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

From: Ron Koster <ron _-at-_ psymon.com>
To: "General Copyright Discussions (questions, organizing, etc)" <discuss (at) list.digital-copyright.ca>
Date: Mon, 3 Oct 2016 11:30:17 -0400
References: <cff0bd43-b037-69bf-c04c-19071e9b3b12@psymon.com> <CAGUCw=n3qoxfn7AE_4mpwvq7Z=0Z2TFHyAD8Oa-T4NC7RuudQw@mail.gmail.com>

On 2016-10-03 8:25 AM, Russell McOrmond wrote:
> 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.

Oh, my sincere apologies. I did browse through the earlier threads 
before joining and saw discussions of that nature, but I guess I 
misunderstood the purpose of this list.

Unfortunately, I'm on disability and can't afford to hire a lawyer (and 
my previously published ebooks don't bring me any income -- I just give 
them away for free, as was my intention with this current Shakespeare book).

Thank you very much, though, for taking the time to reply to my 
questions! Very much appreciated! I hope it's okay for me to follow up 
on that -- I don't want to be a waste of your time, though, let alone an 
off-topic intrusion here. Just ignore me if that's the case and I won't 
keep pestering you. ;)

> 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.

Interesting distinction -- I can see your point, though. I'm not 
entirely sure how my efforts would fall. In that regard, as you were 
further saying on that subject...

> 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.

Well, in this particular case (with those early Shakespearean, etc. 
texts), I wouldn't say that the number of errors that I found were 
"massive" in number, but in correcting the occasional errors that I did 
find -- off the top of my head, those amounted to perhaps one or two per 
page (from the original 16th/17th century texts), on average -- in 
"correcting" those errors it wasn't just simply a matter of conforming 
them to modern English spellings, etc.  Indeed, in many cases it did 
take familiarity with early English printed texts from that period to 
know just what the correction might be.

To give perhaps one very notable example, in one of the sonnets I came 
across the word (as it was spelled in there) "rn'wd." In modern versions 
of Shakespeare that word is corrected as either "ruin'd" or "ruined" (in 
full), but with my knowledge of spelling anomalies from that time, I 
knew that the correct spelling that the typesetters should have used was 
"rwn'd."

Now, does my making the merely occasional correction like that in a 
whole, long poem merit a declaration of "skill and judgement"? That I 
don't know -- I guess even if I think it does, that's still a judgement 
call on my part.

> 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.

That example actually came up on that other forum. The assertion there 
was that a film version of a book is "dramatically" different than 
merely revising or correcting a written work. If anything, there's been 
a quite adamant assertion by pretty much everyone else on that forum 
that my merely making "corrections" -- never mind improving formatting 
or any other design aspect -- just simply doesn't merit copyright at all 
for my efforts. :/

>> 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.

That makes sense to me -- if anything, it seems ridiculously obvious. An 
analogy might be that if Porsche came out with some totally new, 
high-performance engine, that also gave great mileage, too, any other 
manufacturer can simply get their mechanics and engineers to "look under 
the hood" and easily figure out how they did it -- but that doesn't mean 
they have the right to steal that new invention for their own.

Not to say that my ebooks are "patentable" in any similar way as that 
kind of product, but others over on that other forum seem to feel that 
if I make an ebook out of public domain material, then it's a veritable 
free-for-all if anyone else wants to come along, "steal" all my source 
code, and then go out and publish their own book under their own 
publisher's logo (and even charge money for something that I was happy 
to give away for free).

I found that stance a bit infuriating, actually, that these people 
seemed to actually be advocating "theft" of others' efforts, rather than 
taking a stand in favour of protecting them. :/

> 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

Interesting to read your thoughts there. Indeed, it was suggested in 
that other forum that I give my book a Creative Commons license, in 
order to clarify what I was allowing people to do with my book -- I 
couldn't (and still don't) quite understand what would be different 
about doing that and just simply putting in a simple copyright notice. 
At least, if I actually want to allow people to "steal my book" and do 
whatever they want to with it, that would be one thing, but if my goal 
is to hopefully prevent (or at least discourage) them from doing so, and 
that's the sort of CC license I put in, isn't it basically the same thing?

> 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.

Thanks for those those words of encouragement, and all your great 
thoughts and advice here. :) I do wish I could say that I've found some 
success at this, but sadly that hasn't been the case. It's not that I'm 
not good at what I do -- on the contrary, I'm actually VERY good at what 
I do, even other ebook publishers (far more successful than I am) 
comment on how "beautiful," etc. my books are -- but none of the books 
I've made have been lucrative at all for me. In fact, quite the 
contrary. When I first started with this hobby (as it's become for me 
now), my first books I put up for sale really rather cheaply. Even at 
low prices -- and then later on the very lowest prices (99 cents) -- I 
had next-to-no sales at all. I think my income the first year was a 
whopping $7 or $8. :/

It seems that one really needs a near-bestseller or something in order 
to make money in epublishing -- and the works that I've been doing have 
all been largely rather obscure ones, with a fairly limited audience. 
And so now I basically just do it for free, give my books away for free, 
and do it simply for the love of doing it, just to be creative. And 
that, for me, is I suppose the greatest satisfaction that I get from 
doing this. :)

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

Good advice, too -- it HAS been somewhat exasperating having these, uh, 
"discussions" over on that other forum, trying to assert that I should 
get credit for my efforts. But I guess I can see that it's really quite 
a difficult thing to "prove," that one has rights (copyright) over a 
public domain text, even if that work has been corrected and emended. 
It's rather disheartening to discover, at this end of things, that I 
don't think I really can make that claim -- despite the fact that I do 
feel (know, in fact) that many of those corrections I've made weren't 
just merely "sweat of the brow," but in many cases did take what has 
amounted to being a lifetime of acquired "skill and judgement." Even 
that probably doesn't amount to much, if such corrections were only few 
and far between in any particular text. :/

Thank you so very much for taking the time and trouble to entertain my 
question -- it's very much appreciated! I do hope I haven't been too 
much of an imposition here, although while I have your attention, if 
it's not to much further trouble it occurs to me that perhaps you might 
help me with another question I've had about another ebook I've had in 
the works.

I realize that, as you said, you're not a lawyer and thus whatever you 
might have to add here isn't officially "legal advice," but that other 
book I've been working on is Gaston Leroux's "The Phantom of the Opera," 
first published in serial form in 1909, and then as a book in 1910. 
Naturally this work is in the public domain now, so reprinting the text 
itself is no issue at all. It would be great to add in illustrations, 
though!

Much to my surprise, after doing a little searching on the subject, it 
would seem that the famous 1925 film of the same name (starring Lon 
Chaney) is now in the public domain -- my surprise about that is because 
I would have thought that surely MGM would have renewed their copyright 
on that film. As far as I can tell, this doesn't seem to be the case.

I have a whole slew of nice, high-resolution production stills, etc. 
from that film, which were given out as promotional material back when 
the film came out, and which would be wonderful to use as illustrations 
in my book. Can you imagine any reason why I might have any issues 
regarding copyright in just going ahead and using those in my book 
(without having to go through the palava of first seeking permission 
from MGM -- which, I can easily imagine, might be a request that they 
might just simply ignore and not respond to)?

Once again, thanks so very much for your help on this (all of the above).

Cheers!

Ron :)
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