[Discuss] discuss Digest, Vol 23, Issue 12

Fri Apr 18 16:04:34 UTC 2014

All good questions.  I'll preface my answer by urging you to keep in mind
that when we are talking about copyright we are talking about lawyers
thinking about making art.  The result of this is that many of the
definitions operate in a place of semi-abstraction that may or may not make
sense to people who actually understand what is going on.

First question, on the creative decision making.  Traditionally, the
creative decision making has been thought to include things like staging,
lighting, composition, and subject selection, which persist even when
camera settings are mostly automated.  In light of that, the programming of
the scanner doesn't change much.  Ultimately, the scanning fails because
the scanner is not trying to create a file that includes any artistic
interpretation.  Instead, the goal is to copy the original as slavishly as
possible.  In an ideal world, every scan of an object, no matter how many
people did it, would be identical.

Second question, on separating the copyrights.  Yes.  If you take a picture
of a copyright-protected work, there are two copyrights at play - the
copyright in the subject and the copyright in the photograph.  If you write
a book, you have a copyright in the book.  If I take a picture of the book,
I have a copyright in the photo of the book, but no copyright in the book
itself (let's not deal with questions about my photo infringing on the
copyright of your book).  That being said, if I copy the first page of your
book by hand writing it, I probably don't have any copyright at all.

In most cases, intent doesn't matter - copying is copying is copying.
Intent does come into play if you want to argue that the copy of someone
else's copyright-protected work is not a violation of copyright because of
fair use (sorry, that's a kind of jargon-y sentence).  When considering
fair use, courts look at 4 factors:

-purpose and character of the use
-nature of the copyright-protected work
-amount and substantialitiy of the portion taken
-effect of use upon potential market for the copied work

As you might suspect, there are plenty of places for intent to come into
play when thinking about those factors.  Fair use is what makes it OK to,
say, quote a book in a review of the book or take a photograph of a park
that just happens to have a sculpture in it without  needing permission
from the rightsholder.

On Wed, Apr 16, 2014 at 5:21 PM, Matt Maier <blueback09 at gmail.com> wrote:

> Michael,
> Thanks for that clear response, but that only seems to inspire another
> question(s) :)
>
> Presumably that idea that photographs require some amount of creative
> decision making has persisted, despite the fact that most photographs these
> days are taking on totally automatic settings. In that case, it would seem
> like all of the creativity was on the part of the team that build and
> programmed the camera so that it could make similar decisions to an expert
> photographer. So if a 3D scanner had to be programmed to respond to
> changing conditions like a camera, would it still qualify as creative
> decision making?
>
> Do they separate the copyright that the photographer holds on the picture
> itself from anything that might have been captured in that picture? Like if
> I take a picture of the first page of a book, I'd have a copyright on my
> picture, but not on the stuff the book says, whereas if I wrote out the
> text of the first page by hand, I'd have a copyright on what that says?
>
> Or, rather, is it more about the intention of the action? If my intention
> is to create an exact copy of something, and anything other than an exact
> copy would be considered a mistake, then I don't get a copyright on the new
> thing. But if I want something new that just happens to incorporate, or be
> inspired by, the old thing then I get a copyright on the new thing.
>
>
>
> On Wed, Apr 16, 2014 at 2:47 PM, Michael Weinberg <
> mweinberg at publicknowledge.org> wrote:
>
>> Ah, good question.  The answer to that is actually no.  The important
>> thing to take into consideration here is the element of creativity, not the
>> amount of work done.    The US Supreme Court has explicitly rejected the
>> "sweat of the brow" theory of copyright whereby lots of work = getting a
>> copyright.  Feist v. Rural Telephone Service<http://en.wikipedia.org/wiki/Feist_v._Rural>was a dispute about a telephone directory.  While putting together a
>> telephone directly undoubtedly takes a lot of effort, the court found that
>> it took no creativity (the nature of a directory requires you to list all
>> of the entries alphabetically so you don't really have any room to
>> improvise).
>>
>> Similarly, the goal of a good scan is to make an exact copy - in other
>> words, to introduce as little extra creativity as possible.  Therefore no
>> copyright.
>>
>> It is probably worth noting that this was the same way that courts viewed
>> photograph in photography's early days.  Over time, courts decided that the
>> setup and composition of a picture includes enough decisions that open the
>> door to creative decisionmaking that photographs could be protected by
>> copyright.  It is certainly possible that scanning could take a similar
>> path towards copyrightability over time.  However, the utilitarian nature
>> of most scanning makes that less likely in my mind.
>>
>>
>> On Tue, Apr 15, 2014 at 7:07 PM, Matt Maier <blueback09 at gmail.com> wrote:
>>
>>> Michael,
>>> So would that mean 3D scanning could create a new copyright as long as
>>> the person doing the scanning has to put some effort into it? Like, if they
>>> have to dust the item to reduce reflections and clean up the point cloud
>>> afterwards? But they wouldn't have a new copyright if the scanner was so
>>> good it only took one step?
>>>  Matt
>>>
>>>
>>>
>>> On Tue, Apr 15, 2014 at 3:28 PM, Michael Weinberg <
>>> mweinberg at publicknowledge.org> wrote:
>>>
>>>> In the US, one requirement for copyright is some element of
>>>> creativity.  Courts recognize that staging a photograph requires some
>>>> creative decision making (the threshold for creativity is low so it pretty
>>>> much includes all photographs).  However, the goal of scanning is to
>>>> slavishly represent reality as accurately as possible.  Therefore, it is a
>>>> process that is designed to eliminate as much decisionmaking by the scanner
>>>> as possible.
>>>>
>>>
>>> _______________________________________________
>>> discuss mailing list
>>> discuss at lists.oshwa.org
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>>>
>>>
>>
>>
>> --
>> Michael Weinberg, Vice President, PK Thinks
>> 202-861-0020 (o) | @mweinbergPK
>>
>> Public Knowledge | @publicknowledge | www.publicknowledge.org
>> 1818 N St. NW, Suite 410 | Washington, DC 20036
>>
>> Promoting a Creative & Connected Future.
>>
>>
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>>
>
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-- 
Michael Weinberg, Vice President, PK Thinks
202-861-0020 (o) | @mweinbergPK

Public Knowledge | @publicknowledge | www.publicknowledge.org
1818 N St. NW, Suite 410 | Washington, DC 20036

Promoting a Creative & Connected Future.
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