My reply to the EC’s digital libraries plans

I just sent in my reply to the EC’s working paper on Digital Libraries. I was one hour late, so I fear the comfy chair.

Question: public domain through copyright shield?

This is the fourth of my questions to the copyright lawyers, a taciturn lot judged by the results so far: is it possible to create a public domain image based on copyrighted sources?

Here’s the idea: suppose I take five different, recent photos from Michelangelo’s David. These photos are likely copyrighted, following the doctrine from Bridgeman v. Corel and similar European cases. Then, I use a tool like Photomodeller to recreate a 3D-model that is as close a reproduction of the original as possible. Bridgeman v. Corel holds that a faithful reproduction of a public domain work is “sweat of the brow”, lacking originality, and is not burdened by copyrights. But does that theory hold for a reproduction that was based entirely on copyrighted works?

Previous questions:

1. Why does a work published after the death of an author receive a copyright? (answer)
2. How can SNTE (the firm that maintains and exploits the Eiffel tower) claim a copyright on the image of the illuminated Eiffel tower when the Paris Hotel in Las Vegas has had a very similar lighted Eiffel tower since two years before?
3. What rights does Microsoft base it’s licenses for protocols on?
(2+3 as yet unanswered)

To be extra clear, I am not solliciting advice, I am solliciting opinion.

Copyright law and the copyright law: the case Vermande vs. Bojkovski

In some respects Dutch copyright law is not as advanced as its American counterpart. For instance, in the US publications of the federal government are in the public domain. This is for example why people get to know so much about space: anyone can republish images that were originally published by NASA.

In the Netherlands, political parties have gotten no further than discussing whether perhaps public television broadcasts should be “freed”.

Dutch copyright law (English version in PDF after link) does make an exception though for “laws, decrees or ordinances issued by public authorities, or [for] judicial or administrative decisions”.

When Richard Stallman speaks of copyright law, he refers to it as an industry regulation. Copyright, he claims, is a balance between two public interests, and it was won so easily, because ordinary citizens did not have to give up anything; ordinary citizens typically did not own printing presses in the 17th, 18th and 19th centuries. By giving up the right to copy, they essentially gave up nothing. Copyright regulated practices in the publishing industry.

When people finally do find a use for an under-used right, they are going to want to use it. And as soon as they do, those on the other end of the bargain are going to cry foul. The last decade copyright law has expanded in the US and the EU in an almost obscene manner, demonstrating that it is the people that drew the short end.

An interesting demonstration of an under-utilized right, where a gate-keeper lashes out at anyone who wishes to utilize the right, is the case of Vermande vs. Bojkovski. In the 1990s, Pavle Bojkovski, a law student from Amsterdam, started a website called, which published law texts. The site ceased to exist in 2001, three years after the decision in Vermande vs. Bojkovski, but can still be consulted in the Wayback Machine.

Thus far, the publication of laws, though officially not restricted by copyrights, had been a monopoly of the former state printer, SDU. That is, Dutch law only becomes valid after publication in a newspaper called Staatsblad (lit. paper of the state), which is published by a private company called SDU B.V. (B.V. = incorporated). There were (and are) other publishers of legal texts, such as Wolters Kluwer—I do not know whether they licensed their versions from SDU.

Anyway, citizens who wanted access to the text of the law had to go through a process that generated money for publishers. For instance, you went out and bought the Staatsblad, or you went to the public library and looked up some of Wolters Kluwer’s tomes. Somebody, somewhere had to be paid to deliver this information to you.

This wasn’t necessarily a bad system at the time. The people had no easy way of accessing documents anyway, other than buying printed copies or looking them up in the library. The internet, and especially the web, changed this of course.

Bojkovski made it possible to bypass the network of gatekeepers. You could go to his website, and all you needed to pay for was the transfer of bits. There was no premium to the content itself, for which you had already paid in the form of taxes.

Undoubtedly, it was this circumvention that raised the ire of SDU. Through one of its subsidiaries, Vermande, it sued Bojkovski. It claimed that Bojkovski had infringed copyrights, database right, and that he had acted against the Terms and Conditions under which Bojkovski had acquired the law texts from SDU.

In other words, this was going to be a walk-over for Bojkovski, because the law states that the text of the law is not copyrighted.

In reality, it was a close shave. That Bojkovski had copied the text from Vermande’s commentaries to the law, instead of from the Staatsblad, should have been immaterial. Nor should it have been important that SDU made a substantial investment collecting law texts and making them accessible.

