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?


  1. Ridiculous. If this were true, all publishers would need to do is bring out a new edition that looks different to get a new copyright. And you might even argue that, if copyright lies in the visual appearance, then publishing a book in a different font doesn’t violate its copyright. That’s, of course, nonsense. For text, the copyright is in the content not the appearance.

    I don’t find this surprising. Universities are often weird, strange, insular, in-bred places where ideas that make no sense anywhere else can propagate. I ran into that once when I talked to an Oxford librarian. Some of those who inhabit them have lived and worked nowhere since they were adolescents.

    I once came across a website run by a US university consortium that had NASA and Hubble photographs for download. Both categories were obviously in the public domain and both were clearly not something that the consortium owned, and yet the site asserted that no one could use those images for religious or gang-related purposes. How those two groups became linked in their mind is beyond me. I also couldn’t imagine to what nefarious purpose street gangs were putting a Hubble photo of the Horsehead Galaxy. Weird!

    Those limitations will get tested in court only if someone openly violates them and the claim holders sue. And if they don’t sue, then any later claims of violation are likely to be weakened.

    To their credit, both J. R. R. Tolkien and C. S. Lewis clashed with the prevailing cultures at Oxford. Lewis’ That Hideous Strength contains a less that flattering portrayal of the decision making process at a fictional university. It’s so vivid, one suspects that it must come from his own experiences.

    –Michael W. Perry, Untangling Tolkien

  2. When Project Gutenberg is mentioned, it is usually only in terms of being a large collection of free texts. The argument you make here is one aspect of the project that is often overlooked.

    It makes me wonder what the world of e-books would be like today if we had not had that early example of a very open license. In comparison, the Oxford Text Archive in the 1990s (from what I recall) had very restrictive licensing.


  3. In California people with beachfront property routinely put up signs claiming, falsely, that the beach is private property and the public must stay off. Any surfer can tell you what to do about a sign like that: just ignore it. It doesn’t matter what disclaimer or license anyone puts on a public domain work. Public means public. If you can get your hands on it, by whatever means, use it. If the work is posted as a digital image, could you just do a screencap and transcribe or OCR the text, then use it for some purpose of your own, even a commercial one? Yes of course you could. (A bit tedious for long works, I grant.) Even if a library wanted to claim copyright over the image — it would never hold up, but they could claim it I suppose — the content itself is totally public.
    Incidentally US copyright law has criminal provisions: if someone states falsely that they hold copyright over a public domain work, they are potentially subject to a prison term. I don’t know of anyone being prosecuted for doing so, but people who place “licenses” on public domain works should at least be aware that they are subjecting themselves to a serious legal hazard — unlike the people they are trying to bully.

  4. I see it as part of the decline of universities into commercial ventures; extending and pretending to powers they can’t legitimately claim, but treating knowledge as an exploitable asset even when they can find no way of exploiting it.

    Damned accountants and know-nothing mangers dominating over scholars. I have as you see rubbed up against this insanity before.

    They think (if “thinking” is a term that can be applied to these parasites that sit like ticks with their heads buried into the flesh of scholars) caring for collections equates to owning them, their public stewardship has become their corporate asset — teaching and researching, their reason for being, is neglected for institutional power. This age of electronic literature has such a pull of potential, that the reactionaries hold back where-ever they can and on flimsy grounds.

  5. Agree with you Greg Schofield. It’s basically greed. Trying to make money from everything. There are expenses involved with digitizing, storing and protecting. However, it just seems wrong somehow that a university make money from what has been traditionally seen as a public trust. Most universities have funding, one way or another, or they would close.

  6. It never ceases to amaze me how people still believe that when a seller states a whole load of conditions, they have any weight.
    A seller can make a list as long as your arm and leg and it doesn’t matter a damn in court unless they are backed up by legislation. Copyright legislation is in deep flux right now and many of the outrageous claims made by sellers about rights and licensing have never been ruled on in court.

  7. In the US, there is case law (Feist vs. Rural and Bridgeart vs Corel) that establishes that there needs to be a threshold of creativity in order to claim copyrights and merely making copies or taking photos isn’t enough (the Bridgeart case is actually based on UK law). I suspect that none of these “copyright grabs” by various archives will stand up in court. As a matter of fact, in the US, Cornell tried this with their book project but eventually backed off.

    A deeper problem is when websites add these terms to their license for accessing their websites, which is hinged not on copyright law but terms of use for website. There may be a stronger case in those instances but even then, what happens if the first user prints out the book and rescans it, or gives it to a second user. You may be able to sue the original user for violating terms of use of a website, but the chain stops there. And there are not $150,000 statuary damages either.

  8. In some copyright legislations (notably the EU), there is a sweat-of-brow clause, permitting copyright in certain cases where the artistic threshold is too low for it to be considered an independent work of art, but where the transfer of works to some other form (e.g. digital) is work-intensive. Typically this is intended for creation of databases, but has also been attempted applies to protect ocr-ed and proofread PD works.
    From what I can make out (IANAL), the precise amount of sweat required for this clause to come into effect is unclear and untested in the courts.

  9. Yakov I agree fully.

    Going beyond the cases in point however … there is a bigger picture that these grubby people totally fail to grasp. What these practices do in the wider scheme of things is further undermine and corrupt the concept of legitimate copyright and respect for creators.

    People in publishing repeatedly ask why so many young people nowadays have no respect for creators, for copyright? Why do they feel they have a right to ‘steel’ the work of others ? Well this here is part of the reason. When the corporate world exhibits such rampant greed (no, not just legitimate profit making), abuses the law and the very principles behind the law, then the law itself is brought into disrepute. This is a major part of why we are where we are today and why piracy is a such a real and present option among a very high percentage of readers when they make a decision about obtaining their reading.

  10. As a digital artist I am very disheartened to see libraries give their vintage books over to Google. For one thing, Google scans are terrible.

    On the scans I’ve seen, they ruin color plates and illustrations. They come out as black and white splotches instead of clean crisp images. When libraries scan they do a fairly decent job do color images can be used freely used by artists in their commercial art projects.

    Google is ruining this artistic resource. Artists have no choice but to buy images. And a lot of times, artists don’t have the money to do that. Nor can they find the beautiful, vintage images that come out of these books.

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