Joan said: >>HeritageQuest claims that its images do precisely that. Their claim (and >>that of most digitizing companies) is that their creative post-processing >>of the raw image produces a new and better product than that which they >>slavishly copied from the public domain. To focus on whether the >>"underlying data" (as Kathi calls it) is in the public domain entirely >>misses their point and that of the supporting case law. > >They make the claim--but whether that claim is sustainable in a court of law >is highly questionable. It may be questionable to you - but, then, you haven't seen their original image which they claim to have altered to produce the final product. So you have no foundation from which to question the level of creativity that went into it or their resulting claim of copyright. You're welcome to challenge them in court or to defend yourself when they take you there <g> but if they can demonstrate that the version that they published bears any creative difference from their original image slavishly copied from the public domain, then you'll lose. In the meantime, I maintain that it is supremely irresponsible to tell people in this context that "you can't copyright an image of public domain material." Bob Velke President Archive CD Books USA www.ArchiveCDBooksUSA.com -- No virus found in this outgoing message. Checked by AVG Anti-Virus. Version: 7.1.375 / Virus Database: 268.2.1/279 - Release Date: 3/10/2006

Bob Velke said: >I maintain that it is supremely irresponsible to tell >people in this context that "you can't copyright >an image of public domain material." I understand that you, as President of Archive Books USA, have a vested interest in this topic. Have you, or your company, taken anyone to court over these issues? What were the results? Do you place a copyright notice on the books or CDs? Are you aware that claiming copyright on material that one knows to be false is a criminal offense under U.S. copyright law? TITLE 17 - COPYRIGHTS CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES Sec. 506. Criminal offenses -STATUTE- (c) Fraudulent Copyright Notice. - Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500. I agree with Pat Asher when she wrote, "False and/or misleading claims of copyright are a disservice to the genealogical community." Beyond that, they are also a criminal offense if done knowingly, though I doubt that anyone has ever been prosecuted. For those who may be interested, I have a linked index to the U.S. Copyright Code at http://www.pddoc.com/copyright/copyright_code_index.htm I also have all of the following legal documents on my site related to copyright with a link to them from each page of Copy Right, Copy Sense. Bellsouth vs. Donnelley Burrow-Giles Lithographic Co. v. Sarony Feist Publications vs. Rural Telephone Peter Veeck versus Southern Building Code Congress International Inc., Publications International v. Meredith Corporation Trade-Mark Cases, 100 U.S. 82 (1879) U.S. Constitution, Article 1, Section 8 An article I wrote several years ago, "Copyright Fundamentals for Genealogy," is also available at Copy Right, Copy Sense. http://www.pddoc.com/copyright/genealogy_copyright_fundamentals.htm My research into copyright came about several years ago because of all of the conflicting information about copyright and genealogy. I created my copyright site, which later became Copy Right, Copy Sense, to share what I had learned with others who were having the same frustrations. I've read all of that material and more. However, I am not a lawyer. There is a very good book on copyright by Attorney Stephen Fishman, called, "The Copyright Handbook, How to Protect and Use Written Works." I've used it to make sure my understanding of copyright was correct. Mr. Fishman also has written a book called "The Public Domain, How to Find & Use Copyright-Free Writings, Music, Art & More." When one uses public domain material, she or he should understand that they cannot claim ownership of that material, no matter how much work, effort, or money one puts into it. And if at the end, it looks as good as the original document, it's not an original, it's just a copy of a public domain document. Mike Goad Copy Right, Copy Sense http://www.pddoc.com/copyright Haw Creek Outdoors RV pages