Unfortunately, the European Union passed a directive that grants so-called database rights that do just that: make it illegal to republish information that was collected in a database.

The judge in Vermande vs. Bojkovski intimated that he was inclined to find for Vermande (+ English abstract), except that the Dutch government had at the time not yet been able to decide how to turn the E.U. directive into national law. The judge was not going to second-guess the government, and so he decided the case solely on the copyright issues. Bojkovski won.

Commentaries at the time not only sided with the judge’s narrow interpretation of database law, but also predicted that it was impossible for the government to draft a database law that would excluded state publications.

The Dutch government has done just that, though; according to Bernt Hugenholtz (linked before):

The case eventually led to the adoption in the Database Act of a provision (Article 8(1) ) that rules out government ownership of database rights in respect of laws, decrees, ordinances, as well as court and administrative decisions. The provision is supposedly based on the catch-all provision of Article 13 of the Directive, that leaves ‘laws on […] access to public documents’ intact.

Restricting a citizen’s access to the texts of the laws by which he is governed sounds like the stuff that science-fiction stories are made of, but without an enterprising law-student who was willing to take a stand, that might very well have become practice in the Netherlands.

Accelerando author contemplates giving book to Project Gutenberg

[Cover of the p-version of Accelerando]

When Charles Stross decided to give away the ebook version of his recent novel Accelerando for free, using a Creative Commons license, he did it in the hope of stimulating the sales of the p-book. By releasing a free download, he can get a wider readership which–if the book is good–will create better word of mouth. But now Stross is thinking of taking things a step further: if Accelerando would ever drop out of print, he may donate the copyrights to the work to Project Gutenberg.

This is exceedingly cool, although not entirely altruistic either. In an interview with The Alien Online he says: “I don’t want to see my literary estate die with me. So I’m currently considering ways of ensuring that when there’s no longer any income to be made from them, my copyrights will go somewhere like Project Gutenberg where they can be made available for free. Hopefully this is a long time off, though…”

(First published at Teleread.)

House of Cosbys

He was a Cosby fan at heart, it’s clear
He searched and found a Cosby hair
He spent ten long years to build a cloning machine
And now he has accomplished his wonderful dream:
To make a house of Cosbys

Frankenstein meets The Cosby Show, Theo. And remember, Rudy, in some jurisdictions The Man does not want you to download stuff. You know, listening to the man might very well grow warts on your butt.

(By Comic Sacrifice, via BoingBoing)

Copyright alternative

Copyright is of course one of the several ways that government can try and stimulate the creation of works–and a rather imperfect one at that.

But the alternatives are not all roses either. Subsidizing artists may be dandy, but how are you going to make sure subsidies are fairly distributed? The Dutch government has always taken the cowardly way out: basically anybody willing to admit to being an artist got a grant, or got their “art” bought by the government.

The Viennese municipal government has come up with a plan that kills two birds with one stone. It lets artists decide via reputation-based software which of them is most deserving of the grant money. I say “two birds”, because most of the painters and sculptors it is my distinct unpleasure to be vaguely acquainted with feel that only they can tell what art is. Well, exactly! Thank you Vienna!

(Via BoingBoing.)

Did Google “steal” the moon?

Copyright maximalists use silly terminology like “copyright protects the content of intellectual property owners against theft by pirates“. Works are works, not content, and cannot be stolen, because they can effortly and almost freely be duplicated. They are not owned by copyright owners, but by the public, which loans the works to the publishers (most of the time). A work is not protected by copyright, since copyright generally makes sure that only a limited amount of dissemination can be applied to a work, whereas full protection also requires the unhindered ability to rip, mix, and burn a work.

Anyway, this issue is well-understood, and the only really disconcerting thing about it is that regular folks, and even copyfighters, unthinkingly use the same words when talking about copyright that the sort of scum that tries to criminalize regular folks use.

I said that works cannot be stolen, but that is not quite true. Theft means that I take something away so that you can no longer use it. Copyright law would be theft if it weren’t introduced by the state, because copyright law makes it so that you can no longer freely use works. If anything copyright related comes close to being theft, it is making false claims about copyright status. Visible copyright claims have become No Tresspassing signs, barring people from access even where they have a right to access.

Google made a small celebratory parody on their excellent Google Maps service; Google Moon celebrates the first manned moon-landing by providing a photo map of the Sea of Tranquility.

[Screenshot of a fragment of the Google Moon interface]

The interesting bit is the copyright notice that Google super-imposes on the image: “Copyright 2005 Google – Imagery copyright 2005 NASA”. NASA is a part of the USA government, and according to the copyright laws of that same government, governmentally produced works are in the public domain. In other words, nothing is “copyright NASA”–the photos Google uses are owned by the entire planet; not just by NASA and not just by Google.

