Can I use a Public Domain work commercially, if I extracted data from a Non-Commercial use digital copy There is a number of digital libraries such as Europeana, Österreichische Nationalbibliothek, Kramerius, Polona and so forth. Each offers a large colletion of digitized books. Many of these books are available in Public Domain, meaning I can do almost anything with them. But while some libraries allow unrestricted use of their Public Domain content, others do not and limit the use of their copies to Non-Commercial use. It is my understanding that NC only applies to the digital copy, not the work itself. Now, the copy o a book is a collection of images. Let's say I want to use these publicly available NC images to restore the original value of the PD work (i.e. use OCR to obtain text of a book), and then use that extracted data (i.e. PD text) commercially, for instance I want to sell my clean text copies as ebooks. What I would end up in the end is my textual reproduction of a Public Domain work, which I can use. But it would be derived from a Non-Commercial copy. Is that breach of NC licence, if I am profiting from a reproduction of PD text I extracted myself, but using NC digital copy (scanned images) of that book to retrieve it? I personally considered the following line of reasoning in favor of an individual being able to use the end result commercially, i.e. for selling ebooks of Public Domain works: The photographer has copyright in the photograph itself, not in the items photographed. A “slavish copy” of a work would not qualify for protection if there is no creativity involved. Copyright protects literary and artistic expression, not facts. I am interested in how this works globally, but mostly within the EU.
But while some libraries allow unrestricted use of their Public Domain content, others do not and limit the use of their copies to Non-Commercial use. It is my understanding that NC only applies to the digital copy, not the work itself. Your understanding is correct. An ancient text, or one long out of copyright, does not get new protection by creating an image of the text. At most the image itself is protected, not the underlying text. In the US, and other jurisdictiosn that follow the rule of the 1999 Bridgeman Art Library v. Corel Corp case there is no copyright protection on the image because it has no original content. Some EU courts have indicated that they will be following the logic of bridgeman. To the best of my knowledge no EU decision grants copyright protection to an otherwise out-of-copyright work because of its presence in a digital library or collection. However, if a person gained access to a digital library or collection subject to a TOS agreement which includes &quot;no commercial use&quot; terms and then published a text from it commercially, that person might be subject to a breech of contract or similar suit by the library. Such a suit would need to include proof of damages.
Prompted by this recent similar question, I've revisited this question and deleted my original answer as it was completely off the mark. This is its replacement. It is illegal, and it turns out to be an international standard in the Berne Convention. Article 16 in full: (1) Infringing copies of a work shall be liable to seizure in any country of the Union where the work enjoys legal protection. (2) The provisions of the preceding paragraph shall also apply to reproductions coming from a country where the work is not protected, or has ceased to be protected. (3) The seizure shall take place in accordance with the legislation of each country. Your scenario falls squarely within point (2) and the imported George Orwell book is to be treated as an infringing copy within the UK. The implementing UK legislation for (2) can be found in Section 27(3) of the Copyright, Designs and Patents Act 1988.
You don't say where you are located. Copyright laws are different in different countries, am going to assume US laws. Under US law, a faithful digitization of a book does not get a new copyeight, see Bridgeman Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421 (S.D.N.Y. 1998) and thw Wikipedia article about that case (On the issue of mrequired originality, see also FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE COMPANY, INC. (No. 89-1909.) (1991) which dealt with copying a telephone directory.) The court in Bridgeman held that: It is uncontested that Bridgeman's images are substantially exact reproductions of public domain works, albeit in a different medium. The images were copied from the underlying works without any avoidable addition, alteration or transformation. Indeed, Bridgeman strives to reproduce precisely those works of art. ... The mere reproduction of a work of art in a different medium should not constitute the required originality for the reason that no one can claim to have independently evolved any particular medium.'&quot; As discussed above, the law requires &quot;some element of material alteration or embellishment&quot; to the totality of the work. At bottom, the totality of the work is the image itself, and Bridgeman admittedly seeks to duplicate exactly the images of the underlying works. ... [O]ne need not deny the creativity inherent in the art of photography to recognize that a photograph which is no more than a copy of the work of another as exact as science and technology permit lacks originality. That is not to say such a feat is trivial, simply not original. The more persuasive analogy is that of a photocopier. Surely designing the technology to produce exact reproductions of documents required much engineering talent, but that does not make the reproductions copyrightable. The Bridgeman court was actually construing UK law, but the earthlier phase of Bridgeman i and the SCOTUS case of Feist show the same result under UIS law. Note that books and other works published before 1925 are now out of copyright in the US. Copyright can also be lost ion other ways, such as publishing without a copyright notice before the effective date of the 1976 act, and failure to properly renew a work published in the US before 1964. Assuming that the book is not under copyright, neither the library nor anyone else has a US copyright in the PFD. Unless the library imposes some additional restriction by contract, any such PDF may be copied or shared freely. It may even be sold or rented. And the validity of such an additional agreement would be questionable, but since the question does not mention such an agreement, I will not go into that further.
