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Flickr and copyright of public domain works

This post over at House of Commons caught my eye because of its use of an image that appears to be something one would expect to be in the public domain, but is licensed under a Creative Commons licence.  It is just the type of image that one can find in the US Library of Congress archives or on a museum site — an old advertisement  poster from what looks like the early 1900’s or late 1800’s. The original of these images would be firmly in the public domain if it is an advertisement from this timeframe (in the US anyway). For more, see my earlier post on some pictures from the LOC that I found interesting.

Now, the ‘author’ of this particular work, in the comments area under the picture basically admits that the work is not hers by stating that the picture was ‘found’ on her computer’s hard disk.

So can one take a ‘found’ work and slap a copyright licence, such as Creative Commons on to it? No. If you have not, under the US formula, created an original work of authorship fixed in a tangible medium of expression, you do not have copyright. Uploading a file you found somewhere on to Flickr does not give you copyright in any way, and does not grant you a right to apply a CC licence. Nor would it in any jurisdiction that I know of.

But what about the person (or institution) who took the time to digitize the original?

Copyright and digitizations

This is a tricky question. Assuming that the underlying work is in the public domain, does the process of creating an exact digital copy give the copier a new copyright in the work — one that could prevent others from using an image of a public domain work? The answer lies in the test of ‘originality’ used to determine copyright.

Originality differs from jurisdiction to jurisdiction. The cases most commonly referred to when teaching this particular issue involve whether or not a telephone directory has a copyright — several jurisdictions have gone both ways on this issue.

The question of whether or not digitization of works consists of enough originality for copyright purposes is a long one, and one that I might address in a further post.  I would like to sidestep this issue and assume that at least somewhere in the world these works would have copyright.

Now if we take that as a starting point, then the use of Creative Commons licence is beneficial for people in those jurisdictions where there would be copyright. The licence is, however, misleading for the rest of the world where there would be no copyright. This last part is especially relevant in the context of the internet, where works are accessible in multiple jurisdictions at once.

We addressed some of these questions in the study of the use of CC licences in the UK public sector that I was a part of in 2005. Museums and libraries were generally amenable to the use of a CC licence for this material (though to be fair, they felt they had a copyright).  They generally felt that a CC licence met with their mandate to serve the public.

Quite a few, at least in informal discussions, wanted a Non Commercial restriction for the content, as they generated revenue off of the digitized images and wanted to preserve some of the revenue stream.  I think that perhaps an attribution-only licence would be more appropriate, given that the works would not have copyright in at least some countries and given the low threshold of creativity on these works. But this larger policy issue should probably be addressed another time. What I want to get to is…

Flickr should have a public domain licence

Currently, when uploading onto Flickr, one only has the option of using the 6 main CC licences or ‘all rights reserved’ for the copyright status of the work.  I’ve seen quite a few pics on Flickr (under all sorts of CC and ‘all rights’ licences) that I know for a fact have come straight from the LOC and other repositories of public domain works and so I feel that there is a need for a public domain licence.

One area in particular is US Government works, which I haven’t mentioned in this post. Works by the US gov are not copyrightable and enter directly into the public domain. As a side note, this fact (no US gov copyright) means that even if digitization of a work does meet the originality test in US law, that the materials digitized by the Library of Congress still do not have a copyright. Many people are placing clearly public domain works on Flickr, and accurate rights information would be desirable as well as encourage sharing and awareness of the public domain.

Any thoughts? Please feel free to comment or contact me directly.


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