Commons:Deletion requests/Images from Darwin Online

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This deletion discussion is now closed. Please do not make any edits to this archive. You can read the deletion policy or ask a question at the Village pump. If the circumstances surrounding this file have changed in a notable manner, you may re-nominate this file or ask for it to be undeleted.

Images from Darwin Online[edit]

Attention admins! If you came here to close this deletion discussion, remember that deletion requests are generally not closed before 7 days have passed. However, since this is a controversial issue, it is better to wait until everybody has had a chance to comment. Commons is not a home wiki for many users, and as such it may take time before one notices a deletion request. -- Bryan (talk to me) 20:16, 6 February 2008 (UTC)[reply]

(Note: User:ShakespeareFan00 has replaced these with placeholder images until this discussion is resolved. Thanks, SF. Lewis Collard! (hai thar, wut u doin) 20:44, 4 February 2008 (UTC))[reply]

Changing speedy deletion into regular deletion. http://darwin-online.org.uk/ claims copyright on these images, but that might not actually be the case. --rimshottalk 03:00, 2 February 2008 (UTC)[reply]

 Comment There has been a brief discussion at the Village Pump prior to this. The case as I see it is as follows: (1) The original images are out of copyright, due to age, (2) The scans may or may not have attracted copyright. They have been made in the UK and faithful reproductions may get a new copyright there (Commons:When_to_use_the_PD-Art_tag). The same page states that a simple scan or photocopy ... is OK, meaning that if the pictures were just scanned in, then the old copyright (namely PD) applies. I am not yet decided whether these images should be deleted. --rimshottalk 03:10, 2 February 2008 (UTC)[reply]
 Comment In doubt, one might ask the Director of Darwin Online, historian Dr John van Wyhe of the University of Cambridge, UK, on what basis of law he claims copyright for everything on that website. -- Túrelio 08:36, 2 February 2008 (UTC)[reply]
Keep You don't become copyright holder for scanning something, do you? Still, I would be interested in what he has to say. →Яocket°°° 08:46, 2 February 2008 (UTC)[reply]
Keep Following that argument, why do we keep all PD-art photos? Most of them comes from books or site with (c) sign... Strong keep. A.J. 10:42, 2 February 2008 (UTC)[reply]
The special problem in this case is that the website from where the images probably have been taken, explicitely claims copyright over them (how dubious that may be). -- Túrelio 11:30, 2 February 2008 (UTC)[reply]
 Comment It isn't quite as simple, as Bridgeman doesn't work in the UK. The question is whether these images count as scans or as photographs. --rimshottalk 12:25, 2 February 2008 (UTC)[reply]
Well per the somewhat random link you point out (which doesn't actually mention the U.K. at all) From an EU copyright directive: "if it is the author's own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account". Be they photographs or scans, there is clearly a vacuum of originality or "personality" in these works. Megapixie 13:09, 2 February 2008 (UTC)[reply]
The link isn't completely random, it is a tutorial on when to apply Bridgeman. Under country-specific rules, it mentions the UK: Commons:When to use the PD-Art tag#UK. --rimshottalk 15:00, 2 February 2008 (UTC)[reply]
  • Keep as these images appear to be scans and as such do not attract new copyright. --rimshottalk 12:27, 2 February 2008 (UTC)[reply]
  • I think we should keep. This has nothing to do with Bridgeman, as UK law does not apply the reasoning of that US case. A scanned image that is a mere copy of an existing photograph cannot attract copyright in the UK if the copyist has devoted "no such labour and skill as conferred an originality of an artistic character"; and there can be no new copyright if the process is "wholly mechanical": see Reject Shop -v- Manners [1995] FSR 870 at 876 per Leggatt LJ. 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 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". Here, we have what appears to be a mere scan, which can attract no new copyright regardless of any claim to the contrary on the website. --MichaelMaggs 13:17, 2 February 2008 (UTC)[reply]
  • comment Have there been any changes in scale and if so would the uk law on typesetting kick in?Geni 16:03, 2 February 2008 (UTC)[reply]

Keep. Recommended reading: http://www.ipo.gov.uk/copy/c-applies/c-original.htm —LX (talk, contribs) 18:33, 2 February 2008 (UTC)[reply]

  • I'll provide the relevant part of the email Dr. van Wyhe sent me, since he's not here to say anything.

Dear Richard,

The images on Darwin Online are from very various provenances and copyright status. Hence it is not permissible for any of them to be reproduced without checking with us- and this is clearly indicated on the website. Each image therefore carries a copyright notice. The Descent of man is of course an out of copyright work. However our scans are copyright of Cambridge University. The reason is basic. If I take a photograph of an historic building, I own the copyright to the image I have made, even though there is no copyright on the old building. Anyone else can photograph it in the same way. The same is true of an out-of-copyright work like Descent. Its being out of copyright means one does not need permission to photograph an original and reproduce the photos. But this does not mean second parties have a right to the photos of the photographer.

We provide scans of all Darwin's works for free to everyone to access, read and download and to distribute to schools and students. Darwin Online is a woefully underfunded project and non-profit. It's only income stream is charging publishers and the like a fee to reproduce our scans. I do not charge for non-profit and educational uses.

So the short answer is, unfortunately, no I cannot grant permission for these images to be taken out of our control. I agree and sympathize that it is a shame to duplicate efforts, but we do so in order to provide even more free Darwin materials to the world.

I am very happy to give permission for images to appear on other websites, provided that they are non-profit and we have the permission to allow it to be reproduced (some we do not), but this is non-transferrable.

