Copyright question

[commasense]

@Exapno Mapcase

commasense, I’ve got to step in whenever I hear the argument, “hey, it’s illegal, but you won’t get caught, so just do it, man.”

Rather than let Harpo get away with implying that I’m in favor of breaking any law you can get away with, I thought I should clarify my position.

First off, I am not one of these music-downloading teenagers who thinks that “information wants to be free,” and that no one is harmed by copyright violations. In fact, I’m a publisher, and thus intimately concerned with copyright and other intellectual property issues. If I learned that anyone was egregiously violating my copyrights, I would not hesitate to threaten or file a lawsuit.

However, that said, I don’t believe that “illegal” and “wrong” are in every case synonymous. In the present case, the facts strongly suggest that the work is in the public domain. The OP seems to have done reasearch to indicate that both the author and publisher are defunct. There is no clear evidence that the copyright was renewed.

So if the work is in the public domain, then clearly reproducing it is legal, and we have no dispute.

But let’s consider the following theoretical case: an accomplished scientist, working alone, discovers a miraculous cure for cancer, and copyrights a description of the process. Then he dies, without having told anyone about the cure, and leaving no heirs.

Someone finds his papers (for the sake of this argument, I am stipulating that the finder has not bought the estate, or otherwise established an ownership claim) and discovers the cure, but notes that it is copyrighted. By Exapno’s lights, we can’t do anything with this cure until the copyright expires, even though the author is dead and there is no one to benefit from exploitation of the copyright.

This, in my opinion, would be a rather mindless (and clearly counterproductive) adherence to the letter of the law.

From the facts presented, I feel that the present case may be analogous to my hypothetical. If the work is still technically under copyright but has effectively been abandoned, there may be no harm in reproducing it, and some benefit to society in general may accrue. In such circumstances, in my opinion, it becomes a matter of intent. If the OP is acting in good faith without intending to improperly benefit from the publication, and is willing to remove the material if the owner objects, I think publication is justified. Under a strict reading of the law it may be illegal, but I don’t feel it’s wrong.

[Walloon]

@PhilAlex

I didn’t mean that the US was required to respect Canada’s longer copyright.

Nor was I saying that. I am saying that unless an edition of the work was also published in Canada, Canadian courts are not obligated to recognize the copyright of a work originally published in the U.S. for any longer than the work is protected in the U.S. itself.

Article 7, Section 8, of the Berne Convention states:

In any case, the term [of copyright] shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.

As the interests of no Canadian author, publishing house, or distributor are being affected, why would Canadian courts consider this case to be under their jurisdiction? It’s is a principal of copyright law: someone’s local interests must be affected by the violation.

[Walloon]

@commasense

But let’s consider the following theoretical case: an accomplished scientist, working alone, discovers a miraculous cure for cancer, and copyrights a description of the process. Then he dies, without having told anyone about the cure, and leaving no heirs.

This would not be a copyright case. A copyright does not cover ideas, only the specific expression of an idea. A new and original process, on the other hand, is covered by a patent.

[Johnny_L.A]

The OP seems to have done reasearch to indicate that both the author and publisher are defunct.

Walloon has done a better job of researching than I. I’ve never heard of Ancestry.com. It seems that Mr. Toggweiler may still be living in Southern California. But from what I’ve read on the links people provided, it looks like his works are in the Public Domain.

If you want his address and telephone number, look up Mart Toggweiler in an on-line telephone directory like Switchboard.

I should try that. If he’s the author, it would be nice to see if I could get his “blessing”.

[Exapno_Mapcase]

commasense, you did well in restating your argument, so I retract any suggestion that you are one of the idiot kids who often post on this subject.

However, as Walloon already has pointed out, your analogy simply has no relevance in this discussion. Remember, only the specific expression of facts or ideas can be copyrighted, not the facts themselves or the underlying ideas.

And I still refuse to accept the position you take in your last paragraph. If the work is still under copyright, then the disposition of the work lies entirely in the hands of the copyright owner or the estate or heirs. He (or they) may not want the pamphlet published, for some reason. Or he might want to republish the pamphlet and make money off of it but cannot for some reason. In either case, it is not your call to decide.

