Perhaps we can best move forwards by dealing with some concrete examples. So long as there IS a level above which you're willing toa ccept my rights, that some things fall below it isn't as bad.
Here's my restoration of Left Hand Bear
http://adamcuerden.deviantart.com/art/Left-Hand-Bear-Oglala-chief-190160390
And here's the original. As can be seen, I have had to do reconstruction work in all four corners (as well as a hell of a lot else, but let's leave that aside for now)
http://www.loc.gov/pictures/resource/ppmsca.15973/
Can we at least agree that if major damage can be seen at low resolution in the original that I can claim copyright?
On 8 July 2012 22:54, Adam Cuerden cuerden@gmail.com wrote:
Can we at least agree that if major damage can be seen at low resolution in the original that I can claim copyright?
You can *claim* whatever the hell you like. Whether the claim will stick is something a mailing list discussion is unable to resolve. You appear to be having some trouble accepting that anything that anyone says here has no bearing on this question.
- d.
...David, that was a singularly unhelpful comment, and one that only attempts to end any productive outcome from this discussion.
On 9 July 2012 00:22, Adam Cuerden cuerden@gmail.com wrote:
...David, that was a singularly unhelpful comment, and one that only attempts to end any productive outcome from this discussion.
It is unfortunate that you think an entirely factually accurate comment blocks your end of the discussion. But it remains that you're positing a vacuous claim and think that repeating said claim on a mailing list will make a difference.
But then, oo far there's no evidence that anything anyone's said is being taken in by you, so do please continue.
- d.
David, I asked a bout a specific image, and pointed out specific major reconstructions on it. You don't seem to have even looked, or bothered to have read what my question was, as such, you aren't helping.
On Mon, Jul 9, 2012 at 12:22 AM, Adam Cuerden cuerden@gmail.com wrote:
...David, that was a singularly unhelpful comment, and one that only attempts to end any productive outcome from this discussion.
On 9 July 2012 00:47, Adam Cuerden cuerden@gmail.com wrote:
David, I asked a bout a specific image, and pointed out specific major reconstructions on it. You don't seem to have even looked, or bothered to have read what my question was, as such, you aren't helping.
I did, but to read you is not to agree with you. To repeat myself:
1. If it's a new work, you might be able to claim US copyright on the new work as that. If it's a reconstruction, you don't get copyright. This is pretty firmly established. 2. You don't clearly have or not have a new copyright in the UK. 3. If you think you do, discussion on a mailing list isn't going to make it stick. You would need actual legal proceedings to even start to do that. 4. You want Commons to label the item with your UK copyright claim, despite its lack of visible support. 5. You think you can work out a reason in Commons rules why your view should prevail, but so far no-one's inspired to lift a finger to help you.
As far as I can tell, all of these are true and apposite. Any important details I've missed there?
- d.
So, Cary, the end of discussion is that Commons *does* have a policy of violating UK copyright?
Seriously?
Jurisdiction needs to be decided before violation of laws are considered. Are there similar cases where UK citizens putting content on US servers have had their day in a UK court? Commons and wikis in general become a lot harder if we have to have policy that upholds all laws of all countries that our contributors come from. Creative Commons solves many issues, but not all.
Do we have a disclaimer on the upload form which covers 'public domain' ?
A case that could have tested this didnt go to court.
http://en.wikipedia.org/wiki/National_Portrait_Gallery_and_Wikimedia_Foundat...
The Darwin images was another case.
EU privacy laws have been applied to facebook; moral rights are also recognised by WMF projects even tho they dont exist in the US.
Sorry I dont have an answer. On Jul 9, 2012 4:42 PM, "Adam Cuerden" cuerden@gmail.com wrote:
So, Cary, the end of discussion is that Commons *does* have a policy of violating UK copyright?
Seriously?
Commons-l mailing list Commons-l@lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/commons-l
I'm largely fine with Gaurav Vaidya's suggestion, if it lets us move forwards, I can accept it.
