editions that are not copyrighted. To borrow a previous analogy, it is like a cinema you cannot get to preventing you from attending a cinema you can get to.
A better one: a specific recording of the Berlin Philharmonic playing Beethoven's Fifth Symphony conducted by Herbert von Karajan can be copyrighted. But you cannot use the existence of that copyright work to prevent your local secondary school orchestra from playing the Fifth at prizegiving. This is established in that area. So the article is right to object to it not being similar wrt written work. It is clearly a land grab and is equivalent to the enclosure of common land. It should be opposed.
Thanks for some really good comments.
We don't get these that often at the Reg. Especially when Google is mentioned.
"I have book in my possession with expired copyright so that it is now PD. I don't have to share it with you. If I scan it into a shareable format then that is my work and my right (copyright) to control its distribution to my profit. It doesn't change the copyright status of the original work, only of my scan."
No, your honour, you see, these 10,000 copies of a ten pound note are my work and I am fully entitled to control their distribution to my profit.
Copyright doesn't just magically appear because you copied someone else's work, although most art galleries seem to think otherwise.
Google can stop copyfraud
Obviously, since Google scanned the public domain books, obviously, Google knows what is public domain and what is under copyright. So once they start charging for copyright books (per download or by subscriptions as the authors prefer) and financing public domain books through advertising, you can be sure that Google aren't going to allow for any copyfraud. Google just hasn't started yet.
And the solution to that Government beeing too lazy thing, Obama should give Google founder a call and suggest to nationalize Google and make it part of the United Nation, give the PHD software engineers at Google full support, full funding to solve all the problems of the world.
So many people with a clue shortage... including the author... Fibonacci, Milner,McRoberts et al are exactly on the money.... You cannot take the text out of public domain, but you can create a derivative work which has its own copyright on the presentation etc... Google are just being lazy and using the modern edition rather than going back and working from an edition that's in the public domain... I wouldn't be at all suprised (to say the least) if its financially advantageous for them to do so, but it doesn't stop you going back to a PD edition and publishing that on the net...
PD is PD until the threat of Copyright Suit
Many of the commenters here have correctly pointed out the fact that without some kind of profit motive, many of these works would never be "published". Look to Dover Publications, a longstanding "publisher" of public domain books. People willingly pay for something free they could not find elsewhere. This is a good thing.
However, if Dover were to run about, sending nasty letter threatening people with copyright lawsuits for "violating their copyrights" -- that they don't really have, except they paid the $20 fee to the copyright office. THAT'S the problem....copyright ABUSE!
The problem is ... telling real claims from false claims.
Is there anyway to legally establish a works public domain status other than a court case involving the publisher who is claiming copyright?
Yes you can copy the text ... put in on your website for free. Your ISP gets a DMCA letter ... your website is taken down immediately. As soon as they see it on sale at Amazon.com with a copyright notice ... well good luck getting them to let you put the content back up.
So then you hire a lawyer and sue then for abuse of the DMCA ... oh wait ... there is no penalty for making fake DMCA claims. OK you hire a lawyer and sue them for copyright fraud ... oh wait their is no legal penalty for falsely claiming copyright on a public domain work.
I am sure there is some way to legally establish a works public domain status ... but its going to take a lot of time and money.
There needs to be a penalties for false DMCA claims, for false copyright claims .. enough so that no company would knowingly make false claims.
There also needs to be a government project to certify works as public domain. People could submit works .. copyright holders could submit evidence ...
Creating books from Project Gutenberg
" I can borrow a public domain book from any library and scan it, or I could download the text from Project Gutenberg. I reformat it as a PDF, mark it with a copyright date, register it as a new book with an ISBN, then submit it to Amazon.com for sale. I may not even need to print and bind any books, I can offer it through Amazon's Booksurge print-on-demand service, or as an ebook on Kindle. Once the book is listed for sale, I can submit it to Google Books for inclusion in its index. I could easily publish thousands of books; most would never sell, but with zero up-front cost, any sale is pure profit."
OK, this is something I have actually done several times - taken a text from Project Gutenberg or archive.org and formatted it to read on my Sony Reader (I have never shared or tried to sell any of them). I can categorically assure the author of this article that this was not a zero up-front cost exercise, it takes roughly the same amount of time to format into an aesthetically pleasing readable form as it does to actually read the book - about two to four hours.
I don't even attempt to correct most OCR spelling mistakes (Gutenberg and archive never check) unless they are glaringly obvious and I'm working on that bit of text anyway. The spelling mistakes are annoying but I can re-interpret as I read. To correct them and prepare it for sale would be a much bigger job than what I do and I don't begrudge any publisher the few dollars they may charge to do the job properly.
Oh, and just in case anybody is thinking of doing this - please, please, don't format it as PDF as the author of this article suggests. PDF just doesn't reflow onto ereader devices very well. Create an ePub - that will cover most requirements - but it will only take a few minutes longer to create an LRF for the Sony, a MOBI for the Kindle and a LIT for everyone else. And, if you must, you can then create a PDF. End Rant.
Copyfraud can be defeqated simply by giving your source
If somebody come along AFTER, you accuse them of plagiarism. Case over.