I sometimes wonder about some of the images in the wiki commons category as I know it contains things like paintings that are in private or institutional possession. If I want to reproduce them on Darwin Online I have to get permission and -to use the example of the Darwin as a child portrait, the image has to say reproduced courtesy of the Darwin Heirlooms Trust and cannot be saved via right clicking! Yet this is in the wiki commons. No doubt someone scanned it from a book. But paintings, like unpublished manuscripts, do not go out of copyright with time. One always needs the permission of the owner and sometimes also the descendants. It's all very complicated I'm afraid.

Sorry I cannot be of more help.

Best regards,

John van Wyhe It's a difficult matter. It's a little like taking a photo of a building, but it's also a little like typing out the text of Descent and claiming copyright to it. How would one distinguish between one who stole your text with one who scanned or typed it out themselves? Scanning doesn't take much (usually any) creativity (though I have seen sites which assert copyright for scans, saying that the scan can take many hours to do, such as merging scans together and ironing out imperfections), but does require a bit of effort. Does time and effort count, though?

I basically comes down to what law applies in this country. Still, if it's doubtful I think we should be careful about going against their wishes.

The page linked by LX states "The term "original" also involves a test of substantiality - literary, dramatic, musical and artistic works will not be original if there has not been sufficient skill and labour expended in their creation. But, sometimes significant investment of resources without significant intellectual input can still count as sufficient skill and labour.", which seems to contradict what has been said. Richard001 22:12, 2 February 2008 (UTC)[reply]

  • Keep The scan is supposed to be copyrighted (not the book)... but the comparison with a picture of a uilding is unfortunate. Indeed a scan has no original POV, no creativity, etc. It's a pure copy and any copy would be quite similar even with technical/technological differences. Copyright may not apply. That's a PD-Art case. --TwoWings * to talk or not to talk... 23:19, 2 February 2008 (UTC)[reply]
    It's interesting to see that you all assume that the burden of proof is on Darwin Online to prove that they have the copyright. I thought we would be the ones that have to show that they don't have the copyright. What of the point above, that it isn't just about creativity? Richard001 00:03, 3 February 2008 (UTC)[reply]
    Why don't you accept that we could be right and Darwin Online wrong? Laws are not decided by Darwin Online, are they? --TwoWings * to talk or not to talk... 09:44, 3 February 2008 (UTC)[reply]
    burden of proof is on Darwin Online because they are takeing a position that directly clashes with our knowlage of of copyright law. The confusion over 3D and 2D shows a basic failier to understand both UK and US copyright law. Secondly they appear to be jumping between two systems. Under UK law publication is an irrelivance. It is relivant under US law but then Bridgeman Art Library v. Corel Corp. kicks in. they can't have it both ways.Geni 12:49, 3 February 2008 (UTC)[reply]
  • Keep Dr van Wyhe is wrong. It is uncontested that the original images are out of copyright due to their age, and the mere act of scanning them, in all jurisdictions that I am aware of - apparently including the UK, as explained by MichaelMaggs above - does not confer any new copyright upon the scanner. Sandstein 07:44, 3 February 2008 (UTC)[reply]
  •  Comment IANAL, but I think Dr van Wyhe is wrong. If he isn't we would have to deprecate almost all PD tags. Shinobu 22:31, 3 February 2008 (UTC)[reply]
  •  Comment I'm not taking sides here, though since everyone else is for keeping I think it's only fair that I make the best case I can for the other side. Frankly I plan to continue uploading the full set of images if this gets the green light. What I find strange is that Dr van Wyhe says they get money from others using these images; wouldn't they know that they can use them anyway, if this is the case? Richard001 00:02, 4 February 2008 (UTC)[reply]
  •  Comment I think it would be a very good thing to invite Dr van Wyhe to this discussion. Richard001, would you care to ask him to do so? Lewis Collard! (hai thar, wut u doin) 01:48, 4 February 2008 (UTC)[reply]

Conversation reboot[edit]

I'm summarising the arguments from the discussion for everyone's benefit (not the least of whom is Dr. von Whye, who has been invited to join the discussion and for whom it is only polite to save a load of TL;DR). The vectors for further discussion are:

  1. Bridgeman v. Corel does not apply here. As is tradition on the Commons, we respect the law of the country of origin, not of the United States. Future discussion should refer to the copyright law of the United Kingdom.
  2. {{PD-art}} does not apply. The linked article may be wrong when it states purely mechanical copying cannot even in the UK create a new copyright. See below.
  3. UK law seems unclear on the copyright status of mechanical scans.
    • On the one hand, A scanned image that is a mere copy of an existing photograph cannot attract copyright in the UK if the copyist has devoted "no such labour and skill as conferred an originality of an artistic character"; and there can be no new copyright if the process is "wholly mechanical": see Reject Shop -v- Manners [1995] FSR 870 at 876 per Leggatt LJ. 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 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". (MichaelMaggs)
    • On the other, But, sometimes significant investment of resources without significant intellectual input can still count as sufficient skill and labour. (Richard001, quoting the IPO)
  4. According to the Wikipedia article on UK copyright law,
    The UK copyright distinctively emphasizes the labour and skill[3] that has gone into the work, which is why some of its basic principle are sometimes referred to as the 'Sweat of the Brow' doctrine. This stands in contrast to the usual emphasis on creativity—most countries have adopted copyright laws that do not consider labour and skill as relevant. The term 'Unfair Use'[4] is sometimes used in this context to refer to the use of a work into which somebody has invested a lot of skill and labour, but where little or no creativity is present. This is mainly relevant for reproduction photography and retouching of public domain work and for 'simple' databases, where, in contrast to collections, no creativity was involved in selecting the records. (emphasis added)

Continue. Lewis Collard! (hai thar, wut u doin) 03:34, 4 February 2008 (UTC)[reply]

