Law and technology

The World Digital Library has recently been launched. This is a UN-sponsored initiative to digitise historically significant books (mainly) as well as photographs and other content, and put them online for free public access. The library currently has 1200 exhibits, some dating back over 2000 years, and is expected to grow significantly as museums, galleries, universities and other institutions add content.

This raises a question: who owns the copyright in these historical works? Before you think “who cares – the authors have been dead for centuries”, think again.

In the digital age, content is distinct from format. This turns our one question into two. The first is: who owns the copyright in the content (e.g. the actual words) of a historical book? In most cases it will be the author (long deceased).

Many countries grant copyright in literary works for a term of the life of the author plus x years. In New Zealand (and much of the world) it is the life of the author plus 50 years (more or less). This means that if an author wrote one book in 1920, another in 1930, and died in 1960, both books would be in copyright until 2010. In other words, until 2010 rolls around, only the copyright owner (which may be the author while he/she is alive, or the publisher, or the author’s estate) has the right to copy and print book.

For most of the books in the World Digital Library, this question is rather academic, as most of the works are centuries old. Therefore, like Shakespeare’s plays, anyone is free to copy, reprint and make any other use of the content of these ancient works. Which is fair enough.

The second, more interesting question is: who owns the copyright in the digital scan (i.e. the representation) of these online historical works? Somewhat surprisingly, given that we are in the digital age, this is not necessarily easy to establish.

The basic legal principle of copyright is that copyright only arises in original works. In New Zealand, section 14 of the Copyright Act 1994 states:

14 (1) Copyright is a property right that exists, in accordance with this Act, in original works …

14 (2) A work is not original if … it is, or to the extent that it is, a copy of another work …

Therefore, to the extent that a digital scan of an existing book is a copy of that book, there will be no new copyright in the scan. However, if the scan involved some “originality”, such as adjusting colour balances, improving the image, or adding some “artistic expression”, then the scan may attract copyright.

The same situation arises when taking a photograph of a famous landmark (say the famous Cathedral Cove). If thousands of people take basically the exact same photograph of the exact same landmark, how can any one photographer own copyright in their particular image? [Admittedly those photos are fairly different.] The answer is that, in virtually all cases, no two photographs will ever be exactly the same – there will always be at least minor differences in light, colour, angle, perspective, etc – and the photographer will always have to go to some effort to take a photo at any given time. This is sufficient for each photographer’s photo to be an “original work” under copyright law.

When it comes to high-resolution scanning, however, it is questionable whether there is anything original added. In fact, the whole point of the scanning may be to produce the closest possible copy to the original. The law sets a low bar for finding original content, but if there is no original content in a digital scan, then there will not be copyright in the scan. [There is a lot more to this issue, as discussed in the leading case Land Transport Safety Authority of NZ v Glogau [1999] 1 NZLR 261 (not freely online but cited here at paragraph 139).]

A local example of digital scans of historical works is Auckland City’s great Heritage Images Online collection. Many of these images were taken in the early 1900’s by Henry Winklemann, who died in 1931. Therefore, the images themselves are well out of copyright. However, the scans of the photos on the Heritage Images website may well be copyright.

So to summarise who owns copyright in historical works:

1. If the author of the work died more than 50 years ago, it is a fairly safe bet that the content of the work is out of copyright (* see below).
2. If the historical work has been scanned, the scan may be subject to copyright, and you will need to make your own enquiries and assessment as to whether you can copy the scanned work.

Both the World Digital Library and Auckland City take this self-responsibility approach.

The World Digital Library site says:

“When publishing or otherwise distributing materials found in a WDL partner’s collections, the researcher has the obligation to determine and satisfy domestic and international copyright law or other use restrictions.”

Auckland City’s Heritage Images Online site says:

“Responsibility for obtaining the permission of the copyright owner rests with the applicant… The applicant will be required to produce written authorisation from the copyright owner, or where the details of copyright are unknown the applicant must make a declaration in writing accepting full responsibility for any claims which may arise from such reproduction, and indemnify the Library of any responsibility”

In other words, you are responsible for making your own enquiries about the copyright of any particular work.

* Note about duration of copyright. The “life of author plus 50 years” duration refers to New Zealand law. In the US, the duration of copyright has been progressively extended, most recently in 1998 by the Copyright Term Extension Act. This law extended the term for copyright for works published prior to 1978 to 95 years. The apparent reason? Under the previous law, Mickey Mouse and other still-valuable corporate intellectual property was due to come out of copyright in the year 2000. Therefore, in 1998, after extensive lobbying, Congress extended Mickey & friends’ term for another 20 years.