Also interesting is how Google super-imposes the copyright notice over the image text, implying that Google is also a copyright holder of these photos. The thing Google probably claims copyright over are the page lay-out, the software, possibly the interface (if that can be copyrighted). And probably Google was not being evil (although they have not been trying very hard to not be evil lately), but rather it was listening to its lawyers who said “better safe than sorry”.

When I started this blog, I had a couple of goals with it. One of them was to let me explore the intricacies of copyright by writing about them. I feel that I have not learned much yet, but one thing I am pretty certain about; misrepresenting copyright status is almost always a bad thing. When people want to build upon a work, but are turned off by the possibility of infringement that is suggested by a falsely placed copyright notice, or by a badly written license, or by the lack of mention of an author to contact, it means creativity is blocked by copyright.

I stumble upon this from time to time when trying to find books for Project Gutenberg. Since I am in the Netherlands, I need to make sure that a book is in the public domain before I send it to PG. In my case that means finding out the date the author died, but with obscure authors that is rarely straightforward.

Master and Margarita

Here’s one for the atheists: two atheists are sitting in a Moscow park, discussing the poem one wrote dissing Jesus. Then the devil walks up to them and says: “Pardon my interruption, but I couldn’t help overhearing your conversation…”

Thus starts Mikhail Bulgakov’s masterpiece Master and Margarita, a searing celebration of the individual. Seeing as he wrote this during the warm fuzzy rule of one Joe Stalin, it is probably not surprising that Bulgakov kept this work well-hidden, so that he became one of the few Russian authors of those days who actually died of natural causes.

Project Gutenberg Europe, based in Serbia and Montenegro (Life+50 copyright regime), has recently released the Russian text of this book, together with the famous works of many other famous authors.

You can see the entire list of fresh Life+50 etexts linked from Project Gutenberg European Union. Remember kids, downloading may be bad. On the other hand, listening to copyright extremists leads to impotence and hair loss. Your choice.

(Tidbit from the Wikipedia article on the book: “Bulgakov’s old flat, in which parts of the novel are set, since 1980s has become a target for Moscow-based Satanist groups, as well as of Bulgakov’s fans, and defaced with various kinds of graffitti. The building’s residents, in an attempt to deter these groups, are currently attempting to turn the flat into a museum of Bulgakov’s life and works. Unfortunately, they are having trouble contacting the flat’s anonymous owner.”)

Copying allowed

Promotional campaigns sometimes offer you a free gimmick if you buy enough of the product within a prescribed time frame: “Buy 20 packs of coffee within the month, send in the coupons (or copies) plus 50 dollar to cover shipping and handling costs, and win a free cardiac arrythmia meter”. The “or copies” statement I have always found fascinating. Is this unique to the Netherlands and based on some arcane law? Or is it a marketing gimmick; as long as people feel they can send in 20 copies, they will keep buying the product?

(The actual word used is “natekenen”, which means “copy by hand”.)

And what kind of license is this?

Mattel’s megacheap e-book reader

Mattel, known mostly for the Barbie doll, and for the aggresive way in which it tries to “protect” its “trademark”, brought out an MP3/video player called the Juicebox.

Perhaps it did not catch on, because several US chain stores slashed its price from upwards of 60 dollar to just over 10 dollar.

Which made me wonder: could this machine perhaps be used as an ebook reader? The screen is 50% larger (in pixels) than that of my Palm Pilot and the price is a tenth of that same Palm Pilot. I have always felt that ebook readers should be around the 25 euro mark, because otherwise even prolific readers would be paying more for the medium than for the message.

(I can imagine a subscription scheme in which one would pay 50 euro for the first year, but get, say, a bunch of good, new books thrown in for free. A bit like the initial Ebookwise model, where you would pay 100 US$ for the reader device, and get 20 US$ worth of books free.)

Brian Pipa used JPEGbook to convert a text to sequentially numbered JPEGs, which then can be read on the Juicebox. More on the Teleread blog and at Brian’s.

Photo: Brian Pipa

The only pity so far seems to be that JPEGbook will not anti-alias the letters; the JPEG compression seems to produce pretty hefty artifacts, and of course one is limited in the font size that is usable.

It seems the Juicebox uses lots of standard components, which would imply it could be hacked to run a real reader program. The makers of the Juicebox, Hongkong based Emsoft, also produce ebook reader software, which may or may not be compatible.