Commons talk:Licensing/Archive 6

Public domain in Italy

Hello,

I recently translated it:Pier Paolo Pasolini into French (fr:Pier Paolo Pasolini). The francophone version looks pretty boring without all the lovely images that are on WP:it. The problem is that nearly all of them have {{PD-Italia}} templates, warning users not to upload them onto Commons because rules are stricter here. Example: it:Immagine:P p pasolini.jpg.

I asked on WP:fr if I could upload them there, and WP:fr user Michelet kindly responded nearly right away, citing the Berne conventions, wherein any work released into the public domain in one country is automatically in the public domain in all countries. (You can see our conversation here (in French).)

So now I am left rather confused. Who is right, Michelet and the Berne convention or WP:it's warning template? May I upload these images onto Commons or am I only allowed to do so onto WP:fr, or not at all?

Thanks in advance, Arria Belli | parlami 16:49, 7 March 2007 (UTC)

Precision: The Berne convention says (art. 7-8) that no protection can be longer than that of the contry where the work has been made (when it becomes PD in the original country, it becomes PD everywhere). Since these pictures are obviously italian, and that the italian protection for this kind of picture is limited to 20 years, they are now PD for any country (IMHO). The potential catch (justifying the italian warning) is that the reverse is not true: a 25 years old french picture can be used in italy under {{PD-Italia}} template, but cannot be exported elsewhere (on commons), since its protection will be active in most other countries. Micheletb 20:30, 7 March 2007 (UTC)

OK. If I understood correctly, then, I can upload them onto Commons. Right? I won't do anything until I'm 100% sure, as I don't want to raise any hackles either here or on it:wp. Arria Belli | parlami 21:58, 7 March 2007 (UTC)

The Berne convention does indeed have a "rule of the shorter term." Unfortunately, even for signatories of the Berne convention, the copyright on a work may expire in one country and enter the public domain there, but still be copyrighted in other signatory countries because countries are permitted to "opt out" from this rule. OpenFlix has a list of countries that do not honor the rule of the shorter term. In particular, note that while both Italy and France honor the shorter term, the US does not. So while these photos may have entered the public domain in Italy and hence can be used in France, they are not in the public domain in the US (unless they also meet the US rules for public domain). US copyright matters in this case because the Commons servers are hosted in the US. I think you'll find that you can't upload them to them to Commons - you'll have to upload them to WP:fr. —RP88 03:08, 8 March 2007 (UTC)

I think {{PD-Italy}} is not valid material for commons. See Template_talk:PD-Italy for details. --EugeneZelenko 15:46, 8 March 2007 (UTC)

I thank you all for your speedy response. I'll go upload the images onto WP:fr now. Arria Belli | parlami 23:21, 8 March 2007 (UTC)

Legal cocern associated with removing watermarks

I have raised a concern at Wikipedia that removing copyright notices embedded in images may violate the terms of the GFDL, which require that derivative works "preserve all copyright notices". As this issue affects Commons at least as much as it affects enwiki, I would encourage any knowledgable people to comment at w:Wikipedia talk:Copyright problems#Overprinted copyright notices on GFDL and CC-BY images. Dragons flight 10:58, 9 March 2007 (UTC)

PS. If there is a better place to mention this, feel free to move it. I'm not all that familiar with the organizational structure of Commons. Dragons flight 10:59, 9 March 2007 (UTC)

I don't see a problem. All copyright notes can be preserved as text as well. A.J. 14:04, 17 March 2007 (UTC)

User copyrights on coats of arms

I think I may have asked a question similar to this before, but I ask again for clarification: if a user creates a digital image of a country's coats of arms, does s/he own some copyright over that image? --Iamunknown 20:44, 4 March 2007 (UTC)

Yes, it's a work of art on their part, so they can own the copyright for it.--Pharos 06:45, 6 March 2007 (UTC)

Also take a look at the discussion above (under Coast of Arms concerning Luxembourg). So far the only opposition to copyright on coat of arms images seems to come from German contributors.--Caranorn 11:56, 6 March 2007 (UTC)

A digital image of a COA is NOT copyrightable according Bridgeman v. Corel --Historiograf 19:54, 6 March 2007 (UTC)

Bridgeman v. Corel is about collage, photography and mere reproductions of existing paintings under copyright (cf. for instance [1]). What we are discussing here (and above) is completely different: it can be a drawing of our own, representing (and not copying) a coat of arms of which we can only know a mere description. Or a photograph of an existing and old (and not copyrighted) representation of the coat of arms, as it could be a photograph of an old castle or an old bridge: in these cases the object is old, but the picture is a creation.

Moreover, the same article claims that «even if the original art is public domain, all existing reproductions are under copyright.» So a reproduction of a public domain art work seems to be copyrightable. I do not see anything there specific to coats of arms, so they must follow the same rule.

Besides, as it is said, «Bridgeman v Corel affects only United States law. If you intend to publish your work in other countries besides the US, I would not recommend using this case as a guideline for legal use».

Therefore I think this argument is not relevant in our discussion. Bruno Vallette 21:21, 6 March 2007 (UTC)

I cannot correct the whole nonsense of Bruno Valette. First: What means "digital image" of COA? If the PD-COA is 2-D then any photograph will be PD also. Bridgeman v. Corel has done proof of UK law. In Germany photographs of PD-2-D objects are also not copyrightable --Historiograf 22:26, 6 March 2007 (UTC)

A photograph of a COA on an old PD print is entirely different from user-created art of a COA. One is not copyrightable (at least in the US and many other places), the other is.--Pharos 22:55, 6 March 2007 (UTC)

(Thinking out loud.) Pharos, I tend to agree with your points. Because the digital image is not a photograph, Bridgeman doesn't apply; because it takes skill to create the digital image, it is copyrighted, and thus must be licensed by the creator for use on Wikimedia projects. Now I have to go try and get that to pass at Wikipedia... --Iamunknown 23:31, 6 March 2007 (UTC)

(Thinking out loud, slightly indignant.) Where on Wikipedia has Bridgeman been applied to third-party created COA art? That's blatantly in violation of policy there as well...--Pharos 01:06, 7 March 2007 (UTC)

Here: en:Image:250px-Colonialhongkongarms.png. It's not exactly Bridgeman, but it does not provide a source because the user thinks that none is needed for similar principles. I tagged it for speedy deletion as the source is not indicated, was reverted with the poor edit summary, "CoA wouldn't have origin besides who granted it," and have had no reply to my objections on the talk page. Feel free to go raise a riot. :) --Iamunknown 03:20, 7 March 2007 (UTC)

Just to explain: Under German law, drawing a COA that you didn't invent counts not as an individual creation. Therefore, you can't copyright it, even if it took you hours to draw it. It's a mere unoriginal copy of an original created by someone else, usually PD. --87.234.44.130 16:26, 7 March 2007 (UTC)

Very interesting. It explains why people opposed to the copyright seem to come mainly (or only) from the de.wikipedia.

If it is a German law which forbids the author of a drawing to choose the license for his own work, what is the consequence on Wikipedia? Does this law apply:

• only on de.wikipedia or even on Commons?
• only to German coats of arms or to all coats of arms?
• only if the drawer is a German or to everybody?
• only if the drawer lives/draws in Germany or whereever he is? Bruno Vallette 21:28, 7 March 2007 (UTC)

Iamunknown writes: "because it takes skill to create the digital image, it is copyrighted". That is exactly not the case. Skill and labour are irrelevant for copyright, only originality is. --Rtc 20:20, 19 March 2007 (UTC)

GNU and public domain

Where do you advise me to go to get informations about the differences between those two licences? Ajor933 13:10, 13 March 2007 (UTC)

GNU isn't a license rather a family of licenses. try Commons:Reusing_content_outside_Wikimedia#GNU_licenses.Geni 16:28, 14 March 2007 (UTC)

Pubilc domain isn't a license either, but rather a state when copyright is expired or author allowed free, unlimited use. A.J. 18:07, 15 March 2007 (UTC)

GNU isn't a family of licenses, it's an operating system. --Rtc 20:16, 19 March 2007 (UTC)

Prohibiting license requests

I suggest that we prohibit pictures being uploaded for which 'permission' has been obtained merely by asking for a license by mail, or something similar, and that we also prohibit pictures with dubious custom licenses (Commons:Deletion requests/Evasion license tags). There are simply too many misunderstandings involved. That is especially necessary for pictures by organizations with commercial interests. (See for example the ridiculous Commons:Deletion requests/Template:Attribution-Ubisoft—do you really believe they permit derivative works for example of w:Rayman (Image:Rayman2-Rayman00.jpg), ie. putting Rayman into your own game, etc?). People should not ask for permission by mail, not even by OTRS, but should ask people to choose and put Creative Commons licensing tags directly on their web sites for the respective pictures, and they should make clear the negative consequences. Surely, many people will be more skeptical when they have to do this, and rightly so. As a good side-effect, this discourages the current practice of seeing commons as an undertaking of collecting pictures by worming licenses out of people by mail exchange. It encourages people to make pictures themselves instead. This is the real purpose of commons.

Putting a license tag on one's web site avoids any misunderstanding about these licenses being given to the public, not merely to the person who requests, or to the project for which he requests. Even if people mention that the pictures can be used outside of wikipedia etc.—the context of the discussion leads to frequent misunderstandings nevertheless.

It should also be forbidden for people to upload pictures by order of a third party. It is really no problem for the author to create their own commons account and to upload the pictures themselves.

This is quite a radical step. But I think that it is necessary to make the whole licensing stuff more professional, and to make commons a repository of pictures that are really free for use by anyone, also for commercial purposes, and not merely something that is perhaps safe to use in Wikimedia projects. --Rtc 20:16, 19 March 2007 (UTC)

Searching Polish-speaker

I'm looking for someone who could check if on this website is somehow written that images from this website are GNUFDL or cc-by-sa. Image:Mlodziez wszechpolska.jpg is from this website (see history)...Sicherlich ^Post 15:30, 21 March 2007 (UTC) (my polish is to weak; or at least i could not find anything )

Licensing CC-BY-SA derivatives

I was about to nitpick a user who created a derivative of a {{Cc-by-sa-2.5}} image, because he tagged the new image {{GFDL}} instead of cc-by-sa. But then I noticed that the actual by-sa web page says "you may distribute the resulting work only under the same or similar license" (emphasis added). So, out of curiousity, does Creative Commons consider the GFDL to be an acceptable "similar" license for derivative works? --Davepape 22:47, 22 March 2007 (UTC)

Nope. Typical for the CC webpage to be confusing. :( --Gmaxwell 00:05, 23 March 2007 (UTC)

I suppose the "or similar" is to allow you to build derivatives based on images licensed under different versions of CC licenses. For example, combining acc-by-sa-2.0 and a cc-by-sa-2.5 image and licensing it under -2.5 or -2.0. Typically confusing statement in the human readable form...--Nilfanion 00:42, 23 March 2007 (UTC)

Consent of subject

The Checklist section of this article says, without qualification, that it is Definitely not OK to upload, amongst other things,

• Photographs of normal people who have not given their consent to being photographed.

That seems far too definite to me. If that were rigorously applied huge numbers of images would have to go. As far as I'm aware there isn't any clear consensus as to when consent is actually needed. It's not normally needed in the US or UK, but may be required elsewhere. If that's right I would like to correct or to delete the above statement. --MichaelMaggs 18:26, 27 February 2007 (UTC)

I agree the wording is too strong. There are cases where we seem to have no problem gaining consensus to remove an image but these tend to be cases which are obviously offensive to the subject. Instead we should probably instruct people that commons is not a paparazzi forum, and that we prefer to treat our subject with due respect, especially those where we are not sure that they consented to the photograph. Gmaxwell 18:35, 27 February 2007 (UTC)

Consent is generally not required to photograph people in public places in the United States and in most other jurisdictions. It is true that, in most places, your consent is required to commercially exploit your likeness; however, this is a not a copyright issue, but instead more akin to a trademark restriction (in the United States, this right is protected by the Lanham Act and is considered an aspect of trademark law rather than copyright law). Furthermore, the copyright in an image vests in the photographer, while personality rights vest in the subject and are generally inalienable.

Wikimedia Commons seeks to collect works whose copyrights are consistent with a doctrine of free reusability; we do not guarantee that works we distribute are free of restrictions on their use that arise other than from copyright. In most cases, such restrictions are inapplicable to the Wikimedia Foundation or to the projects operated under its auspices, or to the extent that they do apply the Foundation and its projects have adopted appropriate policy to avoid impinging on those restrictions. As such, those restrictions are not, and should not be, incorporated into the restrictions of scope on Commons.

This particular proscription is probably due either to a misunderstanding of personality rights (discussed above), or, more likely, an overreaction to a few images that have shown up in various Wikimedia projects recently which are actively demeaning to their subjects. I believe there was a very unflattering image of an obese child eating a ice cream cone that was the subject of much discord recently. While we have the legal right to use, and to distribute, such an image if it is licensed under a free license, we have an moral obligation to refrain from doing so, out of respect for the subject. There are restraints on our freedom to act here that derive not from the law, but from basic human dignity. We should refrain from using images of "ordinary people" in a manner which might tend to bring them into disrepute. However, the rule as stated above would require the removal of Image:Five-string_bass.jpg, Image:Sideburns.jpg, Image:Vibraphone.jpg, and Image:Moustache.jpg (all from my own collection), none of which I believe in any way bring harm to their respective subjects. (I did not obtain model releases from any of them, nor do I even know their names.)

Furthermore, this proscription creates a nonresolvable boundary dispute over what defines an "ordinary" (or "normal") person. Is Roger Taylor a "normal person"? Stephen Colbert? Where do you draw the line? While the "moral outrage" test I propose is no more of a brightline, at least it seems to me to be a better fit with the problem we are seeking to avoid. Kelly Martin 18:53, 27 February 2007 (UTC)

This wording is definitely not within our scope. Cary "Bastiq▼e" Bass ^demandez 19:03, 27 February 2007 (UTC)

Looks like it was first added by this edit. --Gmaxwell 20:17, 27 February 2007 (UTC)

Perhaps we should have some sort of general disclaimer template about personality rights, analogous to Template:Trademarked.--Pharos 21:53, 27 February 2007 (UTC)

Quite possibly, although the former law student in me is a bit leery of that. Personality rights vary by jurisdiction as much as trademark rights do. The templates had better well be clear that we're not promising anything. The current "trademarked" template is unacceptable; it should merely state something akin to "This content has been identified as possibly containing content subject to trademark laws in one or more jurisdictions. Before using this content, please ensure that you have the right to use it under the laws which apply to the circumstances of your intended use." The current text attempts to advise people as to what their rights are with respect to trademarks, and that is dangerous because the advice could be wrong. Kelly Martin 22:02, 27 February 2007 (UTC)

I've revised the {{Trademarked}} template and created an analogous {{Personality rights}}. Please try to avoid offering legal advice to our customers in template messages. Kelly Martin 15:09, 28 February 2007 (UTC)

Excellent! I've add {{Personality rights}} to all relevant images that I uploaded myself, and recommend others to do the same. —Angr 14:06, 2 March 2007 (UTC)

I've removed the offending text for now. If I can find some time over the next week or so I'll have a go at knocking together some general guidelines. The problem I ran into when looking at Image:Childhood Obesity.JPG was that there was actually nothing written which gave any guidance as to whether the original (non pixellated) version could or should be deleted. I don't know what other Wikis do about this, but the English Wikipeida has the same lack of guidance as on Commons, as I discovered when looking into this point over there. A similar issue also came up here recently in connection with a photograph which was labelled as showing a prostitute with her pimp. --MichaelMaggs 22:22, 27 February 2007 (UTC)

Consent is generally not required to photograph people in public places in the United States and in most other jurisdictions. is correct, but an important issue is the rights individuals have of having their image published. In the EU "The data subject has the right to be informed when his personal data are being processed." Please see en:Directive 95/46/EC on the protection of personal data (it also explains the strange terms used....). / Fred Chess 17:13, 6 March 2007 (UTC)

Would someone please think outside their box? Who cares about the US. Germany is a pretty strong contributor to Commons, and German is the second largest Wikipedia. German Law is very strict concerning photographs of people. The same is probably true - i've not checked this yet - for other European countries. If you don't want Commons to be disconnected or taken down by a couple of German lawsuits, reconsider your opinion.

