Ancient texts and a modern database

What could be controversial about the United Nations launching an online database of 1,200 ancient documents from around the world, the World Digital Library?  Surely this is a significant contribution to making scholarship more efficient and open.

But several commentators, such as this one from Slashdot, have noted that the legal page of this database appears to suggest that there is copyright to be reckoned with in these documents.  As Slashdot notes, since some of these materials are over 8,000 years old, this sounds like an unprecedented claim.  It seems worthwhile to take a minute and try to sort out what is being said on this page, and what might lie behind it.

First, it is worth noting that the language the UN uses about copyright is very general and indeterminate.  It merely says that the country that contributed the material is the proper source for copyright information and that it is the responsibility of the user to determine what copyright issues, if any, need to be addressed.  This is pretty much just “cover your (self)” language designed to permit the UN to say “we warned them” if any disputes should arise.  But are there really any possible disputes?

I know of no national copyright law per se that could claim an interest in materials this old for any person.  But that is not to say that governments themselves might not claim such an interest, perhaps under laws designed to protect “national patrimony.”

Another possibility, depending on how the UN site is structured, would be a claim under a database protection law.  Although the United States pretty well rejected database protection in the Supreme Court’s Feist v. Rural Telephone Service case, it is a fact in other countries.  The US Supreme Court said that no copyright protection is available for “sweat of the brow,” so a database that merely compiles public domain documents or facts in an obvious and unoriginal way (like a phone book) is not entitled to protection.  The Feist ruling would probably include a database like the World Digital Library if US law were applied.  But other countries have taken measures to protect “sweat of the brow” by adopting special legislation that gives copyright-like protection to those who compile databases.  The European Union’s Directive on the Legal Protection of Databases is one such law.  If that law applied, and it could well apply to a dispute arising about materials from one of the EU member countries, certain uses of the material in the database would be prohibited.  It is not at all clear that these database laws would prohibit isolated copying of ancient documents found therein, but they would certainly bar wholesale or systematic copying.

The area of database protection is a complex and contested one.  There have been recent protests in Europe arguing that the database directive is ineffective and stifles innovation.  In the US, there have been abortive attempts to introduce similar legislation, but they seem to have subsided, at least for now.  Anyone who would like to know more about the nature and scope of database protection in the United States cannot do better than read Prof. Mike Carroll’s recent blog post on the subject, “Copyright in Databases.”