Would consumer protection laws help?
Charging for making copies of public domain works available seems fine to me. There's obviously work involved in producing copies for people to use.
But you shouldn't be able to claim any copyright on the copy. So if I buy one, I can then copy it myself without restriction. So the most you can realistically charge for the copy is whatever it'll cost the average person to make their own copy.
Asserting that you own a copyright on such a work is indeed fraud if you attempt to extract a greater price from me based on that false assertion.
It might be interesting (in the UK) to take such cases to the small claims court under consumer protection law - for example if you bought a book where the publisher claimed copyright that they did not own and therefore knowingly mis-represented the goods.
The small claims court is a good way of tipping the balance of legal costs in the consumer's favour so it might be worth a try.
> government project to certify works as public domain
Oh Yippee, that sound great: probably paid for by a government license to reproduce PD works... Or, just maybe, you could have something called a copyright library...
Copying without references, is Plagerism (Fraud), period.
You cannot copy (fiat) money without facing charges of Fraud,
You cannot cover copyrighted music without the copyright owner's approval.
Why the hell should anyone be allowed to Plagerise others work, now in the public domain, not fully acknowledging that you are repackaging a public domain work, then absurdly claim copyright on a mere repackaging? It is fine to charge a nominal amount to cover your costs to make this repackaged copy, however it is excessive to charge a new-work price, and IMHO damned fraudulent to claim copyright on this copy, when you do not have copyright on the original work!
Need some nice photos?
Ansel adams was paid to take several photos for the National Park Service.
They are, thus, Public domain, beautiful, and HERE:
Thanks for reminding me.
@David Kelly 2
@ David Kelly 2, you do not understand how the public domain works. If you follow your line of thinking you are in fact committing copyfraud.
"I have book in my possession with expired copyright so that it is now PD. I don't have to share it with you."
"If I scan it into a shareable format then that is my work and my right (copyright) to control its distribution to my profit."
Wrong! It's public domain! You can certainly sell and distribute it, and *you* can publish as few or many copies as you want and distribute them how you wish, but so can anyone else -- you CAN'T stop other people from redistributing or copying this work, it is in the public domain.
"It doesn't change the copyright status of the original work, only of my scan."
It doesn't change the status of either one.
"The misguided claims of copyfraud are ignoring the history of converting PD work into something of value."
You are saying culture is worthless unless it can be sold. You are not converting public domain work into something of value, you are taking already valuable public domain works and putting some of that value into your pocket. Which is fine, but you can't then complain if others also do the same.
" The originals are not being removed from PD, but new copyrighted works are being created which will eventually be PD."
No they are not. You are publishing a public domain work. You can make a movie, write new works based on PD ones, etc., and THAT is copyrightable... just retyping or scanning in a PD work is PD.
You are quite wrong about Gutenberg not checking the texts they put up. Some of the earlier parts of the archive might not have been checked, I don't know all the history, but these days most books go through multiple painstaking rounds of proofing and formatting before being released (details at http://www.pgdp.net). Also, if you want a ready formatted ebook version of a Gutenberg book, try http://manybooks.net/.
I don't see what the fuss is
I have no problem with Google et al scanning books and claiming copyright on the particular scan they made, as long as everybody else is retains the right to take the same book and scan it again for their own use or free distribution via a site like Project Gutenburg.
If, OTOH, if these corps are claiming ownership of the original works then that is another matter altogether . . . .
@Henry Wertz 1
Wrong. He's copyrighting his process which includes certain words. He has the right to do what he wants with his final product so long as it is substantially different from the original. The original PD document is still there and free to go and get by anybody who so chooses without regard to the difficulty in doing so. The PD is preserved.
Let's suppose I was once given a PD manuscript. It was poorly packaged and basically illegible. I retyped it, bound it in a home binding machine and then sold it at a local book fair. The original manuscript was untouched and still available free to any body who cared to go through the effort get it.
Get real folks, this is how business operates. I may not agree with all of it but this is within the law, Amazon and many others know that and are operating with fully legality here.
The problem is with those few people who believe everything should always be free if it is somehow related to something that is in fact free. Water is free, but bottling it or getting it to you house in pipes costs money and you are paying for the process. The same is true of air, it's totally free but every day thousands of people pay for the right to pump it into their tires at their local quickie store of choice. "Free" is a fine notion, but basically an illusion; there are no free lunches as one famous economist once said. There may be a illegal encroachments, but that is to be determined by the courts; not some disgruntle, partially informed web writer.
... end ...
You're right that PDF doesn't FLOW well on eReaders. But OTOH, and this is more important to me, the other formats don't LAYOUT well. This is probably mutually exclusive, but as long as I set the page right, PDF is the only WYSIWYG format available on the Sony Reader, no matter what fonts, pictures, margins, etc. I set on a page. I'm not so concerned about zooming since I always use formatting that I can read comfortably at the standard small size.