Wikipedia, at least the English-language edition of Wikipedia, takes the position that what applies to it is US copyright law. Under that law, anything published in 1924 is now in the public domain, and anything published first in the US, or simultaneously in the US and another country with no copyright notice prior to 1978 (the effective date of the 1976 Copyright Act) was never protected by copyright, but was in the public domain from the date of publication. See &quot;Copyright Term and the Public Domain in the United States&quot;. Beyond that, the statement quotes would seem to be, in effect, a license permitting free but non-commercial use. That alone would not normally permit Wikipedia use, except under a claim of fair use. So Wikipedia use would be based on the date of publication, or the absence of a copyright notice, or both. As a long-term Wikipedia editor, I am confident that the images described would be usable in Wikipedia articles. They might or might not be up-loadable to Wikimedia commons, but I think they would be. The question of US Federal Government authorship is a distraction, this work would be in the public domain if the US Govt had no role in creating it.
Unfortunately the answer is a vague "it depends." Commercial versus non-commercial is not clearly defined in actual law, and is usually up to the specific license to define what it considers to be commercial use. If you were putting them on your business cards, then it's just being used for advertising and whether it's commercial use is a bit controversial. If the license explicitly prohibits the use of the work in advertising, then the license should explicitly mention that and should not rely on the term "commercial use" to cover or protect it. Creative Commons ran an excellent study on commercial versus noncommercial use back in 2009: Defining “Noncommercial” - A Study of How the Online Population Understands “Noncommercial Use” In the United States, for example, the Copyright Act does not define a copyright owner’s rights in terms of commercial or noncommercial use. Instead, copyright law sometimes attaches legal significance to whether a use is “commercial” or “noncommercial” or whether a user is deemed to be a commercial or noncommercial entity, However, rarely are the terms defined, and the law offers no specific guidance on how to differentiate between commercial and noncommercial uses or users of copyrighted works. If you were putting them on a business card you were making for the client, then that would be more clearly identified as commercial use because you're using it in something you are selling for a profit. What your client will be using them for is not relevant, because you're the one selling them to the client and you need to have the right to be able to do that.
&quot;public performance&quot; is a term used in copyright law mostly for music, dance, drama, and audio-visual works, where it means to actually perform the work in front of an audience. For a book it could mean to read the book aloud in front of an audience. It is not largely used for software. I suppose that demonstrating or running the software in front of an audience would be a public performance. Running the software and using its output in a publication would not be a &quot;public performance&quot; as I understand it. As long as the user has the right to access the software, which normally includes the right to run it, the output may be used with no further or special permission.
Yes, you can grant any license you want to your larger work. With respect to Creative Commons, they provide guidance: May I apply a CC license to my work if it incorporates material used under fair use or another exception or limitation to copyright? Yes, but it is important to prominently mark any third party material you incorporate into your work so reusers do not think the CC license applies to that material. The CC license only applies to the rights you have in the work. For example, if your CC-licensed slide deck includes a Flickr image you are using pursuant to fair use, make sure to identify that image as not being subject to the CC license. For more information about incorporating work owned by others, see our page about marking third party content. Read more considerations for licensors here. With respect to MIT License for software, I don't think that many of the reasons for fair use apply to using someone else's source code in your project. If you're creating criticism, commentary, news, or educational material, you probably have more than just code. You should choose a more appropriate license for the complete work (like a Creative Commons License). Taking someone's software source code and trying to use it under fair use may also lead to issues when you consider other factors, such as the purpose of the use, the amount included in the larger work, and the effect of value on the copyrighted work. I'm not finding a lot of cases regarding fair use in software. Galoob v. Nintendo found that you can modify copyrighted software for personal use (not relevant to this discussion). Sega v. Accolade found that copying software for reverse engineering was fair use under certain conditions (again, not relevant here). If you are attempting to use anything under fair use, regardless of the license that you apply to your larger work, you do need to ensure that you do not give the impression that each individual piece of that work is also under that licence once extracted. That's why you need to clearly mark which portions are used pursuant to fair use. If those portions are extracted from the larger work, then the original restrictions to use apply. However, someone can use the larger work under the license you grant. I just wanted to add this brief section to be extremely clear. When you are producing a work, you can choose a license for that work. If you are incorporating someone else's work into your own work, there are two possibilities: You obtain the other person's work under a license. You must abide by this license and all of its requirements. Some licenses are viral in nature, which restrict the licenses that you can apply to the larger work. You use the other person's work under fair use. In this case, you need to properly attribute the work and identify that it is not available under the same license as the larger work. Someone that extracts that smaller portion must abide by the copyright of that work. If it's available under a particular license, they can choose to use that license or under fair use if they are able to. Someone using your complete combined work uses your license.
No. The images are copyrighted, and you are using them in a way that would leave you with virtually no argument for fair use. The factors for fair use are set out in 17 USC 107, and they indicate that the courts would reject your use: The purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes: There's no indication that your use would be for nonprofit or educational purposes. The nature of the copyrighted work: Works of fiction and art are highly creative works at the heart of the policy for copyright protection. The amount of the portion used in relation to the copyrighted work as a whole: You are apparently copying entire images, though I suppose you could argue that each image is just one small portion of a larger book or website. The effect of the use upon the potential market for or value of the copyrighted work: You are trying to create a board game, putting yourselves basically in direct competition with the makers of D&amp;D. I generally prefer a pretty liberal interpretation of what constitutes fair use, but this just has virtually nothing that would make me comfortable arguing in your favor.