Point 2: Professional photographers use model releases always, to protect themselves from lawsuits. That's also the case in the US. We should require the same thing here, as do other professional image databases. --Fb78 21:09, 6 March 2007 (UTC)

I completely disagree. We can't shape the Commons to the varying laws of every jurisdiction. It is the responsibility of the various national Wikipedias to ensure that photographs uploaded to their Wikipedias (in this case, the German) conform to the laws of that jurisdiction. Second, the jurisdiction of the website tends to be the laws applied to it. Wikimedia.org is not located in German territory; if the New York Times goes to Germany and photographs a public boulevard, or a person in a public place, and puts it on their website, there is no jurisdiction for a lawsuit. It makes absolutely no sense that German laws should dictate would can be made available to the English Wikipedia, which dwarfs the German. We need to be sensible and operate within the law, but if we begin to make Wikimedia a "Lowest Common Denominator" it will be useless. I stress again, this issue needs to be handled within the context of the various national projects, and not in the Commons (it's territorial jurisdiction notwithstanding). --DavidShankbone 18:59, 8 March 2007 (UTC)

Please see en:Directive 95/46/EC on the protection of personal data . The EU is represented by many Wikimedia projects. It should be important to note that in many jurisdictions, consent of subject is an important issue (even if it is not in the US). / Fred Chess 01:44, 17 March 2007 (UTC)

That's fine, but the reasoning still stands that national Wikimedia projects need to police their images with their national laws in mind, and not in Commons shared by other national projects, whose servers are located in the United States. --DavidShankbone 05:16, 17 March 2007 (UTC)

Just realized that I'd forgotten to provide a link here to the draft Consent Guidelines that I suggested a few weeks ago. Anyway, better late than never, here it is: Commons:Photographs of identifiable people. --MichaelMaggs 14:40, 25 March 2007 (UTC)

Photos from the Norwegian Parliament

User:Agtfjott has been in contact with the Norwegian parliament, and it seems like he can make a deal with them about freely licensed photos of the MPs. See Image:Stortinget - Thorbjørn Jagland.jpg for the first upload. But before one uploads photos of 169 MPs, one should be sure that the license given really is free. What do you think? Kjetil r 20:38, 14 March 2007 (UTC)

I don't think it makes any sense. it starts of with BCC-BY-SA which is fine and they appeares to be trying to impose conditions but doesn't seem quite clear what the conditions are or to what they apply (printed versions I think but it isn't clear).Geni 21:08, 14 March 2007 (UTC)

I'm confused. It says "the digital source can be altered according to the given license without written prior;" I thought I could do that under the CC-BY-SA without them granting me permission. "both the uploaded digital reproduction and any altered source can be used without regard to the limits of the free use;" again, doesn't cc-by-sa permit unrestricted reuse? "credits for the original work shall follow the rules given in the Berne convention and credits for the digital reproduction shall follow the rules given in the license" ... well, ya, credits do have to follow the Berne convention and the license (no comment on the last restriction). So it seems that the first three restrictions are reiterating what is already required by the license and by the Berne convention. --Iamunknown 22:40, 14 March 2007 (UTC)

Actually, there is nothing new there. The template is simply to make the source comfortable about uploading the photos, make a structure to identify them and make it clear how they should be credited. Some sprelling errors should be corrected I guess... ;) Jeblad 19:39, 16 March 2007 (UTC)

The last point sais the reproduction and any altered work should be given due respect according to Norwegian law. There seem to be several problems with this:

• it's a bit unclear. Should this really be "given", not "giving"? Who gives respect to what?
• Does this just say "you have to follow the law"? That would be redundant.
• is it supposed to be an additional restriction on top of the cc-by-sa-2.5 license? That is not possible according to the license, as far as i see.
• restrictions regarding the nature of derivative work, imposed by contract by the copyright holder are problematic and hotly debated - see #Creative_Commons_3.0_Licenses above. However, personality rights of the person shown, as defined by applicable law, is undisputed (see Template:Personality rights, and also #Consent of subject above). These things should be kept separate.

Regards -- Duesentrieb ⇌ 14:29, 25 March 2007 (UTC)

Template:PD-Arab

Most of them contradict the Berne Convention. --Rtc 09:55, 25 March 2007 (UTC)

The problem I have with this template is that so many countries and years of protection vary, so we have no idea if something is really in the public domain or not. Just split the template into the specific countries with their specific rules. User:Zscout370 ^{(Return fire)} 18:49, 25 March 2007 (UTC)

Aubrey Beardsley and UK Copyright

See Image:Aubrey Beardsley 1.jpg, Image:Aubrey Beardsley 2.jpg,Image:Aubrey Beardsley 3.jpg, Image:Aubrey Beardsley 4.jpg, and Image:Aubrey Beardsley 6.jpg.

These works were made by artists who died in the 1940s. Are they really PD? I would assume not, but Image talk:Aubrey Beardsley 1.jpg refers to the Copyright law of the United Kingdom. As far as I can see, the copyright term in the UK is life + 70 years. Have I missed something? Kjetil r 20:52, 27 March 2007 (UTC)

No. They are still copyrighted. -- Bryan (talk to me) 10:17, 28 March 2007 (UTC)

Creative Commons 3.0 Licenses

Moved to Commons talk:Licensing/Creative Commons 3.0 on 21:20, 28 April 2007 (UTC).

Please continue the discussion there, ultimately the Commons community should make a decision on this matter. -- Bryan (talk to me) 15:13, 29 April 2007 (UTC)

---

Still active discussions

FlickR and Creative Commons Confusion

A have a question about the problem with some FlickR users, who are simply clueless about the meaning of Creative Commons licenses.

In one case, I found a bunch of Images by FlickR user "savaman" uploaded to Commons. This user, states explicitly on his profile page, that he prohibits copying, and reserves all rights to his photos. There's no amibiguity on his profile page. Yet, he, licenses them all as "Creative Commons Attribution". He doesn't seem to understand English very well (I told him of the contradiction, and he didn't beleive me and/or didn't understand me). I supsect a similiar problem probably exists with others. IMO, FlickR does a poor a job of explaining to user's what exactly they are agreeing to.

Note, this isn't a case where somebody wishes to "retract" a license (which isn't possible0. Its a case, where they never intended to make a the release.

So, I wander, are all these images ok for us to use? Of course, I hope/wish they are, but worry they are not.

I'm not going to upload any images by this FlickR user, but a bunch have already been uploaded, and I wander what should be done in this case, and any similiar. Sorry if this case was already discussed/settled in the past. --Rob 06:26, 20 March 2007 (UTC)

Savaman seems to live in Brazil. Someone with knowledge of Portuguese should talk to him. -- Túrelio 07:55, 20 March 2007 (UTC)

Curiously, his flickr profile includes a link to User:Abu_badali#Photographer:_S.C3.A9rgio_Savarese, so he doesn't appear to mind them being here. But you're right - he seems a bit confused about licensing. --Davepape 15:24, 20 March 2007 (UTC)

Sometime between March 29 and now (April 5), Mr. Savarese changed his licensing to add a Non-Commercial restriction. It seems we can use any photos he uploaded before the date he switched, because the NC restriction does not apply retroactively, but photos he added afterwards are no good. Andrew Levine 04:12, 5 April 2007 (UTC)

Delete them all; his decision to use the previous license was obviously based on incorrect assumptions, and that makes the license null and void. If there are conflicting license terms, by default, the more restrictive ones apply. --Rtc 13:26, 5 April 2007 (UTC)

It seems he has changed his license back to CC-BY. Hopefully for good, this time! Andrew Levine 02:03, 8 April 2007 (UTC)

I really wonder why sometimes people like so much being destructive. "Delete them all". Before saying that one should think and know the hard work that others do here. I have myself exchanged emails with Sérgio Savarese (as Abu badali also has) and he is completely aware of the use that Commons does of his pictures and his proud of it. I know he has some problems understanding English, but you all should reflect before making summary judgements and let people deal with the situation. In Portuguese Wikipedia there is already a general felling that Commons discriminates non-English speakers, so I ask to be patient and first get in touch with people that can solve the problem directly and in the same language of the third part. I think we should always check the historical of the uploader and respect when the user has no copyvio done before. Dantadd✉ 11:28, 8 April 2007 (UTC)

Related Question

Can Commons accept a photograph that is listed as "public" at Flickr? (Here's the Long-billed Thrasher I want to upload.) If so, what license should I use? —JerryFriedman 18:17, 27 March 2007 (UTC)

Public/Private on Flickr refers to "do you want everyone to see your image, or just your friends?", it has no relevance to the licensing conditions. The license of that image is described under "Additional Information". As the license of that image is cc-by-nc-nd we cannot use it.--Nilfanion 18:42, 27 March 2007 (UTC)

Thanks. Oh well. —JerryFriedman 18:56, 27 March 2007 (UTC)

Photographs from places that allow only photographing for own use

Even though this is not an actual copyright/licencing issue, I am wondering how the Commons project should react to photographs taken in places that clearly prohibit photographing for public and especially commercial use but allow it for the personal use of the photographer. One such place is the Finnish zoo Korkeasaari (and Category:Helsinki Zoo). The web site clearly states: "Take photos only for your own use. If you are photographing for commercial purposes, we charge for the photos." [2] and IANAL, but as the owner of the property probably has the right to make such demands. The other example of similar situation are pictures taken in the Finnish anti-aircraft museum (e.g. Image:Skoda 75 mm model 1937 anti-aircraft cannon.rear side.JPG), which allows photographing for personal use only. --Joonasl 06:21, 23 March 2007 (UTC)

After posting that comment I found a similar case on this page. So the answer would be that add a warning? --Joonasl 06:37, 23 March 2007 (UTC)

Continuing my monologue.. I think it might be useful to document this practice somewhere and possible create a standard template that could be added to photographs and other material that have this issue? --Joonasl 10:59, 23 March 2007 (UTC)

Just curious, on what basis do you make the claims cited here and here? Are you speaking as a qualified lawyer when you state this opinion? Can you cite a specific law which would back up your claim? Are you familiar with the policy en:Wikipedia:No legal threats?

Furthermore, you should inform users about statements affecting them on their talk pages so they can respond. I only came across your notice by chance, because I happened to have some of the relevant images on my watch list.

Finally, if you are serious about problems these images might cause for their uploaders, the only ethical way to proceed is to propose their deletion. The approach: "you are in trouble, I will post a loud notice to that effect, but the pictures remain on Commons so that you can get in even more trouble", is not really helpful. Balcer 14:47, 23 March 2007 (UTC)

This user was not making legal threats, but asking a question. There is no reason to react this hostile. -- Bryan (talk to me) 15:27, 23 March 2007 (UTC)

Warning: The anti-aircraft museum's rules state that persons entering the museum may take photos and pictures from the area for their personal use only. Thus if you upload pictures, you risk being held responsible by The anti-aircraft museum for violation of these rules. Note that you as the photographer grant a perfectly legal free license which you cannot withdraw (even if the picture would be deleted from commons, somebody can download it before and freely distribute and use it), this can lead to a high jurisdictional amount; effectively The anti-aircraft museum will try to claim refund from you for what it sees as losses resulting for the use according to your license. You don't have a chance to claim for refund from the actual users of your picture, since they are using it legally!

This is not a legal threat? Please clear up my confusion. Balcer 16:10, 23 March 2007 (UTC)

Calm down! It is a warning modeled after this one [3] that stands there since 9 months. Joonasl recognized (or at least thought to recognize) a potential legal problem and asked how to deal with it, and noboby took care. -- Túrelio 16:50, 23 March 2007 (UTC)

Ok, I will try to calm down. The reason I am concerned is because I uploaded hundreds of photographs that I took in Finnish museums in the summer of 2006, and these images are used all over Wikipedia. If there is a real problem and a possibility of legal action, I will be strongly affected. Therefore I hope that this problem will be quickly resolved. If not, I will request that all my images be deleted. Why should I waste my time worrying about being sued for large sums, if someone uses my photos? Balcer 17:09, 23 March 2007 (UTC)

I agree, exactly for that reason this issue must be elucidated. Though, after reading this, I'm not sure whether the (potential) threat is really above the photographer's head, if one can transfer the legal problems associated with images of persons to the current issue.
In order to speed this up or get more attention we might take the issue to Commons:Help desk. Here is, I think, the website of this museum[4]. But I don't know any Finnish. -- Túrelio 17:15, 23 March 2007 (UTC)

All I can say in my defence is that when I was taking the photos, I asked for permission and was told it would be no problem, and there was no notice (in English at least) specifying that photos are restricted to personal use only. But if those museums do have a real case for forbidding any publication of photos taken on their property, we will have to accomodate their concerns. Balcer 17:31, 23 March 2007 (UTC)

Balcer, if you got a permission, then everything should be alright. Samulili 20:59, 23 March 2007 (UTC)

I asked for permission to photograph, but I did not indicate that I would be posting the images to Wikimedia or for that matter gave any indication what I would do with them afterwards (I am just a tourist, not a professional photographer). So it may be that everything is not all right. The point is: does the museum want these images removed? Did they specifically threaten that any steps will be taken against those that made the photos? Balcer 21:12, 23 March 2007 (UTC)

Joonasl, where did you see or get the information that the Finnish anti-aircraft museum allows photographing for personal use only? Could you kindly post here the related URL, hopefully it's not only in Finnish. -- Túrelio 17:55, 23 March 2007 (UTC)

The museum contacted us via fi-admin@wikim...org. Samulili 20:59, 23 March 2007 (UTC)

So the museum made the claim by themselves? But what did they precisely claim, if that can be posted here? -- Túrelio 21:34, 23 March 2007 (UTC)

The exact wording was "Kuvaaminen on sallittua Ilmatorjuntamuseossa omaan käyttöön, mutta kuvien julkaiseminen ilman Ilmatorjuntamuseosäätiön lupaa on kiellettyä.", i.e. "Photographing is allowed at the Anti-aircraft museum for personal use, but for publicing the photographs one needs a permission from the Anti-aircraft museum foundation.". --Joonasl 07:03, 24 March 2007 (UTC)

If we're going to suddenly start following weird non-copyright restrictions that have been imposed we should probably start by deleting hundreds of thousands of PD-art images across all our proects. ;) --Gmaxwell 18:27, 23 March 2007 (UTC)

@Gmaxwell, that's not really helpful! The issue brought up by Joonas does worry Balcer and should also worry the community if the premiss ("photos allowed for personal use only") is true. In that case IMHO those images would have no place on commons. -- Túrelio 19:35, 23 March 2007 (UTC)

This doesn't make any sense to me. It may be the case that I have some formal contract with some third party never to distribute a picture of my cat. If I take a picture of my cat and upload it here, there's no reason for Wikimedia Commons or any reuser to worry about the fact that I may be in violation of that contract. Jkelly 20:25, 23 March 2007 (UTC)

As pointed out several times above, the museum does not have any ability to actually encumbere the images. They *might* in some cases have recourse against the photographer (although I expect they would have a hard time), and they could always ban the photographer from future access. This is an exact parallel for the huge numbers of digital images of art which have otherwise lapsed into the public domain which we take and use under the Bridgeman ruling but who's use is limited by the terms of service of the source website. I bring it up because unlike the museum case we know that it impacts a huge number of images. --Gmaxwell 20:30, 23 March 2007 (UTC)

At least in terms of U.S. law, the tort in this case is at worst trespassing, since the museum has no copyright claim to the photos taken by someone else, unless agreed to in a contract by both parties explicitly assigning copyright. I ran into a similar case with my Chanticleer Garden Photographs images. They have a similar notice as the museum, so to avoid risk of tresspassing charges, I agreed to adjust the licensing, but that wouldn't otherwise affect my copyright. Basically the sign is saying "you can't take pictures for non-personal use, if you do you are not authorized to be here". That's tresspassing. Under no circumstances can they claim rights to your work, since they had no creative control and did not pay you. Now of course this does not apply if you took a picture of copyrighted work, but that's not the same issue. I'm assuming that there is no copyright infringement in the photo itself. -- Ram-Man 20:48, 23 March 2007 (UTC)

agreed to adjust the licensing. Couldn't that be model for a template to label the images discussed here? -- Túrelio 21:34, 23 March 2007 (UTC)

