Laurel L. Russwurm

a writer, the copyfight and internet freedom

Posts Tagged ‘public domain

WIPO and EU and Libraries ~ Oh My!

with 2 comments

Like most people, I’ve spent most of my life not actually thinking about copyright law. I bought into the idea that copyright “protects” creative works and encourages creativity. At least I did until I started actually thinking about copyright law when I sat down to write my submission to the Canadian Government’s Copyright Consultation. That was when I first began to question copyright. Over the years since, I have found less to like and more to dislike about copyright law.

A large part of the problem is that governments take advice and direction from copyright “experts” who represent the special interests that would benefit from perpetual copyright. So the industry that will benefit from increased copyright have been invited to the table, but for the most part no one is asking, let along listening to the public. Every expansion of the copyright monopoly comes at the expense of the public interest by eroding the public domain. Cultural works used to come into the Public Domain within our lifetimes, but that is no longer the case. When copyright terms extend for as many as a hundred years after the death of the creator, our own culture is increasingly outside our grasp.

copyright chainsBecause the public domain should be protected, and free culture should be shared, I very much support the work done by the good people involved in the OpenGLAM initiative (run by the Open Knowledge Foundation) that promotes free and open access to digital cultural heritage held by Galleries, Libraries, Archives and Museums. These institutions exist to promote art, culture, history and heritage, so it’s a big problem if copyright law prevents them from achieving their mission. In many respects, because these cultural institutions exist to serve the public, they are increasingly standing up for the public interest.

The recent trend of copyright maximalists has been to take copyright discussions away from lawmakers and out of the public view, instead cloaking international copyright negotiations in secret trade agreements. One of the stunning things about the secret ACTA negotiations was the exclusion of elected government representatives from even knowing the terms of the treaties being discussed. Once such treaties are signed, naturally lawmakers are pressured to rewrite domestic law to accommodate the treaty.

The International Federation of Library Associations and Institutions (IFLA) has been working to make sure the needs of Libraries are taken into consideration at WIPO. Unfortunately the EU seems more interested in supporting corporate special interests than the public interest.

EU flag“The EU made no attempt to address the wide range of problems, particularly relating to non-commercial cross-border activities, identified by library and archive NGOs. It seems to value only internal commercial interests, ignoring and its own interests in culture and research.”
— Mr. Tim Padfield, speaking on behalf of the International Council on Archives (ICA)

As Mr. Padfield suggests, the human rights and cultural needs of the world should be be addressed and protected, not cast aside to support commercial special interests.

The following is a press release issued by the The International Federation of Library Associations and Institutions (IFLA)

EU REJECTS INTERNATIONAL SOLUTION TO LIBRARY AND ARCHIVE COPYRIGHT PROBLEMS;
CAUSES COLLAPSE OF WIPO MEETING

Tuesday 6 May 2014

Discussions by the World Intellectual Property Organisation (WIPO) Standing Committee on Copyright & Related Rights (SCCR) broke down in the early hours of Saturday morning 3 May, after the European Union (EU) attempted to block future discussion of copyright laws to aid libraries and archives fulfill their missions in the digital environment.

Library and archive delegations from Europe, Latin America, Australia, the United States, Canada and the UK attended the 27th meeting of the SCCR from 28 April – 2 May 3014, to push for an international treaty to help libraries and archives preserve cultural heritage, facilitate access to essential information by people wherever they are in the world.

The meeting ended in disarray at 1:30am on Saturday morning, after the EU tried to have crucial references to “text-based” work on copyright exceptions removed from the meeting conclusions – a move viewed by other Member States and library and archive NGOs present as an attempt to delay, if not derail, any progress on copyright exceptions at WIPO.

Dr. Stuart Hamilton, Deputy Secretary General of the International Federation of Library Associations & Institutions (IFLA) commented:

“For the past three years, Member States have been looking at draft texts on copyright exceptions for libraries and archives. The EU is now trying to pretend these don’t exist. We’re frustrated, and deeply disappointed. It appears the EU came to WIPO with one goal in mind: to kill the discussion.”

