User:Lupo/Hairy copyright

This page is an attempt to resolve a couple of hairy copyright situations. It is a constant work in progress. Feel free to contribute, but you must provide reliable, verifiable sources for any statement you make here.

Russia and the Soviet Union

See Copyright in Russia and its sub-articles: Copyright law of the Soviet Union, Copyright law of the Russian Federation, and International copyright relations of Russia.

This case is largely closed: the mainstream opinion in the published literature is that copyright is strictly territorial.[1] We thus need to apply the appropriate successor state's laws. E.g. for a work first published in Leningrad, apply Russian law. For a work first published in Kiev, apply Ukrainian law.

What remains to be done is to do a survey of the successor states' laws (except Russia, for which this has been done) to figure out under what conditions old works would be PD. This depends on a number of factors, including whether the post-Communist legislation was retroactive or not.

{{PD-Russia}} will need to be amended when the new Russian copyright legislation of Part IV of the Civil Code enters in force on January 1, 2008, replacing all previous copyright legislation. See Template talk:PD-Russia.

Former Yugoslavia

Is similar to Russia: again, one nation split into several independent states. Territoriality again applies.

In terms of copyright, all the successor states have continued the international obligations of the SFRY. The SFRY was a member of the UCC since May 11, 1966, and so are all the successor states. See Circular 38a of the U.S. Copyright Office, and the list of UCC (1952) members. All these countries started out by taking over the last copyright law of the SFRY, which had a 25-year from publication copyright term for photographs.

Furthermore, the Kingdom of Yugoslavia was member of the Berne Convention since 1930.[2]. The SFRY signed the Stockholm Act of the Berne Convention before 1968.[3] It also signed the Paris Act on July 24, 1971, and ratified it in 1975. The Paris Act of the BC entered in force with respect to the SFRY on September 2, 1975.[4] Note that there is an explicit "declaration of succession", so clearly the SFRY does have legal successors when it comes to the Berne Convention.

With the 25-year term for photographs, this would push back the cut-off year for PD to 1950, because the Berne Convention applies to all works that were still copyrighted in Yugoslavia when it joined the BC. Photos from 1950 or later would thus have been eligible to copyright in other countries, under these other countries' copyright laws, and might thus still be copyrighted (generally until 70 years p.m.a.), unless these other countries applied the rule of the shorter term (which the U.S. doesn't do).

Note that article 35 of the Berne Convention states that if a country leaves the BC, the works that were internationally copyrighted until then remain copyrighted in other BC countries. This might concern works from the Kingdom of Yugoslavia.

The situation during the German occupation in WWII is unclear to me.

Again, we need a survey of the successor states' copyright laws, including the implementation acts. For Croatia, see Commons talk:Licensing/Archive 3#PD-Croatia? and this old discussion.

Cuba

Cuba joined the Berne Convention on February 20, 1997. That means any works still copyrighted in 1997 in Cuba are covered! According to the copyright Act of Cuba of December 28, 1977 (as amended in 1994), Cuba has in general a copyright term of 50 years p.m.a. (see §43. I.e., coypright expires on January 1 of the 51st year after the (last surviving) author's death.) If an legal entity is the copyright holder (basically, a corporation or such), the copyright is perpetual (§46). For photographs, the period is 25 years since the first publication (§47). According to the Berne Convention, all works whose copyright had not expired in Cuba yet are covered by this international treaty; therefore only Cuban works where the author died before 1947 or Cuban photographs published before 1972 could be considered as being in the public domain. (The original 1977 law had a copyright term of 25 years and 10 years for photographs. In 1994, these terms were extended. It is unclear whether this extension applied only to works that still were coyprighted in 1994 or also resurrected copyrights that had already expired.) However, Cuba had also joined the Universal Copyright Convention (UCC) on June 18, 1957 (of which the U.S. also was a member). And furthermore, Cuba has also had a bilateral copyright treaty with the U.S. since November 17, 1903 ([5])... I have no idea what that treaty defined or whether it is still in effect. In any case, the state can hold copyrights (see §46 of the Cuban copyright law).

Poland

What is the threshold of originality in Poland? High or low? In particular for photographs? Do we have (recent, i.e., post-1990) court cases?