Further notes. Turns out that Dr. von Whye is (no surprise) too busy to join the conversation. He has however, pointed out several things that have swayed my view in this discussion from vaguely neutral to Delete. In particular, Dr. von Whye says that these images are not purely mechanical copies. In particular, they have been "sent to India for commercial modification, returned to the UK where the colour, tint, brightness etc. has been adjusted, then downzised and a copyright added for online publication before being rechecked and then published online." Under UK copyright law (and, again, we are bound to respect it in this case) this would certainly be copyrightable. Lewis Collard! (hai thar, wut u doin) 19:01, 4 February 2008 (UTC)[reply]
Delete OK I think I have to agree with you so I change my "vote"! --TwoWings * to talk or not to talk... 19:05, 4 February 2008 (UTC)[reply]
 Comment Sent to India for commercial modification ? What does that mean ? color, tint, and brightness tweaking is hardly sweat of brow. Megapixie 23:28, 4 February 2008 (UTC)[reply]
 Comment in that case - there was clearly derivative work. We are talking about scans here.... Megapixie 23:26, 4 February 2008 (UTC)[reply]
 Comment Most of these books are in google books. We can replace most of the images temporarily with images from there for now (i.e. a Bridgeman friendly source). Until someone can do a better scan. The only tricky ones are the bird prints.Megapixie 23:32, 4 February 2008 (UTC)[reply]
  •  Comment So, if we delete these as requested, are the any implications for scans in general on Commons? Or do we just plow on as normal and let people bring the issues up if they have a problem with our use of images? (In this case he didn't actually bring it up - I emailed him). I hadn't thought of Google Book Search, and will have a look at the images available there (we can surely use those, right? I can't imagine them touching up each image!). Richard001 04:04, 5 February 2008 (UTC)[reply]
    • No, there aren't. First, the issues here are uniquely of British copyright law, if a scan was done outside of the UK then this issue would likely not arise. Britain is rare among countries in holding to the "sweat of the brow" doctrine. Secondly, the amount of work that has gone into these scans is pretty extraordinary, I think. I don't think a case will come up like this again.

      Note: In lieu of any opposition, I would like to plow on with deletion ASAP. Please let me know now if there are any objections. (If you want the reason for the rush, get on IRC and talk to me.) Lewis Collard! (hai thar, wut u doin) 06:42, 5 February 2008 (UTC)[reply]

Deleted. ~ Riana ⁂ 07:14, 5 February 2008 (UTC) and Lewis Collard! (hai thar, wut u doin) 07:16, 5 February 2008 (UTC)[reply]