The EU’s attempt to sideline discussion of copyright exceptions at WIPO is particularly concerning in light of the ongoing review of copyright laws at the EU level.

Dr Paul Ayris, President of LIBER, the Association of European Research Libraries, expressed his disappointment:

“The position taken by the EU delegation in Geneva contrasts strongly with current discussions at European level, where it has been recognised that copyright exceptions for libraries are essential, and must be harmonised in order to facilitate international research and innovation in the age of Science 2.0. The conservative position taken at SCCR 27 in Geneva this week is therefore deeply disappointing. It does not support research and education and hampers European researchers in their use of new tools and services.”

The SCCR has been discussing a possible legal instrument to safeguard copyright exceptions and limitations for libraries and archives since 2009. It is due to submit recommendations to the WIPO General Assembly in September 2014.

“We must act now, and engage at WIPO to make sure the EU and other developed countries know just how inadequate copyright laws are for libraries and archives in the digital, global world,” said Dr. Stuart Hamilton.

Ellen Broad
Manager, Digital Projects & Policy (IFLA)

Book Shelf ~ Kelly Library

Additional quotes

“Libraries in developing and transition countries seek a level playing field to provide people with information needed for education, research and development. Talks at WIPO, where international copyright law is shaped, must urgently get back on track to advance the goal of equal access to knowledge for all.”

— Ms Teresa Hackett,
Electronic Information for Libraries IP Program

razor wire

“In Europe we have introduced a mandatory copyright exception specifically to enable and promote cross-border online access to library and archive collections, and yet the EU delegation at the WIPO negotiations repeatedly denied the need for such solutions within an international context. For many, the EU’s position will smack of hypocrisy and economic self interest.”
— Professor Ronan Deazley,
Copyright Policy Adviser to Scottish Council on Archives

These Doors Are Locked

“We had just spent a productive week discussing several specific examples of legal inconsistencies and ambiguities that block archival preservation and service across borders. After all that valuable dialogue, it was heart-wrenching to see an elite sector at WIPO obstinately thwart efforts at a global solution to a global problem. It is also disappointing that the United States is not ready to assume a leadership role in working with the delegations of Brazil, Ecuador, India, Iran, Kenya, and others to craft a compromise. Nevertheless, those delegations showed that progress will not happen through unbalanced compromises, but by forthright adherence to a treaty that serves the world’s knowledge needs through the service of archives and libraries.”

— William Maher,
The Society of American Archivists (SAA)

NO TRESPASSING

“The EU’s hostility to any substantive discussions that might lead towards an international copyright treaty for the benefit of libraries and archives is reminiscent of its opposition to a treaty for the benefit of blind, visually impaired and print disabled people for most of the five years of talks that concluded in the Marrakesh Treaty 2013. Ironically, the EU signed the Marrakesh Treaty at the same WIPO meeting last week where it sought to wreck discussions concerning libraries and archives.”

— Ms Barbara Stratton,
representative of the Chartered Institute of Library and Information Professionals (CILIP)

Don't Lock Up Our Culture!


Image Credits
With the exception of Nina Paley‘s copyright jail graphic (she has deeded to the Public Domain) that I remixed into my book jail, all images in this article are my own, and as such are released with a Creative Commons Attribution 4.0 International License.

Although WIPO Standing Committee on Copyright and Related Rights (SCCR) has a published Flickr photostream I didn’t use any of them, since all of these images are Copyright All Rights Reserved, not licensed to share.

Death by Copyright

leave a comment »

Aaron Swartz

No one should ever go to jail over copyright law.

It is inconceivable to me that anyone should ever die over it. Now someone has.

Aaron Swartz killed himself on Friday. He was 26. A legend in the tech community, probably a dotcom millionaire. He could have lounged around poolside sipping designer martinis for the rest of his days.

Instead he worked for the public good, fighting the copyfight, defending the internet and the public domain.

Sometimes people of principle feel the need to challenge unjust laws. And like many reformers before him, Aaron Swartz ran afoul of the law in trying to change the world.

A murderer might have to serve as many as seven years for taking a life.