Mike said: >On the page referred to, it specifically says "The result is usually >comparable to the day that the book was published!" > >If that's the case, there is no originality, in my opinion, no matter how >much sweat-of-the-brow goes into it. There's been no claim that merely sweat-of-the-brow earns copyright protection. It is the creative elements of the image that does that. >If one scans the original, instead of a copy from an older generation copy >machine, with today's modern computers and software, the image on the >right is what you will get. You're mistaken. You will get something which looks to you like the image on the right. But if we each take a photograph of a tombstone, then both images are protected by a copyright, even if some people think that they look identical. They _aren't_ identical and each employed its own creative process, resulting in a product that is protected by copyright. Neither was a "slavish copy" of the other nor of the original, even though all three happen to be of the same subject matter. Again, you're confusing the content (or subject matter) with the presentation (or image of it). Neither the content nor the presentation of the original book is copyrighted since the work in is the public domain. The content is not copyrightable at all -- so you can transcribe it, etc. But a newly created presentation of the same content IS copyrightable if someone employed a creative process to transform it from the original source material. If the source material in the example were a pristine copy of the public domain document and didn't require any post-processing to get it in that condition, then, you're right, the finished product could rightly be called a "slavish copy" and would not be protected by copyright. But it isn't. As demonstrated, the source material is a copy in much worse condition and it took a lot of creative post-processing to get it in the finished condition. The fact that you might have been able to find a pristine copy of the same content, you might have scanned it, and you might think it resembles my finished product is irrelevant. First, because you didn't <g>. And second because they aren't the same creative presentation, even if the content appears to you to be identical. Bob Velke President Archive CD Books USA www.ArchiveCDBooksUSA.com -- No virus found in this outgoing message. Checked by AVG Anti-Virus. Version: 7.1.375 / Virus Database: 268.2.1/279 - Release Date: 3/10/2006

At 11:16 AM 3/11/2006, you wrote: >Deason > >That is, basically, what I said in reply earlier on but was told that I >was wrong about it. I don't think I was and agree with you. Simply put, >it is a matter of them owning the images but not the originals the images >were taken from....they did the imaging work so therefore it is >theirs. If someone else wants the images they'll have to scan them for >themselves. Correct? Joyce, Ownership is a separate issue. There is no question that they own the images they created. The question under discussion is whether they can claim copyright of those images. Pat

In a message dated 3/11/2006 11:16:27 AM Eastern Standard Time, bjreece@bellsouth.net writes: they did the imaging work so therefore it is theirs. Um....doing work, "sweat of the brow," doesn't constitute originality for purposes of establishing copyright. Joan

Deason That is, basically, what I said in reply earlier on but was told that I was wrong about it. I don't think I was and agree with you. Simply put, it is a matter of them owning the images but not the originals the images were taken from....they did the imaging work so therefore it is theirs. If someone else wants the images they'll have to scan them for themselves. Correct? Joyce Gaston Reece ----- Original Message -----

In a message dated 3/11/2006 6:33:13 AM Eastern Standard Time, bvelke@whollygenes.com writes: HeritageQuest claims that its images do precisely that. Their claim (and that of most digitizing companies) is that their creative post-processing of the raw image produces a new and better product than that which they slavishly copied from the public domain. To focus on whether the "underlying data" (as Kathi calls it) is in the public domain entirely misses their point and that of the supporting case law. They make the claim--but whether that claim is sustainable in a court of law is highly questionable. The object being photographed makes the difference rather than the process used has been the determining factor in past court decisions. I do not see that the cases cited thus far change the opinion that a reproduction of a two-dimensional film that is in the public domain provides any originality in the end product. Joan