Hint: On Wikimedia Commons uploaders regularly deny threshold of originality regarding portraits in general, architecture photos, photos of airplanes and other vehicles (…)

PD arguments based on claims that an image "fails the threshold of originality" are problematic in general (not just concerning photographs related to Poland), because it's basically a subjective criterion. Commons-users can argue all they want about it, but fact is that we don't know, even in countries that have a relatively high threshold, whether a court would consider a particular image to pass or not. See also User:Lupo/Simple Photographs, and just below.

On international copyright relations of Poland in general, see also my unanswered argument at Commons:Deletion requests/Template:PD-Polish. (Note that Poland also had at the very least a reciprocal bilateral copyright agreement with the USSR since October 4, 1974. See International copyright relations of Russia.)

Spain

Copyright law of 1879: coypright term of 80 years p.m.a.
Copyright law of 1987: copyright term of 60 years p.m.a., but for authors who died before the 1987 law entered in force (December 7, 1987), the old 80-year term from the 1879 law remained effective. (See article 1(2) of the transitional provisions at the bottom of the file linked.)
Copyright law of 1996: implements EU directive 93/98/EEC. Copyright term 70 years p.m.a., but again, for authors who died before December 7, 1987, the ancient 80-year term remains effective! (See the fourth article of the transitional provisions at the bottom of the file linked).

In practice, this makes Spain an 80-year-p.m.a. country!

EU

What exactly is the effect of Directive 93/98/EEC on the threshold of originality in the EU? In Germany and Austria, the directive has been interpreted to require a low threshold. Does this also hold in other EU countries? Are there any ECJ decisions on the matter?

I do not think the prohibition of discrimination requires a uniformly low threshold. It merely requires that in any EU member, nationals and foreigners are treated alike. But both may well be subject to a high threshold in any given country, and to a low threshold in some other EU member state...

This concerns all the "simple photograph" tags. (Italy, Sweden, Denmark, Finland, ...) See also User:Lupo/Simple Photographs, and this old discussion (between Rtc and Lupo; c.f. also [6]).

Also see Commons:Deletion requests/Template:PD-Italy, Commons:Deletion requests/Template:PD-Finland50, Commons:Deletion requests/Template:PD-Sweden-photo, Commons:Deletion requests/Template:PD-Denmark50.

Neighbouring rights

Do not seem to cover photography (as of June 2007). See this discussion. Now archived as Commons talk:Licensing/Archive 6#Copyright status of concert photographs.

Freedom of panorama

Does not apply everywhere, which gets us in trouble if anything we host must be legal to publish in the U.S., where our servers are. (The U.S. has FOP only for buildings.) See this discussion.

Licensing resolution

The WMF licensing resolution has a problem. It says that the projects shall host on free content as defined by freedomdefined.org. Unfree content may be hosted only in exceptional cases, for each case each project must have a special policy called an "exemption doctrine policy" (EDP). ("Fair use" images at the English Wikipedia are such a case, and there's an EDP for it.) The commons is not allowed to have EDPs.

Now, freedomdefined.org defines "Free Cultural Works" as either under a "free" license or in the public domain. Additionally, a "Free Cultural Work" "must not be covered by legal restrictions (patents, contracts, etc.) or limitations (such as privacy rights) which would impede the freedoms enumerated above."

A strict reading of this means that images of trademarked objects may not be "free". (The design of the Empire State Building is trademarked by ESBC, LLC...[7] See here for much more!) Images of design protected objects (such as cars) may not be considered "free" by the foundation. Images of people may not be "free" (cannot be used in advertisement without the subject's consent in many jurisdictions). Flags and COAs may not be "free" because their use is typically restricted by special insignia laws and such (c.f. en:Wikipedia:Copyright on emblems). Freedom-of-panorama images may be unfree (because they must not be modified in some jurisdictions), and so may be images of official documents (for the same reason). And so on...

Essentially, the licensing policy together with the freedomdefined.org definition would force us to look beyond copyright. That's a major break with the well-established past and current practice, and it makes, IMO, the definition utterly useless.

The problem has come up at de:Wikipedia:Urheberrechtsfragen#Grundsatzfragen. See there for a German overview. At the Commons, this problem was noticed at Commons:Deletion requests/Image:SilaTonga.svg. See also these mailing list threads: [8] and [9].

