Funferal

Derivative works, public domain archives, and copyright

An intriguing little debate happening over at Wikimedia-UK where there’s interest in the Royal Society’s decision to put copies of all their journals, going back to 1665, online. The rub is that the free access to the journals lasts only through to December, with the material going behind a pay-wall at that time.
In part, the discussion centred on whether the material was in the public domain (and thus could be mirrored on a site like Wiki Source). In the US, in line with Bridgeman Art Library v. Corel Corp. (also summarised here) there is no copyright in mere reproductions of public domain material, irrespective of the skill and effort that must go into creating the reproduction.
The original case deals with reproductions of fine art, where somewhat ironically (though logically, when you think it through) an exact reproduction has no claim to copyright in itself (lacking the tranformative/creative touch) but an amateur copy that has original features (an example given is someone standing beside or obscuring the artwork) might be sufficiently different to merit protection.
When we move to scans of public domain journals, by analogy there would be no copyright in these derivative works, as they lack sufficient originality to be protected.
However, the situation in the UK is quite different (at least under case law) and the Royal Society has contacted Jimmy Wales and Wikimedia to assert their interests:

It has come to our attention that there is some confusion regarding the copyright status of the Royal Society’s digital journal archive.
The entire digital archive is covered by copyright. This mean that systematic downloading and hosting by third parties is prohibited.

There’s an interesting issue at play here. There’s obviously effort involved in scanning the journals, and one line of thought would suggest that such effort should be encouraged (and thus rewarded). The other line (coming from the American tradition of rewarding creativity per se) would suggest that mere reproductions should not be protected. Obviously, in an online world, with multiple jurisdictions, making this material available at all is like letting a genie out of a bottle. At the same time, with several dozen GB of pdfs in question, it’s unlikely that an individual would host this stuff on a personal website, and a larger organisation might be wary of the legal liability involved.
Similar legal issues will also, obviously, play out in the archives being created by Google and others. My sense is that Google will make their archive available in a manner that makes it difficult to ‘slurp’ their data, thus protecting their investment through technical means rather than legal threats (difficult given their US base), but we shall see. I wonder, also, if the proposed European version(s) of the digitised library archives will be freely available, or whether copyright will be asserted (and protected) in the material. Watch this space….