There is no such thing as “technically under copyright.” A work is in copyright or in the public domain. If the work is in the public domain, then there is no argument: reprint and spread the information. If it is in copyright, then gnash your teeth all you want, but leave it be.

As for the technicalities of this situation, I fired off an e-mail for clarification to the person whose link I cited earlier. I don’t know if he’ll have time to answer but I’ll give [paraphrase ;)] his comments even if they go against me.

[Exapno_Mapcase]

Originally Posted by commasense
But let’s consider the following theoretical case: an accomplished scientist, working alone, discovers a miraculous cure for cancer, and copyrights a description of the process.

Oh, one more thing. Everything you write is automatically copyright from the moment it is written. The scientist can register a copyright and it is a good idea for him or her to do so, but that only changes the damages that can be won in a lawsuit. It does not affect copyright one whit.

I only mention this because it is another aspect of copyright that many (probably most) people don’t understand.

[Johnny_L.A]

As for the technicalities of this situation, I fired off an e-mail for clarification to the person whose link I cited earlier. I don’t know if he’ll have time to answer but I’ll give [paraphrase ] his comments even if they go against me.

Thanks. It looks like the booklet is in the public domain based on the links you and others provided; but it will be good to know for sure.

In the meantime, I’m transcribing it onto my computer. If nothing else, I’ll have a copy that I can read and not worry about messing up; and I can keep the original booklet safe.

[Exapno_Mapcase]

So. you thought there would be a simple yes/no answer to this, did you?

Here’s what my contact (a practicing copyright lawyer) said:

There’s an odd little window of works whose renewal date fall into 1990-1993, which this one does. In that window copyright can be reclaimed by a petition to the Registrar of Copyright. It’s one of those things the 1992 technical amendment I cited was supposed to correct.

So his advice is to treat it as if it were still copyrighted. A court might very well find for you, but - my words - you definitely don’t want to expensively fight in court over this.

Checking the online Copyright database to see if it turned up was a good idea, but he says that unless you know enough about the work to be able to search all the different ways - the author’s name, the publisher’s name, the
title, AND the original certificate number - you might not find the needed info.

Well, that certainly settled that, didn’t it?

[Johnny_L.A]

The original certificate number is not printed in the book. Here is all of the information I have:

Title (as printed): how to build your own UNDERWATER camera housing.
Author: Mart Toggweiler
Published by: DIVE-RITE PRODUCTS, BOX 14444, LONG BEACH, CALIFORNIA

As I said, neither the title nor the author showed up in an online copyright search. An e-mail to Dive-Rite Products (www.diverite.com) got this reply: “No, That was before our time.” I did not find a Dive-Rite in Long Beach, California.

[commasense]

@Exapno Mapcase

commasense, you did well in restating your argument, so I retract any suggestion that you are one of the idiot kids who often post on this subject.

Well, thank you.

However, as Walloon already has pointed out, your analogy simply has no relevance in this discussion. Remember, only the specific expression of facts or ideas can be copyrighted, not the facts themselves or the underlying ideas.

I just knew that someone was going to bring this up. I fully understand the difference between copyright, trademark, and patent, but was just trying to come up with a compelling example. I regret I wasn’t able to devise a better one, but I was hoping you’d all get my point.

And I still refuse to accept the position you take in your last paragraph. If the work is still under copyright, then the disposition of the work lies entirely in the hands of the copyright owner or the estate or heirs. He (or they) may not want the pamphlet published, for some reason. Or he might want to republish the pamphlet and make money off of it but cannot for some reason. In either case, it is not your call to decide.

I grant that all the possibilities you raise are valid. But the point I was driving at is, what if there is no copyright holder? Surely you would grant it is possible for a copyrighted work to fall into a state in which its ownership is effectively impossible to determine. What is the status of such a work? Does a right exist if there is no one to claim it? And what if there is a compelling benefit to society to be gained from publishing? (That’s what I was trying to get at with my doctor example.) Are we to allow potentially useful works in this indeterminate state to languish in obscurity merely to observe the requirements of the copyright statutes, when there is no one who will benefit from their “burial”?

It comes down to religious differences. Exapno seems to be an absolutist on the point (and undoubtedly has the law on his side), where I am more of a relativist. I have long believed that it is often easier to ask forgiveness than get permission. I’m not arguing that there is a legal right to such publishing, only that there may be cases in which no serious harm, and some good, can be done. And there are, of course, risks:

So his advice is to treat it as if it were still copyrighted. A court might very well find for you, but - my words - you definitely don’t want to expensively fight in court over this.