I have asked both Erik Möller and Kat Walsh, the two board members mainly responsible for this, about this issue on their talk pages at Meta,[10][11] and I even sent Erik an E-Mail. Neither of them has answered.

Since they apparently don't care, I suppose the projects can safely ignore this stupid aspect of the policy and the definition.

This is solved: the Licensing resolution limits itself to those aspects of free works specific to licensing. This is supposed to only consider copyrights, and is an implicit acknowledgement that freely licensed works may be subject to extra-copyright usage restrictions, which WikiMedia ignores. See here.

Anonymous works

What shall we require as sufficient research before we consider a work to be "anonymous"? And how do we prevent misuses of "anonymous work" claims?

Cite a reliable source, such as a recent book or a reliable on-line source, which says: "This work was published anonymously and the author has never come to light"

If not:

Find out where the work was (first) published
Contact the publisher, asking for details
If author becomes known, proceed as in "orphan works"

How can an uploader provide verifiable evidence that such research has been undertaken? I'm afraid AGF won't work here... (yes, call me a cynic).

Interesting example case: Commons:Deletion requests/Image:Julian Mandel 6.jpg. Quadell (talk) 22:06, 7 January 2008 (UTC)

Orphan works

What shall we require as sufficient research before we consider a work to be an orphan? And how do we prevent misuses of "orphan work" claims?

Find out where the work was (first) published
Contact the publisher, asking for details
If author known, try to contact the author or his heirs or estate
...

Again: how can an uploader provide verifiable evidence that such research has been undertaken?

The European Commission on Orphan Works, in particular their diligent search criteria guidelines.
What two digitisation projects in the UK did: they did a lot, asked only for limited rights, and feel safeguarded to some extent by the "educational use"-provisions in the copyright law (which we cannot rely upon).
Society of American Archivists' Statement of Best Practices on orphan works.

Works PD in source country, but copyrighted in the U.S.

See Commons talk:Licensing/Archive 6#Images PD outside of the U.S. but not PD in the U.S. (URAA restoration).

Answered here by Mike and Florence:

All works hosted by WikiMedia projects must be legal to publish in the U.S.
That also applies to non-English WikiMedia projects.

January 17, 2008

Rule of the shorter term

See also my talk page archive here and here.

Mike Godwin's take: as relayed by Anthère, November 28, 2007: the U.S. does not follow the rule of the shorter term. The answer was to a question from it-WS about works PD in Italy, but copyrighted in the U.S., and vice versa. Mike suggests removal of texts not PD in the U.S., even if PD in source country.

Iraq

CPA Order #83: Amendment to the Copyright Law

Lafayette archives

This comes up from time to time. Yes, they do have a copyright on most of their images. See e.g. Commons:Deletion requests/Image:Consuelo Vanderbilt;coronation- 9 augustus 1902.jpg, or also Commons:Deletion requests/Image:Emperor Wilhelm II of Germany (1859-1941).jpg.

Speeches

Mike Godwin's take: as relayed by Anthère, September 17, 2007. He makes the same distinction between prepared and impromptu speeches that I have been making long ago. This is a U.S. perspective, many other countries do not require fixation (e.g., Germany, Switzerland, Russia). In the Berne Convention, fixation is optional (§2(2)).

Engravings

Engravings are original works and subject to copyright. If an engraving is done after a pre-existing work, the engraving is a derivative work.

Some unsorted items:

UK: the Statute of Anne of 1709, commonly considered the first copyright law of the UK, did not cover works of art. The following is summarized from Egerton Beck, "Copyright in Artistic Works", The Burlington Magazine for Connoisseurs, Vol. 56, No. 323 (Feb. 1930), pp. 107-113. The first act to protect any work of art was the "Engravings Copyright Act 8 Geo. 2 c. 13" of 1734, which, however, protected only engravings designed and executed by the engraver for a period of 14 years. In 1767, the act was amended (Engravings Copyright Act 7 Geo. 3 c. 38) to also cover engravings designed by someone else, and the period was extended to 28 years. The International Copyright Act of 1852 (15 & 16 Vict. c. 12) extended this protection to lithography and other mechanical processes. Sculptures first received copyright in the UK in 1814 through the "Sculpture Copyright Act 54 Geo. 3 c. 56", but only if the name of the sculptor and the date of first publication appeared on the sculpture. The term was 14 years from publication, plus another 14 years if the sculptor still lived and had not assigned his copyright to someone else. Paintings and drawings became copyrighted only in 1862 through the "Fine Arts Copyright Act 25 & 26 Vict. c. 68". Prints were covered already in the "The Prints Copyright Act 1777" (17 Geo.3 c.57).

