Copyright Using Books from the Public Domain for Commercial Purposes

[vsili]

Jurisdiction

Other

Hi,
I wish to use old books commercially, by taking phrases out of the books, rearranging them and selling them as online materials. Most of the books would be older than 100 years. As far as I know, these types of books are part of the Public Domain, which means that I can use them freely. But what happens if they have been translated to English, by a translator/publishing company, sooner than 100 years ago? What are my options and what should I do to avoid any copyright strikes?

My company is in Germany, so do I have to look at the copyright laws of Germany or the laws of the country where the book was copyrighted?

 

[Zigner]

You will need to review the laws in your country. I would suggest speaking to an attorney in your country.

 

[Tax Counsel]

My company is in Germany, so do I have to look at the copyright laws of Germany or the laws of the country where the book was copyrighted?

You need to consider the copyright law of the country in which you use the work of others in making your product and each country in which you would sell/distribute it. I agree you want to start by consulting a German attorney familiar with copyright law.

 

[flyingron]

A hundred years isn't sufficient in either Germany or the US. The duration in Germany is 70 years after the AUTHOR'S DEATH (or the longest surviving coauthor, if more than one) not publication. Any country that is a signatory of the Berne convention must provide protect for at least 50 years after the author's death. The only major country that is not a signatory of Berne right now is Taiwan.

 

[zddoodah]

A hundred years isn't sufficient in either Germany or the US.

While that's true for works created after the Copyright Act of 1976 was enacted and for some works that were created when the Copyright Act of 1909 was in effect, there is nothing more than 100 years ago that is still protected by copyright in the U.S. Thus, for purposes of present discussion under U.S. law, 100 years is a sufficient benchmark.

But what happens if they have been translated to English, by a translator/publishing company, sooner than 100 years ago?

Post-1922 translations of pre-1922 works might be protected under U.S. copyright law. Other countries' laws will be different.

 

[flyingron]

Post-1922 translations of pre-1922 works might be protected under U.S. copyright law. Other countries' laws will be different.

Under Berne (which Germany and the US are signatories), the translation gets its own copyright from the date it is created.

 

[welkin]

Under US copyright law it really doesn't matter how long the book is out of copyright or is still under copyright according to what OP says they want to do. It falls under the fair use doctrine in making a transformative work.

 

[Zigner]

Under US copyright law it really doesn't matter how long the book is out of copyright or is still under copyright according to what OP says they want to do. It falls under the fair use doctrine in making a transformative work.

No, it is your opinion that it would be a transformative work. Without knowing more, I'm surprised that you would make such a firm statement. You do the OP a disservice by making such a statement without further explanation.

In any case, "fair use" is a defense that can be raised in court and one that the court would have to decide on.

 

[zddoodah]

according to what OP says they want to do. It falls under the fair use doctrine in making a transformative work.

That's about as wrong as could be.

For starters, whether a use is or isn't "transformative" is only one criteria in determining whether a use is fair use. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). Moreover, the only thing we know about the OP's intended use is that he/she wants "to use old books commercially, by taking phrases out of the books, rearranging them and selling them as online materials." That is not a sufficient description to allow for any sort of intelligent opinion about whether the use is or isn't "transformative."

 

[welkin]

No, it is your opinion that it would be a transformative work. Without knowing more, I'm surprised that you would make such a firm statement. You do the OP a disservice by making such a statement without further explanation.

In any case, "fair use" is a defense that can be raised in court and one that the court would have to decide on.

It would be a transformative work by the definitions contained in section 107 of the copyright act and the case law based on what OP said he wanted to do.

I wish to use old books commercially, by taking phrases out of the books, rearranging them and selling them as online materials.

It sounds like transformative to me. A compilation of quotes from different books put together into a single book.

And what's your point about fair use being a defense to infringement? Of course it is. An author of a work still has to know what fair use is if they are going to use other copyrighted material. If they get sued for infringement, they better have their ducts in a row.

For starters, whether a use is or isn't "transformative" is only one criteria in determining whether a use is fair use. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). Moreover, the only thing we know about the OP's intended use is that he/she wants "to use old books commercially, by taking phrases out of the books, rearranging them and selling them as online materials." That is not a sufficient description to allow for any sort of intelligent opinion about whether the use is or isn't "transformative."

I am well aware of the four elements of fair use.

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes

Nature of the copyrighted work
Amount and substantiality of the portion used in relation to the copyrighted work as a whole:
and
Effect of the use upon the potential market for or value of the copyrighted work

I have read many many copyright infringement law suit opinions over the years and I have a pretty good understand what fair use is.

I gave you my opinion based on the information OP provided. That's all I gave.

Taking excerpts from a book and compiling them with additional commentary is transformative.
Which would be different then the purpose of the original work.
Substantially less than the original copyrighted work.
And would have no effect on the potential marked for the original work.

But since OP is going to use works in the public domain, this is all mute.