Okay, time fore some responses. Let me remind you that this subthread began with an example of reconstructing missing parts of the image from ones own creativity, to find a solution around an original which had been cut into an irregular shape with scissors, and where no other copy was, or was likely to ever be, available: http://lists.wikimedia.org/pipermail/commons-l/2012-July/006588.html There's a lot of other restoration work in the example image, but, for simplicity's sake, let's look at that, because, on its face, creating new parts of the image seems an obvious example exercising creativity. This was, by the way, as part of an attempt to work out a compromise, in which we could begin to discuss possible bright line rules, for instance, if a largish area has had to be recreated in the style of the original by the restorer, the restorer can claim copyright, but I should waive any possible rights to it if the restoration work was primarily focused on work at a very small scale, where creative possibilities are limited by what's around the damage.
However, this has been completely sidetracked at this point. What were the responses to this by Cary and David?
To ignore the actual issues raised. Cary and David basically argue that because the goal is to reproduce the original, this means originality of expression doesn't exist.
This is false. First of all, let's talk about philosophy of restoration. It's very rare that a restorer will have multiple copies of a work to work from, so if information is missing - damage, misprinting, etc, there's no way to know exactly what was there. Further, in most cases the goal is to produce the best possibly copy of the artistic intent of the original. Example: Large wood block prints for ephemera such as newspapers, often have gaps and misalignments caused by imperfect gluing together of multiple blocks used to make the image (and possibly due to rushing of the artists who make the blocks - I'm never quite sure on that point). These are there in all original prints, and no original print lacks them. This was certainly not the artistic intent, however, and they tend to distract from the image for all uses besides learning about wood block prints in ephemeral publications. It can take a great deal of judgement and care to remove them, but this does not produce the original, this produces an idealised original. Likewise, scratches on the image may be later additions, they may be flaws in the wood/metal/etc, or they may be mistakes made by a careless apprentice. Keeping the original might mean leaving the scratch in, however, to produce an idealised original, you remove it. A hand-tinted image may have tint that bleeds outside the colour boundaries to fix. The border may have gaps in it due to the wood having chipped when it was being made. And if you have to reconstruct part of the image, unless a guide exists (and it almost never does), only a bad restoration would fail to put in substantial creative work. It's absolutely necessary to create something that resembles the original style, but you can't just move another part of the picture in without modification - you need to carefully create something new out of elements of the image - a clear case of creative input that has nothing to do with a straw man "it's only a sweat of the brow claim that could grant copyright." No, that goes way beyond sweat of the brow.
The goal of (most) restorations is to create an idealised version, not to slavishly copy the original. The style and flaws inherent to the artist are (with rare exceptions) kept - this is an idealization of a real work - but you are not trying for an exact copy of the original. The exact copy of the original is merely a colour-adjusted scan.
Cary Bass claims that the better the restoration, the more it resembles the original. This is simply untrue, and the attempts to idealise the original can involve substantial creative input.
Further, as is well-known, the UK threshhold for creative input is very low. Cary and David are simply wrong to suggest that a restoration would necessarily fail to reach this level,. particularly one that had to reconstruct sections. David and Cary completely ignore the reconstruction aspect - which, since, as I said, one almost never has multiple copies to consider, has to be done out of the restorer's artistic talent - in order to claim that there is no creative work in a restoration.
This is false, and shows they don't actually understand the situation being discussed, despite me having shown a before-and-after visual aid of an image that had reasonably large sections reconstructed. But, no, they're sticking their fingers in their ears on that subject, and just repeating "Sweat of the brow! Sweat of the brow!" as if the discussion had never moved on from there, and as if *the very subthread they're commenting on* wasn't explicitly about reconstructing areas of the image from whole cloth.
-Adam Cuerden
TL;DR version: I'm attempting to find a compromise, by pointing to restorations where there was clear, obvious creative input, such as having to reconstruct large damaged areas using creativity and artistic skill, while being potentially willing to waive my rights on simpler restorations, if we can simply agree on some rough guidelines for when that threshold is crossed. Cary and David seem determined to refight my original position, telling me that even where I've reconstructed large sections without any model for how to do so, that, since I was trying to get my work to blend in with the original, there's no copyright. Isn't that kind of like saying that if I make an image in the style of Durer, and work it into an actual Durer engraving I don't get a copyright on my work because Durer died more than 100 years ago?
Well, I'll let others respond before continuing.