Not really, no. I signed a written contract with the other party which specifically clarified the issue. I chose to give up some of my publication rights in exchange for having access to the property for photography purposes. In my world that was a good tradeoff. But in the case where no contract has signed, the most that the museum can claim is tresspass. There is no reason to remove the images here, as the material is not infringing on anyone's copyright. -- Ram-Man 02:58, 24 March 2007 (UTC)

If your analysis is correct, then surely the reason would be to lower the likelihood of Commons users caught in these situations being charged with tresspassing. Surely the fact that there is no copyright problem is not the only and sufficient reason to keep any material on Commons. In my opinion Wikimedia does have a moral obligation to help protect its users from legal trouble (within reasonable bounds of course). Balcer 03:18, 24 March 2007 (UTC)

Should there be some sort of formal explanation of our policy here? Or does some existing policy apply--Pharos 20:42, 23 March 2007 (UTC)

There is no policy that needs to be explained here. The signs don't impact us in the slightest. We don't need a policy related to this just like we don't need a policy that says you can still upload your photos even if you previously bludgeoned someone to death with your camera. --Gmaxwell 20:52, 23 March 2007 (UTC)

While the example may be a bit graphic, but point is this: You can't lose copyright to your photographs because you commit an unrelated crime. (unreleated means you didn't steal someone's camera and/or film) -- Ram-Man 20:56, 23 March 2007 (UTC)

Ahh, so there is no licensing problem and Wikimedia will have no problem, but I might get sued for tresspassing. Lovely. Just lovely. In these circumstances it seems to me that the only recourse is to delete the images immediately. How do I go about requesting this? I hope it can be done quickly and efficiently. Balcer 21:27, 23 March 2007 (UTC)

I'm not exactly sure about your particular example and what I was saying only applies to what would happen in a U.S. jurisdiction. You can correct me if I'm wrong, but it seems to me that you 1) asked for permission which was granted, and 2) did not know that they ban non-personal use. If those are true, then there is really no risk at all, although I suppose they could threaten anyway. Granted I'm not a lawyer, but being a photographer myself, I have to deal with these issues all the time. For reference see here. -- Ram-Man 03:11, 24 March 2007 (UTC)

Though the discussion now has shifted fully to copyright, if I read the very first sentence correct and if I understand Balcers worries right, the question (and the worry) was whether our photographer is in any legal "danger/risk" 1) when he/she uploads images made under the conditions described above to Commons, or 2) when a re-user uses one of those images from Commons commercially. If I understand the latest comments correctly, both questions can reliably be answered with No or?. -- Túrelio 21:34, 23 March 2007 (UTC)

I am curious what is the policy on sites like flickr, which also allow their users to post all kinds of photos under various licenses. I did manage to find quite a number of photos taken in Finnish military museums on there. Are all the people who took those photos in legal danger now? (seems incredible, but I am not a lawyer). More importantly, does Wikimedia need to follow higher standards than flickr? Balcer 21:45, 23 March 2007 (UTC)

You have to remember that Flickr is primarily a service for people to share photos with their friends. Basically, it has no real copyright standards and no enforcement.--Pharos 17:19, 24 March 2007 (UTC)

Deletion request

Since I feel myself to be in legal jeopardy (I am not too worried, but still), for my own peace of mind I would like all the photos I took at the anti-aircraft museum to be deleted as soon as possible. The following files are affected.

• File:S125 tuusula 1.jpg (chk)
• File:S125 tuusula 2.jpg (chk)
• File:88mm tuusula 1.jpg (chk)
• File:88mm tuusula 2.jpg (chk)
• File:Kommandogerat 40 director tuusula 1.jpg (chk)
• File:76mm putilov M1914 AAgun tuusula 2.jpg (chk)
• File:76mm putilov M1914 AAgun tuusula 3.jpg (chk)
• File:76mm putilov M1914 AAgun tuusula 1.jpg (chk)
• File:37mm AAgun mk1939 61K tuusula 3.jpg (chk)
• File:37mm AAgun mk1939 61K tuusula 2.jpg (chk)
• File:37mm AAgun mk1939 61K tuusula 1.jpg (chk)
• File:Thunderbird tuusula 2.jpg (chk)
• File:Thunderbird tuusula 1.jpg (chk)

It is very important that this is done promptly, before someone uses them in a commercial publication and exposes me to "a high jurisdictional amount". Once the situation is cleared up, a decision may be taken to undelete them, but for now they must go, until the policy of Wikimedia Commons on this issue is sorted out. I really have no idea where this request fits within the current Wikimedia policies. I know that I don't own the images I uploaded, yet I feel that the request I am making here is a reasonable one. Any help with this would be appreciated. Balcer 23:28, 23 March 2007 (UTC)

PS. Regardless of whether I am in legal jeopardy or not, if the museum contacted Wikimedia and protested about the use of those images, they should be deleted on those grounds alone, out of simple politeness. After all, the exhibits belong to them and in my opinion they have a "moral right" to have control over them, and Wikimedia should maintain good relations with museums (why not?). Thus I repeat the call for these images to be deleted. Balcer 01:00, 24 March 2007 (UTC)

Also, what about images in Parola Tank Museum and Finnish Artillery Museum? Do they also fall under "only personal use" clause? If so, they should be considred for deletion as well. Balcer 23:38, 23 March 2007 (UTC)

I don't think that you are in legal jeopardy. As long as they didn't clearly tell you that photography was prohibited when you were there, you should be safe. It reminds me of when I bring my camera to football games, and the guards tell me that photography is prohibited. I then reply that I wasn't told so when I bought the ticket, and that I demand an immediate refund of the ticket if I'm not allowed to take photos. They always let me in, and let me use my camera (I sometimes have to promise not to shoot videos, that is fair enough I guess.) Kjetil r 03:13, 24 March 2007 (UTC)

While I don't believe there are any copyright issues here and at worst Balcer has to worry about (relatively minor) misdemeaner tresspassing charges (which I don't believe have any merit either), out of respect for his wishes I support removal of the images at his request. I don't know what policy is on that issue, so it's just my opinion. On the other hand, I don't like the idea of a museum bullying us into removing pictures that they have no right to control, but that isn't my battle to fight, since clearly I'm at no legal risk here. I'm assuming that he had no prior knowledge of their photography policy and that the content of the images is not by itself protected by copyright (as a photograph of 3D art or some related statute). If the latter were true, Wikipedia would be forced to remove the images as copyright infringments, and it would be done without discussion if the museum complained. So I doubt that was the case, but it's a bit unclear. Also "if you are photographing for commercial purposes, we charge for the photos" doesn't apply then. Balcer has not photographed anything for commercial purposes, so add that to the list of reasons why the museum has no right to complain. It's not clear what "personal use" is anyway, since it seems directly contrasted with "commercial". -- Ram-Man 03:17, 24 March 2007 (UTC)

Since no one here is an expert on Finnish law, it is not clear at all what the charges will be. The museum might be still run by the military and special laws may apply (how does tresspassing on military property sound?). Please remove the images, I don't want to worry over this. Balcer 03:29, 24 March 2007 (UTC)

I'll look into this personally (at least as much as I can). If someone objects, they can undelete and we can sort it out later. -- Ram-Man 03:31, 24 March 2007 (UTC)

Thanks. I would still like to know what exactly was in the communication from the museum. Maybe this can still be sorted out, and some kind of compromise made over the licensing. With the images deleted, we have time to resolve this. In my opinion, having images from the museum on Wikipedia would only increase the number of visitors to the museum, which is presumably in its interest. Maybe its staff can be convinced of this. Balcer 03:42, 24 March 2007 (UTC)

I've removed the images and their links in the various Wikipedias. If you'd like to add them back, request an undeletion before they are permanently deleted. Good luck. -- Ram-Man 03:51, 24 March 2007 (UTC)

The exact wording was "Kuvaaminen on sallittua Ilmatorjuntamuseossa omaan käyttöön, mutta kuvien julkaiseminen ilman Ilmatorjuntamuseosäätiön lupaa on kiellettyä.", i.e. "Photographing is allowed at the Anti-aircraft museum for personal use, but for publicing the photographs one needs a permission from the Anti-aircraft museum foundation.".--Joonasl 07:07, 24 March 2007 (UTC)

It might help to find out whether the museum would be willing to grant Balcer (and thereby Wikimedia/Commons) a posteriori a permission to "publish" those images here on Commons under a free license that is acceptable to Commons and its users. -- Túrelio 08:36, 24 March 2007 (UTC)

That would be ideal. However, since I do not speak any Finnish, it would be best if one of the Finnish-speaking admins would contact the museum about it. Also, since we are quite likely to run into similar problems sooner or later, and this discussion has produced a lot of useful insight and precedent for the future, would it make sense to create some kind of guideline page which covers this ground (or maybe one exists already and I just don't know about it).

Finally, what would happen in a similar case, but involving a user who is no longer active and hence is not around to request the removal of uploaded images? Would Wikipedia have an obligation to remove his images upon receiving a complaint to protect him/her from legal trouble? I believe a legal answer to this question should be obtained by the foundation. Balcer 12:48, 24 March 2007 (UTC)

I think that the only reason for deleting images is if there is an actual copyright violation. If the user is nowhere to be found and it is obvious that the organization with the complaint has no copyright interest, we should keep the images. Those who take pictures and upload them have taken the risk already, and it isn't for us to say whether or not there is any risk to them at all. They made the choice and we should keep them if we can. -- Ram-Man 15:04, 24 March 2007 (UTC)

I think the people at the museum would probably understand english well enough to answer an request for permission (most people in Finland do). At least a phone number to the museum can be found here. I also think that somekind of guidelines (and ready templates?) would be good to have for this kind of cases in the future.--Joonasl 13:31, 24 March 2007 (UTC)

Although I don't know about details of Finnish law, any theoretical risk to the photographer would probably arise either from trespass (ie you were acting as a trespasser when doing an act that wasn't authorised) or from contract (you breached the contract made when you bought an entrance ticket). In either case, you would have needed to have been made aware of the restriction in advance: in other words taking photographs innocently isn't it itself likely to be unlawful, nor could the act be made retrospectively unlawful when you found out later that there was a restriction, eg from their website. Here, you had actually asked and was told it was ok; there can be no problem, then, as the museum can't impose limitations after the event. In practice, however, even if a visitor did take pictures which were contrary to the museum rules, the chances of the museum actually suing must be infinitessimal. They would have no reason to sue a private individual, and most museums have better things to do with their money than to spend it on lawyers. The purpose of the restriction - in the real world - is to discourage professional photographers who might want to make money out of a series of pictures taken there. So far as Commons is concerned, as Gmaxwell says above, copyright is not going to be affected, and in my view we have no reason to delete. I don't like the warning on the images, as it's scaremongering, sounds like a legal threat, and what it says ("this can lead to a high jurisdictional amount" - whatever that means) is so far as I can see not actually true. --MichaelMaggs 18:32, 24 March 2007 (UTC)

My view is that this is scaremongering. The only Finnish law which might apply to this is the penal code (39/1889) and its Chapter 24 on the Offences against privacy, public peace and personal reputation. There, the possible offence might be § 3, Invasion of public premises (julkisrauhan rikkominen), but as Balcer has entered the museum (which is a private institution, although on military property) lawfully, he cannot be charged with this. The other possible article, § 6, illicit observation (salakatselu) is not available as the photographs do not show a person at all. This view is given for certain other public premises by the Ombudsman of the Finnish parliament in his decision 405/4/03 from 14th June 2005. Ombudsman points out that in a public place, there is no ostruction to taking photographs. However, if those photographs show people in such light that it invades their privacy (e.g. a public waiting area in a hospital), you cannot publish the photos. --MPorciusCato 13:32, 12 April 2007 (UTC)

I agree that the warning is probably not the best possbile one, I just basically copied the text from the FIFA-page and it should be rewritten. --Joonasl 19:46, 24 March 2007 (UTC)

Guidelines on non-copyright restrictions

Sorry for splitting this out, but the discussion was getting rather long. I do think we should have some sort of statement in the guidelines, perhaps in Commons:Derivative works. While I agree with Gmaxwell that there's no real legal issue for us, a lot of ordinary people probably assume that placards in museums do have some copyright significance, and I think it would be valuable to correct that assumption.--Pharos 18:27, 24 March 2007 (UTC)

I absolutely agree. There can be no copyright issues in this case and therefore it's not a question that affects Commons. It would be wise, I think, to inform the people uploading pictures that there might be some other legal questions. --Joonasl 19:45, 24 March 2007 (UTC)

I do hope that we recognize that society and our users - both uploaders and downloaders - have also other laws than copyright. Samulili 20:21, 24 March 2007 (UTC)

I think we should just acknowledge that some institutions claim these restrictions, and then make clear that they are irrelevant to copyright status. Not that we should be "warning" people, really.--Pharos 21:49, 24 March 2007 (UTC)

Wrong analysis

If taking a photograph was illegal and the prohibition is enforced by criminal law, posting it on the net and taking advantage of it (by using it in a free encyclopedia) is a "fr:recel" (Handling?) and may be punished as weel (can be up to 5 years of prison in France...). So you can't just dismiss the problem by saing "it's the photograph, I don't care". Now, the solution is probably to ask the museum if putting the photographs under a GFDL licence is OK for them (since it makes it impratical to use them for profit), and basta. Micheletb 12:02, 6 April 2007 (UTC)

That's a big if. Violating "house rules" generally is a breach of contract (or similar), not a criminal offense. It can get you kicked out, and maybe even sued for demages, but it won't get you into jail. Well, maybe if you broke into the place, yea... -- Duesentrieb ⇌ 11:17, 7 April 2007 (UTC)

A big "if" that acts as a scarecrow, of course, (it's usually civil law involved, not penal) but yet... the act is just one word away from being stealing, which in french law is defined thus "Theft is the fraudulent appropriation of a thing belonging to another person." (art. 311-1 CP) The only difference here is that a picture is not a thing, technically speaking, since it is immaterial, so that taking a picture without the owner's authorisation, though punishable as an offence against proprety rights, is technically not qualified as a "theft". Good news, because in France, "Theft is punished by five years' imprisonment and a fine of €75,000" (art. 311-4 CP) I still feel uneasy at being but one word away from this... not to mention criminal laws punishing other offences of the same kind.

The point is: each and every time a delictuous act is committed, any person that take advantage of it may be punished as well: "Receiving is the concealment, retention or transfer a thing, or acting as an intermediary in its transfer, knowing that that thing was obtained by a felony or misdemeanour. Receiving is also the act of knowingly benefiting in any manner from the product of a felony or misdemeanour. Receiving is punished by five years' imprisonment and a fine of €375,000." (L 321-1 CP).