But 26 year old Aaron Swartz faced perhaps more than 35 years in jail.  Over copyright.

Lawrence Lessig characterized it as bullying.

I seem to spend an awful lot of time writing about what’s wrong with copyright law. Since I started looking at copyright with new eyes, I can’t seem to avoid seeing the harm that it does.

Copyright law isn’t a right, its a government backed monopoly that supposedly promotes innovation. Aaron Swartz was certainly an innovator. He, too, was disturbed by the harm copyright does, and so he tried to push against it. But copyright law pushed back, and made sure he will innovate no more.

There is a great outpouring of agony across the Internet.  Having myself struggled with the demons of depression, Cory Doctorow’s eulogy makes me weep. Depression can seem interminable; I can’t imagine how much worse would it be looking at potential decades of imprisonment.

But what gets me is this comment made by someone I’ve never met on Lawrence Lessig’s blog:

No amount of IP will ever be worth a human life. I don’t care how you justify it. Putting Aaron away for 35yrs may be legally justifiable, just as sending slaves back to slave owners from non slave states once was. I however cannot begin to align the life of any human with imaginary property.”

Wayne Tedder

Aaron was only a little older than my own bright and principled child.  My heart aches for Aaron, and his family.  No family should have to endure this.  This is simply beyond acceptable. There is no harm greater than this.


Image Credit
Aaron Swartz, released under CC0 1.0 Universal (CC0 1.0) Public Domain Dedication by Cory Doctorow

Written by Laurel L. Russwurm

January 13, 2013 at 6:58 am

Stunning Copyright Declaration

with 2 comments

Copyright "c"

All material in this edition is protected by copyright, exclusively held by the author and the University of Virginia Press. Permission has been obtained by the Poe Society of Baltimore from Mr. Deas and the Rector and Visitors of the University of Virginia to provide this electronic edition for academic and research purposes only. The Poe Society of Baltimore asks all users of this material to respect these copyrights, and not to exceed what would typically be considered as fair use (generally interpreted as selective quotations and/or paraphrasing of only a small percentage of the total material, and with the appropriate attribution and citation).

Although many of the images have been previously reproduced, in various forms, the copyright of an image is usually considered as belonging to the holder of the physical original. Many of the reproductions in the current presentation are provided as a result of special negotiation, and we ask that they not be pirated. Violation of these copyrights may reduce our ability to present similar information in the future.

The Portraits and Daguerreotypes of Edgar Allan Poe (1989), title page and table of contents

[Note: the emphasis above is mine.]

This is simply incredible. Copyright is a monopoly law enacted by the state, not supposition. American copyright specifically alludes to limitation of copyright terms. Although the reality has been the American Congress bowing to the demands of the special interest group seeking infinite copyright — by granting term extension after term extension — when it comes to photographs of Edgar Allan Poe, that boat has sailed. Edgar Allan Poe died in 1849.

This resulted in extending the copyright monopoly to photographs

Photographs were not even covered by copyright prior to the US Copyright Act of 1870 (confirmed by the Supreme Court decision in Burrow-Giles Lithographic Co. v. Sarony in 1884).

Although I am not a lawyer, the only way any photograph of Edgar Allan Poe could be covered under copyright would be if it had never been published. It seems clear that some people and institutions have hoarded these images of the celebrated writer in the mistaken belief that:

“…the copyright of an image is usually considered as belonging to the holder of the physical original…”

Although the very word “copyright” implies that it is a “right,” in reality copyright is a state mandated monopoly. That’s why there are variances around the world. There have been a few cases when states have further usurped the cultural rights of citizens to grant copyright monopolies in perpetuity, like the Canadian Concurrent Intellectual Property Regimes and the Perpetual Protection of Anne of Green Gables in Canada as well as the U.K.’s Peter Pan extension. Still, neither of these instances are in American law.

Copyright may be a difficult issue, but I would expect a university press to know better.

