[Discuss] discuss Digest, Vol 23, Issue 12

Emilio Velis contacto at emiliovelis.com
Tue Apr 22 04:18:41 UTC 2014


Thank you very much for taking your time and answering our questions,
Michael!


On 18 April 2014 10:04, Michael Weinberg <mweinberg at publicknowledge.org>wrote:

> 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.
>>>>>
>>>>
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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.
>>>
>>>
>>> _______________________________________________
>>> discuss mailing list
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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.
>
>
> _______________________________________________
> discuss mailing list
> discuss at lists.oshwa.org
> http://lists.oshwa.org/listinfo/discuss
>
>
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