Today I learned via Maïeul Rouquette of a fascinating court case in France, here, (in French). The question is whether editing a critical text of an ancient author creates a copyright.
The dispute is between two companies, Droz and Garnier. Garnier placed online the text (without apparatus or commentary) of certain medieval texts, using the text published by Droz. Droz sued.
The court ruled:
Therefore it appears that the company Libraire Droz has not provided proof that the raw texts used by the society Classiques GN are protected by copyright. Thus its cases, which are solely based on infringement, must be rejected.
It is worth reading the page, even as translated into English in the Google Translate version, because the points made are interesting and generally relevant. A work is protected if it is fixed in form (i.e. an idea is not protected) and it is original in character, reflecting the personality of its author. But the court stated:
However, it should be noted that the law of intellectual property is not meant to include all intellectual or scientific work, but only that based on a creative contribution which arise
This indicates the direction of the court’s thinking. They are plainly familiar with the fact that one critical edition may differ only slightly from another, and argue that the process of textual criticism, since Lachmann, is largely mechanical. Specifically copyright does not apply to someone doing a lot of tedious work; only to creative work.
This demonstrates enormous common sense on the part of the court. Nobody, nobody, when the copyright laws were invented, imagined that stuff like a critical edition of an ancient text was involved. They were thinking of novels, belles-lettres, poetry, composed by modern figures and sold for money. They were quite right.
The practical effect, if we say that the raw text of an ancient author, as given in a critical edition, is the copyright of the editor, is to make the text of that ancient author into the property of this or that modern publishing house. That, frankly, is ridiculous.
Of course the plaintiffs are appealing. The case has considerable importance. But I hope that we will get a clear ruling on this.
The commentary in a critical edition may reasonably be copyright. The apparatus, largely compiled by mechanical methods, seems doubtful to me. But the raw text … surely the whole point of the edition is NOT to create an original work, but rather to give us Homer, or Origen, or Martial, or Juvenal?
Let’s think of a modern example. I do not believe that someone should acquire a copyright over my work, enough to allow him to bar access to others, simply because they did some work on my spelling, or fixed some errors from a corrupted hard disk file! That would be the modern equivalent. It’s palpably fraudulent. So why should it be different, simply because the author lived long ago?
Let us raise a glass to the common sense of the French court, and hope that the higher courts are not pressured or bribed by publishing interests.