On Tue, Jul 10, 2012 at 12:03 AM, Adam Cuerden cuerden@gmail.com wrote:
Okay, time fore some responses. Let me remind you that this subthread began with an example of reconstructing missing parts of the image from ones own creativity, to find a solution around an original which had been cut into an irregular shape with scissors, and where no other copy was, or was likely to ever be, available: http://lists.wikimedia.org/pipermail/commons-l/2012-July/006588.html There's a lot of other restoration work in the example image, but, for simplicity's sake, let's look at that, because, on its face, creating new parts of the image seems an obvious example exercising creativity. This was, by the way, as part of an attempt to work out a compromise, in which we could begin to discuss possible bright line rules, for instance, if a largish area has had to be recreated in the style of the original by the restorer, the restorer can claim copyright, but I should waive any possible rights to it if the restoration work was primarily focused on work at a very small scale, where creative possibilities are limited by what's around the damage.
However, this has been completely sidetracked at this point. What were the responses to this by Cary and David?
To ignore the actual issues raised. Cary and David basically argue that because the goal is to reproduce the original, this means originality of expression doesn't exist.
This is false. First of all, let's talk about philosophy of restoration. It's very rare that a restorer will have multiple copies of a work to work from, so if information is missing - damage, misprinting, etc, there's no way to know exactly what was there. Further, in most cases the goal is to produce the best possibly copy of the artistic intent of the original. Example: Large wood block prints for ephemera such as newspapers, often have gaps and misalignments caused by imperfect gluing together of multiple blocks used to make the image (and possibly due to rushing of the artists who make the blocks - I'm never quite sure on that point). These are there in all original prints, and no original print lacks them. This was certainly not the artistic intent, however, and they tend to distract from the image for all uses besides learning about wood block prints in ephemeral publications. It can take a great deal of judgement and care to remove them, but this does not produce the original, this produces an idealised original. Likewise, scratches on the image may be later additions, they may be flaws in the wood/metal/etc, or they may be mistakes made by a careless apprentice. Keeping the original might mean leaving the scratch in, however, to produce an idealised original, you remove it. A hand-tinted image may have tint that bleeds outside the colour boundaries to fix. The border may have gaps in it due to the wood having chipped when it was being made. And if you have to reconstruct part of the image, unless a guide exists (and it almost never does), only a bad restoration would fail to put in substantial creative work. It's absolutely necessary to create something that resembles the original style, but you can't just move another part of the picture in without modification - you need to carefully create something new out of elements of the image - a clear case of creative input that has nothing to do with a straw man "it's only a sweat of the brow claim that could grant copyright." No, that goes way beyond sweat of the brow.
The goal of (most) restorations is to create an idealised version, not to slavishly copy the original. The style and flaws inherent to the artist are (with rare exceptions) kept - this is an idealization of a real work - but you are not trying for an exact copy of the original. The exact copy of the original is merely a colour-adjusted scan.
Cary Bass claims that the better the restoration, the more it resembles the original. This is simply untrue, and the attempts to idealise the original can involve substantial creative input.
Further, as is well-known, the UK threshhold for creative input is very low. Cary and David are simply wrong to suggest that a restoration would necessarily fail to reach this level,. particularly one that had to reconstruct sections. David and Cary completely ignore the reconstruction aspect - which, since, as I said, one almost never has multiple copies to consider, has to be done out of the restorer's artistic talent - in order to claim that there is no creative work in a restoration.
This is false, and shows they don't actually understand the situation being discussed, despite me having shown a before-and-after visual aid of an image that had reasonably large sections reconstructed. But, no, they're sticking their fingers in their ears on that subject, and just repeating "Sweat of the brow! Sweat of the brow!" as if the discussion had never moved on from there, and as if *the very subthread they're commenting on* wasn't explicitly about reconstructing areas of the image from whole cloth.
-Adam Cuerden
Adam, I was trying to help you get the credit you deserve, by helping you avoid a fight for an untenable position. I will now leave you, however, since you are determined to pursue it.
- C.
