User:Moonriddengirl/copyright FAQ

I am placing here questions which have come up on Wikipedia previously (frequently or otherwise) about copyright to save myself the time of redundant labor when I inevitably forget that it has been addressed before.

Ladies and gentlemen: our somebody's national anthem

Song lyrics, even national anthem song lyrics, are frequently under copyright for many years after a song's creation. (See [1], for instance.) There are some on Wikipedia who feel that national anthems themselves should be treated differently (see Wikipedia:Lyrics and poetry), but this is not the official policy. Policy at WP:NOTLYRICS notes that "Most song lyrics published after 1922 are protected by copyright, and any quotation of them must be kept to a minimum, and used for the purpose of direct commentary or to illustrate some aspect of the style." See also Wikipedia:Do not include the full text of lengthy primary sources. Whether the lyrics of former national anthems can be included as some "special" fair use or not, however, translations of them are subject to their own copyright. And since policy does not make exceptions for national anthems (current or former), as the administrator reviewing this listing I have no choice but to remove the lyrics altogether in compliance with our actual copyright policy. Please keep in mind the policy at WP:NOTLYRICS in developing this article.

Taxonomic descriptions; descriptions of facts

• Originally at [2].

While the US copyright laws that govern Wikipedia do not protect non-creative speech, the threshold of creativity is very low, and creative elements include not only descriptive language but also facts chosen and the order of facts. For one example of how low the threshold is, consider American Dental Association v. Delta Dental Plans (<http://cases.justia.com/us-court-of-appeals/F3/126/977/497929/>), where even taxonomic classifications are found to be copyrightable. In one specific example selected to demonstrate the creativity, the Court noted:

Number 04267 reads "guided tissue regeneration--nonresorbable barrier, per site, per tooth" but could have read "regeneration of tissue, guided by nonresorbable barrier, one site and tooth per entry". Or "use of barrier to guide regeneration of tissue, without regard to the number of sites per tooth and whether or not the barrier is resorbable". The first variation is linguistic, the second substantive; in each case the decision to use the actual description is original to the ADA, not knuckling under to an order imposed on language by some "fact" about dental procedures.

It might be helpful to think of it in comparison to photography. A nature photographer does not create the Pheidole purpurea when he takes a picture of it; presuming it's alive and free to move about, he doesn't choose its placement or pose. But though his photograph may be merely capturing what is there, with no special filters or recognizably artistic elements, it is still protected by copyright under US law. Or looking back to the document I have linked above, maps. Maps are recorded observations of natural phenomena, but they are explicitly protected by US copyright law.

While there may be an interesting legal challenge here, the Wikimedia Foundation and hence Wikipedia are conservative on questions of copyright law. In the absence of verification that these are public domain (such as a legal precedent which we might use to determine consensus), we can't use them. --Moonriddengirl ^(talk) 15:14, 8 March 2010 (UTC)

Copyright status, Indian government

While copyright rules of 1957, section 52(q) excludes as copyright violations the "reproduction or publication" of certain government works, they explicitly require the retention of certain materials in subsection (ii). Reproduction in the absence of these materials is regarded as a copyright violation.

Specifically, it says that the following are not copyright violations: "(q) the reproduction or publication of-

   (i) any matter which has been published in any Official Gazette except an Act of a Legislature;
   (ii) any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter;
   (iii) the report of any committee, commission, council, board or other like body appointed by the Government if such report has been laid on the Table of the Legislature, unless the reproduction or publication of such report is prohibited by the Government;
   (iv) any judgement or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court, the tribunal or other judicial authority, as the case may be;

With respect to Acts of Legislature, it even forbids translations in any Indian language if the Government of India is offering one for sale, unless published with disclaimer:

   (r) the production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or orders made thereunder-
   (i) if no translation of such Act or rules or orders in that language has previously been produced or published by the Government; or
   (ii) where a translation of such Act or rules or orders in that language has been produced or published by the Government, if the translation is not available for sale to the public: Provided that such translation contains a statement at a prominent place to the effect that the translation has not been authorised or accepted as authentic by the Government;

(See page 35 of that pdf.)

Acts of Legislature are the primary sticking point, but note, too, that the law suggests that copyright protection does exist when a court, tribunal or judicial authority has forbidden reproduction of reports and judgements" Literally, the "unless" clauses in (q)(iii) and (iv) nullify the header: "52. Certain acts not to be infringement of copyright. -(1) The following acts shall not constitute an infringement of copyright..."

