Copyright and Archaeology- “Walking into the lions den with your cock out”

Posted on April 22, 2013

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Last week, I presented a paper at the IfA conference that touched on the issue of copyright after my earlier discussion last week about the issue. It was described as,

“Walking into the lions den with your cock out” by someone else in the session.

Apparently, my musings were controversial and several people were so angry that they lost all ability to speak and say how wrong I am/was. Though everyone was very courteous and no one yelled at me so I am not sure if people were that mad or if the people that told me that were exaggerating. (I should mention it was in the illustrators session so telling illustrators they may not have copyright is bound to inspire passionate responses)

My talk was actually about digital photographs and best practice for preparing your photos for online sharing. BUT I mentioned copyright for a part of the talk and that is pretty much what everyone focused on. So I will expand on that talk and discuss the finer points of the law and copyright as it relates to archaeology and the DIGITAL WORLD. First, I should say that there are between 190-200 countries in the world depending on how you define a country. That means there are 190-200 laws about copyright and 190-200 ways to interpret those laws. There are international laws but they tend to be generic and do not deal with interpretation. They mainly just standardize copyright laws among countries. Moreover, the laws on copyright are pretty clear in most cases but how one interprets them is not e.g. how does one define “copy” or “original” works. That is usually left up to courts to decided and how a court in the US interprets the phrase “copying” vs a court in the Sudan will be very different.

Oh and there is the cluster f$@^of the internet and how it plays havoc with jurisdiction. So lets say you have a defendant in Sweden who hosted the material on a server in Mexico being sued by someone in Canada. Which laws do you use? Mexican? Swedish? Canadian? To illustrate how copyright is practically unworkable in the modern era I will use the example of US and UK laws, actually the court cases that interpret them. This is because the US is were CyARK is based (which I talked about last week) and my presentation was in the UK. Also, because the courts in both countries say similar but at the same time different things.

First and foremost, I am going to ask you, the reader, to check your morality at this point. I am not saying that I agree with how the laws are define, all I am saying is that this is what would happen if you go to court. You may not agree with how the laws are enforced but that is a discussion for you and your representative or MP. So from this point forward look at it as what WOULD happen in court not what SHOULD happen in court.

First up, the US and the case Bridgeman Art Library v. Corel Corp. and a little background on this case. From wikipedia

Corel Corporation sold, in the U.K., the U.S., and Canada, a CD-ROM called “Professional Photos CD Rom masters”, which contained digitized images of paintings by European masters. Corel stated that it had obtained these images from a company called “Off the Wall Images”, a company that no longer existed.

Bridgeman Art Library possessed a large library of photographs of paintings by European masters, as both transparencies and in digital form. The copyright terms on the paintings themselves had expired, but Bridgeman claimed that it owned a copyright on the photographs. It licensed copies of its photographs for a fee.”

So this case goes to court and the result was-

As the Nimmers have written, there “appear to be at least two situations in which a photograph should be denied copyright for lack of originality,” one of which is directly relevant here: “where a photograph of a photograph or other printed matter is made that amounts to nothing more than slavish copying.”

Oh and this gem-

Only “a distinguishable variation” — something beyond technical skill — will render the reproduction original………

In this case, plaintiff by its own admission has labored to create “slavish copies” of public domain works of art. While it may be assumed that this required both skill and effort, there was no spark of originality — indeed, the point of the exercise was to reproduce the underlying works with absolute fidelity. Copyright is not available in these circumstances.

and my personal favorite-

While the Court’s conclusion as to the law governing copyrightability renders the point moot, the Court is persuaded that plaintiff’s copyright claim would fail even if the governing law were that of the United Kingdom….

The allegedly greater skill required to make an exact photographic, as opposed to Xerographic or comparable, copy is immaterial. As the Privy Council wrote in Interlego AG v. Tyco Industries, Inc.,  “skill, labor or judgment merely in the process of copying cannot confer originality . . . .” The point is exactly the same as the unprotectibility under U.S. law of a “slavish copy.”

Moving to the UK we can explore the case Interlego AG v Tyco Industries Inc., mentioned in the US case, which involved LEGOs and the ruling said,

Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgement and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no-one would reasonably contend that the copy, painting, or enlargement was an “original” artistic work in which the copier is entitled to claim copyright. Skill, labour or judgement merely in the process of copying cannot confer originality.

It is not sufficient to confer originality upon them that labour and skill was employed in the process of copying them or in the addition to them of fresh written manufacturing instructions.

So based on US and British case law there is no copyright protection for anyone trying to make a “slavish copy” of an image. In which case this archaeology image would not be covered because it is a photo of another image (like 70%?, 80%?, 90%? of images, reliefs, paintings, etc. in archaeology literature) :

The fighting techniques of the Hallstatt period boxers: an attempt at reinterpretation of the situla art http://av.zrc-sazu.si/En/62/Lazar_AV_62.html

The fighting techniques of the Hallstatt period boxers: an attempt at reinterpretation of the situla art
http://av.zrc-sazu.si/En/62/Lazar_AV_62.html

This also applies to 3D modelling, as in the case of CyArk, there is US case law around this subject: Meshwerks, Inc. v Toyota Motor Sales USA Inc.

“In this copyright law opinion, the Court of Appeals affirmed the district court’s opinion that 3D models of physical objects, if faithfully and accurately representing the original, are not original enough to warrant copyright protection.”