Copyright is not about ownership of the physical original; this monopoly concerns itself with what is now known as intellectual property rights. Once the original is published; from the moment it leaves the security of the private domain ~ in this case, the daguerreotype artist’s studio — when the work first appears in the world, fixed on paper, perhaps mounted in a matte or frame, in a newspaper, book, or the Internet, the clock starts ticking on the term of copyright. When the monopoly term ends, the intellectual property enters the public domain.

Had Poe been an obscure nobody, these images might never have been published, and so may not have entered the public domain. But that is unbelievable, as Edgar Allan Poe was very famous indeeed, and his death occurred at the height of his powers. There is no reason to suppose any of these images would not have been published at that time, because copyright did not then apply to photographs, so there was no benefit to suppressing Poe photographs.

Copyright law has become a complex mess as it tries to reward this person or that corporation for hoarding cultural treasures that deserve to be in the public domain. Many well meaning people and organizations fall into the morass of copyright misinformation, and make terribly inaccurate statements like the one above.

Although some of these works may have been lost without the efforts of those seeking to benefit from copyright, there is as great a possibility copyright would have done damage, as it often drives original works further and further into obscurity.

Over the last few decades, governments have enacted copyright “reforms.” These have have resulted in onerous draconean punishments being slammed down on individuals who have engaged in copyright infringement of a personal nature, to make “an example.” The intent is clearly to scare everyone else into not committing non-commercial copyright infringement. (What we used to call “sharing” when I was a child.)

As far as I know, this type of infringement was never even prosecuted even thirty years ago. Back then, good law abiding people thought nothing of backing up their record collections on cassette tape, or making a mix tape for a private party. But today, non-commercial and commercial infringement are routinely painted with the same brush of piracy. Personally I think this is ludicrous, because it is the non-commercial sharing and remixing that helps to keep a culture vibrant and growing. Locking it up with copyright means you end up reading the same book and watching the same movie over and over again . . .

Still, it is the law. Since copyright is not a natural right, but a monopoly, it is whatever the lawmakers say it is.

Currently lawmakers are interested only in protecting the special interests of “rights holders,” as they have a great deal of wealth and influence to fuel lobbying efforts around the world.

Although there are exceptions to the Canadian copyright law (“fair dealing”) and American copyright law, (“fair use”), the interpretation of these exceptions are both broad enough and imperfectly understood enough that it is much safer for those of us without a legal staff (aka, the public) to simply not avail ourselves of these exemptions.

Which is why the public and the public domain are not protected from copyfraud at all. There is no legal recourse to prevent statements like the one referenced.

Public domain works belong to all of us… the public. You me and our kids. This is our culture, our heritage.

This type of misinformation effectively prevents most of us from making legally allowed use of public domain works. That is called “copyright chill.” It stifles our use of creative works, and prevents us from using them to create new works, which might be anything from a personal greeting card, a high school history assignment, an original web comic, or a documentary film.

The worst is that, although that misinformation can be identified as copyfraud, no copyright law in the world moves to stop it. The public domain doesn’t have expensive lobbyists to go to court on its behalf, so the public rights are simply trampled by copyfraud.

Copyfraud is piracy.

When the public domain is eroded, we all lose.

You Can’t Copyright the Public Domain

with one comment

I sent the following email to a museum today. I’ve removed identifying information because I think that the problem is really one of copyright confusion, and I truly hope that they will change their policy.

Your museum sounds quite interesting, and it is creditable to see its commitment to sharing Canadian history online.

I’m writing to inform you of a fairly serious copyright issue. While it is true that [the museum] owns physical copies of the work in its collection, that does not confer copyright ownership. Although I have not looked at your online offerings exhaustively, the one example I looked at closely shows the Museum has licensed at least one public domain work Attribution-NonCommercial-NoDerivs 2.5 Canada (CC BY-NC-ND 2.5).

This license could be considered liberal if the Museum actually owned the copyright in the work. Since Canadian Copyright Law places anonymous work in the public domain fifty years after publication, this work should clearly be in the public domain. Which makes the Creative Commons license you have chosen not a liberal permission, but rather an extraordinary restriction that effectively locks Canadians out of our own history. Further, the Non-Commercial No-Derivatives restriction prevents Canadian made cultural works.

