3.844 copyright, cont. (77)
Willard McCarty (MCCARTY@vm.epas.utoronto.ca)
Tue, 12 Dec 89 20:25:59 EST
Humanist Discussion Group, Vol. 3, No. 844. Tuesday, 12 Dec 1989.
Date: Mon, 11 Dec 89 20:39:50 EST
From: amsler@flash.bellcore.com (Robert A Amsler)
Subject: Re: adding annotations to public domain texts
There seem to be some misconceptions here.
One can always reissue an old public domain work with a new copyright
notice. Any new additions to the old work, whether of significant
intellectual effort or not, will be fully protected. What won't
change is the issue of whether the original public domain work is out
of copyright. It is out of copyright and remains so.
When this was restricted to paper, the arguments were clear. You
were copying the work when you either reprinted it or photocopied it.
The copies were provably from the reissued work because they either
looked like the reissued work and ordinary people could see that this
wasn't the same as the public domain work or they contained new
material which had originated with the reissued work.
The new issue, of which I am quite uncertain of the legal standing,
is whether if the reissuance is machine-readable, one can extract the
portion of the reissue which in fact was the public domain work and
use that. There is an ethical issue (whether one could do this by
claiming that one had actually typed it all in by hand, rather than
made use of the reissue), and a legal issue of whether one could do
it IF one expressly admitted that one merely copied the reissued work
and deleted all parts of the machine-readable text which were not in
the originating public domain source. In the latter case one is
claiming that one DID make a copy--so presumably the photocopying
rules might apply--but if one were to go to trial and a defense
attorney were to produce a re-typed version of the public domain work
underlying the case that was indistinguishable from the one being
contested--would the jury say the first was an invalid copy while the
second was a valid one when they couldn't tell them apart except by
the circumstances under which they were presented to them? Mighty
shakey ground...
I think the point here is that the law never anticipated the copying
could be done so perfectly and the resulting text so indistingishable
in its copied form that it was impossible for ordinary people viewing
the reissued machine-readable text to distinguish it from another
copy of the public domain portion typed in independently.
There is, as far as I know, no protection under copyright for the
work investment in typing. Typing is labor. Copyright doesn't
protect labor, only original intellectual effort. Other things
protect one's labor, such as physical property law. That is, if you
break into my computer and take something out, I can always claim you
stole it. Doesn't matter what it was, public domain or not, you took
my property. However---here again electronics play tricks on us.
How can I identify the `stolen' bits as my own? If I claim you stole
MY copy of a machine-readable public domain work, how can I prove it?
Worse yet. I still have my work.
When one is distributing a work electronically this theft of property
argument becomes harder to make. Clearly you didn't take the
electronic version without my permission since I sold it or otherwise
made it available to everyone who fulfilled pre-conditions I set up.
Realistically, what happens in this type of situation is that the
providers try to encrypt their property to protect it. In one case,
that of encrypted satellite transmission signals, the courts have
afforded the originators of a transmission protection from unpaid
reception and decryption. It is ILLEGAL to listen to an encrypted
broadcast signal. However, here again, the property is original
material. I guess if one broadcast a public domain movie, such
as ``It's a Great Life'' and tried to sue someone because they
had a taped copy--the argument would arise again.