On 7/9/2012 4:11 PM, Adam Cuerden wrote:
TL;DR version: I'm attempting to find a compromise, by pointing to restorations where there was clear, obvious creative input, such as having to reconstruct large damaged areas using creativity and artistic skill, while being potentially willing to waive my rights on simpler restorations, if we can simply agree on some rough guidelines for when that threshold is crossed. Cary and David seem determined to refight my original position, telling me that even where I've reconstructed large sections without any model for how to do so, that, since I was trying to get my work to blend in with the original, there's no copyright. Isn't that kind of like saying that if I make an image in the style of Durer, and work it into an actual Durer engraving I don't get a copyright on my work because Durer died more than 100 years ago?
Well, I'll let others respond before continuing.
Before everyone declares WWIII, it should be made clear that there is no "correct" answer to this problem. Not only is sweat-of-the-brow inconsistent between different countries, it is inconsistent _within_ many common law countries (including the UK). The only thing that is well-established is that the U.S. doesn't apply sweat-of-the-brow and has a relatively high threshold-of-originality (a separate, but related concept). Regarding the UK, most legal scholars agree on the following: * U.K. courts have historically recognized sweat-of-the-brow * The written law in the U.K. has recently become less friendly to application of sweat-of-the-brow * Application of sweat-of-the-brow has been declining (or disappeared entirely) in all former Commonwealth countries, a trend which the U.K. courts are well aware of * There has been no clear-cut definitive decision regarding this issue in the U.K. in recent history So what does this boil down to? Basically, that no one has any idea if sweat-of-the-brow is still a solid legal doctrine in the U.K. or not. Nor does anyone have a clear idea of what the threshold-of-originality is in the U.K.
Regardless of whether the U.K. is a sweat-of-the-brow country or not, there are certainly countries that are. In Taiwan, Spain, Sweden, Norway, Denmark, Iceland, Finland, etc., Adam probably has a copyright on his restorations whether he wants them or not. In these cases, is it better for him to retain full copyright or apply a CC-BY-SA license? This is the exact same situation I was in with the 2D Walters Museum uploads. Even though I explicitly declared that the images were CC-BY-SA _only_ in sweat-of-the-brow countries, the Commons community went ape-shit over the Walters Museum committing "copyfraud" by not simply applying PD-Art. So basically, the choice for an uploader is either be accused of copyfraud or retain your full copyrights in sweat-of-the-brow countries (which may include the U.K.). This seems like a pretty silly situation, but I'm not sure what the solution is. Should we really insist on PD-Art tags when the author wants to make their work CC-BY or CC-BY-SA? Whether or not PD-Art is "more free" depends on which country you are in, so there is no clean and easy solution.
Ryan Kaldari
On 7/9/12 5:11 PM, Cary Bass wrote:
Adam, I was trying to help you get the credit you deserve, by helping you avoid a fight for an untenable position. I will now leave you, however, since you are determined to pursue it.
- C.
On 7/9/2012 4:11 PM, Adam Cuerden wrote:
TL;DR version: I'm attempting to find a compromise, by pointing to restorations where there was clear, obvious creative input, such as having to reconstruct large damaged areas using creativity and artistic skill, while being potentially willing to waive my rights on simpler restorations, if we can simply agree on some rough guidelines for when that threshold is crossed. Cary and David seem determined to refight my original position, telling me that even where I've reconstructed large sections without any model for how to do so, that, since I was trying to get my work to blend in with the original, there's no copyright. Isn't that kind of like saying that if I make an image in the style of Durer, and work it into an actual Durer engraving I don't get a copyright on my work because Durer died more than 100 years ago?
Well, I'll let others respond before continuing.
Commons-l mailing list Commons-l@lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/commons-l
Regardless of whether the U.K. is a sweat-of-the-brow country or not, there are certainly countries that are. In Taiwan, Spain, Sweden, Norway, Denmark, Iceland, Finland, etc., Adam probably has a copyright on his restorations whether he wants them or not. In these cases, is it better for him to retain full copyright or apply a CC-BY-SA license? This is the exact same situation I was in with the 2D Walters Museum uploads. Even though I explicitly declared that the images were CC-BY-SA _only_ in sweat-of-the-brow countries, the Commons community went ape-shit over the Walters Museum committing "copyfraud" by not simply applying PD-Art. So basically, the choice for an uploader is either be accused of copyfraud or retain your full copyrights in sweat-of-the-brow countries (which may include the U.K.).
