Can I use a Public Domain work commercially, if I extracted data from a Non-Commercial use digital copy

Question

There is a number of digital libraries such as Europeana, Österreichische Nationalbibliothek, Kramerius, Polona and so forth. Each offers a large colletion of digitized books. Many of these books are available in Public Domain, meaning I can do almost anything with them.

But while some libraries allow unrestricted use of their Public Domain content, others do not and limit the use of their copies to Non-Commercial use. It is my understanding that NC only applies to the digital copy, not the work itself.

Now, the copy o a book is a collection of images. Let's say I want to use these publicly available NC images to restore the original value of the PD work (i.e. use OCR to obtain text of a book), and then use that extracted data (i.e. PD text) commercially, for instance I want to sell my clean text copies as ebooks. What I would end up in the end is my textual reproduction of a Public Domain work, which I can use. But it would be derived from a Non-Commercial copy.

Is that breach of NC licence, if I am profiting from a reproduction of PD text I extracted myself, but using NC digital copy (scanned images) of that book to retrieve it?

I personally considered the following line of reasoning in favor of an individual being able to use the end result commercially, i.e. for selling ebooks of Public Domain works:

1. The photographer has copyright in the photograph itself, not in the items photographed.
2. A “slavish copy” of a work would not qualify for protection if there is no creativity involved.
3. Copyright protects literary and artistic expression, not facts.

I am interested in how this works globally, but mostly within the EU.

Answer 1

But while some libraries allow unrestricted use of their Public Domain content, others do not and limit the use of their copies to Non-Commercial use. It is my understanding that NC only applies to the digital copy, not the work itself.

Your understanding is correct. An ancient text, or one long out of copyright, does not get new protection by creating an image of the text. At most the image itself is protected, not the underlying text. In the US, and other jurisdictiosn that follow the rule of the 1999 Bridgeman Art Library v. Corel Corp case there is no copyright protection on the image because it has no original content. Some EU courts have indicated that they will be following the logic of bridgeman. To the best of my knowledge no EU decision grants copyright protection to an otherwise out-of-copyright work because of its presence in a digital library or collection.

However, if a person gained access to a digital library or collection subject to a TOS agreement which includes "no commercial use" terms and then published a text from it commercially, that person might be subject to a breech of contract or similar suit by the library. Such a suit would need to include proof of damages.