Project Gutenberg is an American website which digitises and archives cultural works to encourage the creation and distribution of eBooks. It currently offers 56,000 free books for download, including classics such as Pride and Prejudice, Heart of Darkness, Frankenstein, A Tale of Two Cities, Moby Dick, and Jane Eyre. Many of these titles are available because their copyright protections have expired in the United States, and are therefore in the public domain. The website is a volunteer effort which relies mostly on donations from the public.
What does it mean if a book is in “the public domain”? This term means that something (a novel, artwork, photograph or other creation) is not protected by intellectual property law, including copyright, trade mark, or patent. Accordingly, the general public owns the work, and not the individual creator. Permission is therefore not required to use the creation.
Despite the noble cause of making literature available at no or low cost to the masses, a recent ruling against Project Gutenberg has resulted in the website being geo-blocked for all visitors attempting to access the site from Germany. The claimants in the case are the copyright owners of 18 German language books, written by three authors, each of whom died in the 1950s.
In Germany, the term of copyright protection for literary works is “life plus 70 years,” as it is in the United States. However, the United States applies different rules for works published before 1978. For works published before 1978, the maximum copyright duration is 95 years from the date of publication. In the United States, the 18 books in question are all in the public domain. For the avoidance of doubt, Project Gutenberg runs on servers at the University of North Carolina at Chapel Hill, and is classified as a non-profit charity organisation under American law.
The copyright holders of these works notified Project Gutenberg of their alleged infringement back in 2015. In early February 2018, the District Court of Frankfurt am Main approved the claimant’s “cease and desist” request to remove and block access to the 18 works in question. The claimants also requested administrative fines, damages, and information in respect of how many times each work was accessed from the website.
Our eBooks may be freely used in the United States because most are not protected by U.S. copyright law, usually because their copyrights have expired. They may not be free of copyright in other countries. Readers outside of the United States must check the copyright terms of their countries before downloading or redistributing our eBooks.
The Court reasoned that it was worth taking into account the fact that the works in dispute are in the public domain in the United States. This however “does not justify the public access provided in Germany, without regard for the fact that the works are still protected by copyright in Germany.” The simple message on the front page (cited above) may not be sufficient to draw users’ attention to the fact that what they are downloading may be in contravention of national copyright laws.
The judgement also cited Project Gutenberg’s own T&Cs in its decision, noting that the website considers its mission to be “making copies of literary works available to everyone, everywhere.” While this broad statement may seem innocuous and idealistic, the court used this to support its findings that Project Gutenberg could not reasonably limit itself as an America-only website.
A key point in this matter is the question of jurisdiction. While Project Gutenberg is based in the USA, the claimants successfully argued that as the works were in German and parts of the website itself had been translated into German, the website was indeed “targeted at Germans.” Furthermore, even if the website had not been intended for German audiences, that the infringement occured in Germany is sufficient grounds to bring the claim in German court.
While Project Gutenberg was only required to remove the 18 works listed in the lawsuit, the organisation has blocked its entire website in Germany to protect itself from any further potential lawsuits on similar grounds (see the Q&A here). Project Gutenberg is planning to appeal the decision.