The legal question presented is whether or not making a copy of a public domain work (such as the old manuscripts referred to in my post) can create a "new" work in some fashion that is subject either to copyright or some other license such as the Creative Commons License? As genealogists we should be actively concerned with this very issue. Say for example, your Great-grandfather had a will written in the 1800s. Could someone make a copy of the will and then claim that the copy was copyrighted and that you could not use the copy? What if after the copy was made the original was either destroyed or otherwise unavailable? What if someone found an old photograph, such as a daguerrotype, of one of your ancestors. As a daguerrotype it would be the only original work. Could the person who found the old image, prevent you from using the image in a book you wrote about your Great-grandfather? Could this be done under some claim of license?
By the way, there is a name for this activity of claiming copyright in public domain works, it is called copyfraud. Here is a description from Wikipedia:
Copyfraud is a form of copyright misuse. The term was coined by Jason Mazzone, a Professor of Law at Brooklyn Law School, to describe situations where individuals and institutions illegally claim copyright ownership of content in the public domain and other forms of overreaching by publishers and others who claim rights that the law does not give them; these actions carry little or no oversight by authorities or legal consequences. Mazzone pointed out ways in which copyright overreaching interferes with the public's legitimate use and reproduction of works, discourages innovation and free speech, and creates costs.I have left in all the original links from Wikipedia if you want to look further. Here is the description of the activities involved in copyfraud from the same article:
Mazzone describes copyfraud as:
Again, I left in the links for convenience in looking at the sources. Here is the website: Copyfraud and Other Abuses of Intellectual Property Law.
- Claiming copyright ownership of public domain material.:1038
- Imposition by a copyright owner of restrictions beyond what the law allows.:1047
- Claiming copyright ownership on the basis of ownership of copies or archives.:1052
- Attaching copyright notices to a public domain work converted to a different medium.:1044–45
Here are a few references to the issues as they have been raised in litigation and elsewhere:
- Mazzone, Jason (2006). "Copyfraud". New York University Law Review 81 (3): 1026. Archived from the original on February 26, 2011.
- Heald, Paul J. "Payment Demands for Spurious Copyrights: Four Causes of Action", Journal of Intellectual Property Law, vol. 1, 1993–1994, p. 259
- 81 N.E. 2d 70 (NY 1948)
- United States Court of Appeals, Second Circuit (October 4, 1984). Universal City Studios, Inc. v. Nintendo Co., Ltd.
- United States Court of Appeals, Second Circuit (July 15, 1986). Universal City Studios, Inc. v. Nintendo Co., Ltd.
- Reyners, Conrad (March 17, 2008). "The plight of Pirates on the information superwaves". Salient. Retrieved 2012-09-07.
- "Diehl v. Crook | Electronic Frontier Foundation". Eff.org. Retrieved 2009-07-19.
- Cobia, Jeffrey. "The DMCA Takedown Notice Procedure: Misues, Abuses, and Shortcomings of the Process", Minn. J. L. SCI. & Tech. 2009;10(1):387-411
- "Rights and Reproductions at the American Antiquarian Society". Americanantiquarian.org. 2009-04-16. Retrieved 2009-07-19.
- Bogle, Ariel. "Sherlock Holmes estate charged with 'copyfraud'", Melville House, March 11, 2013
- 3 DAYS (2013-09-13). "Conan Doyle Estate: Denying Sherlock Holmes Copyright Gives Him 'Multiple Personalities'". Hollywoodreporter.com. Retrieved 2013-09-17.
- Masnick, Mike. "Lawsuit Filed to Prove Happy Birthday Is in The Public Domain; Demands Warner Pay Back Millions of License Fees", Techdirt.com, June 13, 2013
- Masnick, Mike. "Warner Music Reprising the Role of the Evil Slayer of the Public Domain, Fights Back Against Happy Birthday Lawsuit", Techdirt.com, September 3, 2013
- Johnson, Ted. "Court Keeps Candles Lit on Dispute Over 'Happy Birthday' Copyright", Variety, October 7, 2013
Here is another link to the subject as addressed in the context of genealogy: Throwing More Light on False Copyright Claims by James F. Ramaley, Ph.D.
I hope that clarifies my position on the matter. If you think this is not enough, please let me know and I will list all of the cases I have previously researched on the subject. But that might take some time. Thanks for the comments.