Question about public domain works in Google Books with a Harvard library example (UNCLASSIFIED)

Victor Steinbok aardvark66 at GMAIL.COM
Tue Nov 1 23:42:15 UTC 2011

I know he was an engineer and not a lawyer, but he seems to have got the
government documents issue wrong. Government documents are not in the
public domain, but they must be made available to the public (not quite
the same thing, as it turns out). The question is not "who is the author
and who owns the copyright?" but "Does 'available to the public' include
reproduction by third parties?". The answer generally seems to be "yes",
but it's not a clear-cut issue.

Furthermore, if the issue was only publications from 1909-1923 that lack
copyright notice, that part of the explanation would hold water. The
trouble is, I routinely stumble across documents with older publication
dates that are nonetheless unavailable (the most gratuitous cases are
with pre-1800 books and pamphlets).

The issue is somewhat related to reproductions of art works. Museums
have no copyright interest in the works themselves when the art is old
enough. Yet, many major museums try to stifle the distribution of
photo-reproductions of paintings, etc. A series of court decisions over
the years makes it painfully clear that any non-particularized
reproduction (which includes all faithful photo-reproductions of
paintings) is NOT copyrightable (i.e., the rights remain the same as the
original work). So if I wanted to reproduce an 18th century painting
that is hanging at some private gallery (or at the Met or at the MFA), I
can do so with complete impunity. Yet, many smaller publishers--and, in
particular, university art departments--refrain from even engaging in
reproductions. One of my friends recently completed a dissertation in
art history and the departmental policy is that one set of illustrations
is to be submitted for the committee review, but they are not to be
included in the dissertation, no matter how old the art is. IMO, this is
idiotic. The majority of public domain works are already available on
line or in print (which is how these illustrations can be replicated).
So not having them in the running text is merely a nuisance, not a
barrier. But universities are still afraid of getting sued even if they
know full well that such challenges would be frivolous. (Never mind the
academic/criticism exception under fair use which creates yet another
path.) Items that cannot be reproduced are proprietary X-rays of
paintings, individual fragments that appeared in other publications (you
can reproduce a similar fragment from the original work, just not the
one already published), and other things that add something to the mere
reproduction. There may be an argument that photographs of sculptures
are not faithful reproductions (ironically, that would make holograms
MORE faithful, but they would be copyrighted for a different reason).
But all of this is irrelevant to the question whether old paintings can
be reproduced. As with Google, the usual claim is abundance of caution.
The reality is cowardly and inept university GC. (I've dealt with a few
and most claim their own incompetence outright in most matters that are
peripheral to their central function, which is usually employment law or
liability--and often not even both. I was once involved in an OSHA case
where we drew Associate GC who, after being chided by the OSHA inspector
for making an utterly ridiculous argument, proceeded to state that his
field is budget and taxes and that he knows absolutely nothing about
occupational safety laws.)


On 11/1/2011 5:56 PM, Mullins, Bill AMRDEC wrote:
> This is part of an exchange I had with one of the engineers behind
> Google Books back in 2009.  Maybe it will be useful to some.
> Question:*******************
> " My biggest problem with GBS is volumes that are completely unavailable
>          in full-text, or are only available as snippet views, when they
> should
>          be completely available because they are not under copyright (as
> I
>          understand it).  These would include books, etc. published
> before 1923,
>          and materials produced by the U.S. government (Congressional
> hearings,
>          reports, etc).
>          (No doubt there are many works published after 1922 which are
> also in
>          the public domain, but I understand that the "orphan works"
> issue is
>          extraordinarily complicated.)
>          These two categories -- pre-1923 works and U.S. Govt works --
> are
>          unambiguously in the public domain.  Why aren't they fully
> viewable?  Is
>          it because you can't trust the metadata by which you would make
> a
>          decision to open them up, and can't/won't risk the repercussions
> of
>          making fully viewable something that might be under copyright?"
> *******************************
> Answer:*********************
> " Regarding pre-1923 works&  government documents: we do need to be
> extraordinarily conservative since people seem to enjoy suing us with
> wild abandon.  Often pre-1923 works are kept in snippet view because
> they lack copyright notices, and the 9th Circuit "Twin Books" decision
> makes it difficult to conclude that books after 1909 that lack copyright
> notices are in the public domain.
> Government works are not all in the public domain, alas.  If the sole
> author is the US government they are, but not every US government
> document has the US government as the sole author.  One example: an IRS
> circular for which the IRS licensed a syndicated comic strip.  They
> probably licensed the rights solely for the single print run, which
> means that the circular contains copyrighted material and we therefore
> can't put it into full view.   Congressional hearings in particular
> occasionally contain copyrighted material.  Also, there are some
> government documents for which the writing was contracted out, and the
> copyright status of those is uncertain."
> *******************************
> The court case referenced is "Twin Books v Walt Disney" (Disney seems to
> show up a lot in vexing copyright cases . . . . GRRRR).  Google it for
> reasons it complicates things.
> And note that Google Books and the Internet Archive are in the 9th
> Circuit's jurisdiction, so their cases are important to the process.

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