No, there is an alternative : one could use a CC-Zero to waive any rights he might have in some countries, and effectively releasing into the public domain. Thus no copyfraud.
On 7/11/12 8:49 AM, Jean-Frédéric wrote:
Regardless of whether the U.K. is a sweat-of-the-brow country or not, there are certainly countries that are. In Taiwan, Spain, Sweden, Norway, Denmark, Iceland, Finland, etc., Adam probably has a copyright on his restorations whether he wants them or not. In these cases, is it better for him to retain full copyright or apply a CC-BY-SA license? This is the exact same situation I was in with the 2D Walters Museum uploads. Even though I explicitly declared that the images were CC-BY-SA _only_ in sweat-of-the-brow countries, the Commons community went ape-shit over the Walters Museum committing "copyfraud" by not simply applying PD-Art. So basically, the choice for an uploader is either be accused of copyfraud or retain your full copyrights in sweat-of-the-brow countries (which may include the U.K.).No, there is an alternative : one could use a CC-Zero to waive any rights he might have in some countries, and effectively releasing into the public domain. Thus no copyfraud.
Yes, I certainly agree that is the ideal, and it is the solution that we ultimately arrived at for the Walters Museum (after much back and forth that probably cost us some goodwill from the museum). Still though, perhaps we should have some sort of solution for people that want to enact sweat-of-the-brow licenses, at least until sweat-of-the-brow finally dies out. While we may find it morally repugnant to acknowledge such laws, they do exist, and they do affect reusers. On the other hand, our licensing templates are already quite confusing to many people, and if reusers can't easily decipher them, they will probably end up just ignoring them.
Ryan Kaldari
For many restorations, e.g. that involve more than removing dots and crinkles, CC-BY would be just as suitable. Reusers should indicate it is a restoration, and record the provenance of the digital work they are making use of. On Jul 12, 2012 4:28 AM, "Ryan Kaldari" rkaldari@wikimedia.org wrote:
On 7/11/12 8:49 AM, Jean-Frédéric wrote:
Regardless of whether the U.K. is a sweat-of-the-brow country or not,
there are certainly countries that are. In Taiwan, Spain, Sweden, Norway, Denmark, Iceland, Finland, etc., Adam probably has a copyright on his restorations whether he wants them or not. In these cases, is it better for him to retain full copyright or apply a CC-BY-SA license? This is the exact same situation I was in with the 2D Walters Museum uploads. Even though I explicitly declared that the images were CC-BY-SA _only_ in sweat-of-the-brow countries, the Commons community went ape-shit over the Walters Museum committing "copyfraud" by not simply applying PD-Art. So basically, the choice for an uploader is either be accused of copyfraud or retain your full copyrights in sweat-of-the-brow countries (which may include the U.K.).
No, there is an alternative : one could use a CC-Zero to waive any rights he might have in some countries, and effectively releasing into the public domain. Thus no copyfraud.
Yes, I certainly agree that is the ideal, and it is the solution that we ultimately arrived at for the Walters Museum (after much back and forth that probably cost us some goodwill from the museum). Still though, perhaps we should have some sort of solution for people that want to enact sweat-of-the-brow licenses, at least until sweat-of-the-brow finally dies out. While we may find it morally repugnant to acknowledge such laws, they do exist, and they do affect reusers. On the other hand, our licensing templates are already quite confusing to many people, and if reusers can't easily decipher them, they will probably end up just ignoring them.
Ryan Kaldari
Commons-l mailing list Commons-l@lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/commons-l
Hoi, When you make something available under any license, it is only possible because of a claim of copyright.
When you consider the issue at hand, you can restrict yourself to the legal side of things. This does not really help when you consider what it is people like Adam or organisations like the Walters museum want to achieve. The point is that we as the publishers of the material provided by both have a real good reason why we should support them in their aims.
When we include in the meta-data information about a restoration and information about the location of the original material we provide provenance to the images involved. This is very much the same thing when we add citations to facts in Wikipedia.
It is for our own reasons why we should include this data, not for legal reasons. When we include this data, we become more relevant as a partner to our GLAM partners. What they need is recognition for the vital role they play in the preservation of our cultural heritage. When we include information about the people who restored images, we recognise their hard work and this recognition is what motivates many people to start such projects.