Yes but if you read what the original posting was about you will see the question was about the licence not any copyright issues. Subsequent postings have clouded the issue by discussing copyright. > HeritageQuest has posted images of books that are now in the public domain. > However, the HeritageQuest user agreement says that you cannot republish [or > even share, as far as I can tell] materials that you find on HeritageQuest. > snip > > Sara Binkley Tarpley It is the user agreement that restricts the copying not copyright, therefore there is absolutely no point in discussing copyright in this instance. Unless people can understand the significance between copyright and licence agreements they will always run the risk of being sued and losing. Cheers Guy Kathi Jones-Hudson wrote: > Guy: > > According to one of the earlier emails today this is > on HQ's customer service page: > > "While it's true that the original documents are > "public domain," we have > painstakingly processed the records through our > proprietary enhancement > systems. It is through this synthesizing process that > we have generated a > new product, which is fully protected by U.S. and > International copyright law." > > So, yes they are claiming copyright on their images. > According to US Copyright Law there is no 'sweat of > the brow' copyright protection for your labors - only > original and creative expression. Enchancing the scans > doesn't change the underlying data. > > Kathi Jones-Hudson > MD Tombstone Transcription Project Manager > http://www.rootsweb.com/~cemetery/maryland/maryland.html > > __________________________________________________ > Do You Yahoo!? > Tired of spam? Yahoo! Mail has the best spam protection around > http://mail.yahoo.com > > > ==== COPYRIGHT Mailing List ==== > RootsWeb's mailing lists are filtered and attachments are removed. A virus that is distributed as an attachment will not reach you through a RootsWeb mailing list. For further information about Viruses, Trojans, Worms etc., go please to: http://helpdesk.rootsweb.com/virus.html. Think to keep your Anti-Virus up-to-date! > > ============================== > Search the US Census Collection. Over 140 million records added in the > last 12 months. Largest online collection in the world. Learn more: http://www.ancestry.com/s13965/rd.ashx > > > > -- Wakefield, West Yorkshire, England. http://freespace.virgin.net/guy.etchells The site that gives you facts not promises! http://anguline.co.uk/ An organisation dedicated to bring rare books on CD, at an affordable price, to the local history researcher and to the family history researcher.

At 11:25 PM 3/10/2006, you wrote: >The point of HeritageQuest's copyright claim is that the images are *not* >exact scans of the public records but rather have "enhancements" which do >indeed involve artistry and original work and are therefore subject to >copyright. > >The result is a custom representation of the original work, one which >reflects artistry and is not merely a "slavish copy." The modifications >of the image (or "enhancments" as HeritageQuest calls them) go FAR beyond >the minimal level of added originality that is required in order for >reproductions of public domain material to be protected by copyright, >according to Eastern America Trio Products v. Tang Electronic Corporation, >among others. Bob, I think you've missed the poiint of Eastern v Tang. In that case, the defendent claimed the subject matter was common, ordinary, and public domain, thus making the photograph of those items uncopyrightable. That claim is, of course, not true as you and I could both take a photograph of a common, ordinary Daffodil, and both photographs would be copyrighted. The originality would lie in the choice of film, lighting, angle, etc. If your office replaces their 10 year old copying machine, the chances are the copies produced by the newer machine will be superior to those produced by the aged one. Are copies made on the new machine copyrightable because they are cleaner, more legible, etc.? For many years, I made internegatives and prints from slides for a major text book publishing company in New York. They sent the work half way across the country to me because the process I used was superior to others available nearer to hand, and because of the skill and artistry I employed in making the prints for half tone reproduction. That skill and artistry included removal of defects, enhancement of faded or shadowed areas, etc. However, the superiority of the process and skills I used did not create an original work eligible for copyright protection. The copyrights remained with the photographer who had created the original work I was copying. >Like the photograph of the tombstone, you are entitled to find the >original material yourself and make your own copy/representation of it -- >but you are not entitled to copy someone else's image merely on the >grounds that the _subject_matter_ is in the public domain. Those who do >so (or sanction others doing so), do it at the peril of the rest of the >genealogical community because it drives out of business the many >hard-working folks who take great pains to make clean, readable images >available to you. I agree that the subject matter of the image is irrelevant to the copyright status of the image. However, Kaplan said in Bridgeman: "Only 'a distinguishable variation' -- something beyond technical skill -- will render the reproduction original." To me, that seems to be saying that the "quality" of the reproduction has no bearing on the copyrightability of the copy. Thus, the need for licensing agreements to protect the investment of those businesses who work to make resources available to us. However, false and/or misleading claims of copyright are a disservice to the genealogical community. Pat

