Copyright and critical editions – a French court says the text is not copyright

Today I learned via  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.

11 thoughts on “Copyright and critical editions – a French court says the text is not copyright”

  1. in broad agreement but, as a textual critic/editor myself, I can see various problems. e.g. sometimes editors do a lot more than a few mechanical alterations, e.g. reconstructing (according to their own research) a text from fragments/quotations/excerpts etc. Also, it would be a shame to allow people to distribute copies of an edited ancient text without due acknowledgement. Most editors of course would be more than happy for their work to be widely distributed even for free, with proper acknowledgement – it’s the publishers who don’t like it happening!

  2. @DW, if the court ruling holds, their attempt to claim ownership of the text would fall. But of course they would still own the apparatus (which is the bit that is important for most critical texts). Their statement is pretty awful:

    “The Novum Testamentum Graece (Nestle-Aland) is the result of lengthy and painstaking work by many scholars. This is why their work is protected by copyright.”

    This is quite a strange statement. I would guess that 99% of the NA edition is the same as every other edition of the NT. Just doing a lot of work does not create a copyright. If it does, in Germany, then there is something wrong with the copyright law.

  3. @Dan, you’d think so. But my experience is that even scholars can go a bit crazy once they think there might be royalties to be had.

    I agree about acknowledgement. But … I just don’t feel that creating barriers to the circulation of ancient texts is in anyone’s interest.

  4. Maybe once this nonsense all blows over someone can start publishing pocket Greek New Testaments like is currently done with English. I’ve always wanted one.

  5. This is an interesting development, but French law is always a little different from the Anglo-American tradition. To be sure, under US law, mere “sweat of the brow” is not an adequate basis for copyrightability, but US law only needs independent creation and a modicum of creativity. As a result, editors of critical claim would have to claim some original contribution to the text (and their procedure is not as mechanical as the French court presumes). As far as I am aware, it is still an open question.

  6. This is the “is a telephone directory copyright because it was a pain to compile” argument.

    French law is certainly different in all sorts of ways; but mostly more restrictive, I think. Which is why it is rather cheering!

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