The information about the whereabouts of material should be easily visible. It should be no more than one click away just like it is with citations. Thanks, GerardM
On 10 July 2012 03:50, Ryan Kaldari rkaldari@wikimedia.org wrote:
Before everyone declares WWIII, it should be made clear that there is no "correct" answer to this problem. Not only is sweat-of-the-brow inconsistent between different countries, it is inconsistent _within_ many common law countries (including the UK). The only thing that is well-established is that the U.S. doesn't apply sweat-of-the-brow and has a relatively high threshold-of-originality (a separate, but related concept). Regarding the UK, most legal scholars agree on the following:
- U.K. courts have historically recognized sweat-of-the-brow
- The written law in the U.K. has recently become less friendly to
application of sweat-of-the-brow
- Application of sweat-of-the-brow has been declining (or disappeared
entirely) in all former Commonwealth countries, a trend which the U.K. courts are well aware of
- There has been no clear-cut definitive decision regarding this issue in
the U.K. in recent history So what does this boil down to? Basically, that no one has any idea if sweat-of-the-brow is still a solid legal doctrine in the U.K. or not. Nor does anyone have a clear idea of what the threshold-of-originality is in the U.K.
Regardless of whether the U.K. is a sweat-of-the-brow country or not, there are certainly countries that are. In Taiwan, Spain, Sweden, Norway, Denmark, Iceland, Finland, etc., Adam probably has a copyright on his restorations whether he wants them or not. In these cases, is it better for him to retain full copyright or apply a CC-BY-SA license? This is the exact same situation I was in with the 2D Walters Museum uploads. Even though I explicitly declared that the images were CC-BY-SA _only_ in sweat-of-the-brow countries, the Commons community went ape-shit over the Walters Museum committing "copyfraud" by not simply applying PD-Art. So basically, the choice for an uploader is either be accused of copyfraud or retain your full copyrights in sweat-of-the-brow countries (which may include the U.K.). This seems like a pretty silly situation, but I'm not sure what the solution is. Should we really insist on PD-Art tags when the author wants to make their work CC-BY or CC-BY-SA? Whether or not PD-Art is "more free" depends on which country you are in, so there is no clean and easy solution.
Ryan Kaldari
On 7/9/12 5:11 PM, Cary Bass wrote:
Adam, I was trying to help you get the credit you deserve, by helping you avoid a fight for an untenable position. I will now leave you, however, since you are determined to pursue it.
- C.
On 7/9/2012 4:11 PM, Adam Cuerden wrote:
TL;DR version: I'm attempting to find a compromise, by pointing to restorations where there was clear, obvious creative input, such as having to reconstruct large damaged areas using creativity and artistic skill, while being potentially willing to waive my rights on simpler restorations, if we can simply agree on some rough guidelines for when that threshold is crossed. Cary and David seem determined to refight my original position, telling me that even where I've reconstructed large sections without any model for how to do so, that, since I was trying to get my work to blend in with the original, there's no copyright. Isn't that kind of like saying that if I make an image in the style of Durer, and work it into an actual Durer engraving I don't get a copyright on my work because Durer died more than 100 years ago?
Well, I'll let others respond before continuing.
______________________________**_________________ Commons-l mailing list Commons-l@lists.wikimedia.org https://lists.wikimedia.org/**mailman/listinfo/commons-lhttps://lists.wikimedia.org/mailman/listinfo/commons-l
______________________________**_________________ Commons-l mailing list Commons-l@lists.wikimedia.org https://lists.wikimedia.org/**mailman/listinfo/commons-lhttps://lists.wikimedia.org/mailman/listinfo/commons-l
I talked to the legal department about this specific issue a while back. Their opinion, which I agree with, is that restoration involves 2 legal principles: sweat-of-the-brow and threshold-of-originality. And while the U.S. doesn't recognize sweat-of-the-brow, there are certainly cases where restoration passes the threshold-of-originality (even in the U.S. where the bar is high). When I asked for an example, they suggested that colorizing a black-and-white movie would probably pass the threshold of originality and thus create a new copyright. Regarding Adam's restoration of Left Hand Bear, I think it is unclear how a U.S. court would interpret it, but I would be willing to give Adam the benefit of the doubt on that one.