Creative Commons Zero or Public Domain logo

Utilization of Creative Commons licenses is usually good, because they lift onerous copyright restrictions — but not when they are affixed to works in the public domain. Public domain work should more properly be labelled CC0 or assigned a Public Domain Mark.

If [The Museum] expects branding public domain work © [The Museum] will ensure accreditation, it does not. It is more likely to inspire people to not credit you, for fear of copyright infringement consequences. Case in point: the image that ultimately brought me to your site today was shared online with no accreditation at all beyond the museum’s name stamped on the side.

The only right copyright grants the Museum is the ability to sue people who copy images so designated ~ if they infringe copyright. Of course, whether a court would subsequently uphold any museum claim to copyright of public domain work remains to be seen.

Even if the museum would win a lawsuit suing Canadians for using part of our heritage ~ cultural and historic work that is in the public domain ~ even commercially ~ would hardly endear your organization to the public. Further it may well curtail future donations of historic work to the [The Museum] Collection.

Employing the Creative Commons NoDerivatives clause will prevent Canadians from using [The Museum] Collection work in celebration and sharing of our own history through the creation of our own remixes and art, and the NonCommercial restriction further prohibits the same for commercial uses. Both of these restrictions belie [The Museum's] stated mission which suggests it “celebrates our past and present life — our history, our people, our communities” but these provisions will instead crush any attempt to use [Museum] works in any “contemporay and interactive” manner.

There is nothing wrong in selling physical copies of collection works in the public domain. If anyone wants to make commercial use of any of the photographs in the museum collection, they would likely still seek out high quality copies or access to the original work. Individuals wanting to frame prints for themselves would similarly prefer the high quality copy that the museum already sells. If I wanted to publish a history book, I would get the best quality copies available.

Creative commons double c enclosed in a circle, with black text at right reading Creative Commons and in red dot CA

Copyright law has become quite complex, and so I would recommend reading Lawrence Lessig’s book Free Culture and Jason Mazzone’s book Copyfraud in hopes the Museum will reconsider its policy. Screening the NFB film RiP! A Remix Manifesto would be helpful too. You can also contact Creative Commons Canada directly for more information.

I’m not a lawyer, just a Canadian fiction writer with an interest in history, copyright and free culture, and you should be aware that I will be publishing a version of this email in my blog. As I am hopeful that [the Museum] wants to fulfill its stated objectives, I will first remove identifying references from this article. I do very much hope that your museum rethinks this issue that is so important to us all.

Regards,
Laurel L. Russwurm

Written by Laurel L. Russwurm

August 31, 2012 at 3:35 pm

C-11 ~ Criminalizes TPM circumvention without Warning Canadians

with 2 comments

Before making it illegal to circumvent TPMs, shouldn’t Canada make it mandatory for manufacturers to warn Canadians that the media and devices we buy use TPMs?

Especially since most Canadians don’t know what TPMs are?

Canadians don’t recognize TPMs.