Oh WTF. The re-opening discussion quoted Erik Moeller as saying,
we've consistently held that faithful reproductions of two-dimensional public domain works which are nothing more than reproductions should be considered public domain for licensing purposes.
Will someone please smack this guy with a Commons:When to use the PD-Art tag? That is not how things work on the Commons, and damned if Commons tradition is going to be nullified so easily. We have that page for a reason: Laws differ from country to country on this matter, and UK law (which, for the ten trillionth time, applies here, and for the ten trillionth and second time, Bridgeman v. Corel does not) respects "sweat of the brow", not just originality.
There's a very good legal case for sufficient skill being put in here; and given that the current copyright claim and ToS was drafted by a University of Cambridge copyright lawyer (to whom Dr. von Whye has forwarded correspondence on this matter, the reason for haste that I was reluctant to talk about publically), we have good reason not to arse around with "o u didn't wait seven days lol".
Enjoy your process, guys. Lewis Collard! (hai thar, wut u doin) 07:15, 6 February 2008 (UTC)[reply]
There's absolutely no reason we should worry about the laws of other countries. Unless I'm completely mistaken, the only laws that apply are US laws, since the servers are hosted in Florida. Apart from that, "Commons tradition", if that's the case, is absurd. To have a tradition that respects the laws of multiple nations unnecessarily is a good way to wrap the entire project in legal problems (lest we infringe upon the copyright laws of Liechtenstein). I'd be curious to know where this "commons tradition" came from, because it's frankly idiotic if true.
"Sweat of the brow" certainly has no legal basis within the United States, and the case would have no legal standing within the United States. If there's an actual legal claim to be made, then this is an issue for the Foundation. Until then, legal worries about a case that wouldn't have standing in the UK is pointless. Ral315 07:39, 6 February 2008 (UTC)[reply]
*bangs head against wall.* Uh dude, idiotic or not, respecting the copyright laws of the country of origin of the material is just how things are done around here. Also, I find your "the Wikimedia foundation will take care of any legal issues" attitude disturbing; we have DR for a reason, you know. Lewis Collard! (hai thar, wut u doin) 08:22, 6 February 2008 (UTC)[reply]
Not entirely. We have decided to not care about that part of Greek Copyright law which protects ancient works, such as statues and architecture, because we thought that the law is silly, or idiotic. I think we can and we should choose to ignore silly/idiotic parts of any non-US copyright law. Samulili 11:21, 6 February 2008 (UTC)[reply]
O rly? Lewis Collard! (hai thar, wut u doin) 13:12, 6 February 2008 (UTC)[reply]
I'm sorry, I don't understand what you mean by "O rly?". I can only assume that you question my anecdote about Greek copyright, as that was the only thing I didn't claim was my opinion. Here is the old deletion debate: Commons:Deletion requests/ΦΕΚ: Β 1491 20051027.
I still don't know how to understand "o rly?" but, coincidently, it was with that subject that we discussed this piece of news on commons-l mailing list. I was left with the impression that that is another copyright claim Commons would not respect. Samulili 14:35, 6 February 2008 (UTC)[reply]
As I saw it, you were calling British copyright law stupid on this count, when really, it's no more stupid than copyright law in any other country. "O rly?" was intended to be dismissive, since I don't think "it's stupid" is much of an argument when it is not self-evidently so. Lewis Collard! (hai thar, wut u doin) 15:15, 6 February 2008 (UTC)[reply]
I haven't called the British copyright law stupid, yet, but I gladly will :) It is stupid, in my opinion, and it is something that probably not many other countries have because it goes against that copyright philosophy which is accepted world wide. That's why I am pr Keep. Samulili 18:33, 6 February 2008 (UTC)[reply]
Okay, so I think all copyright laws are stupid. Can I start uploading my pr0n collection now? Lewis Collard! (hai thar, wut u doin) 20:39, 6 February 2008 (UTC)[reply]
I can't, for the world of me, understand why you think this is about you when it's not. What you think - or what I think - is just one opinion amongst the many. If you think that all copyright laws are stupid, you may not start uploading porn on Commons. If you think that we have a clear case here, you may not close the debate and delete images when there is so much disagreement. If you think that "respecting the copyright laws of the country of origin of the material is just how things are done around here" I only meant to show you that that is not the case (I could show you many others). I think you should realize that it is the opinion of the community that matters, and not what you think. You're still a fresh admin and you can learn a new attitude before the current one becomes unbearable. Samulili 13:24, 10 February 2008 (UTC)[reply]
Ral315, you are indeed completely mistaken. Please read COM:LICENSING#Interaction of United States copyright law and foreign copyright law. Rama 08:27, 6 February 2008 (UTC)[reply]
Table the discussion and seek a professional legal opinion.
  • Table the discussion and seek a professional legal opinion. Points to bear in mind:
  1. Commons observes the laws of image country of origin, not just the laws of the United States. Material that is PD-US but not PD elsewhere can be transwikied to en:Wikipedia.
  2. This letter comes from a small nonprofit that has evidently done its best to comply with its own country's legal requirements for claiming copyright on the material.
  3. The individual has approached us politely. I doubt the organization he represents will rush to file suit in the next couple of days.
  4. The issues involved are subtler than a usual layman's understanding and deserve our respect. So as unsympathetic as I normally am regarding claims of new copyright to reproductions of two dimensional artwork, I'll stand back and remain neutral for the present. Durova 08:10, 6 February 2008 (UTC)[reply]
It is a rule because it is a feasible way of ensuring that the files stored here are usable for all purposes, everywhere, as far as that is possible. If an image is not even freely usable in its country of origin, then commons simply cannot claim that it is "free". That's how I understand it, anyway. --rimshottalk 13:07, 6 February 2008 (UTC)[reply]
  • Keep --Millosh 13:48, 6 February 2008 (UTC)[reply]
  • Keep - It seems to me that these are simple scans - tweaking the tint and whatnot isn't enough effort or creativity to generate copyright on these in either the US or UK, even if the modification necessitated a trip to India for commercial modification. You can't create copyright be paying someone to make minor modifications to something which doesn't have copyright attached. That said, I'd appreciate if whoever is in touch with this guy could give us details on what was actually done, as this is the hinging point. – Mike.lifeguard | @en.wb 13:52, 6 February 2008 (UTC)[reply]
  •  Comment Is there no one on Commons who has access to the same books in question and can make their own scans that would unquestionably be PD worldwide? For many of them, it would also be nice to have high-resolution PNG versions, instead of low-resolution JPEGs. How hard to find (or expensive) are these books? Crotalus horridus 14:48, 6 February 2008 (UTC)[reply]
