Copyright and the Notitia Dignitatum

This page last modified: 30 September 2012 (paragraph about Bavarian State Library added).


I have been asked several times about the copyright status of the images on this site taken from the Bodleian manuscript. Since purporting to give legal advice without being an attorney is itself illegal in most jurisdictions, I must point out that what I say here is not legal advice: I am not a competent copyright attorney, and in particular not an attorney competent in the jurisdiction of whatever country you happen to be reading this. The following remarks are merely my own understanding of the situation, and legally speaking are worth exactly what you are paying to read them: ie. nothing whatsoever. If you want legal advice, you will need to speak to a lawyer in your jurisdiction. Hopefully however, these remarks are not wholly without merit, or the years I spent working in an international intellectual property firm were wasted...

The copyright in the images here is potentially murky, depending on where you are downloading them. The simplest case is under the laws of Japan, which is where the server hosting these web-pages and images is located. Under Japanese law, the requirement of "originality" that is necessary to attract copyright cannot be met by productions that are no more than copies of existing works - e.g. photographs of woodblock prints. See here for examples (explained in English). All the Notitia manuscript pictures on this site fail to qualify as "original works" under Japanese law (see also next paragraph). Japanese law actually goes further than this, in that the work must not only be original, it must be creatively expressive of the author's sentiments. Copying another work as faithfully as possible is the antithesis of creative expression...

The next simplest case is under the laws of the United States. The US Supreme Court has yet to rule on the precise set of facts applicable here, but a lower court has, in 1999, in the case of Bridgeman Art Library v. Corel Corp. The central holding of Bridgeman was that the mechanical copying of an image (such as a colour transparency of a painting) does not confer the requisite degree of "orginality" required for the reproduction (i.e. the colour transparency) to itself be copyrightable: something more is required. Applying this to the Notitia Dignitatum, the images within the Notitia are of course themselves long out of copyright (their author died centuries ago). Reproductions of those images could qualify for their own copyright if they introduce some degree of "originality" (i.e. they are not 'true' reproductions, but rather 'interpretations'); but reproduction, in the sense of an as-true-to-the-original-as-possible copy, in the case here, as with Bridgeman, as colour transparencies (i.e. slides), cannot confer a new copyright. Thus under US law, the slides the Bodleian library sells showing the Notitia Dignitatum are not copyrightable; and my digitized uploadings thereof are also not copyrightable, as they are also non-original "mechanical reproductions": feel free to use them as you wish (within the US).

What of other countries? In the United Kingdom, the same probably applies. Only 'probably', because not even a lower court has made a ruling on the appropriate factual situation. However, part of the pleadings in the Bridgeman case were about how how UK law would apply, the US court opined that the result would be the same under UK law: the Privy Council had ruled in Interlego AG v. Tyco Industries, Inc., a case from 1988, that there has to be "some element of material alteration or embellishment which suffices to make the totality of the work an original work". The whole point of making a photographic reproduction of an illuminated manuscript is to avoid material alterations and embellishments, so as to make as exact a reproduction as possible.

In Australia, the situation may be different. Unlike the US, which explicitly rejected the "sweat of the brow" approach to copyright in the 1991 Supreme Court case of Feist Publications, Inc., v. Rural Telephone Service Co., the Australian Federal Court (the appeals court one step down from the High Court) in the 2002 case of Desktop Marketing Systems Pty Ltd v Telstra Corporation Limited kept to the "sweat of the brow" approach that had been established in the UK over a century ago in Walter v. Lane and followed by Australian courts since then. The "sweat of the brow" approach essentially rewards the effort that goes into making a work: the work need not have any "creative spark" to be "original". Thus if it took, e.g., the Bodleian library substantial effort to make their transparencies of the Notitia, they might enjoy copyright under Australian law. Nonetheless, even this is doubtful. The Australian Federal Court itself cited the High Court of Australia in saying at section 158 that the work would be "original", as required by statute, if the author "has originated it or brought it into existence and has not copied it from another" (my emphasis). The Bodleian Library clearly caused the transparencies to exist; but they equally clearly copied them from their (long out of copyright) copy of the Notitia manuscript. Hence even under the Australian "sweat of the brow" approach, their slides would appear to still lack the requisite "originalty".

Like the Bodleian Library in the UK, the Bavarian State Library that owns the Munich Notitia manuscript claims copyright in reproductions of the original document. Their copyright claim is (in my non-professional opinion) similarly without any merit whatsoever, but is alas sadly typical of institutions that ought to be in the "business" of disseminating works as widely - and freely - as possible, but actually seem to be far more concerned with their revenue stream.


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