    • We think we are doing something wrong when we are prevented from copying digital photos we have taken of our own kids, with our own digital camera, to the hard drive on our own computer. We can’t tell if there is something wrong with the camera, the cable, the flash drive or the computer. It would never occur to us that the software has decided we are infringing copyright — especially since we aren’t.  Our ability to copy our own digital content can be prevented accidentally or deliberately with TPMs (Technological Protection Measures).
    • We don’t know the reason we have so much trouble trying to burn our home movies onto a DVD for Granny is because TPMs prevent the software from working properly.  When TPMs (more commonly called “DRM” or “digital locks”) are added to our media and our devices the functionality is often degraded. In other words, to protect the intellectual property from consumer customers, TPMs that may break the thing are often considered an acceptable risk.
    • We don’t know that our legally purchased DVD won’t play in our own DVD player because it is region encoded for a different region, another deliberate TPM.   Consumers accept “region encoding” as a natural limitation of the technology, because we knew it was a physical limitation on VHS and PAL videotape formats.  But the reality is that a DVD would play in any machine except that region encoding TPMs artificially prevent consumers from playing the DVDs we purchase on the device of our choosing.
    • We don’t know that the DVD we legally purchased will not play on the digital device we own if it has a Free Software Operating System (gnu/linux) without first utilizing a player like VLC to circumvent the manufacturer’s TPMs — DRM or “digital locks.”  Bill C-11 will make software like VLC illegal because it can be used to circumvent TPMs.
    • We don’t know that we can’t save the YouTube video letter our grandchild uploaded for us because YouTube’s TPMs prevent this.
    • We don’t know that when we’ve upgraded the hardware on our computer one too many times, the reason that our “improved” computer suddenly became a brick and simply will not work any more is because TPMs prevent it until we buy a new copy of the software. Bill C-11 will make it possible to prevent consumers from installing free software on our own computers.
    • We don’t know that the Nineteen Eighty Four eBook we bought from Amazon disappeared from our Kindle because Amazon was simply exercising a is a deliberate TPM (Technical Protection Measure), more commonly called DRM or “digital locks.”
    • We don’t know that the printer ink cartridge isn’t actually empty, but that the TPM has decided it is.  Sometimes because we have made a certain number of copies, or maybe because there is a TPM which tells the printer that the cartridge can no longer be used after a certain date.  So some printer cartridges can’t be refilled without resetting that date – which constitutes circumventing TPMs.
    • We don’t know our scanner isn’t scanning those photographs because they have been “copy protected” with TPMs.  Even though the photographer has (a) died (b) gone out of business or (c) long ago deleted the content from their drives.   Further, we don’t realize that if we do find a way to scan the only copy of that milestone photograph of our loved one we will be circumventing TPMs, which will be illegal once Bill C-11 passes into law.

Not all TPMs are digital.

Some devices are assembled using specialty screws that can’t be turned with standard screw drivers.  So you must possess the proprietary screwdrivers just to open it up.   With Bill C-11 these screw drivers can be considered TPM circumvention devices, which will become illegal if Bill C-11 passes. Computer recycling depots, AV departments in schools and libraries, and of course repair shops across Canada will have to be very careful not to repair or refurbish any device with TPMs.  It will be safer to throw many goods out rather than risking breaking the law to make repairs.

The Copyright symbol is a TPM.  Overlaying the words “Do Not Copy” or some other kind of watermark on an image is another kind of TPM.  Very often both of these TPMs are used in the commission of copyfraud.   Creative work that was never “protected by copyright” (like the works of Shakespeare) or that have already entered the public domain (like the works of Oscar Wilde) are not subject to copyright.   Anyone can use them, because the monopoly has expired.  But there are a very large number of websites set up to sell copies of public domain art etc that claim copyright to which they have no right.

If copyright infringement is theft from the copyright holder, then copyfraud is theft from the public.  Making copyfraud an offence would actually modernize Canadian copyright law, but as it stands, Bill C-11 will actually protect copyfraud, at the expense of Canadians.

TPMs effectively allow machines authority over human behaviour, and there is no appeal.  How do you convince the hardware or software that it is in error?

No one tells us these things even *have* TPMs.

A great many of the problems we currently experience with our digital media and devices are caused by TPMs/DRM or “digital locks.”

Manufacturers place Technical Protection Measures on our media and devices in order to control our use of these things we own.  They don’t want to draw attention to this; if they did, consumers might choose not to purchase the goods.  As you can see from the examples shown, TPMs are capable of far exceeding “copy protection” and in many cases TPMs are currently employed to artificially impair the media or device to force consumers to upgrade or buy a new one.  Which sounds rather like fraud to me.

What most consumers see is that something is broken.  Some of us will take the digital goods back to the retailer, who will do their job and sell us a new one.  Never mind that adding material that might be repaired but for Bill C-11 — perfectly good digital equipment — to our landfills is hardly in the public good.

Before Bill C-11, if the TPMs manufacturers added broke the goods we purchased, we could repair them.  If the TPMs prevented us from accessing media that we were legally entitled to access, we could circumvent them. Or get someone who knew how to circumvent or repair them for us.  Bill C-11 will make this illegal.