    1)makeing scans is a pain 2)A fair amount of the stuff on the site is not widely published and purchaseing the originals would be expensive. 3)some of it has not previously been published at all complicateing it's status under US copyright law (I can make a case than some of the material is under copyright under US law). The cost could be up to a few thousand.Geni 17:45, 6 February 2008 (UTC)[reply]
  • Most of the images above are drawings by John Gould that were used to illustrate books written by Charles Darwin. Gould died in 1881, Darwin died in 1882, and the books were published even earlier than that. I find it very difficult to believe that any of these images are still in copyright anywhere in the world, since all the creators died about 125 years ago. The photograph (Image:1945 BarlowDarwinBeagle F1571 fig01.jpg) is a different story, and I don't know whether the fact that it remained unpublished until the 1940s is relevant. I'm surprised that there is no readily available published source for Gould's drawings. Were these only included in the first editions? Certainly the books themselves must still be in print, considering Darwin's importance in the scientific community. Crotalus horridus 18:57, 6 February 2008 (UTC)[reply]
    • Creating new scans isn't very hard. I have a copy of this book myself, though scanning all the images in it would take considerable time and effort that I don't have right now. Richard001 06:48, 7 February 2008 (UTC)[reply]
  • Keep, however, the ideal solution is what Crotalus horridus would suggest. If we go around stealing images from other websites that don't expressly allow it, when we can somehow perform the duty ourselves, it feels to me that we're going against at least some of our mission. So Keep, while making an attempt to replace with our own. Cary Bass demandez 18:02, 6 February 2008 (UTC)[reply]
  • Keep No copyfraud for images in PD. Raymond Disc. 19:15, 6 February 2008 (UTC)[reply]
  •  Comment Will you guys please give people a chance to comment? The Deletion Request was opened on 4th and closed a day later before I saw it. It was then re-opened today and closed almost immediately with a different result. In both cases the subtleties of UK law have been misunderstood or glossed over, mostly in favour of a slanging match. There is relevant and binding UK law which may help us here, and if anyone is prepared to wait for a day or two I will put something together. --MichaelMaggs 19:37, 6 February 2008 (UTC)[reply]
  •  Comment I think we need to consider the larger implications of this matter. Do we want to see news articles describing how Commons appropriated the work of scholars with a limited budget and republished it so that it became freely available thereby depriving the scholars of the revenue stream that allowed them to do the work of making this material available in the first place? It seems to me that we may have the right to republish this material, but should not, or at least thoroughly study the alternatives. Walter Siegmund (talk) 20:45, 6 February 2008 (UTC)[reply]
  •  Comment A library near me owns a copy of "The Zoology of the voyage of H.M.S. Beagle". It is likely to be classified as a rare book. As such, to preserve it, copying by library patrons is not permitted. It may be possible to arrange to have it copied by a photo laboratory at a cost of $47 per image. The cost to copy the 166 leaves of plates would be $7800, at that rate. Walter Siegmund (talk) 20:45, 6 February 2008 (UTC)[reply]
You could look at the quality of the reprint first, to see whether it might be sufficient. It's by New York University press, so it shouldn't get tied up with UK law. --rimshottalk 20:57, 6 February 2008 (UTC)[reply]
  • A modest proposal Any Wikimedian who scans the relevant images from Darwin's published books is welcome to submit the files to User:Durova/Encyclopedic image restoration where I'll work on them myself. Please scan at high resolution on a clean machine and save as a .tif file. 600 dpi or better, if possible. That should satisfy everyone's concerns. Durova 21:28, 6 February 2008 (UTC)[reply]
  • Keep It's clear Copyfraud. Copyright protection worldwide and according international conventions has not the aim to make it possible to establish a perpetual right based on reproduction rights. We should fight for a rich Public Domain. If someone pays some Indians to make minor corrections that's fine but the principles of Open Access are shared by thousands of scholars, and these principles allow no Copyfraud. The most appropriate license for scholarly useful materials is according to influential publications CC-BY. To substitute these images would be a pragmatic solution but a dangerous precedent. Please read Moeller's clear statement. Moeller markes his contributions in the mailing list if private. This was NOT marked as a private statement --Historiograf 22:34, 6 February 2008 (UTC)[reply]
  • Keep Simple scans. Adjustement is not a creative work. Simplicius 04:47, 7 February 2008 (UTC)[reply]
    • May I point out that no claim of creative work is being made? British law allows copyright claims on a sweat of the brow basis. We may not like that basis; I don't like what Sonny Bono did to the copyright laws of my own country either. But it's worth either deferring to an expert about whether this meets that legal threshold, or generating our own restored versions of the public domain images. Durova 05:06, 7 February 2008 (UTC)[reply]
    • Yes, for goodness sake read the discussion before trying to take a view on this... Richard001 06:48, 7 February 2008 (UTC)[reply]
  • Question: If these images are deleted here, is it okay for equivalents to remain at en.wiki under 'PD in the US' tag? From what I can gather, it is. Richard001 07:09, 7 February 2008 (UTC)[reply]
I find it uncomfortable that every vote is going to be commented by others. My vote was commented with "for goodness sake read the discussion".
My answer: Indeed I read the statement of Mr. John van Wyhe very carefully. He says a photographer is always owning the copyright. Also he states "paintings ... do not go out of copyright with time ... always needs the permission of the owner."
For example there is the decicision Bridgeman Art Library v. Corel Corp. in USA that states there is not a protection for reproductions.
We can use the original country of an artwork as a reference which might be UK but we do not have to. It is voluntary. In this case even a "transwiki" to English language Wikipedia does not make any difference. The applicable servers are based in USA and so is the foundation. It does not make any difference.
There is a complainant in UK, there is a respondent in USA. A trial can be made in UK or the USA. I tend to say it were the USA. This would mean that American law would be the only reference according to Berne and following agreements. -- Simplicius 10:52, 7 February 2008 (UTC)[reply]
This is no voting, it's a feature of a discussion that contributions are commented by others.--Wiggum 12:12, 7 February 2008 (UTC)[reply]
If you had read the discussion as you were urged to, you'd know that Bridgeman v. Corel is completely irrelevant. You'd also know that we obey both US law and the law of the country of origin; in lieu of a really compelling reason to disregard Commons policy on this count, we will do that here too. This is why we can't have nice things. Lewis Collard! (hai thar, wut u doin) 12:55, 7 February 2008 (UTC)[reply]
Bridgeman v. Corel concerning thousands of photos of artwork is a very important reference to the international standard. Everything else seems to me as Copyfraud and risking a trial for clearing the details would be better than to loose thousands of images as pd-old-material in advance. Simplicius 11:57, 10 February 2008 (UTC)[reply]
