Originally Posted by cloudgazer
You're arguing against a position I'm not taking. Let me make it more clear
Person A writes a book and owns the copyright on the book.
Person B scans the book and owns a derived copyright on the scan documents.
Person B's copyright doesn't allow him to distribute his scans fully without respect to Person A's copyright. Consent from person A isn't sufficient to allow person C the right to copy person B's files. The question as to whether person B was legally entitled to take the scan is a different one entirely. Should person A's copyright lapse, person B's copyright may still remain.
In the case of the old master, yes the original is public domain, but since the museum who owns it won't let you scan it yourself you'll never have a public domain digital representation because of the copyright on the derived scan. The scan is itself a reproduction, and has a derived copyright.
I replied to what you wrote.
To reply to your latest, if I write a book, it is mine. It is copyrighted material. (If I register the copyright, my rights to collect damages are expanded.) If you scan that work, and publish and file for a copyright on that book, you are only able to copyright that which is not owned by someone else.
1. What you scan and reproduce is not a derivative work. Period. To be a derivative work, you have to substantively change the original. A scan does not do that. So, what you scanned is not included in your copyright.
2. By reproducing my work without permission, you are liable for damages to me, the copyright holder. No one, not you or anyone else has the right to scan and reproduce my work, or that of any copyright holder without permission of the copyright owner. If they do so, they are also financially liable to the copyright owner.
3. The rules for reproducing copyrighted material without permission include fair use (e.g. news report or book review), academic use (by student or professor), etc. Under no circumstances do those rules allow for someone else to subtantively copy another's work on a wholesale basis or for profit by another without the permission of the copyright owner.
If you don't believe me, copy a book by oh, say James Patterson, change the cover and typeface and title and publish it. Claim it is a derivative work. See how far that gets you. Or, better yet, scan it onto your computer, and sell the scans as an ebook and claim it is a derivative work. See where that gets you.
My bet is you will end up on the rather nasty side of a law suit and a cease and desist order.
The only way you could legitimately argue that you have a right to scan/copy a copyrighted work is if you only make a single copy and claim that you did so to preserve it as a backup copy of the original work. You might win that law suit, or might not, depending on the jurisdiction. However, no one will ever agree that you own a copyright of a derivative work based on the original simply because you scanned it -- which is what you wrote.