U.S.: "Given the minimal standard of authorship—essentially nonliteral copying—in copyright law, it is not surprising that modest but discernible variations on the underlying work (for example, a work of art translated from canvas to a woodcut or engraving) will sustain a copyright." (Gorman, R.A.: Copyright law, 2nd ed., U.S. Federal Judicial Center, June 19, 2006, section "Derivative works" on pp. 40f. URL last accessed 2008-07-11.) See also the case Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951). On the history, see Gorman, p. 13f on Burrow-Giles Lithographic Co. v. Sarony (111 U.S. 53 (1884)), in which the court held that "writing is any “production” of an author that includes “all forms of writing, printing, engraving, etching, &c., by which the ideas in the mind of the author are given visible expression.”" (The then-current law of 1790 granted copyright to "maps, charts, and writings".) And in Bleistein v. Donaldson Lithographing Co. (188 U.S. 239 (1903)), color drawings for an advertisement poster were held copyrightable.

Are all files on the Commons free?

No. Usage of any file on the commons is "free" in the sense that there are no monetary fees, but images still may be subject to copyright and licenses. Freely licensed files are all copyrighted, but published here under a free license. Such files can be used freely subject to the respective license terms. In most cases, these licenses require attribution of the author and/or the source, but they may also contain further requirements. It is possible though that some files were uploaded here at the Commons and put under a free license by mistake (or by malicious intent). Some uploaders upload copyrighted files of others, claiming them to be their own and licensing them freely. In such a case, the license statement here at the commons is null and void, and the file is just a copyright violation that should be deleted.

Photos taken by the uploader

Or more generally, files uploaded by the copyright owner of the file, or by a representative of the copyright owner of the file. In general, such files are fine, but there may still be cases where some such freely licensed files may be ok only in some jurisdictions. This may occur in particular with images showing other works made by others. Copyright terms vary from one country to the next, and thus some works may be out of copyright in one country but still be copyrighted in some other country. Some examples:

Photos of sculptures. An images of a sculpture is a derivative work of the sculpture, and if the sculpture is copyrighted, the image can be published only with the consent of the copyright owner of the sculpture. An example is Image:Baerengruppe.jpg. The sculptor of these bears died in 1995, so his work is copyrighted until the end of 2065 in Germany, where he lived and where the sculpture is located. The image may still be freely licensed, published, and used in Germany because German copyright law has a special exemption called Panoramafreiheit (or Straßenbildfreiheit; called "freedom of panorama" here at the Commons) for photos taken in public places. The U.S. does not have such an exemption, so this image should not be used in the U.S.
Photos of statues. The same thing applies.
Photos of buildings. The same thing applies, but the details are a bit different. An example is Image:Darmstadtium 09.jpg. This building opened in 2007 and was built by architect Talik Chabari from Vienna. The building is copyrighted until 70 years after Chabari's death. The photo and its free license are fine in Germany because of "freedom of panorama". It's also fine in the U.S., because U.S. copyright law does have an equivalent exemption for photos of buildings (but not for statues or sculptures!) taken from public places. The photo should not be used in France, though, because France has no such exemption at all in its copyright law, neither for buildings nor for sculptures nor for statues. In contrast, the photo of this medieval house is fine anywhere, because (a) the house was built before copyright in the modern sense existed, and (b) any copyright would have expired long ago anyway.
Photos of paintings. A photo of a painting is again a derivative work, and if the painting is still copyrighted, the photo can be published only with the consent of the copyright owner of the painting. If the painting is no longer copyrighted, uploading one's own photo of it is fine.

In general, the rule at the commons is that a file must be ok to publish both in the U.S. and in its country of origin. The country of origin for sculptures, statues, and buildings (basically anything that is fixed to the ground) is the country where the work is located. For other works, it's the country where the work was originally published. However, out of convenience and lazyness, the Commons hosts lots of files that show copyrighted sculptures or statues, even though publishing such photos is not ok in the U.S.