So it is generally a breach of contract, sure. How much are you willing to bet it will be the case always and in all countries ? Michelet-密是力 12:25, 7 April 2007 (UTC)

Template:PD-Iran

The template is inconsistent with the Berne Convention, which "sets a minimum of 25 years protection from the year the photograph was created, and for cinematography the minimum is 50 years after first showing," (emphasized by me; w:Berne Convention for the Protection of Literary and Artistic Works) --Rtc 09:34, 25 March 2007 (UTC)

But Iran has not signed the Berne convention? / Fred Chess 09:39, 25 March 2007 (UTC)

"Since almost all nations are members of the w:World Trade Organization, the TRIPs Agreement requires non-members to accept almost all of the conditions of the Berne Convention." Even if that should also not be the case, I think we have the responsibility to respect the copyright of these people anyway, since they can't do anything about their country not joining the Berne Convention. Basically, if Iran joined neither Berne convention nor TRIPS, then all iranian works are PD outside of Iran, if I understood that correctly. --Rtc 14:49, 25 March 2007 (UTC)

I agree with Rtc. Plus Iran could, in theory, become a Berne participant at any time. Also, we want our works to be as legal as reasonably possible in iran as well. Furthermore, it would be unethical to exploit a loophole, and... for those who care, Jimbo has publicly supported this position. --Gmaxwell 15:00, 25 March 2007 (UTC)

Wrong point, here: Technically, if Iran becomes a Berne participant, this cannot send PD work back under protection. Ethically, of course, this is a different matter. Michelet-密是力 12:28, 7 April 2007 (UTC)

Of course it sends PD work back under protection. It just does not send it back under protection retroactively. If you used a relevant Iran work legally yesterday and they join the Berne convention today, you may not use the work anymore from now on, but you cannot be held responsible for your use yesterday. Please make a difference between retroactive rights (which do not exist) and resurrected rights (which certainly do exist). --Rtc 12:50, 7 April 2007 (UTC)

I'm not sure of that, Rtc. We had the case in France, when copyright protection extended from 50 to 70 years: the material that was PD under the 50 years rule stayed PD, even though it would have been protected under the 70 years rule: there was no resurrection (embarassing to say so on Easter day, but... ;o) Michelet-密是力 07:01, 8 April 2007 (UTC)

To be honest I agree with the statement that we shouldn't exploit loopholes since it's unethical just as we haven't in the past when we decided not to accept works of art created in Afghanistan just because Afghanistan has no copyright law. However, we can't just start imposing our own copyright principles on places that have different ones, such as Iran for example. Maybe we should only accept works whose creator has been dead for at least 70 years even though many countries have laws that say differently? Yonatan ^talk 18:41, 25 March 2007 (UTC)

I also agree with the above setiments. User:Zscout370 ^{(Return fire)} 18:47, 25 March 2007 (UTC)

upload of de.Wikipedia public domain picture

I am going to translate de:Daniel Gottlob Moritz Schreber for the English project. The German article contains a picture, which is marked as public domain. Can I upload this image to the commons? -Kncyu38 22:01, 28 March 2007 (UTC)

Unfortunately not, since it is entirely unsourced. Jkelly 22:06, 28 March 2007 (UTC)

The picture has been upload here long time ago. The picture is clearly PD. So what? --Historiograf 01:27, 30 March 2007 (UTC)

The guy died in 1860, so his portrait obviously has been made before that: even if the photograph was a baby at that time, this was 70+70 years ago... the burden of the proof is on the other side: how can there be any reasonable doubt about its being PD? Micheletb 11:49, 6 April 2007 (UTC)

The fact it is PD doesn't mean we can blithely ignore a lack of sourcing. Where is it from?--Nilfanion 11:52, 6 April 2007 (UTC)

Yes, it means that we can blithely ignore a lack of sourcing. Although certainly desired, it is not necessary for PD pictures. --Rtc 12:31, 6 April 2007 (UTC)

Thing is can you say that with certainty? There is no meta-data associated with this image. After a cursory Google search, I'm assured that the image is of the subject - and so is almost certainly PD. However, slightly better information is needed on the image page. It should say when the subject died (as that is the claim for it being PD). The image description should say both the license and why that license.--Nilfanion 12:56, 6 April 2007 (UTC)

You can say nothing at all with certainity or even probability. (in fact, the probability of the picture being PD is an uncertain statement about the objective fraction of pictures from that time that are PD now. A single picture can be only either PD or not PD, it cannot be "almost certainly PD". w:Bayesianism is nuts.) The description "Daniel Gottlob Moritz Schreber" is enough for me to find out the time that the person lived at and to see that it's a very old picture. Perhaps a link to the wikipedia article could be added, but I dont think that more is needed. --Rtc 15:22, 6 April 2007 (UTC)

I'm saying that the date of his death is relevant here. (Why isn't that there anyway?)--Nilfanion 15:37, 6 April 2007 (UTC)

Copyright status of concert photographs

What is the copyright status of photographs taken at concerts, without permission of the artists and/or their management?

I'm not asking about the house rules. If someone takes an image in violation of an explicit interdiction to take photos, that's his risk. AFAIK, the consensus here is that if such photos are freely licensed and uploaded here, Wikimedia cannot be held responsible for the breach of house rules.

But I'd like to get some clarification on whether such images are really fine copyright-wise. (Technically speaking; let's leave the ethics aside.)

I was originally worried that such photos might conflict with the performer's rights on their performance. Neighbouring rights (or "related rights") give performers exclusive rights over the "fixation" of their performance. Is a photo a "fixation" in the sense of Article 7 of the Rome Convention?

According to WIPO, the Rome Convention covers only audio and audiovisual fixations.[5] TRIPS only covers audio fixation,[6], and the WPPT explicitly limits "fixation" to sounds, too.[7] (WPPT clarifies that a "fixation" not necessarily must be a recording, it may also be a fixation of computer-generated sounds.[8]) So, apparently none of these "neighbouring rights treaties" cover photos of a performance.

There appear to be efforts underway to include "still photographs" in performer's rights, but until now, it seems to me that photographs of performances just are not covered by neighbouring rights.

So, what about copyright? Under the Berne Convention,[9] dramatic works (theater), dramato-musical works (opera), musical works (compositions), and choreographic works (dance, ballet) as well as entertainment in dumb show (?) are copyrighted (§2(1)), and the author has the exclusive right to reproduction by any means (§9), including sound or visual recordings (§9(3)). However, this concerns the works (scripts, musical scores), not the performance. So, to make a sound or video recording of a concert, one needs the consent of the composer, plus the consent of the performing artist as per the neighbouring rights. But these neighbouring rights do not cover photography. Is a photograph taken at a concert a "reproduction", a "visual recording" of the musical work? Probably not, as a photo doesn't record the music. Of a choreographic work? I don't know. In Australia, apparently not.[10] What about other countries?

Are there other reasons why such unauthorized concert photographs might be problematic copyright-wise? Or are they really fine, unencumbered by any rights the performer might have? (I'm assuming that personality rights are not an issue.)

Comments anyone? Lupo 22:14, 28 March 2007 (UTC)

P.S.: Disclaimer: I'm not trying to shoot down our concert photographs. After all, the broad consensus here is that they're fine. But I'd like to know what we're doing, and whether this consensus is on safe ground or in a gray area. The question has come up twice before (and was left unanswered), and now a comment in a recent deletion request made me wonder again. Lupo 22:14, 28 March 2007 (UTC)

I assume that photo of a concert are not derivative works, because the aspects of the performance that the photos show by themselves are not works. So, if at all, such photos can be affected only by these neighbouring rights. In fact, it is one of the important reasons that these neighbouring rights exist: That you can market recordings of performances of classical music, for example, which are out of copyright. Concerning whether photos of a concert must be subsumed under neighbouring rights, I assume that it depends. For example, if you use the photo to write a journalistic article about the show, I think it would be ok, but opening a fan shop and selling posters with these pictures is clearly against the interests of the performers, and thus against the spirit of these neighbouring rights. --Rtc 07:22, 29 March 2007 (UTC)

Yes. But someone show me where photographs are included in the neighbouring rights. I get the impression that they're not included. Now, using close-ups or even shots of the whole band in advertising or other commercial activities (such as selling t-shirts with the photos on them) may conflict with the performers' personality rights. Might photos of the whole stage be considered derivative works of the stage design? I guess that would depend on whether the stage design itself was artistic enough to be considered a work. I really do wonder...

Also, there must be a reason that photography is restricted at many concerts. If they had a copyright on photos of their performance, they could just (threaten to) sue people who publish unauthorized photos. Is security so strict about photographing because they know exactly that once a photo is taken and has been successfully smuggled out of the venue, copyright doesn't help them to suppress publication of such photos? Or is it that they think it's easier and cheaper to prevent people from taking photographs in the first place than threatening to sue later? If performers have copyrights on photos of their performance, where do these come from precisely? Lupo 10:02, 29 March 2007 (UTC)

What about the performers rights, wouldn't a release be required. Most venues I've worked in (in Aust) photography is expressly forbidden. this is clearly stated both on the tickets and with signage at the venue. I did photographs for a staging company of a pyro show we setup, to photograph the pyros during the show we need approval from the venue, the event promoter, and the performers.

This was all arbitary if the performance was in the public arena, then freedom of panaroma issues would arise. From Commons POV, I think that we should have a requirement that concert images have permission from the venue at the very least. aka Image:Coma - Piotr Rogucki 02.jpg The question should also be ask can the images be release under a free license anyway? Also this will vary for every country. Gnangarra 11:21, 29 March 2007 (UTC)

Performer's rights (neighbouring rights) appear to not cover photographs of a performance, see above. Or if they do, where is that defined? Commercial uses of concert photos such as in advertising or merchandising, whether shot with permission or not, may be subject to personality rights. For such uses, the photographer would need a release and thus an accreditation for sure. I think (but am not sure) that editorial uses seem to be fine. But have the performers any say on the copyright on the images? Particularly on photos taken by unaccredited amateurs? This German lawyer also only talks about personality right infringements... Lupo 12:52, 29 March 2007 (UTC)

The onus would have to rest with the photographer to demonstrate they have the right to release the image under a free license. If they are unable to do this then Commons would have to delete them as unknown copyright. Gnangarra 13:28, 29 March 2007 (UTC)

Wouldn't it first be on us to know exactly what the legal issues are? So far, we're not even reasonably certain that there are any copyright problems. But I, at least, am not yet reasonably convinced that there are no copyright problems. Which is why I brought up the subject, in the hope that someone more knowledgeable could explain or point to sources that do explain the issues involved. So far, I've only found discussions of personality rights issues, but none on copyrights itself. Lupo 13:40, 29 March 2007 (UTC)

Where theres doubt then IMHO we should err on the side of caution. Immediately above the edit summary box "I hereby assert that I am the creator of this contribution and/or it does not violate any third party rights" the person contributing must be able to assert such where they cant it shouldnt be uploaded. Gnangarra 14:09, 29 March 2007 (UTC)

But that's precisely my point. If we could determine (or at least be reasonably sure) that concert photos of unaccredited photographers did not violate third-party copyrights, then we just have to care about the photos themselves, like we do now. But if we should discover that such concert photos did indeed present third-party copyright problems, then we might need to tighten the policy, perhaps by requiring proof of accreditation/release, or perhaps by simply assuming good faith. But I think we should first try to figure out the copyright situation before making any policy changes such as these. I don't like making restrictive policies when there's no need to. And, I'm still curious to learn whether there is a third-party copyright issue at all. There's also a practical side: what do we answer when someone asks "can I upload my photo of such-and-such concert?" Do we tell them "Yes", or "Only if you can send us a release"? Answering "Don't know" is no good: we should know what kind of content we're ready to host. Lupo 14:36, 29 March 2007 (UTC)

There are at least four different kinds of issues here, 1. house rules, 2.personality rights, 3. copyright. 4, related rights (leistungsschutz) I'd like to kindly ask the participants to be explicit about which issue they are referring to each time they are dicussing a restriction. It's hard to follow the discussion otherwise. --Rtc 15:41, 29 March 2007 (UTC)

Point taken. I'm interested in 3 and 4. Point 2 is not special in any way, it applies to any other photograph of a person, too. Point 1 is something between the photographer and the venue, and the assumption around here has been (AFAIK) that it doesn't concern us. Lupo 16:12, 29 March 2007 (UTC)

I think photographs of ballets, theaters or operas are often questionable. Regarding the stage setting there might be a derivative work. Concerning the neighbouring rights i favour a differentiated approach: the merit of a singer is the audible work, the merit of an actor might be a visual one. Therefore i would generally deny neighbouring rights (concerning photographs) on orchestras and pure singers. The diffcult area is the one of modern Bands where the show is a significant part of the performance. Maybe we can say that a singer's merit is the sonic one per definition. We shouldn't be too strict on that matter.--Wiggum 19:11, 29 March 2007 (UTC)

If a photograph shows a protected work (like a creative stage setting) it is a copyvio. A photograph cannot show music. --Historiograf 01:34, 30 March 2007 (UTC)

• What about dance? What about lights? Questions, questions, more questions :) A.J. 14:45, 30 March 2007 (UTC)

The Rome Convention is given effect in UK law by part II of the Copyright, Designs and Patents Act 1988 which contains provisions protecting 'Rights in Performance'. A Performance is defined by s 180(2) as "a dramatic performance (including dance and mime), a musical performance, a reading or recitation of a literary work or a performance of a variety act or any similar presentation". This right is infringed if, without consent, a person makes ... a recording of a whole or any substantial part of the performance. So, effectively, the right can't be infringed by a still photograph, but only by a video or sound recording. There are criminal penalties as well for unathorised recordings. So far as I am aware, there are no special provisions in the UK relating to still photography at concerts, so the copyright question would be whether the photograph is of a 'work of artistic craftsmanship'. If so, then there would be copyright infringement; if not, there wouldn't. Whether a concert stage layout/costume design etc would qualify as a 'work of artistic craftsmanship' is anyone's guess: there are virtually no decided cases that have come before the English courts (the leading case decided that a sofa was not such a work, but that doesn't really help much!). --MichaelMaggs 16:19, 30 March 2007 (UTC)

After having read the various opinions on the issue, I think that some good arguments have been given that show that the position that photos in general do not fall under neighbouring rights is certainly a sustainable one. Hence, I suggest that we close the discussion and continue to permit the upload of such photos, as long as there's no copyright violation present. As always, the actual uploaders are responsible for their uploads. --Rtc 09:40, 31 March 2007 (UTC)

The "artistic production" is the concert, not the music

Therefore, any photo of it is a derivative work of the performance as a whole (choregraphy, make up, costumes, stage placements, lights...) even if it has nothing to do with the music itself. Same thing for a theater performance, BTW, or a fixed image taken from a film. This kind of picture can (could, it has never been done AFAIK) be alowed under the quotation exception, but then anyway quotations are not alowed on Commons AFAIK. Micheletb 11:43, 6 April 2007 (UTC)

Clearly nonsense - the photo isn't a derivative work at all --Historiograf 17:16, 6 April 2007 (UTC)

You just can't laugh at it. The photograph must take into account the intellectual property rights associated to the show. In France:

• "Article L122-1 : Le droit d'exploitation appartenant à l'auteur comprend le droit de représentation et le droit de reproduction." (The right of exploitation belonging to the author shall comprise the right of performance and the right of reproduction.)
• "Article L122-3: La reproduction consiste dans la fixation matérielle de l'oeuvre par tous procédés qui permettent de la communiquer au public d'une manière indirecte. / Elle peut s'effectuer notamment par imprimerie, dessin, gravure, photographie, moulage et tout procédé des arts graphiques et plastiques, enregistrement mécanique, cinématographique ou magnétique." (Reproduction shall consist in the physical fixation of a work by any process permitting it to be communicated to the public in an indirect way. / It may be carried out, in particular, by printing, drawing, engraving, photography, casting and all processes of the graphical and plastic arts, mechanical, cinematographic or magnetic recording.)

Hence: you can't take a photograph of a show, unless the auther authorises it. I bet it's the same in the US, or any civilized country. Michelet-密是力 17:46, 6 April 2007 (UTC)

You raise an interesting point. However, above, we have seen that it is the reproduction of the work that is protected by the Rome convention. The performance is protected only with the neighbouring rights, and there it is only the audio record that is protected. The stage setting may have originality, but works of architecture may be photographed. So I would draw the line to the images where an original stage setting forms a major theme. Just an artist with a part of blurred wall behind him cannot possibly infringe the copyright of the stage designer. The same must apply to the clothing worn by the person, unless the clothing is the object of the photograph. If we start to think that the background of the image must not include any copyrightable material, we cannot publish almost any photographs taken indoors. After all, the walls are part of the architectural work. --MPorciusCato 12:54, 12 April 2007 (UTC)

DADVSI

Perhaps someone more knowledgeable in French copyright law could provide some input here, regarding Kccc's interesting interpretation of the effects of DADVSI, before I go to the trouble of putting the images up for deletion. An excerpt: "In France, all covers of books on Internet (bookseller) are under licence GDFL" --Davepape 04:25, 1 April 2007 (UTC)

Kcccc writes nonsense, the pictures have to be deleted --Historiograf 11:42, 1 April 2007 (UTC)

Confirmed: the argumentation is nonsensical. French law only allows for quotations, and quotations are not allowed on commons. Period... Micheletb 11:35, 6 April 2007 (UTC)

What are the rules on copyright for things like this? In general, if you go to a concert and record something, can you then release it under any license you choose? 71.183.106.162 05:30, 6 April 2007 (UTC)

I doubt it. Unauthorized recordings of performances are usually prohibited; only the performers are allowed to decide if the recording is licensed under the GFDL (and even then, the music itself has to be public domain--you couldn't do it with a recording of music by a modern composer). —Angr 07:56, 6 April 2007 (UTC)

Defitively not. The author and the performers have intellectual proprety rights and must authorize the reproduction. The only solution would be to have an explicit authorisation. Micheletb 11:30, 6 April 2007 (UTC)

No, you cannot. See #Copyright status of concert photographs. The performance as such is not restricted by copyright if the work performed is old enough, but it is restricted by such-called "w:neighbouring rights". --Rtc 11:33, 6 April 2007 (UTC)

OK, thanks. Do you think that is a copyvio, then, or is it authorized? Do we need proof? 71.183.106.162 22:15, 6 April 2007 (UTC)

I think it would be reasonable to open a deletion discussion. Jkelly 23:05, 6 April 2007 (UTC)

Hi guys. I'm not quite sure why nobody noticed that the person who uploaded the file was in fact a performer of the performance in question and, to be precise, the conductor thereof. I conducted this performance of the Overture of the Magic Flute in 2006, I own the file, and it is indeed authorised, and therefore, at least as far as I know, not a copyvio. Please let me know if I'm wrong. My e-mail is trisdee@trisdee.com. Cheers! Trisdee 02:15, 19 June 2007 (UTC)

copyright registration

How do I register a graphic copyright status?

