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Suppose some kind of work was created long enough ago that the work itself has entered the public domain. But suppose the work has been "lost" so that it's not available anymore. Now suppose someone finds it, but the physical medium is somewhat degraded due to age, so the finder restores it so the work can be enjoyed, and perhaps transfers it to a more updated medium. Can the finder claim copyright on the restored work? Does the restored work count as a "derivative work" distinct from the original (no-longer-copyrighted) work?

The example that has made me think of this is the UCSB Cylinder Recording Archive, which makes available MP3s created from old cylinder recordings. Most of the recordings themselves are from before 1922, so they are in the public domain, but the archive has engaged in technical work to recover the sound, and they are saying you would have to pay to use their MP3s for commercial use. It seems clear that if you had the cylinder yourself you could use the recording commercially without restriction. Can a third party that made an MP3 of the cylinder impose licensing requirements on the resulting MP3?

Another example I was thinking of would be if I found, say, a lost story by Mark Twain in my attic, printed on old and perhaps water-damaged paper. If I recovered the text by looking closely at the paper and then made it available, could I impose a license on the text of Mark Twain's story (i.e., requiring people to pay me royalties to use it)?

I'm most interested in how this would work under US law, but also interested if there are variations from country to country.

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I would argue that no, there is no copyright for the restored work. Independent copyright is only possible for any original material added, as previously discussed on this site. In this case, the added work was a technical process rather than a creative process, and technical processes cannot be protected by copyright. Copyright licenses would therefore be ineffective.

However, I believe one could still impose a license based on owning the copy as opposed to the copyright (contract might be a better term in this case). However, if a third party managed to obtain a copy through some other avenue, any such contract would not be binding on them and nothing could be enforced against them unlike with copyright laws.

Another way a license might be imposed is through patent protections, as technical processes can be protected via patents. However, I'm not as familiar with patent law, and this doesn't appear to be the claim being made.

  • Thanks for your answer. I too was wondering about imposing a license based on the copy, but without asserting copyright. Do you know of any cases of people successfully enforcing such a license/contract to control usage of content they don't own (nor have an arrangement with the owner)? I know that it's very common for content to be distributed with provisos like "by using this service you agree to be bound by the following terms...", but in all the cases I can think of the content provider has legal control of the underlying content itself. – BrenBarn Apr 26 '16 at 19:37
  • @BrenBarn No, unfortunately I do not know of any such cases. I'm having a hard time even thinking up another scenario where this applies (maybe transcriptions of classical music?) – DPenner1 Apr 26 '16 at 22:16
  • I know that in some cases sheet music is copyrightable because the publisher can hold a copyright for the particular display (i.e., the note style, typography, and visual layout of the music), but again there they're still asserting ownership of some aspect of the content. – BrenBarn Apr 27 '16 at 2:46
  • The owner of a copy may condition access to that copy on a contract, which might include restrictions on making further copies. But this would not grant a copyright. For example, museums often prohibit photography of public domain works in their collections. But if such a photograph is made anyway, there is no copyright, just a possible action for breech of contract. – David Siegel Oct 9 '18 at 15:50
  • For reference, here's BrenBarn's follow-up question based on what I wrote in my 2nd paragraph: law.stackexchange.com/q/8866/3209 – DPenner1 Oct 10 '18 at 0:49
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If the original work was published in the US prior to 1923, it is in the public domain under US law. if it was never published, it is subject to a life+70 years term of US copyright, and would still be protected if the author died after 1948. If first published outside the US, it may be protected depending on the laws of the source country. See this chart for more details.

If no original content was added and no artistic judgement used in the restoration, the case under US law would probably be similar to the case of a faithful reproduction of a painting. Bridgeman Art Library v. Corel Corp. held there there was no new copyright in such a case. In Meshwerks v. Toyota, 528 F.3d 1258, the appeals court wrote "[T]he law is becoming increasingly clear: one possesses no copyright interest in reproductions ... when these reproductions do nothing more than accurately convey the underlying image". Later US cases have followed this theory of copyright, although mostly in the area of flat images.

In countries which follow a "Sweat of the brow" rule for copyright, such a restoration would probably be protected. The UK used to follow such a rule, but since Interlego AG v Tyco Industries Inc the UK requires at least some originality for a copyright, and in the 2012 Football DataCo case, the UK rejected the "skill and labor" standard for a copyright.

It seems that Germany, and perhaps other countries, still accept something like the "Sweat of the brow" concept.

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