For sculptures and statues, we only consider the copyright in the country of origin. (And even that is ignored often for images of U.S. sculptures, mostly out of ignorance by the uploaders. It is also ignored for such images from countries where this "freedom of panorama" allows only non-commercial uses of the photo, such as the former Eastern Bloc countries.)

Photos taken by others

In addition to the comments made above for "own photos", uploaders should upload and freely license images of third parties only if they have the authorization (from that third party) to do so. Otherwise, the upload is a copyright violation and should be deleted. In general, we require a verifiable e-mail confirmation of the copyright owner's consent for such uploads.

A special case are photos of paintings. For copyrighted paintings, the consent of both the painter and of the photographer is needed to upload and freely license such images.

In the U.S., plain photographic reproductions of paintings cannot attract a separate copyright. (That's the run-down of the Bridgeman v. Corel case.) But that is not true in some other countries. In the UK, the skill and labour efforts spent by the photographer even to produce an accurate reproduction are generally considered sufficient to warrant a copyright on the photo. Some other countries grant a neighboring right to any photograph; this neighbouring right amounts to a copyright with a somewhat reduced copyright term. That is the case e.g. in the Nordic countries. Any photo there is copyrighted, even if it is a "simple" photographic reproduction of a painting.

However, out of convenience, lazyness, and based on ideological considerations and on statements ([12][13][14]) from members of the Board of the Wikimedia Foundation (WMF) who runs all Wikimedia projects including the Wikipedias and the Commons, we deviate from our general rule that we "are a repository of free files, not a repository of files we can get away with hosting". The Commons applies the U.S. position that plain photographic reproductions of paintings were uncopyrightable across the board even in cases where such images are considered copyrighted in their country of origin.

As a consequence, the Commons hosts lots of photos showing old uncopyrighted paintings shamelessly ripped off from non-U.S. museum sites, even though these non-U.S. museums claim copyright on the photos. These photos may be uncopyrighted in the U.S. all right, but they may be copyrighted in the countries where these museums are located and the images were taken. Be careful when reusing such photos. Own photos of such paintings are ok.

For photographic reproductions of paintings, we only consider the U.S. law and we completely ignore the law of the country of origin of the photo. Which may in due course cause problems for the WMF. Not necessarily legal problems, but I daresay it will lead to negative publicity in non-U.S. countries where such photographic reproductions are copyrighted.

Note that for the underlying base work (the painting shown), we do apply both the laws of the U.S. and that of the country of origin! So a photographic reproduction of a German painting is considered PD only if the painting is PD in the U.S. and in Germany.

Inconsistency

Of course, all this is highly inconsistent. In general, we require files to be fine to publish under U.S. law and under the law of the country of origin. But in other cases, we play a stupid game of picking the law that is most favorable to us and just ignoring any others. Or we just ignore them all. And we choose laws inconsistently. For paintings: U.S. law only. For sculptures or statues: non-U.S. law only, or ignore laws completely. That's got nothing to do anymore with wanting to be a "repository of free images". The WMF appears to be hiding behind the DMCA safe harbor provisions and behind the section 230 protections, which largely relieve them from any responsibility for hosted content, and (ab)uses this relative safety for an ideological campaign to ignore copyright unless and until it is changed in more convenient ways. Campaigning for such a change is not evil at all, but it has got nothing to do with hosting free content. Their position allows the commons to degenerate into an utterly untrustworthy, useless collection of arbitrary files that may or may not be free. The Commons becomes a repository of things we think should be free, not one of things that are free.

Old postcards

There are many old postcards here at the commons, often with poor descriptions concerning their provenance. Such images are problematic:

If the photographer is not mentioned on the recto, significant research would be needed to figure out his identity. People usually neglect to also upload the verso, so we can't even check whether he's mentioned there.
Even if an editor/phototypist is mentioned, this still doesn't tell us who the photographer was. Many of these early editors also were photographers. And anyway, tracking down the lifedates of an editor can be hard as well. For instance, consider "Émile Lacour, 19 rue Thubaneau, Marseille", signed as "E. Lacour" on French postcards. He was not just a phototypist but also a photographer. Now, which postcards were actually taken by him? When did he live? One can find many French postcards of his from 1900-1905, but that's all we know. [15] might know more, but we don't. (Well, we know that his studio was at that address from 1902 on. Before, it was at the rue de Rome and then at the rue Saint-Ferréol.[16]) It's not impossible that he died less than 70 years ago...
Often, old postcards might be orphan works, i.e., even if the studio/editor/photographer were known, their businesses are long defunct and possible copyright owners are next to impossible to track down. Yet, if the author died less than 70 years ago, the cards might still be copyrighted in their source countries.
If we had both the recto and the verso, we could at least check whether a photographer is mentioned. If not, we could treat such old postcards as anonymous works (PD 70 years after their publication). However, dating such old postcards reliably is not easy and not always possible. Sometimes it can be done because it is known that a building shown didn't exist after or before a certain date, or because the death of the person shown is known, or because it is known that the editor's business closed in a certain year. Sometimes, there might be a dated postage stamp on the back, or (if the postcard was used) a hand-written date.
To make this all even more infuriating, postcards published before 1923 would be PD in the U.S....
Postcards published 1923 or later might be copyrighted in the U.S....

My approach to old works with unknown authors and/or publication dates

How to figure out whether a work is PD in its source country?

For U.S. works: we need the publication date or a date the work was copyrighted . If either is pre-1923, it's fine, if later, it's generally not ok or at least highly suspect. If no publication is known, it gets difficult. If the work is older than 120 years, try to determine when the version I got it from was published. If before 1978 or after 2002, it's ok. Otherwise, it's copyrighted until at least the end of 2047. If the work is less than 120 years old, do some research trying to figure out the author, and proceed as below. (If I can't determine the author, not even his name, the image is not ok.) Of course, for U.S. works there are all sorts of special cases, such as governmental works, or post-1922 publications without copyright notice.
Non-U.S. works:
- First, try to date the image. When did the subject die? When was the building shown built? When was it destroyed? Does the source say when the image was created? Or at least when it was published?
- Author name is known, but no death or birth dates: do some research. If that turns up the death year of the author, fine. With that we can determine whether or not the image is PD. If I can't find a death year, but only other works of the same author, or a mention that he lived then-and-then, use that. If the earliest such mention gives a date more than 150 years ago, assume the image is PD. (If I have an image from 1910, but I can show that the same author also created a work more than 150 years ago, I use that earlier date. If he created a work more than 150 years ago, it's unlikely that he lived to less than 70 years ago). If I find a birth year for the author (but no death date), this year needs to be at least 160-170 years ago for the image to be OK, based on the assumption that an author rarely produces lasting works as a teenager.
- Author name is unknown, and remains unknown even after diligent research. Research means not just Googling or querying Google books. It also means querying other online databases such as library catalogs, and even going to my local library and check the encyclopedias and artists' dictionaries there. I only wish my library had more and better encyclopedias... Again, I apply the 150-year threshold. If the work dates back 150 years or more, I can be pretty certain that its author, whoever it was, died more than 70 years ago.
- This is based upon a work from a 70-year p.m.a. country. For works from 50-year-p.m.a. countries, my threshold is 130 years ago.
- There are some special cases to be considered, like images that were likely unpublished during the time they were copyrighted (for instance, images that seem to come from a private album). Such works may be subject to a publication right, and may thus be copyrighted even if the author died more than 70 years ago.
- In any case, the research must be documented on-wiki.

Assorted notes on COM:SEX

Currently says "The following categories of sexual content are not permitted on commons: * Content which it would be illegal for Commons to host, such as photographs of bestiality or child pornography. As the servers for Commons are in the United States, U.S. law applies here."

Should in my opinion also give at least links to the relevant laws, which include 18 USC 1466A (child pornography; includes drawings etc, has an allowance for works of artistic merit), 18 USC 2252A (penalties), 18 USC 2256 (definitions; excludes drawings and the like), 18 USC 2257 (record keeping), 18 USC 2257A (record keeping). (There may be more...) Also of interest is Senate Report 108-002 (clarifying that 2256 does not encompass "drawings, cartoons, sculpture" and the like, see secion III.D.i), and the House Report 108-066 (Conference Report, ditto).

For the EU the relevant legislation framework is Council framework Decision 2004/68/JHA of 22 December 2003. It does not have an allowance for artistic or historic works for child pornography.