Ryan Kaldari
On 7/9/12 4:03 PM, Adam Cuerden wrote:
Okay, time fore some responses. Let me remind you that this subthread began with an example of reconstructing missing parts of the image from ones own creativity, to find a solution around an original which had been cut into an irregular shape with scissors, and where no other copy was, or was likely to ever be, available: http://lists.wikimedia.org/pipermail/commons-l/2012-July/006588.html There's a lot of other restoration work in the example image, but, for simplicity's sake, let's look at that, because, on its face, creating new parts of the image seems an obvious example exercising creativity. This was, by the way, as part of an attempt to work out a compromise, in which we could begin to discuss possible bright line rules, for instance, if a largish area has had to be recreated in the style of the original by the restorer, the restorer can claim copyright, but I should waive any possible rights to it if the restoration work was primarily focused on work at a very small scale, where creative possibilities are limited by what's around the damage.
However, this has been completely sidetracked at this point. What were the responses to this by Cary and David?
To ignore the actual issues raised. Cary and David basically argue that because the goal is to reproduce the original, this means originality of expression doesn't exist.
This is false. First of all, let's talk about philosophy of restoration. It's very rare that a restorer will have multiple copies of a work to work from, so if information is missing - damage, misprinting, etc, there's no way to know exactly what was there. Further, in most cases the goal is to produce the best possibly copy of the artistic intent of the original. Example: Large wood block prints for ephemera such as newspapers, often have gaps and misalignments caused by imperfect gluing together of multiple blocks used to make the image (and possibly due to rushing of the artists who make the blocks - I'm never quite sure on that point). These are there in all original prints, and no original print lacks them. This was certainly not the artistic intent, however, and they tend to distract from the image for all uses besides learning about wood block prints in ephemeral publications. It can take a great deal of judgement and care to remove them, but this does not produce the original, this produces an idealised original. Likewise, scratches on the image may be later additions, they may be flaws in the wood/metal/etc, or they may be mistakes made by a careless apprentice. Keeping the original might mean leaving the scratch in, however, to produce an idealised original, you remove it. A hand-tinted image may have tint that bleeds outside the colour boundaries to fix. The border may have gaps in it due to the wood having chipped when it was being made. And if you have to reconstruct part of the image, unless a guide exists (and it almost never does), only a bad restoration would fail to put in substantial creative work. It's absolutely necessary to create something that resembles the original style, but you can't just move another part of the picture in without modification - you need to carefully create something new out of elements of the image - a clear case of creative input that has nothing to do with a straw man "it's only a sweat of the brow claim that could grant copyright." No, that goes way beyond sweat of the brow.
The goal of (most) restorations is to create an idealised version, not to slavishly copy the original. The style and flaws inherent to the artist are (with rare exceptions) kept - this is an idealization of a real work - but you are not trying for an exact copy of the original. The exact copy of the original is merely a colour-adjusted scan.
Cary Bass claims that the better the restoration, the more it resembles the original. This is simply untrue, and the attempts to idealise the original can involve substantial creative input.
Further, as is well-known, the UK threshhold for creative input is very low. Cary and David are simply wrong to suggest that a restoration would necessarily fail to reach this level,. particularly one that had to reconstruct sections. David and Cary completely ignore the reconstruction aspect - which, since, as I said, one almost never has multiple copies to consider, has to be done out of the restorer's artistic talent - in order to claim that there is no creative work in a restoration.
This is false, and shows they don't actually understand the situation being discussed, despite me having shown a before-and-after visual aid of an image that had reasonably large sections reconstructed. But, no, they're sticking their fingers in their ears on that subject, and just repeating "Sweat of the brow! Sweat of the brow!" as if the discussion had never moved on from there, and as if *the very subthread they're commenting on* wasn't explicitly about reconstructing areas of the image from whole cloth.
-Adam Cuerden
Commons-l mailing list Commons-l@lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/commons-l
On 7/9/2012 2:42 AM, Adam Cuerden wrote:
So, Cary, the end of discussion is that Commons*does* have a policy of violating UK copyright?
So, Adam, the end of discussion is that you like to ask questions in such a way that you create facts that don't exist? I hear NewsCorp is hiring people with your skills.
- C