In our core training product, "The Public Domain Treasure Hunter's Survival Kit" and here on the Public Domain Treasure Hunter Blog we strive to bring you new, undiscovered sources of "fresh" Public Domain content or as we like to call them, "Hidden Treasures".
There are literally thousands of websites on the Internet scanning Public Domain material and uploading it to the 'net everyday. This includes every bit of Public Domain material imaginable from books, to photographs, sheet music, magazines, comics, newspapers, movies, cartoons, all manner of ephemera - you name it, somebody, somewhere is digitizing it and uploading it to a website.
One of our jobs here at Public Domain Treasure Hunter is to find these resources and report them to you so that you can take advantage of these little hidden goldmines of Public Domain content and leverage them for commercial purposes in the creation of your own products.
Recently, (and understandably) we've received some questions about the legalities of downloading and using this material for commercial purposes.
A common example of this is when you find a website containing scans of Public Domain books yet when you download them, you find a copyright notice included with the scan.
Or alternatively you may find a "commercial use prohibited" statement in the accompanying text for an image or book scan.
Sometimes, you'll find a total lack of data either way - no copyright notice, but no "Public Domain" or "free to use for commercial purposes" statement either.
So what's the deal-e-o here? What gives?
Can someone really claim copyright over a Public Domain work simply because they have digitized it and slung it up on the web?
That question is at the heart of what this post is all about.
This post will attempt to answer this question once and for all and assist you with understanding your rights as they relate to digitized Public Domain material that you'll find online.
Firstly, please rest assured that we would never recommend a site to you that we didn't feel absolutely comfortable in utilizing ourselves...
Even though some of these sites seem to discourage (or even flat out deny) making commercial use of their Public Domain material, we recommend them because we personally choose to ignore false copyright claims and after years of doing this stuff we know when to call a bluff and when to back away.
If we feel that a particular site has some merit in their claims of copyright or in how they impose restrictions on the use of their material, then we do not bother to bring the site to your attention.
This post was written to help you develop an understanding of how we judge a site's restrictions on the use of any Public Domain material that they provide and will ultimately assist you in being able to make your own informed decisions about whether to download and use Public Domain material from these websites that we report to you or not.
As always, we must tell you that we are not attornies and thus anything we share with you can not be taken as legal advice - just our perception and understanding of copyright law, the Internet, and the Public Domain and how we use that perception and understanding everyday in the course of conducting our own business affairs.
Simply put, read this post, understand why we approach certain things the way I do, and then draw your own conclusions and make your own decisions.
Ok, so let's get going!
A Quick Review of Copyright Law and the Public Domain
Let's revisit what copyright really is according to the U.S. Copyright Office...
“Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
• To reproduce the work in copies or phonorecords;
• To prepare derivative works based upon the work;
• To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
• To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
• To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
• In the case of sound recordings,* to perform the work publicly by means of a digital audio transmission.
In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act. For further information, see Circular 40, Copyright Registration for Works of the Visual Arts.
It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of “fair use,” which is given a statutory basis in section 107 of the 1976 Copyright Act.
In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions. For further information about the limitations of any of these rights, consult the copyright law or write to the Copyright Office.”
Copyright is a good thing. It motivates creators to continue to create new works knowing that those works will be protected for a fixed amount of time thereby allowing the original copyright holder to profit from the work. If the potential for exclusive profit did not exist far less works would have been created through out history and the scope of shared human knowledge would be far less than it is now. That's an unfortunate fact.
Now let's review our definition of the public domain. Consider the following definition from Wikipedia...
"The public domain is a range of abstract materials – commonly referred to as intellectual property – which are not owned or controlled by anyone. The term indicates that these materials are therefore "public property", and available for anyone to use for any purpose. The public domain is most often discussed in contrast to works restricted by copyright. Under modern law, most original works of art, literature, music, etc. are covered by copyright from the time of their creation for a limited period of time (which varies by country). When the copyright expires, the work enters the public domain."