On the page referred to, it specifically says "The result is usually comparable to the day that the book was published!" If that's the case, there is no originality, in my opinion, no matter how much sweat-of-the-brow goes into it. The image that was started with looks like a copy of a copy of a copy... If one scans the original, instead of a copy from an older generation copy machine, with today's modern computers and software, the image on the right is what you will get. Again, no originality, and almost no sweat-of-the-brow. As well, it should be noted that the claim of copyright (questionable) could only be applied to the cleaned up image, not to the content of the page that was cleaned up. Mike Goad Copy Right, Copy Sense http://www.pddoc.com/copyright Bob Velke said: You can see an example here, for instance: http://www.archivecdbooksusa.com/Merchant2/merchant.mvc?Screen=SCANSAMPLE The image on the left is a "slavish copy" as the term is used in Bridgeman Art Library, Ltd. v. Corel Corporation, among others, and is doubtless not protected by copyright. But the product distributed by the Archive CD Books Project (and as similarly claimed by HeritageQuest) is the one on the right which has been subject to a proprietary "cleaning" process, including the removal of defects, enhancement of faded areas, etc. The result is a custom representation of the original work, one which reflects artistry and is not merely a "slavish copy." The modifications of the image (or "enhancments" as HeritageQuest calls them) go FAR beyond the minimal level of added originality that is required in order for reproductions of public domain material to be protected by copyright, according to Eastern America Trio Products v. Tang Electronic Corporation, among others.

NO, the point of HeritageQuest makes is their images are released under a licence which prohibits certain action. It is a contract condition not a copyright issue. Bob Velke wrote: > > > The point of HeritageQuest's copyright claim is that the images are > *not* exact scans of the public records but rather have "enhancements" > which do indeed involve artistry and original work and are therefore > subject to copyright. > > -- Wakefield, West Yorkshire, England. http://freespace.virgin.net/guy.etchells The site that gives you facts not promises! http://anguline.co.uk/ An organisation dedicated to bring rare books on CD, at an affordable price, to the local history researcher and to the family history researcher.

They are not claiming copyright but have protected their work under a licence. A licence is a contract and has nothing whatsoever to do with copyright. By using the product you are agreeing to the licence terms which forbid wholesale copying and re-distribution. This is a contract and is covered by contract law not copyright. Cheers Guy Kathi Jones-Hudson wrote: > Pat's right -- "sweat of the brow" and/or "industrious > collection" are accorded no copyright protections at > all. HeritageQuest is trying to convince you not to > take 'their' scans, but if they are exact scans of the > public records rather than a real database or > extraction of those records, they have no rights at > all as far as my reading of the copyright law goes. > > Copyright requires originality and there is no > originality in scanning public domain documents. > > Kathi Jones-Hudson > MD Tombstone Transcription Project Manager > http://www.rootsweb.com/~cemetery/maryland/maryland.html > > -- Wakefield, West Yorkshire, England. http://freespace.virgin.net/guy.etchells The site that gives you facts not promises! http://anguline.co.uk/ An organisation dedicated to bring rare books on CD, at an affordable price, to the local history researcher and to the family history researcher.

Joan said: >The case you refer to above involves photos of "common, industrial >items" in a catalog which means that the photos were of "three >dimensional objects" It is true that the defendant in that case claimed, among other things, that the photos in question were "of common, industrial items, lacking sufficient originality or creativity to be protectible by copyright." What you don't say is that the court _explicitly_ rejected that claim. And its decision made no distinction between photographs of two- and three-dimensional subject matter. In fact, the decision said: "There is a very broad scope for copyright in photographs, encompassing almost any photograph that reflects more than "slavish copying." (n153) The necessary originality for a photograph may be founded upon, among other things, the photographer's choice of subject matter, angle of photograph, lighting, determination of the precise time when the photograph is to be taken, the kind of camera, the kind of film, the kind of lens, and the area in which the pictures are taken. (n154) "The photographs at issue are the products of Eastern's own creative work. Judy Chien personally supervised the lay-out of the items that were photographed, positioned them in what she thought an attractive manner, selected particular angles and lighting, and in some cases even had the images enhanced by a computer to achieve the desired outcome. (n155) The creative elements asserted here satisfy the minimal originality requirement for copyright. The fact that the photos are of common industrial items does not affect their copyrightability. In fact, a photographer's "efforts to create an aesthetically attractive, technically competent photograph" of fishing gear have been held to be "plainly creative expressions." (n156) The same certainly can be said for plaintiff's photographs of electrical products. In consequence, the Court finds plaintiff's photographs were copyrightable and protected by plaintiff's registrations with the Copyright Office." And this is only one of many cases demonstrating that the copyright protection is extended or rejected based on whether the image is the product of creative work (e.g., "enhanced by a computer to achieve the desired outcome"), not on the subject matter. >Unless the "enhancement" of the two-dimentional images adds something, >alters it, or transforms it in some "creative or original" manner-- HeritageQuest claims that its images do precisely that. Their claim (and that of most digitizing companies) is that their creative post-processing of the raw image produces a new and better product than that which they slavishly copied from the public domain. To focus on whether the "underlying data" (as Kathi calls it) is in the public domain entirely misses their point and that of the supporting case law. Bob Velke President Archive CD Books USA www.ArchiveCDBooksUSA.com -- No virus found in this outgoing message. Checked by AVG Anti-Virus. Version: 7.1.375 / Virus Database: 268.2.1/278 - Release Date: 3/9/2006