Surely you are exaggerating. Isn’t it (as I said in my first post) highly unlikely that this would ever go beyond a cease-and-desist letter?

[Walloon]

@Exapno Mapcase

There’s an odd little window of works whose renewal date fall into 1990-1993, which this one does. In that window copyright can be reclaimed by a petition to the Registrar of Copyright. It’s one of those things the 1992 technical amendment I cited was supposed to correct.

Ask your friend
[/QUOTE]
where this appears in U.S. copyright law, because I can’t find it anywhere.

[Johnny_L.A]

Acting on Walloon’s clues, I’ve written a letter to the individual in SoCal who looks a likely candidate to be the author. I’ll mail it on Tuesday (Monday being a holiday).

[Walloon]

U.S. Copyright Office:

Works in the public domain cannot be protected by copyright. The 1976 Act, the 1992 amendment, and the 1998 amendment do not provide a procedure for restoring protection for works in which copyright has been lost for any reason.

[Sunspace]

My, this is an interesting thread. I now have a copyright question of my very own… but that’s for another thread.

[PhilAlex]

I’ll yet again add to what Walloon said about restoring copyright…

(There is a mailing list totally devoted to this, btw. It’s called CNI-COPYRIGHT. I subbed for about two months. Made me run from reprinting anything but “Boy Meets Girl”)

Anyhow, pre 1978, if you printed something in “reasonalbe quantity” and distributed it, without a copyright notice, congrats, it’s public domain.

Remember the Beethoven sweatshirt? An adman named Howard gossage came up with the idea for a fund raiser for a classic radio station. Printed a bunch of them, and was promptly ripped off.

Took the dude to court. Said dude pulled out one of the first 500 that didn’t have a © on it.

Case dismissed.

(To further confuse the issue, I’ve read that, pre 1978, if the © notice was accidently forgotten, the item is still copyright. But don’t ask me for a cite)

[Ms2001]

@PhilAlex

I’m constantly impressed with the thoroughness of Walloon’s approach, but I’ve got something to add:

If it’s really PD in the states, and you put it up on the Web, and I, who lives in Canada download it… it’s an interesting thing.

See, Canada is Life + 50. Always has been. Most other countries are like that too.

So. If the guy is still alive, I >can’t< download it.

I don’t believe that’s true. Canadian courts have ruled that downloading music from the internet is legal, but sharing (i.e. uploading) is not, and that’s consistent with the view that you’re only violating copyright when you distribute a work. I assume a book would be treated the same as music, so you would be able to download it in Canada; you just couldn’t put it up on your own site.

[Walloon]

@PhilAlex

Anyhow, pre 1978, if you printed something in “reasonalbe quantity” and distributed it, without a copyright notice, congrats, it’s public domain.

Actually, a proper copyright notice was required under the 1976 act (effective 1978). The requirement that a proper copyright notice must be affixed was not repealed until March 1, 1989.

[Walloon]

@PhilAlex

(To further confuse the issue, I’ve read that, pre 1978, if the (C) notice was accidently forgotten, the item is still copyright.

Not so. The previous Copyright Act of 1909, the last major revision before 1976, stated:

Section 10. Any person entitled thereto by this title may secure copyright for his work by publication thereof with the notice of copyright required by this title; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor. . .

Section 19. The notice of copyright required by section 10 of this title shall consist either of the word “Copyright”, the abbreviation “Copr.”, or the symbol C, accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication.

[Johnny_L.A]

Re: How to Build Your Own Underwater Camera Housing

The author is still alive, and has given me written permission to reproduce his booklet “as long as it’s not for profit”. I still think that the copyright expired in 1991 and that it’s in the public domain; but I’m glad that I have the author’s blessing.

Fuji Kitakyusho: I’ve taken a break from transcribing the booklet. I ran out of steam about 43 pages into it, and there are a lot of photos yet to scan. I’ll post again when I finish.

[Exapno_Mapcase]

My sincere congratulations for taking the time and effort to do the right thing. You’re a terrific example for everybody else who posts on copyright questions here.