Followed up by this from the U.S. Copyright Office...
"Examples of what might have caused the work to be in the public domain in the United States include lack of proper notice, failure to renew, failure to comply with manufacturing requirements, being a sound recording fixed prior to U.S. protection, and lack of national eligibility, that is, the source nation and the United States did not then have a treaty relationship."
This is nothing new - we talk about this sort of thing in depth at PDTH. When dealing with public domain material for use in my product creations I am mostly dealing with material that is in the public domain due to one of the following two scenarios...
1. The work was published in the United States before 1923
2. The work was published in the United States between 1923 and 1963 without proper copyright renewal in it's 28th year after publication
So we know what copyright is and we know how a work can fall into the public domain and why, but the real question is this...
Can a person take a public domain work and bring it back under copyright protection once that work has fallen into the public domain?
Before I give a definitive answer to that question let's review a few things...
1. In order for a work to be eligible for copyright protection, the work must meet certain minimal creativity requirements
2. The copyright is held only by the original creator of the material or to whomever the original creator chooses to transfer copyright ownership to.
We've discussed in the past that if you use a public domain work in the creation of a new product (a derivative work) than then certain elements of this new work could be eligible for copyright protection but only if you've met the requirements of minimal creativity.
For example, if you add an introduction to a public domain book then that introduction would be protected by copyright however, the rest of the book (the original public domain bits) would not be.
Once something is in the public domain, it's in the public domain forever. You simply cannot reverse the public domain status of a formerly copyright protected work (well, unless your the U.S. congress and you have no qualms about violating the Constitution of the United States of America, but that's the topic of a whole other discussion).
So, basically the answer is "NO", you cannot claim copyright over a work that had fallen into the public domain. In fact, it's illegal to do so - yet, it happens all the time with virtually no repercussions.
And yet today's publishers (online and off) routinely slap false copyright notices on books and other public domain materials.
Let's talk a little about that now...
False Copyright Claims Are Everywhere!
You walk into Barnes & Noble and pick up a copy of Mary Shelley's "Frankenstein". A quick flip to the title page reveals a copyright notice and a statement that the material inside the book may not be reproduced in any manner with the written permission of the publisher (or something to that effect). There's no intro, no additional newly added footnotes, no new pictures - how can they possibly claim copyright when "Frankenstein" is clearly in the public domain?
- Or you come across some cover scans of children's books that were published in the U.S. before 1923. You find a copyright notice on the cover scans and a link that directs you to buy prints.
- Or you visit a site and find links to public domain images stored on Flickr with a big fat copyright notice on them or some other form of verbiage falsely dictating what you can or cannot do with them.
- How can they get away with this when these works are clearly in the public domain and more importantly can they really enforce these false claims?
- Can someone simply scan in a public domain magazine for instance and then claim copyright ownership over that material?
No, they cannot and let me tell you, there are few things that get my blood boiling faster than some pinhead that thinks they can scan a public domain book and then proceed to tell you that they own the copyrights to it and that it's illegal for you to download it and use it as you see fit!
When a work falls into the public domain it belongs to all of us - you, me, our kids, our kid's kids and so and so on...
I've written the following before...
Mechanical Reproductions of Public Domain Newspapers Are NOT Copyrightable - Simply taking a work that is in the public domain and creating an exact "mechanical reproduction" of it (scanning it into a computer, copying it on a copy machine, etc.) does not meet the "minimal creativity" requirements needed to be able to copyright the work as dictated by U.S. Copyright Law and enforced time and time again in courts throughout the country.
No creativity is required to simply produce an exact facsimile of a public domain work by scanning it into a computer therefore no one can claim copyright ownership of exact reproductions of public domain material.
The reason I mention this here is because as you are searching for newspaper material in the public domain you are very likely to encounter copyright notices on reproductions of these newspapers.
When dealing with newspapers on microfilm, you will probably see a copyright notice on the microfilm itself. When dealing with digital downloads you may find copyright notices on either the PDF document itself or see a notice on the website it came from claiming copyright.