In a message dated 3/10/2006 11:28:00 PM Eastern Standard Time, bvelke@whollygenes.com writes: The result is a custom representation of the original work, one which reflects artistry and is not merely a "slavish copy." The modifications of the image (or "enhancments" as HeritageQuest calls them) go FAR beyond the minimal level of added originality that is required in order for reproductions of public domain material to be protected by copyright, according to Eastern America Trio Products v. Tang Electronic Corporation, among others. --- Bob- The case you refer to above involves photos of "common, industrial items" in a catalog which means that the photos were of "three dimensional objects" and the courts have been consistently clear as to the copyrightability of photos of three dimensional objects because lighting, composition, and other "creative" aspects come into play that are not present when you are photographing a two dimentional object such as a census film. Unless the "enhancement" of the two-dimentional images adds something, alters it, or transforms it in some "creative or original" manner--merely enhancing what was already there wouldn't make the faithful reproduction of the census images copyrightable--not without a court decision establishing this in case law--and if there has been such a precedent in case law I'm unaware of it. Joan

Guy: According to one of the earlier emails today this is on HQ's customer service page: "While it's true that the original documents are "public domain," we have painstakingly processed the records through our proprietary enhancement systems. It is through this synthesizing process that we have generated a new product, which is fully protected by U.S. and International copyright law." So, yes they are claiming copyright on their images. According to US Copyright Law there is no 'sweat of the brow' copyright protection for your labors - only original and creative expression. Enchancing the scans doesn't change the underlying data. Kathi Jones-Hudson MD Tombstone Transcription Project Manager http://www.rootsweb.com/~cemetery/maryland/maryland.html __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com

In a message dated 3/10/2006 11:28:00 PM Eastern Standard Time, bvelke@whollygenes.com writes: The result is a custom representation of the original work, one which reflects artistry and is not merely a "slavish copy." The modifications of the image (or "enhancments" as HeritageQuest calls them) go FAR beyond the minimal level of added originality that is required in order for reproductions of public domain material to be protected by copyright, according to Eastern America Trio Products v. Tang Electronic Corporation, among others. --- Bob- The case you refer to above involves photos of "common, industrial items" in a catalog which means that the photos were of "three dimensional objects" and the courts have been consistently clear as to the copyrightability of photos of three dimensional objects because lighting, composition, and other "creative" aspects come into play that are not present when you are photographing a two dimentional object such as a census film. Unless the "enhancement" of the two-dimentional images adds something, alters it, or transforms it in some "creative or original" manner--merely enhancing what was already there wouldn't make the faithful reproduction of the census images copyrightable--not without a court decision establishing this in case law--and if there has been such a precedent in case law I'm unaware of it. Joan