  • Keep This is Public Domain pretty much everywhere but in the UK, and UK law probably contradicts EU law anyway here. If we delete these, we have to delete pretty much everything older on the Commons (maybe closing down the Commons for good wouldn't be too bad an idea anyways. It was opened way before anyone thought anything about any legal issue at all, I fear.) --AndreasPraefcke 10:12, 7 February 2008 (UTC)[reply]
  • Commons policy requires non-existence of copyright in the USA and in the country of origin (UK obviously in this case). I think regarding Bridgeman v. Corel the issue seems to be evidently in favour of WP in the US. Regarding UK MichaelMaggs pointed out some important court decisions. It is not true that there is no originality required in UK copyright law. However the treshold for this originality might be contended when it comes to mere copying. The statement "Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgment 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 judgment merely in the process of copying cannot confer originality." (see [1]) (Interlego case) of Lord Oliver was influential an confirmed in the cited decision Reject Shop v. Manners or in Biotrading & Financing OY & Ors v Biohit Ltd & Ors [1997] EWCA Civ 2429. Nevertheless there is a younger decision (Hyperion v. Sawkins) where the edition of an out-of-copyright musical work was considered to be an original work. See Paul Torreman's paper "Legal Issues Pertaining to the Restoration and Reconstitution of Manuscripts, Sheet Music, Paintings and Film for Marketing Purposes" for further discussion. Literature as Colston, C: Principles of Intellectual Property Law, London 1999 also argues that mere copying will not create an original work. Beyond the consideration of legal issues i agree with Historiograf that we should actively "fight for a rich Public Domain". This will not include any lobbyism to change copyright laws a priori but we should use legislative leeways to the full extent of what is possible. Accepting that mere scanning creates new copyright would imply that people will be able to perpetually extend a decayed copyright for good. This is not only inacceptable, this is not the intention of any copyright law. Therefore keep.--Wiggum 14:14, 7 February 2008 (UTC)[reply]
    •  Comment Again, we're not here to "fight for a rich public domain". Run for the British Parliament if you don't like the law; here, we follow it. Lewis Collard! (hai thar, wut u doin) 16:03, 7 February 2008 (UTC)[reply]
      • That's why i argued with law/case law. There is indeed a grey area since all the "free content" or "open access" stuff and the accompanying challenges are new and not yet extensively revised by courts. Obiously a law will not cover every imaginable case. Therefore there are concerns about the impact of the UK sweat of the brow dogma. Since we brought to light some relevant court decicions by now i think we have good reasons to stick to our established policy as cited by Erik Moeller. To "fight for a rich public domain" means not to shy at each bogus claim but to vibrantly advocate our position.--Wiggum 20:34, 7 February 2008 (UTC)[reply]
        • Erik Moeller is plain wrong on the count that "faithful reproductions of two-dimensional public domain works which are nothing more than reproductions" are considered free on Commons, so I'm paying no attention to him and what "our position" is meant to be. Whatever you think of the UK "sweat of the brow" dogma, the fact is it exists, and there's a very good case for it being pertinent to this case. Lewis Collard! (hai thar, wut u doin) 20:51, 7 February 2008 (UTC)[reply]
          • Finally, the WMF decides what is accepted on commons and this recent statement of Erik Moeller (link)is imho a clear illustration of WMF's position. Anyway, i think we can defer that question. I don't dispute the existence of the sweat of the brow dogma and my attitude towards this dogma is indeed of no relevance. What is in question here is the extent of this doctrine and i think we collected some important court rulings which are a reasonable basis to assume that those scans are no original works even under the sweat of the brow doctrine. It would be helpful if you argue on the basis of those case law examples. Until now you are just claiming that those scans are copyrighted without providing good reasons. When we rely on "But copying, per se, however much skill and labour may be devoted to the process cannot make an original work" (accentuation by me) we can reject the claim that some photoshopping (wherever it was conducted) will create an original work.--Wiggum 21:28, 7 February 2008 (UTC)[reply]
  • Keep There isn't any work that generates a right of darwin-online. These images are simpel scans. -- Sozi 14:19, 7 February 2008 (UTC)[reply]
  • Delete Holding a file on commons is like a statement to the user, that he may use the file freely under the given license. As long as there are valid objections present, which obviously are, we should not keep the file. Code·is·poetry 17:35, 7 February 2008 (UTC)[reply]
  •  Comment Since we only have to follow U.S. law we can decide ourselves whether we want to keep these or not. It not a legal question. Consensus should decide. We have always picked and chose which other countries' laws to follow. For PD-art and FOP issues we've decided it should be at least free in the source country as well as the U.S., but there are many other laws we don't follow because they would limit us too much. Most of our images aren't free in every single country. As far as I know, this issue has never been addressed (I always assumed scans were allowed no matter what the source country). We can decide now and it looks like the consensus is to keep. Deleting this would set the precedent that not only the original artist and photographer need to be mentioned for PD-art, but now the scanner as well. That's getting a little carried a way. Remember it's really up to us. →Яocket°°° 19:40, 7 February 2008 (UTC)[reply]
  •  Comment. I know the whole discussion spun away from the original images and is currently just about copyfraud in principle, but let me still say this: The pictures are not worth it. They are ridiculously small and easily reproducible at a much higher quality. Darwin-online should actually be embarrassed to fight tooth and nail for this crap. The productive to further free content is to stop bickering and just make better undoubtfully free content... --Dschwen 23:02, 7 February 2008 (UTC)[reply]
  • Delete, somewhat to my own surprise. I find Codeispoetry's point above persuasive: we should not present something as universally free when there is good reason to believe otherwise. With all respect to Collard, who clearly feels very strongly on this issue, I do not think that the tradition of Commons should matter at all. No Wikimedia project should be in the business of having binding traditions; the only binding policies should be those which follow directly from the nature of the project. However, I am convinced that in this case the nature of the project -- namely, a repository of freely reusable media -- does indeed require that we delete these particular items. With all respect to Erik Moeller, who is doing great things for the WMF, Erik is neither legal counsel for the Foundation nor legally entitled to speak on behalf of the Foundation. An authoritative evaluation of the legal issues here would need to come from Mike Godwin or perhaps a British attorney retained by the WMF; however, I don't think an authoritative legal analysis is really needed. -- Visviva 07:46, 8 February 2008 (UTC)[reply]

