--- On Tue, 10/26/10, Andrea Zanni <zanni.andrea84@gmail.com> wrote:

From: Andrea Zanni <zanni.andrea84@gmail.com>
Subject: Re: [Wikisource-l] Copyright status of scans
To: "discussion list for Wikisource, the free library" <wikisource-l@lists.wikimedia.org>
Date: Tuesday, October 26, 2010, 8:07 AM

2010/10/26 Klaus Graf <klausgraf@googlemail.com>
Roma locuta causa finita.

I actually wrote this mail for understanding the issue,

It is a difficult issue to understand. Because most people think they basically understand copyright and there is this little question that they have which does not fit.  But often why the question doesn't fit is because the person misunderstands copyright in general.

Copyright does not offer clear answers.  No one except for silly non-profit projects want to really know whether a work is free of copyright protection for it own sake.  All the rest of the world wants to know either A) Can I get away with using this work?  or B) Can get some money from other people who are using that work?  And those questions are usually answer by settlement while the copyright status of the work is left undefined. If you ask a copyright lawyer if a work is free of copyright protection he will tell you "I would make a case for your use of the work along the lines of these three separate arguments"  And if you tell him, "No I don't want to know the best defenses for my use of the work.  I want to know the true status of the work"  Then he will blink at you in confusion.  *No one* is trained on how to define a lack of copyright protection as if it were an inherent property of a work.

Assuming you misunderstand copyright, because frankly it is the most likely case, here is a short primer:

If you own a piece of property, it is a physical thing which can either exist or be destroyed.  If this property is sold to someone else then you no longer have access to it.  And no one else may have access to it so long as you do not sell it.

If you own a piece of intellectual property, it is an immaterial thing that will can continue to exist even after it is destroyed.  Also it may be transformed again and again into derivatives while the original form still exists. Intellectual property is sold by making copies of the original so that many people may have access to it without owning it.  Also it is possible that someone may own a piece of intellectual property and not have access to it! 

Ownership and access are separate entities in intellectual property.

Copyright only applies to very specific things. It only protects the expression, not the underlying idea expressed.  It must be a creative expression, you cannot own the copyright to the population tables of Italian cities.  It must be a fixed expression, you cannot own the copyright to your conversation on the train.  If a work contains a mixture of creative and non-creative parts, only the creative parts are copyrighted even though copyright is only tracked by entire works.  So a book on the cities of Italy which includes population table in the appendix will simply be listed as copyrighted even though the protection does not apply to the population tables.

Your specific question was about scans of books which are out of copyright.  That issue is mostly one of creativity and of access.  If I wrote out a copy of the Count of Monte Cristo in longhand, I would be expend a great deal of mechanical effort but not creative effort. My work in long hand would not be considered a "derivative work" nor grant me copyright protection.  I would however own a longhand copy of the Count of Monte Cristo that I could sell or otherwise treat as a piece of physical property.  If I translated the Count of Monte Cristo into English, I would expend creative effort in choosing which exact words to use and which meanings to emphasize.  My English version of the Count of Monte Cristo would be considered a derivative work and my creative contributions and only my creative contributions would be protected by a new copyright.  If someone who had read only my translation of the Count of Monte Cristo, wrote a plot summary in under one hundred words they would not be infringing on my copyright. Because the underlying story was not a part of my creative contribution to the work. Now a scan of an out-of-copyright version of the Count of Monte Cristo is a purely a mechanical effort and is comparable to my longhand version of the work.  When someone makes a scan, they have no creative contribution which could be protected by copyright, but they do own the resulting file.  And they may grant you access to this file or not.  They may grant you access to the file only under certain conditions.  This would be considered a contract and is commonly referred to a "terms of use". Often you are considered to have agreed to the terms of use, and therefore bound by contract, merely by your decision to click and access the file.  In these cases the terms of use are often written to mirror the sorts of protections that copyright law would grant if it where applicable.  The main difference is copyright law is attaches restrictions to a work wherever it goes and whoever comes across.  Contract law attaches restrictions to you as a consenting party to the contract, and the restrictions end with you.  If you save a copy of the file containing the scan of Monte Cristo on a flash drive for your personal reading as allowed in the terms of use, and you leave your flash drive behind on the train.  Whoever picks up your flash drive and opens the file is not bound by any contract that you were party to.  They may use the file however they wish.

Much of the confusion over the issue of scans is due to conflating contractual terms of use with copyright protections.  These are different areas of the law which use very different approaches to create similar restrictions.  This explanation is rather simplified, but it should help you understand the questions a little better. 

Birgitte SB