This will, *I hope*, be my last message on this topic! You have to give me credit for promoting activity on this list. First, I have the greatest respect for copyright law and try to observe it. Second, I now understand the difference between license and copyright, but I have some concerns. If large companies make public domain works available on the Internet but severely limit their use, I am not sure how helpful that is. I found HeritageQuest's user agreement vague, as previously discussed. I think that Ancestry's is much better: http://www.ancestry.com/legal/Terms.aspx Third, I am particularly concerned about restrictions on the transcribing of government documents in the public domain. I am not talking about republishing or reselling images but rather transcribing from them. It seems to me that restricting the right to transcribe documents such as census records, no matter how enhanced the images are, circumvents the government's intent that they be in the public domain. If tomorrow I should decide to bring out a line of large-print books for the visually impaired and republish books that are copyrighted, I don't believe that I could use the defense that I had improved their readability. I realize that print is not the same as digital images, and I don't have sufficient knowledge to address what rights should adhere to enhanced images; but I think to maintain that you cannot freely transcribe them and do as you wish with the transcription is ridiculous. Fourth, as for the account that originally prompted this query, I have found it on a California website and will just link to it if I decide to use it at all. Finally, no, we are not lawyers, and I suspect that we subscribe to this list because we are primarily hobbyists who cannot justify the expense of consulting a lawyer, and a highly specialized one at that. Although my husband is a lawyer, his specialty is consumer law; like most lawyers he knows little about copyright and less about licensing. Sara Binkley Tarpley

It is not my intent here to take issue with any of the thoughts in this and other similar statements made in this thread. I would, however, like to point out that we should be careful in insisting that ProQuest or Ancestry.com - or other on-line subscriptions do not have nearly as much legal protection as they claim to have. Let us hope they do have some - and rather substantial - protection. For it is that protection which they feel has allowed them to make the rather substantial investments in placing materials valuable to genealogists and others on the Internet. If we all were free to copy and use this material with impunity it would simply disappear. No one would make the investments necessary to create and maintain the databases. If it is really important for us to have a copy of the image for publication or other illustrative purposes, then you can do as James suggests below - it is always possible to go to the public domain original to get that copy. As the old saying goes, when it comes to wanting "free use" of on-line material, be careful what you wish for. You may get it and then there will be nothing there to capture and use. Richard ----- Original Message ----- From: "James Capobianco" <james_capobianco@emerson.edu> To: <COPYRIGHT-L@rootsweb.com> Sent: Friday, March 10, 2006 10:41 PM Subject: [COPYRIGHT] argument going on and on > Kathy Summers wrote: >> "I know this argument goes on and on but you really have to think >> about what is fair, not what you wish was fair because it benefits >> you." > > *Sigh* Why is that a realistic interpretation of public domain always > meets with this argument? It seems to imply that those of us who attempt > to have a nuanced understanding of copyright are only doing so to benefit > ourselves? > > What people that make this argument don't seem to understand is that the > concept of the public domain is there to benefit EVERYONE. Not me, not > you, but the people of the United States as a whole (I don't claim to know > anything about laws outside of the US). > > It also assumes that I, and others who I believe have been stating the > legally correct view about public domain and what is copyrightable, are > somehow doing things that Kathy and others would deem not "fair or > ethical." I doubt that is the case. > > By all means, you should use the originals when doing a transcription. I > think all of us would agree that is the best practice, and applaud you for > it. However, you be careful of some statements you make, such as "I > consider all work which has been produced by the efforts and cost of > someone else copyrighted." That, unfortunately, would cover just about > anything you could ever possibly use in genealogy. > > Microfilm has been produced by the efforts of those who scanned, so you > can't use those. "Original records" of censuses may well be copies made by > clerks or counties, so you can't really use those either. Anything you get > in a library was only paid for once, yet used by hundreds of people -- why > don't you go buy your own copy to give the author/compiler/person putting > in the effort some remuneration? Do you put a time limit on not using the > effort of others, or would you have people redoing things that have been > done hundreds of years ago? (The law puts a very definite time limit, > though a quite long one, on copyright protection) > > This may seem like a silly argument, but the public domain is there to put > very needed and useful limits on copyright, and what can be withheld from > common use. > > James > > > ==== COPYRIGHT Mailing List ==== > LATIN-WORDS-L is a mailing list for anyone with a genealogical or > historical interest in deciphering and interpreting written documents in > Latin from earliest to most recent 20th Century times, and discussing old > Latin words, phrases, names, abbreviations and antique jargon. To > subscribe, send subscribe to mailto:LATIN-WORDS-L-request@rootsweb.com > (Mail Mode) or mailto:LATIN-WORDS-D-request@rootsweb.com (Digest Mode) > > ============================== > Search Family and Local Histories for stories about your family and the > areas they lived. Over 85 million names added in the last 12 months. > Learn more: http://www.ancestry.com/s13966/rd.ashx > >