209.244.42.5 23:00, 6 April 2007 (UTC)

You don't. For quite some years, even in the US everything that is eligible for copyright is automatically copyright protected until 70 years after the death of the author. -- Bryan (talk to me) 08:08, 7 April 2007 (UTC)

PD-Old and PD-India

I have some questions about where to use {{PD-old}} and {{PD-India}}. I have posed my questions here. An admin, Nichalp adviced me to post the question here. I am trying to understand licensing for images and will appreciate any help. Thanks. Sarvagnya 03:33, 7 April 2007 (UTC)

There may be a problem with this {{PD-India}}, see the case of {{PD-Italy}}, Template talk:PD-Italy and the discussion Commons_talk:Licensing/Archive_6#Public_domain_in_Italy. The problem is similar, isen't it? Michelet-密是力 06:16, 7 April 2007 (UTC)

The case of India and Italy are not similar. The latter was difficult because it is hard to draw the line between a photograph and a photographic work (and I think the decision in Commons was wrong). PD-india has nothing to do with that. Samulili 11:04, 7 April 2007 (UTC)

@Micheletb - thanks for offering input, but I'm afraid I couldnt gather much from those pages. Specifically, what do you think abou the three pics I've listed? In your judgement, do you think they qualify for PD-India or PD-Old or something else? I'm asking because two admins on English wikipedia "Rama's Arrow" and "Nichalp" gave me different answers. Sarvagnya 06:25, 8 April 2007 (UTC)

The three pictures are obviously "old" - historical data. Furthermore, they seem to be anonymous, so the PD limit is computed from the publication date in that case (if it is the case). IMHO, you could put both {{PD-old}} and {{PD-India}}: is there a prohibition against using both? Michelet-密是力 07:13, 8 April 2007 (UTC)

Request for comments: question forwarded from en.wikipedia

Could I get a few outside opinions regarding the discussion surrounding en:Image:Sartzetakhs2.jpg at en:Image talk:Sartzetakhs2.jpg. I now the help desk is a more appropriate place to ask, but I hoped I could solicit more comments here. --Iamunknown 03:10, 9 April 2007 (UTC)

 Done (though you may want to proofread my somewhat heterodoxal position) Michelet-密是力 05:51, 9 April 2007 (UTC)

Thank you, I think you made it clear enough that we need to have it under a specific license, which, judging by the statement When a man is asked: "Give me your free license permission", and answers "Yes, I give the permission you ask", what is contested?, the image-noobs seem to not be grasping. --Iamunknown 17:42, 9 April 2007 (UTC)

Cuban copyright: PD before 1997?

See Category:Bills of Cuba. Can we find an expert in Cuban copyright law? A.J. 10:42, 11 April 2007 (UTC)

• See reason provided by uploader in Image:Che Tres Pesos 1988 Front.jpg. A.J. 20:42, 14 April 2007 (UTC)
  • Although I'm not an expert in Cuban copyright law, I'll take a stab at that. Cuba indeed 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 ([11])... I have no idea what that treaty defined or whether it is still in effect. In summary: the given "reason" is bogus. I haven't seen any exemption of bills (or similar items) in the Cuban copyright law. In any case, the state can hold copyrights (see §46). Lupo 21:59, 14 April 2007 (UTC)

    • I like Lupo's analysis. Sounds correct, but I don't kwnow anything about cuban law.
    • Cuba signing the Berne convention has no direct effect on copyright situation of Cuban production, see [Berne convention Art. 6]. The main effects of it is that: (1) Cuba must recognise artistic intellectual property when protected in other countries; and (2) Cuban laws relative to artistic intellectual property wust complie to what the Berne convention says. On the other hand, if material is copyrighted in Cuba, Berne convention makes it an obligation for signing countries to recognise this copyright, even when that country is not a member (which settles the case for Iran, BTW: unless otherwise explicitally decided, iranese work is protected by Berne convention in member countries, even though Iran is not a member). Michelet-密是力 06:34, 15 April 2007 (UTC)

Monetary marks

The case of monetary marks is special, though. They have a special regime, which automatically places them outside the general copyright law (when a special regime applies, it acts as an exception to the general one). Most of the time, for the ones I've seen:

1. The banknote regime is very strict on "as-is" reproduction of monatary signs (beheadings, hangings, and so forth) - but this penal laws don't aply to photographs of these signs.
2. The derivative work (making toy money) is strictly controlled: it may not create any confusion with the real thing, and explicit authorisation of the right owner is sometimes required (eg: Ireland) but may not be (eg Note d'information officielle suisse). But once again, photos are outside this field.
3. The corresponding "intellectual property rights" typically given to the emission organism (eg France, code monétaire et financier, art. L 123-1). This does not necessarily means that photographs are forbidden, but clearly designates the organism that has authority to say so.
4. And of course, the "copyright" is permanent, and a monetary item can never be considered PD in the sense used here: even 300-year old bills are protected.

The problem with that derogatory regime is that its main concern is to control false mony, not artistical intellectual property as such. So it is very restrictive and explicit on 3D>3D reproductions, but usually dosen't care much about 3D>2D ones (as long as they can't be mistaken for the real thing). Therefore, rules alowing 3D>2D are clearly derogatory, but most of the time implicit and hazy.

As for their reproduction on commons, when they are authorized, there should IMHO clearly be some Template:Money saying that the "the object represented in this picture is a monetary instrument, whose image may legally not be considered free of right", and that in most countries points (1) and (2) apply. Under such a warning, these images will IMHO be OK for use in any wikipedia article, and third parties will have to take their own responsabilities if they want to use the picture in a different context. This being said, uploading a picture of money is still a problem when the local "mint" or "Bank of Patagonia" explicitly prohibits the reproduction even of images (care: 2D representations of the 3D object, not 3D>3D of the thing itself). In that case, Commons needs an explicit authorisation from the right holder. Michelet-密是力 06:34, 15 April 2007 (UTC)

It's all very country specific. Irish money, for instance, is explicitly copyrighted. See Irish Copyright Law of 2000, Chapter 24: Copyright: Legal Tender; §200; that copyright is perpetual and applies even to money issued before the law became effective. But such a copyright on money is not perpetual in all countries, and some countries don't copyright their money at all. E.g., Russian money is explicitly not copyrighted, see Russian copyright law of §1993, with amendments up to 2004, article 8. Misuse of money (such as using an image of a bill to print your own bills :-) is generally subject to the penal laws of a country. In terms of copyright, however, money that is not copyrighted is PD. For money that is copyrighted, an image of a banknote or a coin is a derivative work. Lupo 09:00, 15 April 2007 (UTC)

United Nations General Assembly

Are works by the United Nations General Assembly public domain? I want to use some screenshots from the videos at http://www.un.org/webcast/ga/61/gastatement20.shtml. Thanks. ~MDD4696 19:33, 11 April 2007 (UTC)

Hmm, I suppose http://www.un.org/copyright.htm would apply. ~MDD4696 20:07, 11 April 2007 (UTC)

Please see also s:Template:PD-UN to determine which UN works are released into the public domain or copyrighted. If in doubt, leave them out. Be careful that some works in the UN sites are of third parties but not really of the UN.--Jusjih 00:41, 2 May 2007 (UTC)

Sorting out {{PD-Art}}

(Also cross-posted to the VP) Anyone interested in helping to sort out the confusing mess that is the PD-Art template should drop over to User talk:Kareha/PD-Art where a discussion about how best to improve this template is just getting started. We're intending to work away from the main page as this is a heavily-used template and repeated modifications to it, as we're going along, would over-stress the server. A cross-link to the discussion is of course going on the main talk page. --MichaelMaggs 17:21, 12 April 2007 (UTC)

The new template is ready and can be seen at User:Kareha/PD-Art. I'll leave it a day or so before replacing {{PD-Art}} with the new version in case there are any last minute comments. Please leave any comments at User talk:Kareha/PD-Art. --MichaelMaggs 21:12, 12 May 2007 (UTC)

Licence question - low res - Australia

Can someone tell me the correctness or otherwise of uploading an australian actor/ress low res screenshot and using a similar licene to this one {{film-screenshot}} or point me in the direction of a licence I can use?--VS ^talk 08:51, 13 April 2007 (UTC)

The license would be {{delete}}. Sorry, no screenshots allowed on commons. --Fb78 09:46, 13 April 2007 (UTC)

Good - thanks for the answer.--VS ^talk 12:14, 13 April 2007 (UTC)

Most images of PD-Old illegal ?

See Template talk:PD-old‎ Michelet-密是力 14:46, 13 April 2007 (UTC)

Licensing of automobile fotos

About the right to upload some fotos of my own vehicle, can someone please tell me:

1- Can I upload a foto of the vehicle?

2- Can I upload a foto of the interior or, for example, the wheels?

3- Can I upload a foto of the logo the vehicle carries (for instance BMW?) oe a lateral logo as "Pininfarina"?

Thanks, AntoniusJ 01:42, 16 April 2007 (UTC)

The first two should be no problem.

I would advice against the last one.

Fred Chess 16:49, 19 April 2007 (UTC)

Thanks. That's what I did. AntoniusJ 18:51, 19 April 2007 (UTC)

3D Rendering License

I want to upload an image created with "CyberMotion 3D Designer" Trial version, and the image is with a watermark of the software. Is it considered a copyright violation if I upload it here? --R2D2Art2005 02:26, 16 April 2007 (UTC)

Image:Naruto Strait NASA WorldWind Outflow.jpg

I think, this picture has to be {{PD-USGov-NASA}} and cannot be licensed under CC-BY-SA and GFDL, because it was created with NASA World Wind, which shows sattelite images of NASA sattelites. But I'm not completely sure... --Rohieb

I agree. but I'm only 99% sure... Michelet-密是力 16:21, 17 April 2007 (UTC)

Current tradition seems to be to tag such images {{PD-WorldWind}}; this image was uploaded before that template existed. However, the template doesn't present any real legal argument to say that images from WorldWind must be PD - it would not surprise me if a U.S. court could be convinced that the user's selection of scale, viewpoint, and data layer met the minimum creativity requirements for copyright (the U.S. system sets the bar extremely low). --Davepape 17:25, 17 April 2007 (UTC)

LOL! Put it the other way round: who would be devious enough to frame and upload a WorldWind image, take the time to put the relevant copyright tags, and then sue Commons because he forgot to license his own work - knowing only free licences are acceptable anyway... ;o) Michelet-密是力 18:25, 17 April 2007 (UTC)

Specialia derogant generalibus, then: if a special rule has been defined, it excludes the general one (BTW, this is the reason why there is no copyright on coins and bills unless explicitely specified: they have their specialia rules). Michelet-密是力 18:32, 17 April 2007 (UTC)

Question regarding GFDL license tags

Do GFDL licenses require a link back to the file it is licensed under? I ask this because {{GFDL}} has a link-back function to the file. I checked the interwikis and no other GFDL license template has this function. It was introduced here with the comment (link to the document using Media:((PAGENAME)) (like in CC template)). As far as I understand the CC license types require a link-back function but not GFDL.

Is it needed to have {{GFDL-user}} (and related tags like GFDL-user-de) license tags categorize in Category:User-created GFDL images and in Category:GFDL ? Shouldn't the first cat be enough ? --Denniss 15:35, 19 April 2007 (UTC)

a bunch of images of The Corrs

I doubt those images below are cut from DVD or TV program or something because of sharpness of the picture. But it lacks any conclusive evidence and I don't have any confidence.

• Image:Andrea corr un.jpg
• Image:Caroline corr un.jpg
• Image:Sharon corr un.jpg
• Image:Jim corr un.jpg

--WashiR 17:17, 19 April 2007 (UTC)

The uploader also uploader Image:Corrs.jpg, sourced to images.google.com -- it seems reasonable to question whether their other uploads are correctly sourced and licensed. Jkelly 17:52, 19 April 2007 (UTC)

720x416 is quite sure a tv resolution. I have deleted the images. -- Bryan (talk to me) 19:24, 19 April 2007 (UTC)

Thank you for your quick response. --WashiR 12:14, 22 April 2007 (UTC)

Commons:Deletion requests/Divine Mercy paintings

Please help to solve sofisticated copyright problem about very important religious painting. A.J. 20:40, 21 April 2007 (UTC)

Image:Floral mutants 1.jpg

I uploaded this image, taken from a PNAS article. Did I get the licence correctly? Thanks, Pixie 15:41, 24 April 2007 (UTC)

No, NonCommercial-only images are not allowed here. See Commons:Licensing. Sorry, -- Bryan (talk to me) 16:21, 24 April 2007 (UTC)

Do you suppose these images could be uploaded locally to the different Wikipedias? Would the English Wiki, for example, allow it? Pixie 16:51, 24 April 2007 (UTC)

Only under fair use, since an NonCommercial license is not a free license. -- Bryan (talk to me) 16:55, 24 April 2007 (UTC)

Image:Yeltsin.jpg

I just ran across Image:Yeltsin.jpg while at en-wiki. It's tagged as created by NASA and in the public domain. Yeah, it's hosted on their website, but it seems pretty unlikely that they created that image (or any of the images at [12]). RockMFR 03:04, 25 April 2007 (UTC)

Same thing applies to Image:Walesa.jpg and the photo of Honecker (now deleted, see Commons:Deletion_requests/Archive/2006/01). It is reasonable to doubt that the photo is taken by a NASA employee. I guess we should open a deletion request. Kjetil r 03:37, 25 April 2007 (UTC)

Agreed. There is some photos of Yeltsin that we have here that should be deleted, sadly. I thinking we could try and search for photos on Google to see what we can use on the Commons. User:Zscout370 ^{(Return fire)} 04:47, 25 April 2007 (UTC)

I've set "no source" on it. --Panther 08:17, 25 April 2007 (UTC)

Image from White House

I'm not sure - is this image PD? MaxSem 11:17, 25 April 2007 (UTC)

Go and ask David Scull, dscull@mindspring.com. --Fb78 12:01, 25 April 2007 (UTC)

If David Scull was an official photographer employed by the White House -- which at first glance appears to be the case -- then yes, it would be PD-USGov-POTUS. Carl Lindberg 02:08, 27 April 2007 (UTC)

Relicensing

Do I have to use the LGPL license if I make a image using only two images from for the libary, or can I license it under, say, a creative commons license? --Ashfire908 18:01, 26 April 2007 (UTC)

Which images are you talking about? A.J. 19:36, 26 April 2007 (UTC)

Generally, yes, but maybe you can be more specific. -- Bryan (talk to me) 20:28, 26 April 2007 (UTC)

Vector-images.com

I think we need to revisit the issue of Template:Vector-Images.com I know this has been discussed before, but it appears to be quite open ended without resolution. There's been previous discussion at Template talk:Vector-Images.com and Commons_talk:Licensing/Archive_5#Template:Vector-Images.com.

