Commons:When to use the PD-scan tag

Shortcut: COM:SCAN

An image tagged with {{PD-scan}}. The scan was done in the UK, with brightness, colour and contrast corrections made in India. India’s approach to copyright is similar to that of the UK.

This page relates to scans / photocopies only. For photographs that have been taken from some distance away, see Commons:When to use the PD-Art tag.

Introduction

A simple (non-enhanced) scan / photocopy of an old artwork should be tagged with the appropriate type of {{PD-old}} tag, provided that the original is old enough to be in the public domain by virtue of its age. The scan / photocopy itself, as a purely mechanical and non-creative act, cannot create any new copyright for the person who did the scanning. Such an image lacks originality: it is a bare copy, no more. That rule applies internationally and, on Commons, is normally taken for granted.

The same applies where software has been used to apply fully automatic enhancements such as changes to brightness, contrast, noise reduction, automated scratch removal and so on. Again, as purely mechanical and non-creative acts, such enhancements cannot create any new copyright. That also applies internationally.

The situation is more complex where the original raw scan has been enhanced on a selective basis, for example by means of some careful work in Photoshop to bring out certain details. This type of enhancement, although of course computer-assisted, may require a significant level of personal creative input, and as a result may generate a new copyright for the person doing the work.

Clearly, where the work done is sufficiently extensive that the result has to be treated as a new artistic work (e.g. where a black and white original is “hand-coloured”), the image cannot be uploaded to Commons without a licence from the new copyright owner.

But how should you handle a scan of an old PD original found on the Internet? Often, these appear to be mere mechanical scans, but might perhaps — without it being possible to tell — have been enhanced, and perhaps even enhanced selectively and with significant creative input.

A sensible guideline in such a case is to ask yourself whether the image appears to be purely mechanical scan or — from the evidence available — that it is so similar to such a scan that no copyright protection can be expected to arise. If so, you can upload the image using the {{PD-scan}} tag. The acceptability of the image may have to be reconsidered if additional evidence later comes to light, for example following a complaint from the person who worked on the image and who can establish that a significant level of personal creative input did in fact go into the digital enhancements. However, if no evidence can be found of any significant level of personal creative input, there is no reason to assume that the image is copyright-protected.

Sometimes a Web site will claim a blanket copyright for all images on the site, including images that appear to be no more than uncopyrightable mechanical scans. You should critically analyse such statements on the basis of all available evidence and not simply take them at face value.

What does the PD-scan tag mean?

Use of the {{PD-scan}} tag implies:

• That the Commons image is a copy of a scan made (and possibly enhanced) by someone other than the uploader;
• And that the image can have no independent copyright as it is simply a mechanical reproduction of an old, public domain image, or — from the available evidence — that it is so similar to such a reproduction that no copyright protection can be expected to arise.

When should the PD-scan tag not be used?

The {{PD-scan}} tag should not be used:

• When the original is not in the public domain.
• When you yourself personally made the scan and enhanced the image.
  • In such a case, simply use a suitable {{PD-old}} tag to show that the original is in the public domain, if this is true. If you have made enhancements requiring a significant level of personal creativity, license those enhancements using a tag of your own choice such as {{self|cc-by-sa-4.0}}.

What level of originality is needed for copyright to be created?

Under the Berne Convention for the Protection of Literary and Artistic Works, and similar international treaties, copyright in an artistic work can be granted only if the work is original. Artistic merit is of no consequence. But what is “original enough” to be granted copyright is left to individual countries to determine, and some countries require a higher level of originality (or creative input) than others. There are inevitably many grey areas.

USA

In Bridgeman Art Library v. Corel Corp. (1999), the New York District Court held that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original". In spite of the effort and labor involved in creating professional-quality slides from the original works of art, the Court held that copyright did not subsist as they were simply slavish copies of the works of art represented.

Although that case related to photographs rather than scans, it would be reasonable to say that by analogy the US courts would not grant copyright to a scan which has been enhanced — even manually — with a view to creating an image which is as similar as possible to the original.

Where the enhancement has gone beyond that, for example in bringing out selected details or colours not easily visible in the original, Bridgeman Art Library v. Corel Corp. may be less persuasive, and such cases should be considered on their own facts.

Europe

In Europe, the copyright status of a digitized image depends on the level of creative choices made during the digitization process. Out of Copyright has done a legal analysis to determine the copyright status of digitized works in the 28 EU member states, Switzerland, Norway, and Iceland and produced maps based on three possible scenarios: fully-automated digitization, semi-automated-digitization, and human-operated digitization.

UK

Contrary to what is sometimes assumed, it is not the case in the UK that artistic copyright can be generated merely by dint of wholly unoriginal and mechanical hard work — even a lot of it. Commentators sometimes make misleading reference to a so-called sweat of the brow doctrine and imply that the UK courts uphold copyright protection on the basis of hard work, even without originality. That does not accurately reflect the UK position. UK copyright relies not on sweat of the brow but on a skill and labour test.

Originality is absolutely central to artistic copyright, and indeed under S1(1)(a) of the Copyright, Designs and Patents Act 1988 [1], "Copyright is a property right which subsists in accordance with this Part in the following descriptions of work— (a) original literary, dramatic, musical or artistic works…". If there is no originality there can be no copyright.

In the High Court judgement Reject Shop v Manners [1995] F.S.R. 870. Leggatt LJ held in that case that a mere copy of an existing photograph cannot attract copyright if the copyist has devoted "no such labour and skill as conferred an originality of an artistic character"; and that there can be no new copyright if the process is "wholly mechanical" ([1995] FSR 870 at 876). This was a case relating to the use of an enlarged photocopy, but a scan would be treated in the same way.

The Court quoted with approval an earlier Privy Council case (Interlego -v- Tyco, [1989] AC 217) where Lord Oliver had said "but copying, per se, however much skill and labour may be devoted to the process cannot make an original work". (A Privy Council case is essentially a House of Lords level appeal from a court in a Commonwealth country that still accepts UK law as binding. The Privy Council is the court of final appeal in such a case, and its decisions are of the highest persuasive authority.)

So, it is clear from Reject Shop v Manners that, without "such labour and skill as will confer an originality of an artistic character", there can be no copyright. Bear in mind, though, that the level of originality required by the UK courts is quite low compared with the level needed in most other European jurisdictions.

For further information, see the discussion at Commons:Deletion requests/Images from Darwin Online.

Legal discussion

A useful discussion (not part of this policy) of some of the US legal backround can be found at Wikilegal/Sweat of the Brow

See also

• Commons:Copyright rules/Photographs
• Commons:Threshold of originality