Robert Rohde wrote: > There are serious legal disagreements about this, but people have > argued for some time that the UK is perhaps the purest example of a > "sweat of the brow" state with respect to their copyright law. In > other words, the prevailing view of many has been that UK law rewards > an author's effort irrespective of creativity (neither "creative" nor > "creativity" appear in the UK statute at all). > > There has never been a good test case, but serious people have opined > that Bridgeman v. Corel (the US case establishing PD-Art for > photographs of PD works) would have been decided the opposite way in > UK courts. In other words, there have been opinions that the effort > involved in creating high quality photographs is by itself sufficient > to embue that photograph with copyright protection in the UK even if > the work being photographed is PD. However, though there is no > statutory requirement for creativity, there is one for originality. > Hence, most of the arguments in the UK hence turn on whether such a > photograph would qualify as "orginal" or not. Some people believe > that merely moving the image into a new medium is sufficiently novel > to qualify for protection, while others dispute this. Again, there > isn't a lot of guidance on this point. > > As repugnant as the conclusion might be, it is entirely possible that > the NPG could win this case under UK law and establish that > photographs of PD works are definitively not PD in the UK. It's not a > sure thing, and comptent legal representation would no doubt make an > important case out of it, but my reading of the commentaries in this > area would such suggest that a victory by the NPG is entirely possible > (and perhaps more likely than not) assuming the issue is decided based > solely on UK copyright laws.
One should never be cocky about winning these things. Once engaged the defence needs to be carefully crafted. There is always uncertainty when a provision in the law has not been tested in the courts. We also need to consider that NPG raised three areas of law: copyright, database rights and contract. If all of them are raised in a lawsuit all need to be addressed. Discussion so far has been limited to copyright. Contract raises the question of what distinguishes a contract from terms of usage that must be sought on another page of the site. The database rights claim may be the difficult one to overcome, though I note there that all the cited law is from regulations rather than statutes. Copyright is a child of statutes; mere regulations may not expand these rights unless the statute provides clear authority to do so. Ec _______________________________________________ foundation-l mailing list [email protected] Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
