Copyright and the "originality" of TEI encoding

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Copyright and the "originality" of TEI encoding

Dominik Wujastyk
Dear colleagues,

Let's say I take an out-of-copyright printed edition of a work (P), and type the main text of it (say, Hamlet) into my computer, producing an e-text (E).  I encode it using the TEI guidelines.

I am interested in whether or not I can claim copyright of E, my TEI file.  It is a question of whether E is a "derivative work" or contains sufficient "originality" to qualify for copyright.  

Has there been a definitive discussion about this anywhere, or is there some documentation addressing the question?  (I've done a keyword search on this list, but the results were voluminous and irrelevant.)

There's a corollary.  If I have copyright of my E, then I have the right to place a Creative Commons license on the work, if I put it on my public website, say.  If E is merely derivative, then am I right in believing that I therefore do not have the right to put a CC license on it?

Best,
Dominik
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Re: Copyright and the "originality" of TEI encoding

Laurent Romary
Hi Dominik,
This is to my view a non-issue:
- if the work is in the public domain, you can put whatever license, anyone can retrieve it ('it' = for instance, the full text) from another source with the lowest possible licensing scheme
- your encoding actually provides an added value and adding a good old CC-BY could be there to remind that you have nothing against being quoted by anyone using this digital edition further
Cheers,
Laurent


Le 12 déc. 2012 à 16:11, Dominik Wujastyk a écrit :

> Dear colleagues,
>
> Let's say I take an out-of-copyright printed edition of a work (P), and type
> the main text of it (say, /Hamlet/) into my computer, producing an e-text
> (E).  I encode it using the TEI guidelines.
>
> I am interested in whether or not I can claim copyright of E, my TEI file.
> It is a question of whether E is a " derivative work
> <http://en.wikipedia.org/wiki/Derivative_work>  " or contains sufficient "
> originality <http://en.wikipedia.org/wiki/Originality>  " to qualify for
> copyright.  
>
> Has there been a definitive discussion about this anywhere, or is there some
> documentation addressing the question?  (I've done a keyword search on this
> list, but the results were voluminous and irrelevant.)
>
> There's a corollary.  If I have copyright of my E, then I have the right to
> place a Creative Commons license on the work, if I put it on my public
> website, say.  If E is merely derivative, then am I right in believing that
> I therefore do not have the right to put a CC license on it?
>
> Best,
> Dominik
>
>
>
> --
> View this message in context: http://tei-l.970651.n3.nabble.com/Copyright-and-the-originality-of-TEI-encoding-tp4022909.html
> Sent from the tei-l mailing list archive at Nabble.com.

Laurent Romary
INRIA & HUB-IDSL
[hidden email]
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Re: Copyright and the "originality" of TEI encoding

Sebastian Rahtz-3
In reply to this post by Dominik Wujastyk
I can't cite the exact source off hand, but I am very sure that adding TEI encoding is
regarded as "contains sufficient originality", and that this has been agreed in legal
context in at least one jurisdiction. I would no hesitation, were I you, in licensing
your work in good faith as copyright owner.

remember that you need to check age of death + 70 to be sure a work
is out of copyright. so if you're not sure the author died before 1942,
be careful. James Joyce is OK, Olaf Stapledon is not.

don't bother with Hamlet, though, its been done :-}
--
Sebastian Rahtz      
Director (Research Support) of Academic IT Services
University of Oxford IT Services
13 Banbury Road, Oxford OX2 6NN. Phone +44 1865 283431
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Re: Copyright and the "originality" of TEI encoding

Walter van Holst
In reply to this post by Dominik Wujastyk
On 2012-12-12 16:11, Dominik Wujastyk wrote:

> Dear colleagues,
>
> Let's say I take an out-of-copyright printed edition of a work (P),
> and type
> the main text of it (say, /Hamlet/) into my computer, producing an
> e-text
> (E).  I encode it using the TEI guidelines.
>
> I am interested in whether or not I can claim copyright of E, my TEI
> file.
> It is a question of whether E is a " derivative work
> <http://en.wikipedia.org/wiki/Derivative_work>  " or contains
> sufficient "
> originality <http://en.wikipedia.org/wiki/Originality>  " to qualify
> for
> copyright.

If your TEI-file merely faithfully documents the state of the
manuscript you digitised, it is unlikely to meet originality standards
in most jurisdictions. It may be eligible for weaker forms of copyrights
in some jurisdictions that recognise collections of facts as
copyrightable though. So the eternal answer remains: it depends.

Regards,

  Walter

(lawyer, but only practicing in NL)
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Re: Copyright and the "originality" of TEI encoding

Martin Mueller
There are a lot of assumptions buried in the phrase "merely faithfully
documents the state of the manuscript you digitised." Figuring out the
text and structure of a manuscript and representing it to an audience is
often a significant scholarly act. It adds a lot of value that was not
there before, and the addition of such value seems to me prima facie
subject to laws that protect intellectual property.