As far as content from NIC, I'm afraid that this material is not public domain. See [3]: it can only be reproduced with prior permission, and modifications are expressly forbidden. This is incompatible with Wikipedia's Terms of Use, I'm afraid, as we can neither prevent modifications nor require prior permission.

Lists

See User:Moonriddengirl/Copyright in lists

• Key Publications v. Chinatown:

This language suggests three requirements for a compilation to qualify for copyright protection: (1) the collection and assembly of preexisting data; (2) the selection, coordination, or arrangement of that data; and (3) a resulting work that is original, by virtue of the selection, coordination, or arrangement of the data contained in the work. See Feist, 111 S.Ct. at 1293. There is thus more to a copyrightable compilation than the simple collection of uncopyrightable facts. Such a compilation must "feature[ ] an original selection or arrangement of [those] facts." Id. at 1290. [§ 11]

Thus, only if the selection, coordination, or arrangement of listings in the directory is sufficiently original or creative will the directory be entitled to a copyright. [§ 12]

Selection implies the exercise of judgment in choosing which facts from a given body of data to include in a compilation. [§ 13]

original within the meaning of the copyright laws. Arrangement "refers to the ordering or grouping of data into lists or categories that go beyond the mere mechanical grouping of data as such, for example, the alphabetical, chronological, or sequential listings of data." Copyright Office, Guidelines for Registration of Fact-Based Compilations 1 (Rev. Oct. 11, 1989), quoted in Patry, supra, at 60. [§ 16]

Although the test for infringement of original works and compilations is one of "substantial similarity," see, e.g., Business Trends Analysts, Inc. v. Freedonia Group, Inc., 887 F.2d 399, 402 (2d Cir.1989); Eckes, 736 F.2d at 863, the appropriate inquiry is narrowed in the case of a compilation. As noted, the components of a compilation are generally in the public domain, and a finding of substantial similarity or even absolute identity as to matters in the public domain will not suffice to prove infringement. What must be shown is substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed compilation. [§ 22]

To hold otherwise would bring back long discarded notions of copyright law. Twenty-five years ago we abandoned the "sweat of the brow" doctrine, which rewarded compilers for their efforts in collecting facts with a de facto copyright to those facts. Rosemont Enters., Inc. v. Random House, Inc., 366 F.2d 303, 309-10 (2d Cir.1966) (rejecting the view that "an author is absolutely precluded from saving time and effort by referring to and relying upon prior published material"), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967); see Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980); see also Feist, 111 S.Ct. at 1291-93 ("The 'sweat of the brow' doctrine had numerous flaws, the most glaring being that it extended copyright protection in a compilation beyond selection and arrangement--the compiler's original contributions--to the facts themselves."). [§ 31]

• Stephen McJohn (2006): "The greater the amount of material from which to select, coordinator, or order, the more likely it is that the compilation will be registerable."

Copyright in speech

Copyright in speech is complex. Copyright goes into effect the minute something is put into fixed form. A prepared speech is copyrighted the minute it is written down. If it isn't written down, but improvised, it isn't copyrighted unless it is recorded with permission (express or implied). The recording of a speech usually has two copyright owners: the speaker and the recorder. The recorder only owns copyright to the individual recording, not to the underlying speech. Copyright in transcripts of the speech belong to the speaker only, since a faithful transcript contains no originality. But to add an additional layer of confusion, according to Nolo, "a conversation reconstructed by an author from memory, rather than quoted verbatim from written notes or a recording, may be protectable by the author (not the person who made the original remarks) if some originality was involved in reconstructing the conversation.(Harris v. Miller, 50 U.S.P.Q. 306 (S.D. N.Y. 1941).)"Fishman, Stephen (7 September 2011). The Copyright Handbook: What Every Writer Needs to Know. Nolo. p. 120. ISBN 978-1-4133-1617-9. Other sources used in constructing this paragraph: Fishman (2011), p. 382; Besenjak, Cheryl (2001). Copyright Plain and Simple. Career Press. p. 90-92. ISBN 978-1-56414-512-3. "Compendium II: Copyright Office Practices". p. §203.

Witness statements

Witness statements are generally public records, but I don't know of any test case that has set precedent for them being public domain. "Edicts of government," which includes judicial decisions, are copyright exempt under US law. "Compendium II: Copyright Office Practices". p. §202.03, 206.01. But witness statements are in no measure "edicts".

My own inclination would be to treat witness statements as we treat other public records that we know to be copyrightable; we can link to them, certainly, where right to publish is unquestionable (such as government sites) and we can quote from them to the same extent we quote from other non-free works.

Miscellaneous

• Nash v. CBS, in which is discussed copyright protection in theories of fact.