“Sweat of the brow” copyright

As a person who enjoys the digitized reproductions, on the web, of old illustrations, I found this interesting reading:

Gutenberg: No Sweat of the Brow Copyright

From Project Gutenberg, the first producer of free electronic books (ebooks).

Work performed on a public domain item, known as sweat of the brow, does not result in a new copyright. This is the judgment of Project Gutenberg’s copyright lawyers, and is founded in a study of case law in the United States. This is founded in the notion of authorship, which is a prerequisite for a new copyright. Non-authorship activities do not create a new copyright.

Some organizations erroneously claim a new copyright when they add value to a public domain item, such as to an old printed book. But despite the difficulty of the work involved, none of these activities result in new copyright protection when performed on a public domain item:

▪ scanning and optical character recognition (OCR)

▪ proofreading and OCR error correction

▪ fixing spelling and typography, including substantial updates to spelling such as changing from American to British English

▪ adding markup (HTML, XML, TeX, etc.)

▪ digitizing, cropping, color-adjusting or other modifications to images

▪ addition of trivial new content, such as images to indicate page breaks in an HTML file, or pictures of gothic letters for the first letter in a chapter, or adding or removing a few words per chapter

▪ substantial reorganization, such as moving footnotes to end-notes, or changing the locations of pictures within the text

▪ recoding to new character sets, such as Unicode, or new formats, such as PDF

There is some value-added content that DOES get a new copyright, but only for the actual new work (that is, it may be possible to remove the new copyrighted content to go back to a public domain document):

▪ translation into another human language

▪ creating a new compilation of existing materials (though the individual items compiled retain their public domain status)

▪ creating new original art work

▪ creating an original derivative work, such as an audio performance, a new chapter, or a set of favorite quotations

▪ adding a new introduction or critical essay

Project Gutenberg is able to utilize any material which is judged to be public domain in the country of use (i.e., the United States). If it is determined that components of an item are public domain, but others are not, then the copyrighted components may be removed without the permission of whoever owns the copyright for the new content.
It is Project Gutenberg’s practice to seek permission of those who distribute materials, including copyright claimants, before harvesting their materials. This is done in order to be polite, and to allow the producer or distributor to request a particular credit be used. But if permission is not given, public domain items can still be used by Project Gutenberg, typically without any attribution. Because Project Gutenberg receives submissions from many different sources, it is not always clear where an item came from. Volunteers who submit content they did not themselves generate should be diligent about reporting sources, even if the source will not be credited in the item as distributed by Project Gutenberg.