Kathi Jones-Hudson said: >HeritageQuest is trying to convince you not to take 'their' scans, but if >they are exact scans of the public records rather than a real database or >extraction of those records, they have no rights at all as far as my >reading of the copyright law goes. The point of HeritageQuest's copyright claim is that the images are *not* exact scans of the public records but rather have "enhancements" which do indeed involve artistry and original work and are therefore subject to copyright. You can see an example here, for instance: http://www.archivecdbooksusa.com/Merchant2/merchant.mvc?Screen=SCANSAMPLE The image on the left is a "slavish copy" as the term is used in Bridgeman Art Library, Ltd. v. Corel Corporation, among others, and is doubtless not protected by copyright. But the product distributed by the Archive CD Books Project (and as similarly claimed by HeritageQuest) is the one on the right which has been subject to a proprietary "cleaning" process, including the removal of defects, enhancement of faded areas, etc. The result is a custom representation of the original work, one which reflects artistry and is not merely a "slavish copy." The modifications of the image (or "enhancments" as HeritageQuest calls them) go FAR beyond the minimal level of added originality that is required in order for reproductions of public domain material to be protected by copyright, according to Eastern America Trio Products v. Tang Electronic Corporation, among others. Note that I'm talking about copyright protection of a single image, not just a collection, independent of the process (possibly also patentable), and in addition to whatever usage license may be attached to it. So while Joan and others who say "you can't copyright an image of public domain material" may be right in the case of a "slavish copy," such sweeping statements are misleading and irresponsible because that is NOT what most digitizing companies make available to the public. The "enhancements" claimed by HeritageQuest may not be as dramatic as the example above and they may not be apparent at all without the benefit of comparison to the original image -- but that doesn't invalidate their copyright. Like the photograph of the tombstone, you are entitled to find the original material yourself and make your own copy/representation of it -- but you are not entitled to copy someone else's image merely on the grounds that the _subject_matter_ is in the public domain. Those who do so (or sanction others doing so), do it at the peril of the rest of the genealogical community because it drives out of business the many hard-working folks who take great pains to make clean, readable images available to you. Bob Velke President Archive CD Books USA www.ArchiveCDBooksUSA.com -- No virus found in this outgoing message. Checked by AVG Anti-Virus. Version: 7.1.375 / Virus Database: 268.2.1/278 - Release Date: 3/9/2006

Kathy Summers wrote: > "I know this argument goes on and on but you really have to think > about what is fair, not what you wish was fair because it benefits > you." *Sigh* Why is that a realistic interpretation of public domain always meets with this argument? It seems to imply that those of us who attempt to have a nuanced understanding of copyright are only doing so to benefit ourselves? What people that make this argument don't seem to understand is that the concept of the public domain is there to benefit EVERYONE. Not me, not you, but the people of the United States as a whole (I don't claim to know anything about laws outside of the US). It also assumes that I, and others who I believe have been stating the legally correct view about public domain and what is copyrightable, are somehow doing things that Kathy and others would deem not "fair or ethical." I doubt that is the case. By all means, you should use the originals when doing a transcription. I think all of us would agree that is the best practice, and applaud you for it. However, you be careful of some statements you make, such as "I consider all work which has been produced by the efforts and cost of someone else copyrighted." That, unfortunately, would cover just about anything you could ever possibly use in genealogy. Microfilm has been produced by the efforts of those who scanned, so you can't use those. "Original records" of censuses may well be copies made by clerks or counties, so you can't really use those either. Anything you get in a library was only paid for once, yet used by hundreds of people -- why don't you go buy your own copy to give the author/compiler/person putting in the effort some remuneration? Do you put a time limit on not using the effort of others, or would you have people redoing things that have been done hundreds of years ago? (The law puts a very definite time limit, though a quite long one, on copyright protection) This may seem like a silly argument, but the public domain is there to put very needed and useful limits on copyright, and what can be withheld from common use. James