<div dir="ltr">Thank you very much for taking your time and answering our questions, Michael!<br></div><div class="gmail_extra"><br><br><div class="gmail_quote">On 18 April 2014 10:04, Michael Weinberg <span dir="ltr"><<a href="mailto:mweinberg@publicknowledge.org" target="_blank">mweinberg@publicknowledge.org</a>></span> wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><div dir="ltr"><div><div><div><div><div><div><div>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.<br>
<br></div>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.<br>
<br>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.<br>
<br></div>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:<br>
<br></div>-purpose and character of the use<br></div>-nature of the copyright-protected work<br></div>-amount and substantialitiy of the portion taken<br></div>-effect of use upon potential market for the copied work<br>
<br>
</div>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.<br>
</div><div class="HOEnZb"><div class="h5"><div class="gmail_extra"><br><br><div class="gmail_quote">On Wed, Apr 16, 2014 at 5:21 PM, Matt Maier <span dir="ltr"><<a href="mailto:blueback09@gmail.com" target="_blank">blueback09@gmail.com</a>></span> wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><div dir="ltr">Michael,<div>Thanks for that clear response, but that only seems to inspire another question(s) :)</div>
<div><br></div><div>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?</div>
<div><br></div><div>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?</div>
<div><br></div><div>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. <div>
<div><br>
<div class="gmail_extra"><br><br><div class="gmail_quote">On Wed, Apr 16, 2014 at 2:47 PM, Michael Weinberg <span dir="ltr"><<a href="mailto:mweinberg@publicknowledge.org" target="_blank">mweinberg@publicknowledge.org</a>></span> wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><div dir="ltr"><div>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. <a href="http://en.wikipedia.org/wiki/Feist_v._Rural" target="_blank">Feist v. Rural Telephone Service</a> 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). <br>
<br></div>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.<br><br>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.<br>
</div><div class="gmail_extra"><br><br><div class="gmail_quote"><div><div>On Tue, Apr 15, 2014 at 7:07 PM, Matt Maier <span dir="ltr"><<a href="mailto:blueback09@gmail.com" target="_blank">blueback09@gmail.com</a>></span> wrote:<br>
</div></div><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><div><div><div dir="ltr">Michael,<div>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?</div>
<span><font color="#888888">
</font></span><div><span><font color="#888888">Matt</font></span><div><br><div class="gmail_extra"><br><br><div class="gmail_quote">On Tue, Apr 15, 2014 at 3:28 PM, Michael Weinberg <span dir="ltr"><<a href="mailto:mweinberg@publicknowledge.org" target="_blank">mweinberg@publicknowledge.org</a>></span> wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><div dir="ltr"><div><div><div>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.</div>
</div></div></div></blockquote></div></div></div></div></div>
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