Copyrighted file format?

Mona Lisa
The original of this portrait was created with oil paints on a Lombardy poplar panel by Leonardo da Vinci between 1503 and 1517. The original belongs to France, and is on display at the Louvre in Paris. Copies in many formats and media abound world-wide, and are not subject to copyright restrictions.

Nobody may legally claim a copyright on a work just because they converted it to another format. That is just creating a copy, not another original work.

Copyright law in the U. S. A. started in the Constitution (Article I, Section 8, Clause 8), which grants to Congress the right to grant exclusive rights to authors for a limited time. Congress has exercised these rights in the form of various copyright laws throughout the years. The United States copyright law is contained in chapters 1 through 8 and 10 through 12 of title 17 of the United States Code. You can read it for yourself at https://www.copyright.gov/title17/.

To claim copyright, and therefore claim the exclusive rights that go with it, including a legal monopoly on making copies in any form or format, the following things must be true:

  • The work must be original.
  • The work must be creative.
  • The work must not be in the list of things that cannot be copyrighted, such as certain government works, works that are purely functional, book titles, works that are already in the public domain, etc.

Note that what is protected by copyright is the creative work itself, not the format, not the facts or ideas included, and not the act of publication or making copies into other formats. Thus an artist is granted exclusive rights to make copies and derivative works from his painting, creative photography, story, or new Bible translation for the time specified in the relevant copyright laws and treaties. Then that protection ends, and the work enters the public domain, permanently. Full stop. Once a work is in the public domain, the intellectual property now belongs to the entire general public in the sense that anyone can make copies or derivative works from it, and nobody can demand that they stop, make conditions on how or in what format they make copies, or collect royalties on such copy making. The intention of the founding fathers of this country and the Congress was to balance creating a strong profit motive to encourage the creation of literature, art, and other creative works while at the same time guaranteeing that this flow of creativity would, in time, freely benefit all of society. Congress has chosen to make the time for exclusive rights very long. For works created now, the copyright term is the life of the last surviving author plus 75 years for individual and group works or 95 years for works owned by a corporation.

The rules for when copyright expires in the U. S. A. are complicated, but one simple test is very helpful: everything published before 1923 is in the public domain. That includes all of Leonardo da Vinci’s art and writings. That includes all faithful copies of the Holy Bible in the original languages. That includes many Bible translations, including the American Standard Version of 1901. Once a work is in the public domain, it stays in the public domain. The copyright cannot (and I dare say should not) be renewed. But is there a loophole? Can someone put something back into a copyrighted status by changing its format? No. You can’t take something out of a copyrighted status by changing its format, either. See the definition of “copies” in the copyright law for the highly inclusive list of formats that even includes formats not yet invented. There is some useful case law that helps clarify this view. In Feist Publications, Inc., v. Rural Telephone Service Co., the U. S. Supreme Court ruled that phone books are not something that can be copyrighted, regardless of the work needed to create them, because they are just a standard arrangement of facts without any significant creativity. Thus the Supreme Court found that it was legal for Feist Publications, Inc. to copy Rural Telephone Service Co.’s white pages, because their copyright claim was invalid.

There is a closer analogy to, for example, someone slapping a copyright notice on a public domain Bible translation because they digitized it: Bridgeman Art Library v. Corel Corp. In this case, Bridgeman Art Library claimed a copyright on photographs of classic public domain art works, which Corel copied and distributed on CDs without their permission. In this case,  the United States District Court for the Southern District of New York ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality. Even though accurate reproductions might require a great deal of skill, experience and effort, the key element to determine whether a work is copyrightable under U.S. law is originality. You can’t steal a work out of the public domain just by making a copy in another format. Now I can testify that it is hard work and costly to get a good photo of the Mona Lisa. It is displayed behind thick, glare-prone bullet-proof glass in a museum room full of many tourists all trying to take a picture of it. Getting a good angle, a clear view of the painting without glare, and getting the camera settings all right is difficult. My picture turned out OK, and with all of the people taking pictures of it, many others did, too.  My work and expense does not justify a new copyright on Leonardo da Vinci’s art. Neither does anyone else’s similar efforts. That image is still public domain, no matter who made a copy and what format(s) they copied it into.

A great deal of resources have been spent to create a faithful digital copy of the American Standard Version of 1901 and make it available in multiple useful formats. Under the same logic applied by the U. S. District Court, the American Standard Version of 1901 is still in the public domain in any of these formats. The same principle extends to more recent, copyrighted works. If someone takes a work such as a Bible translation that is still under copyright and makes a new exact copy of the same translation in another format, or does a reprint of the same format, that alone does not merit a new copyright. Only addition of original creative work would merit a new copyright. In the case of a significant revision or addition of study notes and other helps that were original and creative in nature, a new copyright date would be merited, but not just the act of making a copy, regardless of he target format. Even in the case of a revision with a new copyright date, the original, unrevised work’s copyright will still expire when it would have originally. The copyright on the revisions and additions might expire later, but in between the two copyright expiration dates, the original still enters the public domain on its original schedule.

There is no loophole in the copyright law that allows someone to perpetually renew a copyright by claiming a new copyright on a new format. There is no provision in the copyright law that allows anyone to claim a copyright on a public domain work. To the contrary, it is listed as an offense in 17 USC 5, section 506(c).

Claiming a copyright where one is not merited is called copyfraud. Copyfraud is not a victimless crime. It essentially steals free use of public domain materials from those who are entitled to them. In the case of copyfraud committed on Bible translations, the effect is to reduce availability of God’s Word to people who could gain eternal benefits by believing what they read and hear in the Holy Bible. There is much more to consider than the laws of mankind here.