I think there's a few issues here of note:

• Reading Vector-images.com's terms of use statement at [13] seems quite incompatible with what Commons defines as 'free'.
• Vector-images.com does not necessarily hold rights to all of the images in its collection. Capitulating our clearance of copyright decisions to them seems fraught with very serious complications. If they got caught up in a copyright suit, we'd be party possibly. We should be making our own determinations.
• There's been considerable debate in the past regarding the copyright status of coats of arms images. I do not know what the status of this debate is. Looking at Category:Vector-Images.com images, there are more than 3400 images, almost all of which are coats of arms. These come from a dizzying array of countries, municipalities, families, and so forth. Generically stating that coats of arms images are inherently not copyrightable seems...problematic to me.

I'd like to see some conclusion to this debate. There's a few courses of action:

• Accept the status quo, with an unclear status as to the copyright nature of the works and the license to use.
• Deprecate the use of Template:Vector-Images.com for new uploads, and temporarily grand father old images until they've been reviewed.
• Deprecate the use of Template:Vector-Images.com for new uploads and delete all images in Category:Vector-Images.com images.
• Attempt to get Vector-images.com to release their rights to their images under a CC-by or at least GFDL license. If successful, modify Template:Vector-Images.com or supplant it with the appropriate CC-by or GFDL license.

I'd like to note that it appears in prior communications with Vector-images.com that the wrong questions are being asked; various clauses of use are being asked for, when we should be asking for a free license release.

Comments? --Durin 14:29, 27 April 2007 (UTC)

I commented at Template talk:Vector-Images.com. / Fred Chess 08:06, 28 April 2007 (UTC)

The Attribution part of cc-by(-sa)

How is the attribution part of the cc-by and cc-by-sa licenses interpreted? It states that You must [...] keep intact all copyright notices for the Work and provide, reasonable to the medium or means You are utilizing: (i) the name of the Original Author (or pseudonym, if applicable) if supplied[14]. Does this mean that the photographer's name must be included under the image when it is used in an article in any of the language versions of Wikipedia or is the licensing information, that is found in the image page, sufficient? --Strangnet 21:01, 27 April 2007 (UTC)

Interesting question. A month ago, we started crediting photographers that provide their real names in the byline in the Norwegian (bokmål) Wikipedia (see for example no:Berlin). However, I know only two Wikipedias which do it like this (no: and nn:). Kjetil r 17:12, 29 April 2007 (UTC)

It may be arguable whether it is "reasonable" to put in right under the picture displayed, in each and every acticle, since the redactional style is usually a compact one. All copyright notices (verbose mode) are just one click away from the picture. The best is to have a clear "CC-by" policy, and respect it: IMHO this is not necessary, but if you decide to do it, do it consistently (otherwise there would indeed be a copyright problem). Michelet-密是力 06:01, 1 May 2007 (UTC)

Image:Pee-Wee Herman (1988).jpg

Is this a derivative work, since he's in his costume? - Peregrine Fisher 02:48, 30 April 2007 (UTC)

Generally speaking, an imaginary character may be protected by litterary and artistic property rights, yes. But I'm not familiar with that one: who is it, and is it attached to its creator? Michelet-密是力 06:26, 30 April 2007 (UTC)

It's Paul Reubens dressed as Pee Wee Herman from the Pee Wee Herman show. - Peregrine Fisher 20:58, 30 April 2007 (UTC)

Since the photo was taken at the Academy Awards, then at worst its an image of Paul Reubens violating someone else's intellectual property - in short, not our problem. It would be different if the image was taken on the movie set. Rklawton 01:11, 1 May 2007 (UTC)

OK, clear enough. ♦ Pee-Wee Herman is obviously the "stage character" of Paul Reubens, so its being invented by somebody else is highly unlikly: he is the author of the character, and he has the right to use it. ♦ The photo captures (copies, from a legal point of view) the public performance of an artistic creation (the Pee Wee Herman character), made by its author (Paul Reubens). So it is indeed derivative work, though a marginal one. ♦ The "derivative" is marginal, for the following reasons: (1) The performance was at the Academy Awards. The subject is therefore "Paul Reubens at the Academy Awards", the fact that it is also "Pee Wee Herman" is secondary. (2) This was a public occasion where professionnal photographs are supposed to be made. By using the Pee Wee Herman disguise there, Paul Reubens clearly shows that he does not want to claim copyrights on this specific performance, since that would have prevented photographers to do their normal job. ♦ All in all, I would say that this specific "Pee Wee Herman" performance has been put into "public domain with attribution" by a clear manifestation of Paul Reubens's will. Michelet-密是力 05:36, 1 May 2007 (UTC)

Images PD outside of the U.S. but not PD in the U.S. (URAA restoration)

Image:1924WOlympicPoster.jpg is the classical case of a {{PD-Old}} image that is, as I understand it, copyrighted in the U.S., but fine in several other countries:

1. The artist of that poster was Auguste Matisse (d. 1931). The French copyright on the poster expired thus in 2001 (or in 2005, taking French war-time copyright term extensions into account). The copyright also has expired in other 70 years p.m.a. countries.
2. The poster was published 1923 or 1924, so it is sure that it doesn't fall under any "pre-1923" U.S. rule. Since the poster was still copyrighted in France in 1996, the URAA restored the copyright on this poster in the U.S. It would be copyrighted in the U.S. until 2018 or 2019 (95 years since publication).
3. The IOC claims copyright on this poster.[15]

In general, other non-U.S. works published after 1922 (or 1908) by authors who died after 1925 have the same problem.

What to do with such images? Lupo 14:07, 30 April 2007 (UTC)

• Keep 70 years pma is enough --Historiograf 18:27, 30 April 2007 (UTC)
• Keep: the Berne convention only requests copyright protection in member countries as long as it is protected in the publication country, in that case > 2001. An extended protection is possible, but must be explicited in the national law, and such extension is AFAIK only for films, not pictures. Michelet-密是力 05:45, 1 May 2007 (UTC)
• Unfortunately, this is not a vote, and we aren't deciding on the basis of what we would like the law to be. The Berne convention does not come into it as it is not law in the US. We have a clear and longstanding rule at Commons:Licensing#Interaction of United States copyright law and foreign copyright law that images must be public domain in the home country and in the US. If these are protected in the US we have to delete them, no question about it. To do otherwise would put us outside US law. --MichaelMaggs 06:19, 1 May 2007 (UTC)

Right, this is not a vote, and we're not on COM:DEL. The question is also not about the French war-time extensions. The question is about works of authors who died more than 70 years ago and that thus are out of copyright in many countries, but that are still copyrighted in the U.S. The commons has traditionally simply and knowingly ignored this case. We should at the very least have an informed discussion (not a "vote" or "poll") what to do in these cases. From a practical point of view, we haven't run into any problems with this approach. I see two possibilities:

1. Apply the "PD in the source country and PD in the U.S." strictly and remove such images.
2. Admit such images, but tag them to indicate that they are not PD in the U.S. (Note that {{PD-Old}} claims the work was PD in the U.S....) Otherwise, such images will be used at the en-WP under a wrong PD claim. We should also explain at COM:L that we do know about this case, and that we allowed it only because we serve a wide array of Wikimedia projects, some of which apparently operate under local (e.g. German) law only. Should we also state somewhere that we're quite prepared to take down such images if and when a copyright holder complains?

Lupo 06:45, 1 May 2007 (UTC)

I would suggest that #2 is legally dangeous and could even make things worse in the US as it tells potantial litigants there that we knew we were infringing US copyright, but that we elected to ignore it. A pretty good way to increase the amount of any damages. --MichaelMaggs 09:26, 1 May 2007 (UTC)

We have known this for a long time, and it's been known that we know it for a long time. It has been pointed out several times before, and has recently come up on the mailing list again. It's no secret. Anyone who wanted to point out or prove that we knew this could easily do so by searching mailing list archives and archives of discussion pages here on the commons. Lupo 10:03, 1 May 2007 (UTC)

I don't dispute that. I think we should simply enforce our own long standing rule on COM:L. You've raised the question: that's my answer, but I'm not sure what your view is.--MichaelMaggs 10:35, 1 May 2007 (UTC)

The points are:

♦ Since the US-law is supposedly Berne-compliant, it should be interpreted according to what the Berne convention says. This is why referring to Berne is relevant for interpretation, and may be used whatever US statute law says in details.

♦ There is no reason why PD-US should be evaluated when the first publication is not the US. The copyright being french, the only problem for the USA with respect to Berne convention is to give to the artistic work the same protection as in the publication country. This is why rights had to be resurrected in the USA when USA signed the Berne convention, but this does not mean these rights are governed by US law (especially since they have been PD).

♦ Practically, the work is now PD in France, the Berne convention says that the protection elsewhere is limited to the one in the publication country unless derogation to the rule, and the USA has not introduced such a derogation. So the work is legally PD in the world, and in the USA as well.

Please stop considering USA law rules the world, this is not the case. Michelet-密是力 07:55, 1 May 2007 (UTC)

That's utterly besides the point. And I do not consider "the U.S. to rule the world". Such snide remarks are counterproductive. Get a grip.

Your comment about "the USA has not introduced such a derogation" is also demonstrably false. Please check the laws before making such claims. The U.S. explicitly does not implement the rule of the shorter term. In the U.S., the work is governed exclusively by U.S. law, which in the case of this poster grants it a copyright term of 95 years since publication. See 17 USC 104(c) (exclusively U.S. law, rights shall not be expanded or reduced by Berne Convention) and 17 USC 104A(a)(1)(B) (restored as if it had never entered the public domain, i.e., maximum term, i.e., 95 years since publication for a work published before 1978.)

And since our servers and the foundation are U.S.-based, and we're thus publishing in the U.S., our policy at COM:L prescribes that an image must be fine in both its country of origin and the U.S. There's your reason to evaluate the copyright status of an image in the U.S. Lupo 09:17, 1 May 2007 (UTC)

Michelet, you keep trying to apply international conventions as if they were directly legally binding in the US. They are not, regardless of whether the US has acceeded to them. This is nothing to do with 'US law rules the world'; it's simply the fact that the servers are in the US and if we are not US law compliant the Foundation could run into trouble in the US courts. --MichaelMaggs 09:21, 1 May 2007 (UTC)

I personally prefer Lupo's option #2. I believe it to be safe for the following reasons:

Small risk for legal actions:

• Commons is non-profit, which would make it unlikely to be sued
• Related to Commons being non-profit, it can from a juridical point of view be argued that these images are fair use
• If material is not being used on English Wikipedia (or English Wikinews, etc), English Wikipedia will maintain its integrity; which I believe is the primary objective (it has been shown that while most people have heard of Wikipedia, few people know what Commons is)
• It is (in most cases) unlikely that the copyright holders of works published outside of the US between 1923-1937 where the author died before 1937 will take court actions against the Wikimedia Foundation.
• And finally, since we say, per Lupo, that we will take down the work at request, I believe that we are being precautionary enough.

Fred Chess 10:39, 1 May 2007 (UTC)

MichaelMaggs wrote above "..., but I'm not sure what your view is." (presumably directed at me). My main concern is that I don't want us make wrong claims. We certainly shouldn't claim these works were PD in the U.S. when to the best of our knowledge they aren't. I don't care whether we delete those images, or whether we keep them with a tag saying they're not PD in the U.S. Both are fine with me, although I personally favor #1 (strict application of the current policy). But I'll abide by whatever consensus (or—gasp—a foundation directive) tells us. Current consensus—as written into our policy—says that such images are not ok. Yet each time the issue is raised, people object the removal of the affected images because evidently they're perfectly fine in many countries and thus deemed useful on many Wikimedia projects. So, either we do follow our policies and get rid of these images, or we amend the policies to match the current practice (in this case by spelling out a narrow exception). Policies that noone follows and that aren't enforced are of no use.

I'm not a lawyer, so I usually try to avoid arguing about what could or what couldn't get the foundation into trouble, or to what extent it might or might not benefit from the DMCA Safe Harbour provisions in 17 USC 512(c). I have no idea about this. Undeniably, we haven't gotten into trouble over this so far.

Maybe the foundation could clarify what is allowed. Similar to how they tried to clarify that fair use mess a little bit in their foundation's resolution on licensing. Unfortunately, that resolution does not even remotely clarify what copyright laws we or any other Wikimedia project have to consider, nor do they say something like "anything hosted on the commons (or on X, Y, and Z) must be fine under U.S. copyright law, and that's non-negotiable". (I know, the WMF usually avoids giving guidance on such matters.)

Lupo 14:09, 1 May 2007 (UTC)

>Lupo & MichaelMaggs: I know the US law pretends Berne convention is not binding in the US, but this is not my point. The US State Code is supposed to conform to Berne convention, since the USA has signed it. If it comes to a trial, Berne convention can therefore at least be used to interpret the US law; and if the US law does not respect an international treaty signed by the USA, my understanding is that the US juge must reject the application of the local (US) law in that case, and declare it unconstitutional - at least this is the case in France, where international treaties constitutionaly have a higher priority than national laws. The USA does not rule the world, OK we agree, next question is - Does the USA respect international laws and treaties? Michelet-密是力 04:46, 2 May 2007 (UTC)

>Anyway, how do you justify "The poster was published 1923 or 1924, so it is [...] copyrighted in the U.S. until 2018 or 2019 (95 years since publication)" ? To me, Sections 302 & 303 do not apply in that case, since the work has been published and had a copyright before 1978: the title clearly says it is a prerequisite to apply the section. Section 304 clearly deals with US copyrights, not foreign ones. Where is the US law on foreign copyright duration? Michelet-密是力 04:46, 2 May 2007 (UTC)

I don't have to justify it. It's justified by national treatment. Period. You don't have to rely on my say-so, though. Read Circular 38a of the U.S. Copyright Office, in particular the Statutory Provisions and the Points to Remember Regarding the International Protection of Literary and Artistic Works. Also read Circular 38b: Highlights of Copyright Amendments Contained in the URAA, in particular "Term of Copyright" on page 2. They have a nice example there:

A French short story that was first published without copyright notice in 1935 will be treated as if it had both been published with a proper notice and properly renewed, meaning that its restored copyright will expire on December 31, 2030 (95 years after the U. S. copyright would have come into existence). — U.S. Copyright Office, Circular 38b, p. 2.

Afterthought: before someone claims "but this example is about a work published without copyright notice, while the IOC poster was copyrighted (in France)": please read footnote 4 in Circular 38b. It doesn't matter. If the poster was registered with the U.S. Copyright Office and the copyright was renewed, then it's copyrighted in the U.S. anyway. If it wasn't registered at the U.S. Copyright Office, or was not renewed, or otherwise did not fulfill the U.S. formalities, the URAA applies, and then the poster is copyrighted in the U.S., too. See also Hirtle's chart. Lupo 20:49, 2 May 2007 (UTC)

As for your other point: yes, by not implementing the rule of the shorter term, the U.S. are quite within their rights as regards the Berne Convention, because that rule (§7(8) of the BC) is not mandatory ("unless the legislation of that country otherwise provides") and the U.S. does provide otherwise in 17 USC 104(c).

I don't like this either, but it's a fact that we have to accept. The U.S. does not implement the rule of the shorter term, and thus foreign works may still be copyrighted in the U.S. even if the copyright in the source country has already expired since 1996. There's no arguing around that.

Please note that several other countries also do not apply the rule of the shorter term with respect to the U.S. Germany, for instance, doesn't and applies exclusively German law to U.S. works, because of an old bilateral treaty from 1892 under the Chace International Copyright Act of 1891. (See Patry's overview here, also footnotes 154 - 156, noting that these bilateral treaties apparently are still in effect. In Germany, this treaty is known to be still valid; it was applied in this case, which was decided in 2003 and in which a U.S. work was held copyrighted in Germany although its copyright had expired (through non-renewal, IIRC) in the U.S.) Similar treaties were also concluded with "Belgium (1891), Chile (1896), Costa Rica (1899), Denmark (1893), France (1891), Germany (1892), Italy (1892), Mexico (1896), Netherlands (1899), Portugal (1893), Spain (1891), Switzerland (1891), and the United Kingdom (1891)" (quoted from Patry). If these treaties are still in effect in these countries, they might also not apply the rule of the shorter term to U.S. works. Lupo 19:37, 2 May 2007 (UTC)

I'm with Fred here that we should do our best to follow option #2 which Lupo put forward. In line with Lupo's reasoning we should however be alert in case that is not possible and we should be clear with our PD-claims. Samulili 09:15, 3 May 2007 (UTC)

Hm. So, shall I tag Image:1924WOlympicPoster.jpg with a new tag {{Not-PD-US-URAA|date=1996|country=France}}, which could produce something like this:

This image (or other media file) is not in the public domain in the United States because its copyright in the U.S. was restored by the URAA as it was still copyrighted in France in 1996. It is copyrighted in the U.S. until 95 years after the year it was initially published.

