Before everyone declares WWIII, it should be made clear that there is no
"correct" answer to this problem. Not only is sweat-of-the-brow
inconsistent between different countries, it is inconsistent _within_
many common law countries (including the UK). The only thing that is
well-established is that the U.S. doesn't apply sweat-of-the-brow and
has a relatively high threshold-of-originality (a separate, but related
concept). Regarding the UK, most legal scholars agree on the following:
* U.K. courts have historically recognized sweat-of-the-brow
* The written law in the U.K. has recently become less friendly to
application of sweat-of-the-brow
* Application of sweat-of-the-brow has been declining (or disappeared
entirely) in all former Commonwealth countries, a trend which the U.K.
courts are well aware of
* There has been no clear-cut definitive decision regarding this issue
in the U.K. in recent history
So what does this boil down to? Basically, that no one has any idea if
sweat-of-the-brow is still a solid legal doctrine in the U.K. or not.
Nor does anyone have a clear idea of what the threshold-of-originality
is in the U.K.
Regardless of whether the U.K. is a sweat-of-the-brow country or not,
there are certainly countries that are. In Taiwan, Spain, Sweden,
Norway, Denmark, Iceland, Finland, etc., Adam probably has a copyright
on his restorations whether he wants them or not. In these cases, is it
better for him to retain full copyright or apply a CC-BY-SA license?
This is the exact same situation I was in with the 2D Walters Museum
uploads. Even though I explicitly declared that the images were CC-BY-SA
_only_ in sweat-of-the-brow countries, the Commons community went
ape-shit over the Walters Museum committing "copyfraud" by not simply
applying PD-Art. So basically, the choice for an uploader is either be
accused of copyfraud or retain your full copyrights in sweat-of-the-brow
countries (which may include the U.K.). This seems like a pretty silly
situation, but I'm not sure what the solution is. Should we really
insist on PD-Art tags when the author wants to make their work CC-BY or
CC-BY-SA? Whether or not PD-Art is "more free" depends on which country
you are in, so there is no clean and easy solution.
Ryan Kaldari
On 7/9/12 5:11 PM, Cary Bass wrote:
Adam, I was trying to help you get the credit you deserve, by helping
you avoid a fight for an untenable position. I will now leave you,
however, since you are determined to pursue it.
- C.
On 7/9/2012 4:11 PM, Adam Cuerden wrote:
TL;DR version: I'm attempting to find a compromise, by pointing to
restorations where there was clear, obvious creative input, such as
having to reconstruct large damaged areas using creativity and
artistic skill, while being potentially willing to waive my rights on
simpler restorations, if we can simply agree on some rough guidelines
for when that threshold is crossed. Cary and David seem determined to
refight my original position, telling me that even where I've
reconstructed large sections without any model for how to do so, that,
since I was trying to get my work to blend in with the original,
there's no copyright. Isn't that kind of like saying that if I make an
image in the style of Durer, and work it into an actual Durer
engraving I don't get a copyright on my work because Durer died more
than 100 years ago?
Well, I'll let others respond before continuing.
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