I think it should be possible to make some progress with this. There are two main issues to consider: legal and moral, and it makes sense to deal with them separately.

Legal issues[edit]

It’s essential to understand a distinction that does not exist in US law, namely between a mere mechanical scan (which will not attract copyright in the UK) and a 'faithful reproduction' photograph taken perhaps from several metres away from a work of art, with carefully-arranged and professional lighting, filters and so on (which will, on the grounds that artistic skill is needed to arrange lighting etc). However, we are not concerned with the second of these here, as the images in question are scans. We need not therefore worry about PD-Art issues.

Contrary to what has been assumed by many, it is emphatically not the case in the UK that artistic copyright can be generated merely by dint of wholly mechanical hard work – even a lot of it. There has been some misleading reference to a so-called Sweat of the Brow doctrine, often assumed to be the basis of UK law. That expression is not one I recognise from any recent legal case in the UK, and if it is intended to imply that the UK courts uphold copyright protection on the basis of hard work, even without originality, then it does not reflect the UK position at all. 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 [2], "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.

One of the leading cases is the Court of Appeal judgement in Reject Shop -v- Manners. 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 in Reject Shop -v- Manners that without "such labour and skill as will confer an originality of an artistic character", there will be no copyright. The question, here, is whether the work that has been done in enhancing these images is sufficient under UK law.

Dr. von Whye has been quoted above as saying that these images have been "sent to India for commercial modification, returned to the UK where the colour, tint, brightness etc. has been adjusted, then downsized and a copyright added for online publication before being rechecked and then published online." Of that work, the only possible skill and labour that could generate copyright is the adjustment of “colour, tint, brightness etc”. Of the scans are in back and white, brightness adjustment seems the only point at stake (unless there is something in the "etc" that we have not been told about). Brightness adjustment, though, can easily be done wholly automatically, and even if in this case it has been done manually I find it very hard to think that a UK court would accept that, alone, as conferring the necessary “originality of an artistic character”. The colour scans require colour balancing, but again it requires more mechanical effort than anything artistic to perform what is essentially a colour-matching operation.

All we have to go on is the evidence of the images themselves and the comments made by Dr. von Whye. Dr. von Whye is not an IP specialist, and the parallel he draws between these scans and photographs taken of a building is not a valid one. Photographs of old buildings do indeed generate a new copyright for the photographer, but the same is not necessarily true of scans, even enhanced scans.

Untimely, only a court can decide, but unless a lot more has been done to these images than we are aware of, and is evident from the images themselves, the best view is I believe that these will not be entitled to any UK copyright.

Possibly some of the images have indeed been so extensively worked on that they are entitled to a new copyright – but unfortunately we are not told which those might be. Dr. von Whye says “the images on Darwin Online are from very various provenances and copyright status. Hence it is not permissible for any of them to be reproduced without checking with us- and this is clearly indicated on the website. Each image therefore carries a copyright notice.” In my view we must resist such blanket copyright statements, since they effectively amount to a requirement to seek permission for all images whether copyright-protected or not. We should I suggest be handling claims of copyright-protection on an image-by-image basis, and not on the basis of a blanket copyright statement which is alleged to apply indiscriminately to all images on a site.

If further evidence is forthcoming we should of course consider it, but I see no legal reason at present why these images should not be kept.

Moral issues[edit]

Even if we are legally entitled to keep these images, there may be reasons why we would not wish to do so. Dr. von Whye argues that “We provide scans of all Darwin's works for free to everyone to access, read and download and to distribute to schools and students. Darwin Online is a woefully underfunded project and non-profit. It's only income stream is charging publishers and the like a fee to reproduce our scans. I do not charge for non-profit and educational uses.”

Should we voluntarily relinquish these images in support of this clearly laudable aim? This is a matter of personal view, not legal argument, but I would say that generally-speaking we should not. If we start deleting images on the basis of how much we morally approve of the website from which they come, we are in danger of replacing our existing relatively factual criteria, based on US and local law, with a wholly amorphous substitute that will mean different things to different people. That would be a recipe for having to argue about the moral basis of each and every internet image – which would not be an improvement!

That’s not to say, though, that we need have no sympathy for websites such as this one, and as has been suggested above some users may well voluntarily want to re-scan the images, and to upload independent (and perhaps better) copies. That’s all to the good.

The general issue[edit]

This issue has come up before, and will no doubt do so again. It’s by no means unique to the UK, but is common to a large number of countries whose copyright law is similar to the UK’s (essentially most of the Common Law countries other than the US, which uniquely has established a much higher bar for originality in this context – probably more akin to that recognised by the Civil Law countries).

I suggest that images like this should be tagged with a new tag that I’ve tentatively called {{PD-scan}}. Its purpose is to indicate that the image is either a purely mechanical scan or – from the evidence we have available – that it is so similar to such a scan that no copyright protection can be expected to arise. If external evidence comes to light, by way of a complaint or otherwise, each image can then be discussed and if need be deleted on a case by case basis.

The advantage of such a scheme is that it will allow us to retain a whole range of scans that so far as we can tell appear wholly or largely mechanical but which otherwise might be in danger of deletion by too narrow an application of the originality requirement.

So far as the US and the Civil Law countries are concerned, there will normally be no difference between using such a tag and using {{PD-Old}}. As a well-established tag, {{PD-Old}} should normally be preferred when possible.

So ….

Keep for the reasons stated above. MichaelMaggs 18:31, 8 February 2008 (UTC)[reply]

Well said. (Already voted keep.) The template may work, though, I don't know if it's a good idea to make the distinction. AFAIK, scans have always been treated as originals everywhere. All photos from before digital cameras are scans. That's a lot of images. And I really don't think it's worth our time to worry about what country the scan was performed in. →Яocket°°° 20:27, 8 February 2008 (UTC)[reply]
There is a statement under #Legal issues that bothers me: "Possibly some of the images have indeed been so extensively worked on that they are entitled to a new copyright – but unfortunately we are not told which those might be." This strikes me as a better argument for excluding all these images, or at least checking them individually against an independent copy of the original work. If we cannot be sure that these are actually accurate copies of the putative original, then not only the accuracy of our copyright tag, but also the accuracy of the image description, is in doubt. -- Visviva 05:53, 9 February 2008 (UTC)[reply]
I agree that we should use all the evidence available, and that should include if possible making a comparison between each image and the original (does anyone have access to an original or at least a reprint?) But if we have no way to distinguish between a given image and a purely mechanical scan then it's reasonable to assume there is no copyright in that image even where there is a blanket website copyright claim to the contrary. Bear in mind that the copyright claim here appears to be based on an erroneous legal analogy with photographs of old buildings. We need to look at each image individually and ask whether there is any objective evidence that the copyright claim could reasonably be justifiable; if so we delete, otherwise we keep. --MichaelMaggs 07:53, 9 February 2008 (UTC)[reply]
A similar situation: You create an illustration and release it to the public domain. I scan that illustration and upload it here. Do I now own the copyright? Can I license it anyway I want? →Rocket°°° 06:23, 10 February 2008 (UTC)[reply]
If all you have done is to scan a PD image then no, you do not gain any copyright of your own. But if you scan and singificantly change the image you may have copyright in your amended version which you can license as you wish. --MichaelMaggs 21:14, 11 February 2008 (UTC)[reply]

