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In this question I asked whether someone who recovers an old, noncopyrighted work via technical processes can claim copyright on the result. The answer suggested that they could not, but that they might be able to enforce license restrictions anyway, simply as a condition of providing the content. Is this the case? Under what circumstances can someone restrict the use of intellectual property that they provide without having any claim to the intellectual property itself?

To re-use one of my examples from that question: suppose I possess the only copy in existence of a previously unknown short story by Mark Twain, and I've spent time and technical effort to recover the text (e.g., by physically piecing together and examining faded, worn-out papers) without adding any copyrightable creative work. It's clear that I can print the story up and sell copies of it. But can I impose license restrictions on the text itself? That is, can I give someone a copy of the story, but legally prohibit them from copying it themselves?

I don't own the story itself (because it's in the public domain), only my copy of the story. Does my ownership of the only copy in existence give me de facto copyright over the story, because no one will be able to obtain the noncopyrighted text except by getting it from me and thus accepting my license terms?

I'm interested primarily in US law on the matter, but would also be glad to know of noteworthy international variations in law.

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In a hypothetical case like you are describing, you could make a contract with them regarding the duplication of the content, irrespective of copyright law. Their violation of that contract would not necessarily be a copyright violation (which would allow statutory damages), but you might win a breach of contract lawsuit. But if someone took it from them and made copies, you would likely not have a case against that person because copyright would not protect you and you have no contract with them.

In addition, you could obtain a very "thin copyright" in a particular new presentation of the material. This would mean that copyright law would apply, but only to the particular presentation (e.g. new footnotes, a particular layout, etc...)

If considering doing this IRL, you should consult a copyright attorney.

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  • Indeed, since the work is copyright expired you could obtain a relatively deep copyright by rewriting some of less critical parts, and putting in a few modernizing touches such as smartphones, etc. On the cover you put "Based on Mark Twain's unpublished manuscript The Frog Hunter" (or whatever). But you are under no obligation to share the original manuscript with anyone and nobody will know what parts they can freely copy.
    – DepressedDaniel
    Commented Mar 17, 2017 at 6:16
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You can protect IP in two ways:

  1. Through the relevant IP legal protections (Copyright, patents, trade marks etc.),
  2. By keeping it secret.

If you have something that is a secret (Mark Twain's secret manuscript would qualify) then you don't have to share it with anyone irrespective of if it has legal IP protection or not. If you do choose to share it then you can require, as part of a contract, the person(s) with whom you share it not to disclose it i.e. a confidentiality agreement. If they do share it, you can sue them for breach of contract.

However, it is not a breach of a confidentiality agreement if the information was (among other things) already public. Which gives rise to the practical problem: if you share it with one person and it gets out you know who to sue, if you share it with more than one person and it gets out you have the onus of proving which of those people broke the contract.

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  • I'm not sure whether this is a good example, "Mark Twain's secret manuscript", because this sounds as if it hadn't ever been published by the author during his lifetime. And in this special case, the person who publishes it for the first time will be granted copyright AFAIK in Europe. From time to time there are such legal issues with newly discovered work of classical art like music, opera performances...
    – Shakesbeer
    Commented Sep 5 at 21:35

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