You can’t see most TPMs with the naked eye, so we can’t even tell if it is there because most TPMs are hidden.  Which is why:

Bill C-11 Must Add Warning Labels

Citizens must be told:

  1. that TPMs are present, and
  2. what they do

Citizens can not be reasonably expected to follow the digital lock provisions of Bill C-11 without the inclusion of mandatory warning labels informing/explaining TPMs to consumers on “protected” media, including:

      • movies,
      • music,
      • games,
      • software,
      • eBooks,
      • images,
      • services,
      • etc.

and on “protected” digital devices such as:

      • Computers,
      • DVD players,
      • CD players,
      • game systems,
      • eReaders,
      • cell phones,
      • cameras,
      • digital drives,
      • scanners,
      • etc.

C-11 criminalizes circumvention of TPMs we don’t know are there

If Bill C-11 is passed without also mandating manufacturer warnings that inform consumers of the existence and parameters of the TPMs that we may not legally circumvent simply in trying to make our own digital media and devices work,

Bill C-11 will make all Canadians into inadvertent criminals

There is still a tiny bit of time left to contact our MPs and let them know we don’t want them to pass this Bill C-11 as it is There is still time to say “No”

Theft by Copyright: C.T. Talman vs. W.S. Hartshorn

with 11 comments

I went searching for a photograph of Edgar Allan Poe. You would think it shouldn’t be difficult to find a photograph that can be legally shared online for a famous writer who has been dead since 1849. Even the most draconian copyright laws of today can’t possibly lock up the image of this historical figure.

Or can they?

Doing a Google search for just such an image that I might legally share online, I found this photograph:

black and white studio portrait inscribed: 1904 C.T. Talman

Edgar Allan Poe photographed by W.S. Hartshorn, 1848

The image is marked “copyright 1904 by C.T. Talman.”

Who is C.T. Talman? There is no Wikipedia page for C.T. Talman. A Google search returns barely two pages; the only real results direct the searcher back to this photograph. My best guess is that C.T. Talman was a man, since the preponderance of professional photographers of the day were most certainly male. So the Internet gives us very little information about this photographer whose only claim to immortality seems to be to have provided us with this priceless historical record: an image of the literary giant Edgar Allan Poe.

You have to admit, Edgar is looking pretty good in this portrait for a man who has been dead for fifty five years.

Well, it’s Poe, right?   He was the king of supernatural fiction after all.

All kidding aside, how could C.T. Talman have taken this picture?

The easy answer is that he didn’t.

Searching further, this very image was used as the biographical portrait for the Wikipedia article about Edgar Allan Poe, but the image is identified as the “1848 “Ultima Thule” daguerreotype of Poe.” Clearly the photograph was taken 55 years prior to the 1904 date inscribed on it by C.T. Talman.

The Wikipedia page doesn’t tell us anything about C.T.Talman on the File:Edgar Allan Poe 2 retouched and transparent bg.png page, but provides a link to the original upload of the image, which does:

A photograph of a daguerreotype of Edgar Allan Poe 1848, first published 1880.

Taken by W.S. Hartshorn, Providence, Rhode Island, on November 9th, 1848

Wikipedia: File:Edgar Allan Poe 2.jpg

The daguerreotype was made by W.S. Hartshorn and then re-photographed (copied) by C.T. Talman in 1904.

When W.S. Hartshorn made this Poe daguerreotype, U.S. copyright law did not extend to photography. Photography didn’t come under copyright until 1882 when photographer Napoleon Sarony sued the company that used one of his photographs of Oscar Wilde in an advertisement.

The Poe daguerreotype image was created and published before copyright extended to photographs, placing it in the public domain. At the time, American Copyright law required an act of registration for work to come under “copyright protection.” Yet when C.T. Talman later photographed the photograph – made a copy of this image, he affixed his own copyright on the image. Did this take it out of the public domain?

C.T. Talman unquestionably did the world of culture a great service by preserving this important historical image. At the same time, anyone looking at the image sees a copyright declaration which makes it appear C.T. Talman was the author of the photograph, when in fact, what he did was the modern day equivalent of making a scan – or a copy. As I understand it, an exact reproduction of an existing art image does not allow a photographer to assert copyright.

