[Foundation-l] Wikimedian image restorations exploited on eBay

[Mike Godwin]

Sage Ross writes:

>
> What case(s) settled this issue?  I haven't been able to find anything
> credible one way or the other, but a number of organizations without
> an obvious financial interest in the issue seem to assume that
> restorations do create new copyrights.


The issue of whether originality is required to create a new copyright was
addressed in the United States Supreme Court case Feist v. Rural Telephone
(1991).  There's a pretty good Wikipedia article on the case.  The essence
of the ruling is that some degree of creativity and originality is required
to create a copyright interest.

In general, organizations that believe "restorations" create new copyrights
either don't accept Feist's reasoning (perhaps because they operate in a
non-U.S. jurisdiction that honors "sweat of the brow" theory, as some
believe the U.K. does), or they misunderstand what can count as creativity
and originality.

The problem for restorations is a philosophical one but also a
straightforward one.  If you are *restoring* something, you are doing
something precisely the opposite of being "creative" or "original."  Indeed,
the more creative and original you are, the less your work counts as a
restoration.  (It may count as a derivative work, which qualifies for
copyright protection, but museums and archives normally take their mission
to be essentially preservationist, not essentially creative.)

There are few arguments as confused as the ones I've seen that argue that
restoration in itself ought to qualify as original or creative under Feist
doctrine.  At least the "sweat of the brow" theory doesn't suffer from that
sort of philosophical confusion.  Instead, it's simply bad copyright policy.


--Mike