Basically, 3D scans can not be copyrighted, only the objected being scanned can. Now this is were things get interesting the modelling the case above involved significant changes and work to get it to be an accurate representation. Over 90% of the data-points had to be edited in the Meshwerks case and still no copyright applied in the US. This differs in the UK where not just creativity but skill and effort are taken into account when assigning copyright (yes, slightly contrary to the above statements made in the other case). A good example of this is HYPERION RECORDS LIMITED -V- DR LIONEL SAWKINS in which copyright was given for the creation of music even though the original music was hundreds of years old. In that case though the artist(musician) had to make adjustments to the music which conferred copyright to him. Meaning, if the same 90% points were to be changed in the UK than it is possible that the new 3D model would have been under copyright because so much effort and skill has gone into making them, even if that is making a slavish copy. The courts in that case state-

“Reproductions requiring great talent and technical skill may qualify as protectable works of authorship, even if they are copies
of pre-existing works. This would be the case for photographic and other high quality replicas of works of art”
How do the courts reconcile these two judgments?
However, whilst the remarks made in Interlego may be valid if confined to the subject matter then before the Privy Council, they are stated too widely. The Privy Council was there considering fairly simple technical drawings. This is a rather special subject-matter. While the drawing of such a work is more laborious than it looks, it is a fact that any competent draftsman (perhaps, any conscientious amateur) who sets out to reproduce it exactly will almost certainly succeed in the end, because of the mathematical precision of the lines and measurements. This should be contrasted with, eg a painting by Vermeer, where it will be obvious that very few persons, if any, are capable of making an exact replica. Now, assume a number of persons do set out to copy such a painting, each according to his own personal skill. Most will only succeed in making something which all too obviously differs from the original – some of them embarrassingly so. They will get a copyright seeing that in each in stance the end result does not differ from the original yet it took a measure of skill and labour to produce. If, however, one of these renders the original with all the skill and precision of a Salvador Dali, is he to be denied a copyright where a mere dauber is not? The difference between the two cases (technical drawing and old master painting) is that in the latter there is room for individual interpretation even where faithful replication is sought to be attempted while in the former there is not.”
“I think the true position is that one has to consider the extent to which the “copyist” is a mere copyist – merely performing an easy mechanical
function. The more that is so the less is his contribution likely to be taken as “original.”
So in the UK if skill is involved in copying than one could potentially defend copyright on that work. However, it is important to understand exactly how much skill is needed to claim copyright-
“Of course the test involves a question of degree – mere photocopying or merely changing the key would not be enough. But a high degree of skill and labour was involved. This must be considered as a whole – it would not be right to look at each contribution and say “that is not enough” and conclude that the same goes for the whole. Dr Sawkins started by choosing which original manuscript(s) to use (actually he used mainly 2 out of 4, using one to correct ambiguities in the other), he checked every note and supplied 27 “corrections” (i.e. his personal evaluation as to what note Lalande really intended), supplied many suggestions for the figured bass, and put the whole into modern notation. This was not mere servile copying. It had the practical value (unchallenged) of making the work playable. He re-created Lalande’s work using a considerable amount of personal judgment. His re-creative work was such as to create something really new using his own original (not merely copied) work.”
Which might still preclude anyone from obtaining copyright for LiDAR or any 3D scans in which nothing is altered in the UK. Mainly on the grounds that the equipment does all of the work and one merely pushes a button, like any “competent” person or “conscientious amateur” could, to have it make the copies, slavish copies at that. It might also preclude the sort of alterations undertaken in Meshwerks case. Yes, 90% of the points were changed but how were they changed? If it was simply checking the measurements and correcting them than that still might not qualify for copyright.
This opens up the debate about technical drawings in archaeology in the UK. For example, if one measures an object to make sure they are the correct and exact dimensions than in all likelihood they might lose any copyright that they could obtain from “skills and time”. However, if they eyeball it and draw the object without measuring it than they might get the copyright via “skills and time”. Now if one is undertaking technical illustration in archaeology than good practice would dictate making measurements and ensuring accurate scale. Basically, the more measurements you take the less likely you are to defend your copyright in a court in the UK.
Unfortunately or fortunately, courts can only interpret laws when court cases are brought and not settled which means we don’t actually know how the courts would interpret archaeology drawings because they do not typically go to court. IF it did, in the US the illustrator would most likely not be able to claim copyright but in the UK they would be judged on how technical a production it is.
To further muddy the waters, the case law does not take into account changing levels of technology and how it affects what may be defined as skills and labor in the UK. For example, many museums claim copyright of high resolution images of paintings which in the US does not come under copyright but in the UK might. I say might because the claim is based on the fact that high res. pictures can not be produced by just anyone. They required expensive equipment and some trained to use that equipment to take those pictures i.e. skills and labor. However, we now has smartphones with 12 megapixel cameras on them. Potentially, what cost lots of money and skill several years ago could be accomplished by a  child with a phone in 5 years time (assuming camera phones follow the same trajectory and we have 50 megapixel camera phones in five years). Does that mean than that copyright would no longer apply because “any competent draftsman (perhaps, any conscientious amateur) who sets out to reproduce it exactly will almost certainly succeed in the end”? Does copyright apply for the skills of the time it was created or the current skills or lack there of to create it?
I will stop for now as this has turned into a 2400 word essay and post more on the subject later. Most of these points are hypothetical but the take away is that depending on the countries laws you may or may not have copyright. This is especially important in a digital world were the person you may want to sue is in a different country. Moreover, archaeology is at a particular disadvantage because we are trying to make exact copies of works (reconstructions not counting).
This brings up the question- Are archaeology pictures and illustrations un-copyrightable in most cases?
Posted in: Publishing