A Public (Domain) Affair

To quote the late, great, legal mind Lionel Hutz:

I watched Matlock in a bar last night. The sound wasn’t on, but I think I got the gist of it“.

That represents just about the extent of my legal knowledge but I will try to channel my inner litigator for this post.

Copyright and education watchers (yes all 7 of us) have had another cause célèbre this week with the move by a group called public.resource.org to take images from the Smithsonian Images web site and upload them to Flickr. (Credit to Jessamyn whose feed was the first place I saw news of this).

As this group states in their memo they took this action in order to highlight the issue of what they call “draconian” limits the Smithsonian is placing on images that are in the Public Domain. (Here is the Smithsonian’s policy)

However, they even admit that the question of whether all of the images are strictly speaking in the Public Domain (according to American law) is an open question. I also wonder why they chose to apply this Creative Commons license to the images they put up on Flickr as opposed to the Public Domain one.

The one extra arrow this group has in their legal justification quiver is the fact that works by a U.S. government agency are in the Public Domain at the moment of creation, though my limited poking around finds that there are a number of exceptions to this blanket statement. For more of a legal view of this issue see the LibraryLaw Blog’s take on it.

You can also hear an NPR report here.

Here in Canada we actually have a shorter period for when a work enters the Public Domain than they do in the USA (blame Sonny Bono). However, we have to deal with the fact that government works are granted a Crown Copyright of 50 years.

Michael Geist provides a good summary of the issues from a Canadian perspective. When I read this post I also learned about his experience with a Manitoba school division that faced a hefty fee for the use of an image held by the National Gallery of Canada that was legally in the Public Domain. Not only was the fee high but they then demanded a review of how it was used before final approval.

While public.resource.org claims that the stipulations the Smithsonian places on the use of images on their site are “draconian” they do include a provision that educational usage is permitted. Most likely owing to their adoption of Fair Use law. I find that the vast majority of web site notices for non-profit/educational institutions in the United States provide this allowance which makes my job and the efforts of our educators much easier.

Here in the land of Fair Dealing, with its lack of specific allowances for educational use, it is often the case that our non-profit/educational/heritage institutions choose to have more rigid usage guidelines, even for material that is clearly in the Public Domain.

Below you can see what you are confronted with when you wish to browse the collections of the The Canadian Museum of Civilization.

windowswarning.jpg

Therefore if a teacher wanted to use this image of cigar smokers from the 1800’s (I’m too scared to actually put the image in here) on a course page web page they would be “subject to legal proceedings”. Section 29.4 of the Copyright Act would override this demand if the teacher wanted to make an overhead of it.

Most legal opinions I have read (American and Canadian) about claims to copyright control of material in the Public Domain is that they do not stand up to legal scrutiny. The most famous case involving these issues was Bridgeman Art Library v. Corel Corp. in the United States. The decision stated that:

“exact photographic copies of public domain images could not be protected by copyright because the copies lack originality. Even if accurate reproductions require a great deal of skill, experience and effort, the key element for copyrightability under U.S. law is that copyrighted material must show sufficient originality.”

There doesn’t need to be one winner and one loser when it comes to this issue. I believe Museums and other institutions that take the time and expense to digitize Public Domain material should receive a fee somewhere equal to the cost of reproduction for high-quality versions of material in their collections. But to claim stringent legal control of web quality images of Public Domain material is highly dubious and runs counter to the logical argument that institutions like Canadian Museum of Civilization are created and funded by public dollars in order to educate and share our national heritage.

But most libraries and schools (unlike this brave school division) don’t have the time or mandate to test the outer limits of copyright law. Maybe the proposed Bill C-60 will provide a more accommodating legal environment for schools to operate in? At the rate things are going modern amendments to the Copyright Act in Canada should be in place by around 2015.

(I am sorry for resorting to using a Jessica Simpson song in an effort to create the title of this post. It’s the best I could come up with)

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