(The underlined text indicates the substituted parameters, which should default to "its source country" and "1996", respectively.) I'm not sure this a such a good idea... Lupo 09:48, 3 May 2007 (UTC)

I'm sure it's not, but then it ought to be up to the Foundation to say if it's ready to take such a risk. But with a tag like that on an image, what defence could there possibly be to a copyright infringement action in the US where damages or aggravated damages were sought to recompense the copyright owner for sales losses due to the Foundation's actions in hosting and making available the infringing image? --MichaelMaggs 10:09, 3 May 2007 (UTC)

I find it difficult to continue the debate here in the middle of a thread, so I have created the proposed template of Lupo, and also added a couple of line to it, with the arguments that have been put forth in the course of this discussion. I suggest that further discussion about the template should be done at that template's talk page. / Fred Chess 16:01, 3 May 2007 (UTC)

Reclaim the Rule of the Shorter Term Petition

In response to the American non-acceptance of the rule of the shorter term and your concern here, the Reclaim the Rule of the Shorter Term Petition has been made from Meta. Please go to the signature form to sign. When deleting images affected by the American non-acceptance of the rule of the shorter term, please make a specific list of them and consider claiming fair use at proper Wiki sites. We have to get this obstacle out of our way by signing the petition.--Jusjih 00:53, 2 May 2007 (UTC)

I'm not convinced that a "shorter term exception" is the correct interpretation of USC dispositions. I've done some clarifications on m:American non-acceptance of the rule of the shorter term, but it isn't over yet, some points are still obscure. Michelet-密是力 13:10, 2 May 2007 (UTC)

OK, the review is over and the article has been modified accordingly. IMHO, this is simply an error in interpreting the USC, based on an analysis ot the USC alone, and not the Berne convention source. Is there any jurisprudence to confirm or infirm these analysis? Michelet-密是力 05:35, 3 May 2007 (UTC)

Your changes, IMO, did not exactly improve that text at Meta. It now just expresses your own, personal doubts about this issue, based on your personal interpretation, which is at odds with the official interpretation from the U.S. Copyright Office. The U.S. does not treat the BC as overruling U.S. copyright law. U.S. law always takes precedence in the U.S., see 17 USC 104(c). Other countries may do it differently, but that's the way it is done in the U.S. Lupo 06:28, 3 May 2007 (UTC)

I disagree. See below Michelet-密是力 10:42, 3 May 2007 (UTC)

---

Does this petition ask to reinstate copyright registration? If that is the case, this would be very bad from an author's point of view. -- Bryan (talk to me) 06:29, 3 May 2007 (UTC)

Yes only after works have been published for long time. The Public Domain Enhancement Act has proposed reinstating American domestic copyright registration only for renewal purposes, i.e. after 50 years have passed since publication, not creation, plus every 10 years thereafter. The proposed copyright registration renewal fee would be 1 USD per work. Only those authors who are too lazy to register their copyright renewals would consider the petition bad. Even though many international conventions forbid mandatory registration to get copyright, they do not affect domestic copyright laws. Please sign the petition and you will never regret that you did.--Jusjih 01:02, 21 May 2007 (UTC)

Rule of shorter term interpretation

I think I have a clear picture of what happened, now.

The problem seems to have originated in the circular 38b issued by the US copyright office. This document correctly says that foreign copyrighted materials will have their copyrights restored, and correctly states the copyright durations given by the US law, but without mentionning shorter term exception in that section. This is normal, since it expresses the US point of view, but misleading: the document merely states the maximal protection that will be given according to US law, without consideration to eventual loss of copyright in the country of origin. US copyright office was just saying that the protection given by USC for this french story is 95 years: This is a US-centered point of view, and they couldn't care less what the protection given by french law actually is.

The only sentence where one can see that the "rule of shorter term" is in fact taken into account is p.2, Eligibility for Restoration, 2°: to be eligible, "the work is not in the public domain in its source country through expiration of the term of protection" which is the definition of the shorter-term rule. Had it been that the "shorter-term exception" applied in the US whatever the Berne convention says, this sentence would have been meaningless.

Then, Peter B. Hirtle at cornell.edu picked this 38b circular, and copied it into his reference work without asking himself whether special rules should be taken into consideration: the part "Works Published Abroad Before 1978 Without Compliance with US Formalities" simply parallels the "Work published in the US" section, with simply a footnote pointing at circular 38b. The question of "shorter term rule" has been overlooked, simply because his main problem was to figure out "Copyright Term and the Public Domain in the United States", and is based/biased on a US point of view.

The third step probably occured in WP world, where 17 U.S.C. 104(c) was contrieved to mean that USC had priority when conflicting with Berne convention, thus justifying that US legal protection duration could be applied on french material, as in the strange example given by circular 38b.

All this comes from a misunderstanding of the point adressed by circular 38b. Analysis of the legal USC texts do not justify a "shorter terme derogation". So IM(h?)O the WP rule should be "When PD in the publishing country, then it's PD in the US". Michelet-密是力 10:42, 3 May 2007 (UTC)

Which is patently wrong. If a foreign work was not copyrighted in the U.S. for the reasons given in 17 USC 104A and it was not copyrighted on the URAA date (1996 for most countries) in the foreign source country, then the URAA did not apply and the work remained PD in the U.S. But if the work was copyrighted in the foreign country on the URAA date, the copyright in the U.S. was restored to its maximum term. If subsequently the copyright in the foreign source country expired, the so-restored U.S. copyright did not expire.

Thus, for the umpteenth time, the U.S. does not follow the rule of the shorter term, and thus works may still be copyrighted in the U.S. even if their copyright had expired in the foreign source country since 1996. Lupo 10:59, 3 May 2007 (UTC)

What is true, is that the URAA itself does contain a non-restoration clause similar to the rule of the shorter term, but with a fixed year (the URAA date, 1996 in most cases). Which is why I wrote at the very beginning that the problem existed in general for foreign works published 1923 or later by authors who died 1926 or later (1996 - 70). If the author died between 1926 and (currently) 1936, his works are PD in 70 years p.m.a. countries, but his post-1922 (or post-1908) works are still copyrighted in the U.S. because they were copyrighted in the source country in 1996, and thus the URAA did apply, and the U.S. term is 95 years since publication (for pre-1978 works). If the foreign author died 1925 or earlier, we're in the clear, because then his foreign works were also PD in the source country in 1996. Lupo 11:09, 3 May 2007 (UTC)

No, I disagree. This is your interpretation, your explanation, and your point of view; it has no proven link with an "official point of view" or any jursprudential data so far, and this point of view only appears in the wikipedian world.

The evidences you use is limited to (1) The ambiguous statement given in circular 38b, that I explained above, and (2) some statements in USC texts, that I explained in view of the corresponding clauses in the Berne convention. There may be some abstract logic in the line of reasoning you uphold, but it is too far-fetched: if the US legislature wanted to introduce a "shorter term exception", the plain way of doing it was to write it down as such (your sugestion in the petition, btw). Since the USC formulations can be explained simply, without introducing any "shorter term exception", there is no reason to read it otherwise. Therefore, the "shorter term rule" applies in the US.

You may see it the other way round: if it comes down to a trial between Wikipedia and a copyright holder, the copyright holder may argue following the line you present, whereas the Wikipedia may defend itself by waving the "shorter term rule" and my argumentation. Which one do you think a juge is willing to follow? well, at least, if we act as though the "shorter term rule" applies, we will have strong reasons to do so; there is more than a reasonable doubt here. Michelet-密是力 12:18, 3 May 2007 (UTC)

Correction: I have nothing at all to do with that petition. I never edited it. For the rest: you see ambiguity where there is none. Go ask a real lawyer well-versed in U.S. Copyright law if you don't trust my explanations, Hirtle's chart, or the circulars from the U.S. Copyright Office. Lupo 12:26, 3 May 2007 (UTC)

• Excuse me if I'm passionate on this question, there's nothing against you, of course.
• To me, the circular of the US copyright office is correct from its point of view (US laws), the problem is that it takes only US law into consideration, not the Berne convention context. Given that the USA had no real experience of the Berne convention at the time the circular was issued, it is understandable. With respect to this, Hirtle's chart is dubious and likely erroneous, indeed, because it reproduces a dubious point without further examination. Given that the USA has a long tradition of juridical isolation in the copyright field, this is understandable.
• I'd be glad to hear what a professional lawer (which I'm not) has to say on this, but whatever he says I'll be able to proofread and crossexamine thoroughly. My profession (audit) is to hunt down misinterpretations of reglementations or legal texts, and insure official activities conform to the law: don't tell me the US copyright office is "obviously" foolproof, "because it's official": I know better, there are tons of (classified...) examples. I'm paid to detect and elucidate spurious situations, there is enough here at least to investigate seriously the case. The scenario I described is likely enough to be used at least as a working hypothesis. But of course, this is not final, and further questions may give interesting results: what does the jurisprudence says? what does Hirtle says? and if we ask the US copyright office to clarify the point, what will their answer and justifications be?

Michelet-密是力 15:22, 3 May 2007 (UTC)

Addendum:

• U.S. Court of Appeals of the District of Columbia, Luck's Music Library et al. v. United States, Case No. 04-5240, decided May 24, 2005: 17 USC 104A does not violate the U.S. Constitution. See also William Patry's comments.
• U.S. Court of Appeals for the Second Circuit, Troll Co. v. Uneeda Doll Co., Docket No. 05-6487-cv, decided April 13, 2007: Copyright on Danish dolls restored in 1996 by virtue of the URAA. (The case was actually about whether the defendant was a "reliance party", but in passing, the summary mentions that neither party contended that the copyrights had been resurrected by the URAA in 1996. See also William Patry's comments.)
• Pilch, J. T. (2003): Understanding Copyright Law for Slavic, East European, and Eurasian Materials, in Slavic and East European Information Resources (SEEIR) 4(1), pp. 75 – 101; Haworth Information Press 2003. ISSN 1522-8886. Pilch also explains the effect of the URAA.

Lupo 15:10, 3 May 2007 (UTC)

OK, I'll have a look, (and verify ;o) thanks. Michelet-密是力 15:22, 3 May 2007 (UTC)

Sorry, Lupo, but the examples do not consider the protection term, so they are not decisive. On the other hand, the jugements and comments tend to support my line of reasonning (see details in Commons talk:Licensing/Rule of shorter term discussion), so thanks for the links ;o) Now, what next? Michelet-密是力 18:07, 3 May 2007 (UTC)

Do NOT selectively remove my comments and place them elsewhere out of context. I've moved them back. Do not edit others' comments. Lupo 20:24, 3 May 2007 (UTC)

Michelet, you are free to ignore all the evidence shown to you. Nevertheless, here are two more:

1. The URAA works as I explained above. It is only concerned about the copyright status of a foreign work on the URAA date. See e.g. the following explanation from 1998 from the U.S. Copyright Office: 63 FR 43830, August 14, 1998, section I, "Background".
2. William Patry (Google's Senior Copyright Counsel, former professor at Cardozo Law School, and (one of) the author(s) of 17 USC 104A) agrees that the U.S. does not implement the rule of the shorter term. See Patry, W.: Choice of Law and International Copyright, American Journal of Comparative Law, 48 Am. J. Comp. L. 383, p. 18.

Note also that there have been several cases that clearly demonstrate the absence of a rule of the shorter term, and the resurrection of copyrights by the URAA. In Films by Jove v. Berov, several of the non-U.S. movies were restored works. In Alameda Films et al. v. Authors Rights Restoration Corp., Inc., et al., the central question was also whether Mexican movies were "resurrected works". In Troll Co. v. Uneeda Doll Co., it was not even disputed whether the dolls were "restored works": that was clear for all involved. Also related is Capitol Records v. Naxos, where British sound recordings that had fallen into the public domain in the UK were held copyrighted in the U.S. (though not because of the URAA, and sound recordings are a special case anyway).

Feel free to dismiss all this evidence. But if you want to keep advocating that the U.S. actually did follow the rule of the shorter term all the same, and all these sources were mistaken, do so only if you can find and present reputable sources that clearly say that the U.S. did follow the rule of the shorter term. Lupo 07:14, 4 May 2007 (UTC)

William Patry's interview

Lupo, the four examples you gave yesterday did not involve the rule of shorter term: they are not evidence for your point, this is why they can be dismissed. I'm looking for evidence on the rule of shorter term, not on the fact that URAA resurrected foreign copyrights in the US - which is not contested. OK, I'll study these cases as well, if I can find them. Furthermore, I've posted the question on William Patry 's blog, & well'see the answer.Michelet-密是力 08:05, 4 May 2007 (UTC)

William Patry says: "Since the Berne Convention is not self-excuting in the U.S., the U.S. doesn't apply the rule of the shorter term. This means though that U.S. term governs even as foreign law determines who owns rights." The latter refers to the choice of law issue his paper in Am J. Comp. was about and to en:Itar-Tass v. Russian Kurier. Thank you. I've never thought of posting the question to him. Good idea. Lupo 08:29, 4 May 2007 (UTC)

I know that ;o) I've posted a complementary question (remember my statement on cross-verification?) & I'm waiting for the second answer. His paper "Choice of Law and International Copyright" seems very interesting and documented, I'll study that first. Michelet-密是力 08:44, 4 May 2007 (UTC)

Where did you post that second question? Lupo 09:09, 4 May 2007 (UTC)

On the same blog, but it's filtered: he has to read it first, then decide whether he wants it to be posted. He's on NY-NYC time zone, give him time to wake up ;o) Michelet-密是力 10:29, 4 May 2007 (UTC)

You got his attention :-) Lupo 15:17, 4 May 2007 (UTC)

I've noticed. I've been through his paper in the meantime, very intersting indeed. I guess I must imagine something brillant on pretorian practices, now ;o) OK, preparing the answer, but the case is probably closed: I had most of the answers I needed. Michelet-密是力 15:26, 4 May 2007 (UTC)

There's an error in his last posting, when he says that "It is worth pointing out that in the one instance in which a court could write on a blank slate -- the New York Court of Appeals Capitol Records v. Naxos case -- in deciding, whether under state law, pre-1972 sound recordings would have the rule of the shorter term applied , the court held it would not apply the rule of the shorter term." The jugement was in fact "Under the Federal Constitution, treaties that the United States enters with other countries have the force of federal law and must be respected by the states (see US Const, art VI, § 2). Although the Berne Convention and the Universal Copyright Convention both recognize the "Rule of the Shorter Term," which generally provides that the term of copyright in the nation where a work is first published should be applied by other nations that would grant a longer period of protection, neither treaty applies this rule to sound recordings" Capitol Records v. Naxos So the rule of the shorter term was not applied, not because of US laws, but because the case was outside the scope of this convention. Michelet-密是力 11:08, 5 May 2007 (UTC)

On second thought, it is not necessarily an error: William Patry hasen't said that the Capitol Records v. Naxos was an example of shorter term exception. And indeed, the case is "worth noting", since the court says that the convention has the force of a federal law, and suggests that what the shorter rule could had been applied, had sound recording been in the field of the Berne convention. Very interesting, indeed. Michelet-密是力 11:20, 5 May 2007 (UTC)

Pros and Cons

Ok, then, the facts so far are:

• William Patry ("the" US national monument in the copyright field) commented on the problem in his blog. He says the US approach is (has always been, before joigning Berne convention) a "one-size-fits-all", the "rule of shorter term" not being considered. William Patry comments: "from our perspective, that's just the way we have done things". This obviously is the "jurisconsulte" position, adopted in circular 38b and Hirtle's chart on copyright terms.
• No specific clause in 17 USC has been found to clearly state US should or should not apply the rule of shorter term. There is indeed 17 U.S.C. 104-c that may be interpreted as a specific rule on content and duration, but on the other hand, it can also be interpreted as simply being the US transposition of Berne convention art. 5-2 (since USC 104-c was the US answer to Berne stipulations): given the provision made in the Berne convention by the rule of the shorter term, its effect on the protection duration is ambiguous.
• When considering US law alone, this leads to reject the existence of a "rule of shorter term" in the USA. William Patry comments: "It is purely a question of statutory interpretation: no U.S. court, reading the plain words of Section 104 would think that it embodies the rule of the shorter term". Under the UCC convention (traditional context for the USA), the "rule of shorter term" indeed had to be explicit; William Patry comments: "The United States, by failing to enact legislation adopting the rule of the shorter term, grants to all authors the same term of protection; other countries have enacted the rule".
• The Berne convention (art. 7.8) seems to considers the "rule of shorter term" is the implicit option of national legislations, by stating 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.” . The Berne convention is now the reference for the WTO, and has been adopted (recently and reluctlantly, indeed) by the USA. "Under the Federal Constitution, treaties that the United States enters with other countries have the force of federal law" (Capitol Records v. Naxos). Which William Patry comments: "I don't think Article 7(8) requires such express disavowal of the rule of the shorter term", thus justifying his position - and, indeed, "national legislation" may be interpreted in this context as including national legal practices, if any.
• No legal case has been found to advocate one way or the other. The certified questions given in the Capitol Records v. Naxos case (quoted by William Patry in his blog answer) indeed considered the rule of shorter term, but adds "Although the Berne Convention and the Universal Copyright Convention both recognize the "Rule of the Shorter Term," [..] neither treaty applies this rule to sound recordings" (because this is not an "intellectual property" field, but a "neighbouring rights" one).