While the author confuses the supply and demand of actual copies of rare works with some kind of fraud, he lands a fist square in the jaw of Creative Commons. So I am conflicted. Here is where I'd like to see things go, and it's as much a matter of culture as law. I'd like to see lots of content offered freely, as we see in blogs and tweets. No strings attached. No GPL, no CC, no PD badging. Basically, no bullshitake. At the same time, I'd like to see premium content (software, etc.) offered for a price with an obligation that the author step up higher than automatic registration. Right now, there is no cost to claim that something is copyright you. Maybe a nominal yearly registration fee -- the domain name system might be a good model. Just keep the GPL and CC people out of it. All they do is complicate the free flow of information that creators want to be free by convincing creators that the works would have some value if they put GPL or CC restrictions on them. 99.99999% of the time, they don't.
Paris, because she's conflicted too.
This has been going on for some time......
.....excerpt from wikipedia
""Happy Birthday to You", also known more simply as "Happy Birthday", is a traditional song that is sung to celebrate the anniversary of a person's birth. According to the 1998 Guinness Book of World Records, "Happy Birthday to You" is the most well recognized song in the English language, followed by "For He's a Jolly Good Fellow" and "Auld Lang Syne". The song's base lyrics have been translated into at least 18 languages.
The melody of "Happy Birthday to You" comes from the song "Good Morning to All", which was written and composed by American sisters Patty Hill and Mildred J. Hill in 1893. They were both kindergarten school teachers in Louisville, Kentucky, developing various teaching methods at what is now the Little Loomhouse. The sisters created "Good Morning to All" as a song that would be easy to sing by young children. The combination of melody and lyrics in "Happy Birthday to You" first appeared in print in 1912, and probably existed even earlier. None of these early appearances included credits or copyright notices. The Summy Company registered for copyright in 1935, crediting authors Preston Ware Orem and Mrs. R.R. Forman. In 1990, Warner Chappell purchased the company owning the copyright for US$15 million, with the value of "Happy Birthday" estimated at US$5 million. Based on the 1935 copyright registration, Warner claims that U.S. copyright won't expire until 2030, and that unauthorized public performances of the song are technically illegal unless royalties are paid to it.
In European Union (EU) countries the copyright in the song will expire December 31, 2016.
The actual U.S. copyright status of "Happy Birthday to You" began to draw more attention with the passage of the Copyright Term Extension Act in 1998. When the U.S. Supreme Court upheld the Act in Eldred v. Ashcroft in 2003, Associate Justice Stephen Breyer specifically mentioned "Happy Birthday to You" in his dissenting opinion. Professor Robert Brauneis went so far as to conclude "It is doubtful that 'Happy Birthday to You', the famous offspring of 'Good Morning to All', is really still under copyright", in his heavily researched 2008 paper.
Standard Practice with Music
The way that classical music's traditionally been published was to take some old edition, maybe make some minor changes to it and copyright it as new material. Its becoming more difficult to do this in recent years as scans of the original editions have been made available on-line. This only applies to pre-1920 music since the copyright changes for post-1920 make it almost impossible for material to end up in the public domain unless the composer specifically puts it there.
Putting this together with all the stuff that's been said and written about downloading is interesting. It gives more of a perspective about what's really going on. The official line is that the little guy is being cheated by downloads and stuff but in practice the little guy's being cheated, period. Material like books and music are the property of publishers and they don't like free stuff being available because it makes it more difficult for them to push their "for rent" material.
Okay, it will probably ...
... be a nice little earner for copyright professionals but I think I recognise a bit of a pattern.
In a norther part of the UK (Scotland to be precise) crofter families lived and tilled the land for many a year. They were not a theoretical based people but a pragmatic sort that depended upon community in a land that was theirs until that is the notion and legal form of "land ownership" came into being. And of course, the land owner might never have had any experience of or spent any time in the land he owned. However, he did have a bit of paper backed by "law" to say he did own the land.
The crofters did not have a bit of paper... 'Nuff said?
The same thing happened in the Americas, NZ, Oz, .. Aphrika ...
So you see, bits of paper backed by "law" are very, very important.
Well, I can't really be bothered with any more but I'd guess you can predict one interim conclusion or more: consideration of new ownership must cater for previous unregistered ownership by longer standing traditions, the public needs to have a legal entity of its own ...
Yes, you can retype a PD book, print, bind and and sell it. In other words, you have made a new physical copy of the work. Your effort has created value in nice physical copy, and you'd expect me to pay a suitable amount in exchange for it.
But you cannot claim distribution rights over it, since distribution rights are bestowed by copyright and you'd only have copyright if were an original or derivative work. It's neither. You cannot claim ownership of the words. I can therefore buy your book, scan and sell the PDF or my own reprints, or just put them on the Internet for free download.
It's the same in reverse - think of bootleg copies of live music. Just because I put effort into recording, post-processing and presenting it nicely on a CD doesn't change the legal status of the work. It's still owned by the performer, and I cannot sell the CD.
If you think I'm wrong you'll have to show me a source explaining what rights you have gained by making a new physical copy of the work, and how I'm infringing those rights.
"When does derivative-work copyright exist?
For copyright protection to attach to a later, allegedly derivative work, it must display some originality of its own. It cannot be a rote, uncreative variation on the earlier, underlying work. The later work must contain sufficient new expression, over and above that embodied in the earlier work for the later work to satisfy copyright law’s requirement of originality."
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