Commons talk:Licensing

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Seven 2006/2007 discussions organized as subpages, ignoringincl. comments added in 2014:

Requirement for US copyright status in foreign works[edit]

It seems that our requirement for the foreign works to be in the public domain in the US runs afoul of Berne Convention. Article 7 says: "The term shall be governed by the legislation of the country where protection is claimed" and that "unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work". Also, the Copyright Alliance says that the US as a member of the Berne Convention "honors the copyright in works of authors from all member countries, whether the work has been registered in that foreign country or not". Thoughts? Brandmeister (talk) 14:45, 8 September 2022 (UTC)Reply[reply]

Last time I checked, the WMF is not a Berne Convention signatory, so can't run afoul of it. The US doesn't have the rule of the shorter term, as permitted by the text you quote, and since WMF is founded and has servers in the US, it has to follow US law. I don't know what you think the last quote means; if the US didn't honor foreign copyright, we wouldn't have this problem.--Prosfilaes (talk) 17:44, 8 September 2022 (UTC)Reply[reply]
Is WMF a legislative body and does it stand above Berne Convention? Hardly so. What US law exactly requires foreign works to be public domain in the US? Currently we just proclaim that requirement ex cathedra. What's more, the link to a US public domain tag in templates like Template:PD-old-70 leads to tags that are either applicable only to the US works or have outlandish requirements conflicting with existing copyright law of a given country, such as Template:PD-1996. Brandmeister (talk) 20:08, 8 September 2022 (UTC)Reply[reply]
Title 17 makes it a crime to violate the copyright on copyrighted works in the US, whether they are foreign or US. That's actually what the Berne Convention is all about.--Prosfilaes (talk) 02:09, 9 September 2022 (UTC)Reply[reply]
I forgot to clarify, but we're talking about foreign works that are public domain in their home country, not the copyrighted ones. If under Berne Convention the US "honors the copyright in works of authors from all member countries", why we have the requirement that a foreign public domain work must also be PD in the US (as in Template:PD-old-70)? That means some weird extraterritorial jurisdiction. Brandmeister (talk) 07:39, 9 September 2022 (UTC)Reply[reply]
Wikimedia is a U.S. institution, so we need to follow U.S. law. If a work is still copyrighted by U.S. law, then it's illegal (in the U.S.) to host it here, unless we have a license, or unless it's fair use (which is much harder to argue without a specific context for the work, so we don't allow those at all per WMF directive). A work can expire in some countries but still be copyrighted in others, as different countries protect copyright for different amounts of time. An author can sue in any country where their work is still protected, if used in that country. The voluntary part of our policy is respecting the law in the country of origin -- strictly speaking we don't have to do that, but as an internationally-focused project, much of the time the primary audience for a work will be that country, so on balance it's better to wait until the work expires there (which also has the benefit of making it public domain in all countries which use the Berne rule of the shorter term, which is far from all, but a decent number). We don't wait until it's public domain in *all* countries.
The English Wikipedia follows U.S. law only, and some other language-focused projects may use other laws, and essentially claim U.S. fair use for works which have not yet expired in the U.S. As stated in your quote, "The term shall be governed by the legislation of the country where protection is claimed" -- so if you claim copyright in a particular country, you have to go by that country's laws. That country may protect copyright for a shorter, equal, or longer amount of time than the country you live in, but if you bring a copyright infringement lawsuit in that other country, it would be controlled by the law of the country where you bring the lawsuit. The law in your own country has little to no bearing on that lawsuit. The U.S. does not use the rule of the shorter term, but uses its own term for all works, regardless of where they were published. So even if a work expires in a foreign country, it can still be copyrighted in the U.S., meaning any use of it in the U.S. is subject to infringement there. By the same token, if a work expires before the country of origin, it is then fine to use in the U.S. since there is no more protection there, but usages in the country of origin still need a license. Carl Lindberg (talk) 13:53, 9 September 2022 (UTC)Reply[reply]
Extraterritorial jurisdiction doesn't apply if you're suing an American entity in American courts for actions taken in America like the WMF distributing a work on American servers.--Prosfilaes (talk) 20:13, 9 September 2022 (UTC)Reply[reply]
I see. The culprit seems to be Uruguay Round Agreements Act which brings dissonance between US and non-US copyright laws. Brandmeister (talk) 23:47, 9 September 2022 (UTC)Reply[reply]
Not really. It's that the US has a publication based duration for copyrights of works published before 1978, and that the US doesn't have the rule of the shorter term. Without the URAA, huge amounts of foreign works would be in the public domain in the US, even relatively modern ones, but that would just put the US further away from non-US copyright laws.--Prosfilaes (talk) 05:25, 10 September 2022 (UTC)Reply[reply]
Agreed with Prosfilaes, not really -- it is the dissonance between the publication-based term in the U.S. for works published before 1978, and thus still the relevant term for most photos here, and the life-based term in other countries. They are on average probably roughly equivalent with a 70pma country, but the terms for particular works can vary highly (depending on whether a work was made early or late in life). You can still get the same issue in non-U.S. countries though; many countries are 50pma instead of 70pma, and a couple are higher (Spain was 80pma, and still has those terms for people who died before 1987, and Colombia is still 80pma). Some countries have different, publication-based terms for corporate works, so those could still be in dissonance with other countries who use the human author's life for the same work. There is a lot of variety in terms, especially when historical terms are still relevant in a country. The URAA made it much more noticeable by making many works re-copyrighted in the U.S., since previously most were public domain through lack of notice etc, meaning few copyrights in the U.S. outlived the European terms. But, the EU copyright restorations did much the same -- the same day the URAA went into effect, the UK increased the term for photographs from 50 years from creation to life plus 70 years (which of course then qualified all of those for URAA restorations). That caused similar problems for an immense number of works. Carl Lindberg (talk) 13:25, 11 September 2022 (UTC)Reply[reply]
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