If you are sure that the material is safely in the public domain you can ignore these notices for the reasons I already explained.
That statement was primarily aimed at the copyright notices you'll find on microfilm copies of old public domain newspapers but it applies to ANY mechanical reproduction of material from the public domain.
Stated a different way, a person CANNOT scan a public domain work into a computer and then legally claim copyright over the resulting digital version. No minimal creativity was put forth, nothing of value was added to the original material, and the original copyright was not owned by this person in the first place. Only the original author can claim copyright and that's only if the copyright was properly maintained and renewed. Once a work is in the public domain, all claims of copyright are forfeited.
So how can some publishers and more specifically, some websites get away with claiming false copyright or trying to control what you can or can't do with the public domain material they are providing?
One second answer - BECAUSE THEY CAN!
Here's the real issue in a nutshell...
In the U.S. there BIG penalties to pay for copyright infringement, in fact it's a federal offense.
The Copyright Act provides authors with copyright protection for any "original work of authorship fixed in any tangible medium of expression". The copyright holder retains an exclusive set of rights to that material as we've already discussed earlier in our conversation.
Anyone caught violating the copyrights of a work can be subject to the following according to current federal law. A copyright owner, upon discovering that his copyrights have been violated can (according to the Copyright Act):
• seek to impound the infringing material
• can claim damages and collect the profits earned by the sale of the infringing material
• or collect statutory damages of up to $30,000 per work
• or collect statutory damages of $150,000 per work in the case of willful infringement
And that's just the civil penalty. The Copyright Act also contains provisions for criminal infringement as well specifying potential prison time and other serious penalties.
The bottom line is that, while the Copyright Act protects the rights of copyright owners and copyrighted material, it does very little to protect the public domain - almost nothing in fact.
There are absolutely no civil ramifications to placing a false copyright notice on a work known to be in the public domain. As far as criminal consequences, Section 506(c) criminalizes placing the use of false copyright notices as such...
"Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500."
That's it - that's as close as the Copyright Act gets to protecting the public domain. And I don't believe this statement was included specifically to protect the public domain any way. To my knowledge, no one has ever been prosecuted for applying false copyright to a public domain work.
In addition, copyright and the rights of copyright holders are protected by various agencies of the federal government including the FBI. In contrast, there is no Public Domain Infringement Investigation Unit of the FBI.
In short, the public domain lies completely unprotected.
There is NOTHING stopping a publisher from applying a false copyright notice to a public domain work other than ethics and conscience – two things a lot of publishers are not widely known for.
So why do they do it?
M-O-N-E-Y for the most part.
Most of the publishers that do this do it to scare you into thinking that you have to pay a licensing fee or some other fee to reproduce the material. Quite frankly, with no laws in place to stop them from taking advantage of public domain material in such a way, they'd be crazy not too.
We do more or less the same thing right? We make money by repackaging and reselling public domain material. And usually, we don't mention to our customers that the material was gathered from the public domain. And we put copyright notices on our stuff to put off those that would try and rip off our products. So, really you can't blame them. They want you to pay for using the materials.
But knowing the truth, knowing what's legal and what's not empowers you to make a choice as to whether or not you feel comfortable downloading and using material that's obviously in the public domain even though a disclaimer or false copyright notice placed somewhere would try and convince you otherwise.
IGNORANCE of the law is another reason that public domain material ends up with a false copyright notice on it. Some people believe that just because they took the time to apply "sweat of the brow" effort into scanning and uploading a public domain work, that they can claim copyright over it - simply not so as determined many times in courts across the country.
With regards to the websites that we share with you in the PDTM, most of these websites contain a mixture of public domain material and material that is eligible for copyright protection. Since there is no law requiring that the website owners declare which material is copyrighted and which material is not, these websites often times use a blanket copyright notice covering everything on the site. It's not their job to tell you which material is not copyrighted because it's in the public domain - it's not required so they don't bother. You have to determine that for yourself.