So, to be clear, no amount of work on a scan can make it copyright eligible? Say you scan something, merge it with other scans to recreate a bigger image (i.e. one that can't be scanned in one go), adjust the colour, remove the text showing through from the other side of the page, and touch it up, that wouldn't be considered creative? Richard001 05:30, 12 February 2008 (UTC)[reply]

That may or may not be considered creative. There comes a point at which if enough creative work is done, you will get a new copyright. It's all a matter of degree and there is no foolproof test we can apply which tells us how much originality is needed. All we can do is to try to gauge the level from existing caselaw. In this respect the UK requires a lower level of originality than some other countries. --MichaelMaggs 19:06, 12 February 2008 (UTC)[reply]

Side stepping the issue[edit]

I have uploaded high resolution scans of the figures/plates in a copy of the book I've managed to get my hands on. The images are too large to thumbnail as PNGs due to commons limits - so they could probably do with being cut up/down rezzed/cleaned up. I'd like the dedication be left intact on the image description page of any derived works. Megapixie 03:40, 16 February 2008 (UTC)[reply]

Actually my copy seems somewhat abridged - not all the illustrations are present, which causes the figure numbers to slip somewhat... Megapixie 05:50, 16 February 2008 (UTC)[reply]
That's a good start, but the images for deletion are not only from Descent... Richard001 07:07, 16 February 2008 (UTC)[reply]
Indeed - the color plates from Zoology of the Voyage of HMS Beagle are going to be the most difficult to find alternative sources for. The best thing would be if someone has a contact at a university library that has a copy. Megapixie 12:30, 16 February 2008 (UTC)[reply]
Please add a more detailed citation of your source copy (WorldCat lists a few different "Humboldt" editions of Descent) - as you've noted, the figure numbering isn't the same as other editions, which could lead to confusion without knowing exactly where they came from; a scan of the title page might help. Note that Descent of Man (A. L. Burt edition) contains my scans of all the figures from a U.S. reprinting of the second edition. also ready for cleanup. I'm still waiting on an interlibrary loan of a facsimile of the Zoology book; don't know what the quality of the prints will be. --dave pape 04:02, 17 February 2008 (UTC)[reply]

Thanks Megapixie. I like your dedication ;) →Rocket°°° 04:26, 17 February 2008 (UTC)[reply]

Dave - your scans are great! One suggestion - get a matt black piece of card or paper and put it behind each page as you scan - it dramatically reduces the amount of text print through you get from the next page. Megapixie 00:51, 19 February 2008 (UTC)[reply]
There's a pretty good tutorial on how to clean up such scans at Commons:Pearson Scott Foresman. Lupo 12:25, 21 February 2008 (UTC)[reply]
I'll have to try that. I was using white cardboard, to prevent subsequent pages showing through, but didn't think of black. --dave pape 15:22, 21 February 2008 (UTC)[reply]
I've just been doing it with a black background myself - it seems to virtually eliminate the problem of text coming through from the other side. A pity you scanned the whole lot before realizing this... I've got access to scanners and most of Darwin's works myself, so I should be able to help out. We really need an organized project for things like this. It would be nice if there was a WikiProject Charles Darwin at Wikipedia, with a scanning branch for Commons! In fact, we don't even have articles for some of his books like Variation Under Domestication etc.
For the scans, I've tried colour, black and white and grayscale. I find grayscale to be best myself for these sorts of images, as they have no colour dimension and it should reduce filesize. Do others think this is the best format? I also think jpg is the best file format, as it seems to be of basically equal quality as PNG but uses much less disk space.
I've uploaded one such scan: Image:Descent of Man - Fig 70.JPG. Compared it with Image:Descent of Man - Burt 1874 - Fig 70.png there is virtually no text coming through from the other side of the page, and the file is about 20 times smaller. Is there somewhere else we can discuss this? There don't seem to be any organized WikiProjects or noticeboards here that are active and relevant to this topic, so I'm not really sure where to go.
Speaking of scans in general, shouldn't we have something like Commons:Scans (or Commons:Scanning etc) for general instructions and help regarding scans (how to info, copyright issues etc)? Richard001 01:33, 2 March 2008 (UTC)[reply]
As a sidecomment, .png files have the benifit that it's much easier to extract derivative images. E.g. extracting the beetle from [3]. It might be worth to have both a png original for all derivative works and then a jpg version for easy display in articles. /Lokal_Profil 18:50, 2 March 2008 (UTC)[reply]
Do you suggest keeping the singular PNG files as well, or just the plates? Of course, we'll need to get jpgs up before we can even consider deletion. Richard001 05:52, 3 March 2008 (UTC)[reply]
Not sure I understand what you mean with singular png. /Lokal_Profil 22:45, 3 March 2008 (UTC)[reply]

If they were sent to India for modification, wouldn't that mean Indian copyright law applies anyway? Adam Cuerden 06:17, 3 March 2008 (UTC)[reply]

Funny how nobody thought of that until now. I suppose it would, actually. What law would apply if you did it while on a plane from India to the UK? Richard001 20:14, 3 March 2008 (UTC)[reply]
It doesn't matter. The modifications here are insufficient to claim copyright anywhere. – Mike.lifeguard | @en.wb 22:03, 4 March 2008 (UTC)[reply]

Kept in particular per Michael Maggs's analysis. Lupo 12:06, 2 April 2008 (UTC)[reply]

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