4

If someone puts out an OCR of a scan of a Public Domain work, is that OCR under copyright? On one hand, one may consider that "creative work", on the other hand, the "creative work" (the resultant text) is in Public Domain!

5

For copyright to subsist in a work, it must be "original". 17 USC 102:

Copyright protection subsists, in accordance with this title, in original works of authorship...

Or, in Canada, Copyright Act §5:

Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work...

In the US, the test for "originality" is given in Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc. 499 U.S. 340 (1991):

The constitutional requirement necessitates independent creation plus a modicum of creativity.

In Canada, the test for "originality" is given in CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13:

[A]n original work must be the product of an author’s exercise of skill and judgment. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise.

The OCR process exhibits no modicum of creativity and is not an exercise of skill and judgement. It can be characterized as a purely mechanical exercise.

Merely OCR-ing text does not create an original work in which copyright can subsist.

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  • While this is true, there is the related database right. An OCR might be protected under that right, at least if the text is large (such as an entire dictionary). – sleske May 23 '16 at 9:40
  • @sleske can you give any jurisdiction where OCR'd text even might be protected under the database right? I'm not aware of any. Also, my understanding is that right is sui generis, distinct from copyright. – user3851 May 23 '16 at 14:53
  • I'm no expert, but the European Union Directive 96/9/EC defines database rights as "a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents". That looks like it might apply to a large body of OCRed text. – sleske May 23 '16 at 15:06
  • And yes, database rights are different from copyright - that's why I wrote it as a comment, not as an answer :-). – sleske May 23 '16 at 15:06
  • @sleske buy I don't think that any member state has implemented this directive in a way that even might include OCR of a single text. In any case, how would you like me to improve my answer? – user3851 May 23 '16 at 15:12

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