It is another question altogether whether a given scholarly community
decides that it may be better off making all its added value freely
available to begin with, especially if the work is done by people in
salaried positions whose responsibilities include the production of such
work.


Martin Mueller

Professor of English and Classics
Northwestern University




On 12/12/12 9:45 AM, "Walter van Holst" <[hidden email]> wrote:

>On 2012-12-12 16:11, Dominik Wujastyk wrote:
>> Dear colleagues,
>>
>> Let's say I take an out-of-copyright printed edition of a work (P),
>> and type
>> the main text of it (say, /Hamlet/) into my computer, producing an
>> e-text
>> (E).  I encode it using the TEI guidelines.
>>
>> I am interested in whether or not I can claim copyright of E, my TEI
>> file.
>> It is a question of whether E is a " derivative work
>> <http://en.wikipedia.org/wiki/Derivative_work>  " or contains
>> sufficient "
>> originality <http://en.wikipedia.org/wiki/Originality>  " to qualify
>> for
>> copyright.
>
>If your TEI-file merely faithfully documents the state of the
>manuscript you digitised, it is unlikely to meet originality standards
>in most jurisdictions. It may be eligible for weaker forms of copyrights
>in some jurisdictions that recognise collections of facts as
>copyrightable though. So the eternal answer remains: it depends.
>
>Regards,
>
>  Walter
>
>(lawyer, but only practicing in NL)
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Re: Copyright and the "originality" of TEI encoding

Robert Cicconetti
In reply to this post by Sebastian Rahtz-3

This depends upon jurisdiction too. There are still a fair number of life + 50 countries out there, some odd exceptions written into different codes (see Peter Pan in the UK, some extensions in France from the world wars, etc), the mishmash that is US copyright, etc.

-R C

(meant to send to list)

On Wed, Dec 12, 2012 at 10:26 AM, Sebastian Rahtz <[hidden email]> wrote:
remember that you need to check age of death + 70 to be sure a work
is out of copyright. so if you're not sure the author died before 1942,
be careful. James Joyce is OK, Olaf Stapledon is not.

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Re: Copyright and the "originality" of TEI encoding

Walter van Holst
In reply to this post by Martin Mueller
On 12/12/12 5:01 PM, Martin Mueller wrote:
> There are a lot of assumptions buried in the phrase "merely faithfully
> documents the state of the manuscript you digitised." Figuring out the
> text and structure of a manuscript and representing it to an audience is
> often a significant scholarly act. It adds a lot of value that was not
> there before, and the addition of such value seems to me prima facie
> subject to laws that protect intellectual property.

Dear Martin,

However rude my assumptions may sound, copyright is not a pure sweat of
the brow protection. Added value is not necessarily relevant in this
context. A typical lithmus test, especially in civil law countries, is
the question to what extent the 'personal stamp' of the 'maker' (which
would be the TEI encoder) is possible. If encoding the text and
structure of a text conformant to the TEI standard is possible in a
distinctly recognisable personal style, then yes, this signficiant
scholarly act gives rise to copyright protection. If not (and I have
always been under the impression that TEI actually was striving for
objectivity), then regardless of the scholarly significance it is merely
faithfully describing what was already there. Which in copyright terms
bears no originality and is therefore is unlikely to be eligible for
copyright protection under the Berne convention.

So the fundamental question is: would a reasonable person recognise the
TEI encoding by Martin Mueller as having a distinctly different style
from another person in his research group, despite them using the same
annotation and encoding standards?

It should also be mentioned that any annotations and commentaries added
in the TEI encoding are very likely to be eligible for copyright protection.

> It is another question altogether whether a given scholarly community
> decides that it may be better off making all its added value freely
> available to begin with, especially if the work is done by people in
> salaried positions whose responsibilities include the production of such
> work.

I would concur that this is an entirely different question altogether
and if only for that reason alone I would suggest applying a CC0 license.

Regards,

 Walter
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Re: Copyright and the "originality" of TEI encoding

Paul Schaffner
> So the fundamental question is: would a reasonable person recognise the
> TEI encoding by Martin Mueller as having a distinctly different style
> from another person in his research group, despite them using the same
> annotation and encoding standards?

A large part of my job is reviewing the work of my editors. I would
say that not only is our 'house style' distinctive among TEI projects
(a kind of collective originality in the decisions we've made and
the policies we've adopted), but I can usually recognize by their
encoding habits not only the data-conversion firm responsible for
the base encoding of a given text, but also the particular in-house
editor who revised it. I am not sure that this is the best test
of originality -- after all, creativity can reside in interpretive
acts of markup even if they are *not* habitual and recognizable as
such -- but by this test, then yes, even basic TEI markup, applied
to many books in a project of large scope,  can and does bear a
personal stamp, however much I try to eradicate it.

(I think that I would argue for some degree of originality
and creativity even at the level of transcription, to the
extent that that can be separated from markup, but that wasn't
the question.)

pfs
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