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Full text of "Copyright_Law_And_Intellectual_Delusions_Garthus_"

Copyright Law and Intellectual Delusions 

It is quite clear that even in the Library Community there exists a common 
delusion concerning Copyright protections and Public Domain materials. While it 
is very common for publishers (for example 'Dover') to reissue materials which 
have long since passed into the public domain and attach misleading copyright 
notices to these publications implying that the reprinted publication falls under 
their copyright protection as a derivative work; such practices seem to be 
endemic within the library community, particularly with respect to the 
proliferation of digital collections based upon a particular libraries possession of 
public domain materials donated to them by some benefactor (or in many cases 
anonymously). All sorts of mechanisms are often used such as watermarks, 
banding, fuzzification of images and various attempts to bastardize images so 
they cannot be used for other purposes. Such attempts to undermine and wreck 
the statutes governing Public Domain materials are unprofessional at best and 
ethically fall into behavior which could be considered as criminal. 

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 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. 

Librarians in particular should have an understanding of what the ethical and 
moral functions of librarianship are. Specifically their duties to the public, which 
has a reasonable expectation to the unfettered and unrestricted access to Public 
Domain materials, an expectation which was given to the Public both in the 
Proclamations of the founding Fathers of this country and within the Copyright 
Statutes themselves as passed by the Congress and established as law 
throughout the land. Public Domain means exactly what it implies; 'belonging to 
the public' not to some corporate or government entity which thinks that it has 
the right to monopolize and control ownership and access to Public Materials. 

Garthus 04 October 2009