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Re: [d@DCC] Copyright, eBooks & Public Domain Sources

From: Russell McOrmond <russell _-at-_ c11.ca>
To: "General Copyright Discussions (questions, organizing, etc)" <discuss (at) list.digital-copyright.ca>
Date: Mon, 3 Oct 2016 08:25:29 -0400
References: <cff0bd43-b037-69bf-c04c-19071e9b3b12@psymon.com>

On Sun, Oct 2, 2016 at 9:41 PM, Ron Koster <ron@psymon.com> wrote:

> Hi everyone!
>
> Thank you for allowing me to join your forum here.


First it is helpful to remind everyone that this is not a forum to ask for
legal advise, and for that you should hire a lawyer.


What you will find here are people who have spent a fair bit of time
learning about what current copyright law says and that have strong
opinions on what copyright law should say.  The purpose of the forum is to
discuss changes to copyright.

That said, things have been quiet in here for a while even though there is
quite a bit of copyright related policy discussions happening in Canada
(TPP, #DigitalCanCon , Access Copyright's fake "fair dealings" campaign,
etc)


over which there seem to be varying opinions on what is copyrightable
> and what is not.
>

  This is normal.  There are many people who confuse what copyright says
with what they wish it would say, as well as copyright not being a bright
line but something that deals with specific context.      As this law deals
with the complexities of human creativity, making it bright-line wouldn't
make the law easier or more just, only make it less able to stand up in our
changing human cultures.


Firstly, because my versions of Shakespeare's works are now "revised"
> and "corrected," surely they would then be my own copyright (despite the
> original source material having been in the public domain)? Wouldn't
> this be considered a "derivative" work?


  The first thing to realize is that copyrightability is decided on things
such as "skill and judgement", and not "sweat of the brow".  It doesn't
matter how much time you spent making corrections and formatting, but
whether your enhancement demonstrate sufficient skill and judgement to rise
to the level of being copyrightable.

This is a huge area of debate globally as there are many "creators" who
believe that "sweat of the brow" should be sufficient. Some people,
including some lawyers, confuse what they wish the law said from what the
courts have actually said.

I believe these people are lacking the foresight to recognize that the
limitations and exceptions of copyright, such as this need for sufficient
skill and judgement to grant copyright in the first place, is in the
service of fellow and future creators even more than it is "audiences".

Also remember that with a derivative work that you don't have the right to
claim exclusivity over aspects of the work that are the same as the
original, or restrict activities that fall under fair dealings.   Unless
there are a massive number of errors in the original and you did far more
than just "correct" them (a process unlikely to be thought of as having
sufficient skill and judgement), it is unlikely that you would be able to
successfully sue someone who cut-and-pasted from your document.



> On that epublishing forum,
> virtually everyone (except myself) has been arguing that I can't
> copyright works that are in the public domain, regardless of what
> changes I might make to them. Personally, I find that idea a bit
> ludicrous (that I can't copyright my efforts), but I'm willing to stand
> corrected from more informed opinions. ;)
>

  Ignoring your specific circumstances, they were obviously wrong.  Disney
created his empire based on making derivative works of the public domain --
obviously nobody would claim that Disney didn't hold copyright -- the
corporation he built was even successful in expanding what was considered
copyrightable and is attributed to much of the expansion of the term of
copyright.


Secondly, there has also been the assertion that ebook publishers can't
> copyright the design, formatting, etc. of their books (whether the
> content is public domain or not),


Dividing into two parts as they aren't the same.  Please look up "skill and
judgement" and you will be closer to your answer rather than blanket
assertions.


> if only because "anyone" can check out
> the source code and do whatever they want with it.
>


Until recently, copyright has entirely been a set of restrictions on what
people can do with copyrightable works that they already have access to.
While there is a movement to replace this with an "access right", what this
means is that the ability to access the work (source code, or actually be
able to see a painting or hear music) doesn't reduce copyright.



Can anyone clarify that for me -- or, alternatively, correct me if I'm
> mistaken?
>


I am not a lawyer, and this is not legal advise.

If it is helpful, I wrote a blog article on a partly related topic:
http://mcormond.blogspot.ca/2013/06/why-is-license-required-for-canadiana.html



Thank you so much, in advance, for any help you can provide me with
> these questions! Whatever the answers are, I'm sure they will be of
> great interest to many of my epublishing colleagues as well.
>


Congrats on the business.  You may find that you can build your business
without worrying about whether you have copyright or not, or how strong it
is.   I've met many lobbiests in the copyright process that forget what is
important to potential clients, and convenience is important.  They go out
of their way to make their delivery mechanism less convenient (encrypted
media that reduces device compatibility, etc) and end up loosing money
allegedly in the service of "protecting their copyright".   People purchase
works in the public domain, not because copyright law says they have to (it
doesn't), but because someone provided a convenient mechanism for them to
access and use the work.

Be a business person, not a copyright evangelist, and you'll likely make
far more money.



-- 
Russell McOrmond, Internet Consultant: <http://www.flora.ca/>

Please help us tell the Canadian Parliament to protect our property rights
as owners of Information Technology. Sign the petition! http://l.c11.ca/ict/

"The government, lobbied by legacy copyright holders and hardware
manufacturers, can pry my camcorder, computer, home theatre, or portable
media player from my cold dead hands!" http://c11.ca/own
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