The above scenario isn't quite as bad as blatantly posting a false copyright notice on a public domain book. At least it's not total copyright fraud - some of the site is protected, they just leave it up to you to determine which bits are not and you should be able to identify these public domain bits easily. Although these copyright notices can be misleading to the untrained public domain treasure hunter you should be able to make these differentiations easily.
If you know something is in the public domain, either because it was published in the U.S. before 1923 or because you've done your research and know that it was published in the U.S. between 1923 and 1963 without renewal in the 28th year after publication it's my opinion that you can download it and use it in any manner in which you see fit - despite the presence of a false copyright notice or some other "terms or service" or "rights" policy.
The above paragraph applies only to items that are obviously "mechanical reproductions" meaning that it's quite obvious that the public domain work was scanned in and placed on a website with no alteration that would meet the requirements of minimal creativity.
False copyright claims are NOT legally enforceable. You can not claim copyright to an exact facsimile copy of a public domain work. Even scanning a public domain book, running it through OCR, spell checking it, and converting the text to a different font does NOT meet the legal requirements of minimal creativity required to claim copyright.
Some possible exceptions to consider:
When you BUY public domain material from a website be sure to read the licensing requirements that you agree to very carefully. Some sites and products try to dictate your rights based upon what's outlined in the license agreement. Even though Federal Copyright Law supersedes state contract law (license agreements and restrictions) I am aware of a few court cases where it was ruled that the license agreement should be honored.
The act of exchanging money apparently puts things in a different light sometimes as you usually have to agree to the terms of service before gaining access to the materials. Many critics and experts agree that these "terms of service" are not legally enforceable but be aware, the potential for trouble does exist when you are purchasing public domain materials from a third party.
The courts that ruled in favor of these “agreements” did so using the logic that if you agreed to it, you should abide by it.
You'll have to weigh the risk yourself and make a determination as to whether you should remain bound to whatever terms you agreed to when you made the purchase.
As for free public domain stuff that can be downloaded without purchase - as long as it's obvious that the work is an exact duplication of a public domain work - it belongs to you and I every bit as much as it belongs to the website that hosts it. They have no legal rights to it, they own no copyright to the material, and I appreciate the time, energy, and resources they may have placed into digitizing it but they have no right to tell me what I can or cannot do with it.
You'll see it over and over again while you’re unearthing public domain treasures - false copyright claims.
Companies that produce microfilm and digitized versions of public domain newspapers and magazines place false copyright notices on their products - copyWRONG!
Websites that scan old books and photographs upload them to their sites with a false copyright notices or some other ridiculous method of misleading you into thinking they retain some sort of legal rights - copyWRONG!
Individuals that scan entire public domain magazines and catalogs and upload them to Flickr placing a false copyright notice on them in the process - copyWRONG!
Websites that upload tons of great public domain content and then try to restrict your usage of the material through terms and usage conditions - copyWRONG!
Mechanical reproductions of public domain works (straight up copying or scanning) are not protected by copyright regardless of what the people that scanned these things in may think.
If I make a photocopy of a public domain book, can I claim copyright? Nope. Same thing with scanning.
Another thing to consider - copyright ownership was only ever intended for the original creator of a work. Copyright ownership can only be transferred legally by the original copyright owner.
Someone that scans a public domain book into their computer and uploads it to their website can no more legally claim copyright to that work than you or I.
When I see false copyright notices on public domain material, I smile, download what I want, and move on after silently thanking the provider for the wonderful public service they have provided of taking the time to scan this stuff for us! How nice of them! Aren't they wonderful?
I usually make a Paypal donation if I like the operators of the site and they have made provisions for doing so.
Just remember that you can always "go back to the source" and attempt to find the material in its original state and scan it yourself or you may be able to find the same material on another website that's let restrictive and less prone to making claims of false copyright.
It's your call - do what feels right to you. Just know what your rights are. The public domain belongs to all of us and you can't let some bozo that thinks he owns the rights to everything he scans make you believe otherwise.