If I were to scan someone else’s image, and then affix my own copyright declaration, I would be guilty of copyright infringement. Back then, the only reason C.T. Talman would have made his copy of W.S. Hartshorn’s daguerreotype, was so that he could then sell the copies. This is what we know today as bootlegging, or piracy. By asserting copyright, C.T. Talman prevented others from doing so. Was this fraud? Bootlegging? Or plagiarism?

Because the worst is that by copying and then defacing this photograph with his own spurious copyright claim, C.T. Talman has secured a bit of immortality by garnering credit that should have gone to the actual photographer, W.S. Hartshorn. Most people looking at the image will see C.T. Talman’s name, and think that he was the photographer.

For myself, I am thankful that The Dark Clown shared this photograph online, because it is the only image of Edgar Allen Poe “labeled for reuse” that Google could find.

What is ironic, is that a tiny thumbnail of this image is stored in the University of Minesota’s Digital Content Library marked “Copyright: Distribution of this material is not authorized.” I would expect an educational institution to make an effort to properly attribute works in the public domain.

the worst thing

This strikes me as yet another example of copyright harming creators.

This image of Edgar Allan Poe was photographed by W.S. Hartshorn and is unquestionably in the public domain.


post script

Thanks to the comments, I’ve learned some new things, and will be revisiting this issue with a new blog article in Early September 2012.

One biggie shared by Terry Alphonse W.S.Hartshorn was actually Samuel Welds Hartshorn (1802 – 1885).


Those of us who can’t afford a surviving 1st Edition of Poe’s 1827 poem Tamerlane can read it online here.

Image Credits
W.S. Hartshorn’s original daguerreotype photograph of Edgar Allan Poe
was copied by C.T. Talman in 1904 and later shared by The Dark Clown

Happy Earth Day

with 2 comments

Moonscape in foreground, looking at planet earth rising

home sweet home

Between trying to get my debut novel, “Inconstant Moon,” ready to launch, computer technical difficulties, and the current federal election (I’ll be posting an #elxn41 piece to Oh! Canada later today) it would have been easy to forget all about Earth Day.

The weather is fairly miserable this year, but it is still an important day. One of the common themes in science fiction read in my youth was the caution that if we mess up the planet irreparably, without space travel humanity will be, ahem, screwed. Personally, although I am in favor of space travel, it is still important not to destroy this planet. Even if I could move to Mars or the Pleiades with Desdemona, I’d still want the option of coming home to visit.

a tiny chipmunk with eyes closed is held in child's hand while feeding from medicine syringe

Earth is my home.

As it is home to other forms of life.

One day a few years back I found a baby chipmunk stumbling around, wandering into the street.  A closer look showed that his eyes weren’t open yet.  A few days before I’d seen a dead chipmunk on the side of the road, so it was a very good guess that this little guy was an orphan.

So I brought him home.

Amazingly we managed to raise him.  I had been advised to start him on goat’s milk with acidophilus to help digest it, and that did the trick. As he got older, I fed him husked sunflower seeds and grass &tc. but his favorite was tender dandelion greens, which fortunately were not covered in pesticide in my yard. So Chippy Baby grew up.

chipmunk with eyes open, held in child's hand

I got him a large cage so he would be able to build muscle so that when released he’d be able to run away from predators and survive.
Chipmunk in cage about to enter clear plastic climbing tube

Chipmunks live underground, but ours was raised in a hamster cage with a climbing tube.  He could sit at the top of his cage and look around, secure from being picked up by human hands.

When he told us it was time to go, we released him.

Happily he survived, and can be seen checking on us from on high.

Chipmunk on the rooftop

Happy Earth Day.



Image Credits
“Earthrise” NASA image photographed by astronaut Bill Anderstaken on Apollo 8 mission. All NASA photos are released into the public domain.

All other photographs are by laurelrusswurm released under a Creative Commons Attribution 3.0 Unported (CC BY 3.0) License

Follow

Get every new post delivered to your Inbox.

Join 1,351 other followers