Digitization of public-domain works is a good thing, right? Most literature fans would be quick to agree. However, Glyn Moody writes on Techdirt that some of the new public digitization projects have terms and conditions that seem to be right out of the dark ages. The Cambridge University’s Digital Library, for example, places strict limits on what users can do with the books—non-commercial use only, no modification, no passing it on to third parties, and so on.
A number of the works in Cambridge’s library date from well before the 1710 Statute of Anne invented modern copyright, suggesting that they should definitely be in the public domain no matter what Cambridge says. Moody writes of these works:
Assuming that copyright dates from the "fixing" of the work, or from the date of the Statute of Anne, they would clearly have passed into the public domain long ago. One technique that libraries have tried to employ in order to maintain their control is to claim that the act of digitizing creates a new copyright, although this seems dubious. After all, the whole point of digitization is to capture as faithfully as possible the physical appearance of a text: an artistic interpretation of that physical appearance would defeat the object of the exercise. But without that artistic element there seems to be no grounds for claiming copyright.
Moreover, even if there were copyright in the digitized image, it’s hard to see how there is any basis for stopping people from transcribing the text, since that is undoubtedly in the public domain. But that’s precisely what Cambridge University is trying to do in its conditions quoted above.
Moody also points out that, thanks to the British Newspaper Archive, the British Library is removing physical access to public-domain papers and replacing them with digitized images that it claims are under copyright.
For that matter, even Google Books attaches a usage-terms boilerplate to the beginning of its book scans. (You have to download the file to see it; it doesn’t show up on the in-web display.) Google’s usage terms are a good deal more temperate, acknowledging that “public domain books belong to the public and we are merely their custodians” and couched in terms of “we ask” or “we request” that viewers use them noncommercially and so forth.
Project Gutenberg, on the other hand, still has this boilerplate on its books:
This eBook is for the use of anyone anywhere at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of the Project Gutenberg License included with this eBook or online at www.gutenberg.org
That’s the kind of terms that public domain works ought to have. It’s worrying that these newer projects are putting so many limitations on theirs, but given that they are the offspring of commercial concerns while Gutenberg was always intended as a nonprofit, I suppose it’s understandable. I wonder when or if those limitations will be tested in court?