This being said, in my opinion:

• The "big business" legal disputes in the field of artistic rights deal with films and sound records, and their (integral) reproduction for profit-making usages. This is a nonexistent activity in the Wikipedia context, which makes it unlikely both to go into legal trouble and to obtain relevant jurisprudential data.
• If WikiMedia Foundation decides that "PD-Old in the country of first publication" is free enough, thus considering that the "rule of shorter term" can be pleaded in the USA (where the WMF servers are housed), it will be the first line of defence. The second line of defence will be fair use (legal exception in the USA), and for films and sounds excerpts, right of quotation (legal exception everywhere). These exceptions may be pleaded as far as the wikipedian use is concerned ; but they do not correspond to free licences conditions. There should therefore at least be a warning on the possible protection problem in a "PD-Old in the country of first publication" licence.

Michelet-密是力 06:52, 6 May 2007 (UTC)

Michelet, that's your own personal interpretation. Can you back it up with external sources that say so, too?

Note that there is a second interpretation of Patry's statement "The United States, by failing to enact legislation adopting the rule of the shorter term, grants to all authors the same term of protection; other countries have enacted the rule", which also works under the BC (after all, his paper is from 2000!): Because 17 USC 104(c) says that "No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto." (and 104(c) was introduced in the Berne Convention Implementation Act of 1988 — see also here), the U.S. implemented the Berne Convention by amending its own copyright law. It does not consider the BC to be self-executing,[16] and the BC clearly does not take precedence over U.S. law. Thus, to implement the rule of the shorter term, the U.S. would have had to explicitly spell out the rule of the shorter term (as they did in 17 USC 104A). But they didn't. Hence there is no such rule in the U.S. This is still compliant with the BC, it's just that 17 USC 104(c) "provides otherwise", to use the BC phrasing.

It's also compliant with Judge Graffeo's comment in Capitol Records v. Naxos (though I must admit that I don't understand why he even considered the BC and the UCC, since sound recording clearly are outside of the scope of the BC). International treaties may be binding all they want, but if they contain non-mandatory provisions (like §7(8) BC), the U.S. is free not to implement them. For the rest, the same argument as above works: yes, the BC is binding, the U.S. has changed its copyright law accordingly, but the treaty is not self-executing, and there's no explicit rule of the shorter term in 17 USC. Hence, there just isn't such a rule in the U.S.

I still have not seen one single external independent source that would support Michelet's interpretation that (a) this seems to be an implicit untested assumption about U.S., which (b) would be untenable if tested, and (c) would actually mean that the U.S. actually did follow the rule of the shorter term if the question ever came up.

Especially that last bit is pure guesswork. Sources, people! And don't forget that e.g. Germany did not apply the rule of the shorter term to a U.S. work in this case. Lupo 19:50, 6 May 2007 (UTC)

♦ Judge Graffeo mentionned BC and UCC because the music had been PD in the UK, and the "rule of shorter term" may have been mentionned by the defender.

♦ Once again, you do a remarkable job in finding this "House Statement on the Berne Convention Implementation Act of 1988" document, which indeed "clearly state that the Convention is not self-executing under the Constitution and laws of the United States". Once again, the problem is to interpret the data. The document details the meaning of this sentence: it means (explicitly) that the version approved is that of 1971; future revisions of the Berne convention will not be self-executing in the US, they will have to be approved by US legislature before being executive. Indeed - so what? In fact, this comforts the opposite view, that the Berne convention (in its 1971 version) directly applies in the USA, which is after all what is said in the s:Constitution of the United States of America#Article VI: "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding". Is this source valid enough in the United States of America?

• • Bollocks. That's selective reading. See the House Statement: "There is no doubt, however, under the express provisions of the Senate amendment, that the Convention—including future revisions—will not be self-executing in the United States." See also the House Report on the BCIA. Neither the 1971, nor the 1979 revision of the BC, nor any future revision of it is self-executing in the U.S. And that was codified as 17 USC 104(c), first sentence. Lupo 08:49, 7 May 2007 (UTC)

    Indeed, but this senate amendement (quoted at the previous page) has been repelled (as you can easily check on the adopted version of 104-c), maybe for this very reason. Trust is good, verification is better - so trust me for verifying ;o) Michelet-密是力 10:55, 7 May 2007 (UTC)

    I disagree. The House Report is from May 1988, the House Statement from Oct 1988. The House Statement says "First, the House bill refers to the Berne Convention [...of 1971]. The Senate bill covers all acts, protocols and revisions (including future ones). The House recedes to the Senate on the question of whether the Berne Convention refers to future revisions. Both bills clearly state that the Convention is not self-executing under the Constitution and laws of the United States. This proposition applies to future revisions." From context and history, it is clear that they should have written both times "also to future revisions". But that's a detail. See also the Senate Statement from Oct 1988, last paragraph. Or check the Senate Report from May 1988. Congress has, when it considered the BCIA, always agreed that the BC was not self-executing in the U.S. Trust me to verify ;-) Lupo 11:25, 7 May 2007 (UTC)

    In fact, you might want to check the BCIA itself; it was Pub. L. 100-568; full text here, and excerpt from section 2 also here: Pub. L. 100-568 contained the phrasing of the Senate version "and all acts, protocols, and revisions thereto". It's not the House version, which ran "...up to and including the revision done at Paris, France, in 1971". Lupo 11:45, 7 May 2007 (UTC)

    And finally, it just occurred to me that in fact there is a U.S. court decision about the self-executability of the Berne Convention in the U.S.! See our collective favourite decision in Bridgeman v. Corel: the court held that the BC was not self-executing in the U.S. and Judge Kaplan also clarified that "the [U.S.] Copyright Act is the exclusive source of that protection." (in the U.S.) Lupo 12:19, 7 May 2007 (UTC)

    But once again, I must admit you are unbeatable at hunting relevant documentation. Michelet-密是力 10:56, 7 May 2007 (UTC)

  • Note that "it's not self-executing" doesn't equate "it's not binding". It just means that to implement a binding treaty, the U.S. legislator has to amend the U.S. laws accordingly. (See again that House Statement: "In short, for any act of the Berne Union to be effectively implemented in the United States will depend upon Congress so legislating.") Which they did with the BCIA, explicitly opting for not implementing the rule of the shorter term. Insofar your (and Graffeo's) reference to the U.S. Constitution is a bit misleading. The BCIA and 17 USC are not unconstitutional. Lupo 08:57, 7 May 2007 (UTC)

    They "explicitely opted" not to mention the "rule of shorter term" while adapting USC to Berne convention consequences, in this very USC 104-c, where the Bern convention explicitely states that the "rule of shorter term" is the rule, unless ruled out by national legislation. Of course, it may be argued that they just forgot to adress this problem, which is indeed quite likely. But then, I can't invent US legislation when the US legislator forgot to make a clear statement. Michelet-密是力 09:23, 7 May 2007 (UTC)

    Ah, the hubris! "The likely forgot"! Source?? Lupo 09:29, 7 May 2007 (UTC)

♦ I think the problem is not sources, here, but interpretations. I pointed out that the evidence to reject the "rule of shorter term" could be insufficient, and so far, all the evidences brought to support the longer term interpretation have been inconclusive: there is indeed a jurist opinion, but not supported by legal sources: laws and judgements. Obviously, the "rule of shorter term" has been a secondary problem in the USA, so that there will be not much evidence to back interpretation one way or the other anyway, this is why we do have a problem.

♦ Lupo, I appreciate sources (though not as much as others), but your call for sources is irrelevant in that case: My point is that the reject of “rule of shorter term” by the USA lacks legal sources --- you can’t expect such a thing to be sourced! And there is no point in finding sources, if you need further sources to interpret them correctly. This is what I’ve been doing from the start: check the alleged sources, question dubious points, try to understand the situation, and build my own opinion - this is a liberty I will never give up. Facts are public, opinion is mine, indeed, but "My" interpretation is PD, anybody can take it and build his own opinion.

It ain't necessarily so...
It ain't necessarily so...
De things dat yo' liable to read in de Bible,
It ain't necessarily so...

Source! Michelet-密是力 06:39, 7 May 2007 (UTC)

The problem is sources for interpretations. You haven't shown any source that would back your interpretation. Don't you think that other people might have noticed the theory you're supporting long before you did? Present sources; otherwise it'll just be hot air, especially since Patry told you twice that the U.S. did not follow the rule of the shorter term. He knows more about copyright in the U.S. than we all taken together. Lupo 08:49, 7 May 2007 (UTC)

This is circular reasoning and circular discussions. See above, it has been answered. You interpret the available sources with the idea that US does not follows the "rule of shorter term" (just like Patry), your data confirms your opinion. I'm looking for legal basis not to consider it's simply a POV affirmation, and haven't found any so far. This doesn't proove anything, of course, since it is well known that one should never conclude on the absence of proof, but it applies both ways. Michelet-密是力 09:15, 7 May 2007 (UTC)

Diskussions in other projects

List of discussions in Wikisource projects (pt has startet a poll already):

• http://wikisource.org/wiki/Wikisource:Scriptorium#Common_action_of_Non-US_Wikisource_chapters_needed

Discussion in de.Wikipedia:

• http://de.wikipedia.org/wiki/Wikipedia:Urheberrechtsfragen#WICHTIG:_Was_tun.3F_Alle_Medien_von_Urhebern.2C_die_nach_1925_starben.2C_in_Gefahr

--Historiograf 17:25, 6 May 2007 (UTC)

Lupo's comment on the Congress petition in en

• http://en.wikipedia.org/wiki/Wikipedia_talk:Public_domain#Reclaim_the_Rule_of_the_Shorter_Term_Petition

Notice to Anthere (Chair of board), statements of de and pt Wikisource

• http://meta.wikimedia.org/wiki/User_talk:Anthere#commons:Commons_talk:Licensing.23Pros_and_Cons

Images PD outside of the U.S. but not PD in the U.S. (URAA restoration) - Opinion section

Options:

1. Lupo no. 1: the works have to be deleted according our policy (US AND country of origin)
2. Lupo no. 2: removing on complaint
3. removing only when an US court has cleared the case (including the possibility to claim "fair use" for Commons pictures or media like scanned books)
4. ignoring the problem.

Opinions

• No. 3 We should try to get a court decision before we remove items --Historiograf 15:04, 5 May 2007 (UTC)
• 3 or 2. It may not be worth to put the WMF in legal trouble. -- Bryan (talk to me) 15:17, 5 May 2007 (UTC)

Think realistic: If a EU rights holder can simply write a mail with a "take down notice" to the WMF to protect his copyfraud (for all countries except the US) - why should he not do so?? --Historiograf 15:30, 5 May 2007 (UTC)

• No. 3 I would prefer. but 2 is the most relistic on --Joergens.mi 16:16, 5 May 2007 (UTC)
• No. 3 is the only usefull one. Why should textes, which are free to public domain in the world - except for some countries - be removed. A simple comment, please obey the copyright rules of your country is enough. --Fkraus 16:21, 5 May 2007 (UTC)
• #3 as this is a question vital for a large amount of media content and as media content is the heart of commons, we should at least try to get the maximum out of it. And yes, obtaing a legal decision will cost money (including a fraction of my monthly donations), but it will be a good invest, even if we get a decision leading to #1. ---jha- 16:27, 5 May 2007 (UTC)
• #3 would be the best, otherwise #2. --Raymond ^Disc. 16:49, 5 May 2007 (UTC)
• No. 3 sounds reasonably, although potentially expensive. Or one programs a IP inquiry into the Wikimedia software as with Google, in order to examine the origin of the visitor (this is a Google translation, because the user can hardly English) --Rabe Socke 16:52, 5 May 2007 (UTC)
• No. 3. --Liberal Freemason (talk) 16:59, 5 May 2007 (UTC)
• #3 --J-PG ¬_¬ 17:13, 5 May 2007 (UTC)
• No. 3. --Paulis 19:59, 5 May 2007 (UTC)
• 3, or 2. Michelet-密是力 20:13, 5 May 2007 (UTC)
• 3. -- Timo Müller Diskussion 20:38, 5 May 2007 (UTC)
• 1. Sorry to be the dissenting voice here, but we shouldn't simply be voting for what we want and ignoring the resultant legal problem that that leaves the WMF. Any option other than 1 is a vote to ignore the copyright infringement that arises in the US as a result of an unlawful copy of the original work being made and stored on a US server. On what basis can we 'vote' here to expose the WMF to a legal case? I don't like this US law any more than anyone else does - it's idiotic - but voting to ignore it won't make it go away. I have no doubt that once the WMF lawyer realises what's happening here we will be instructed to delete any images to which this relates. --MichaelMaggs 21:44, 5 May 2007 (UTC)

That's nonsense. There is NO court decision on this problem and 70 years pma are enough. This might be a political argument but we cannot accept absurd copyright rules. We also can possible claim fair use (and we should support the petition for the rule of the shorter term). We can show the WMF what we want they should do. --Historiograf 21:58, 5 May 2007 (UTC)

• 3- --Emha 21:51, 5 May 2007 (UTC)
• 1. Images on commons should be free in the US so long as the servers and the WMF is based in the US. We do a disservice to both ourselves (as in WMF projects) and others (reusers of WMF content, people looking for free pictures) by including questionably free content. Even if we for some inexplicable reason decide to keep this content it must be clearly marked (cf. Bridgeman, et al). The goals of both Commons and the WMF are not furthered by us putting our hands over our ears and screaming 'pma 70 is enough!' Kotepho 22:25, 5 May 2007 (UTC)
• 3 --Marcela 22:34, 5 May 2007 (UTC)
• 3 --Yann 22:46, 5 May 2007 (UTC)
• 3 or 2. 4 is impossible (you are unable to ignore if you are talking about :) ) and 1 is the "best" shortcut to get everyone hating Wikimedia Commons and possibly the entire Wikimedia. Lugusto • ※ 00:19, 6 May 2007 (UTC)
• No. 3, or 2 (as I don't see clearly possible consequences of insisting on a court decision). --Centipede 07:19, 6 May 2007 (UTC)
• #3 to be prefered, otherwise #2. -- Túrelio 07:20, 6 May 2007 (UTC)
• No. 3, otherwise 2 --W.Honisch 11:25, 6 May 2007 (UTC)
• 3 preferred, creating a license plate "PD-not-US" or so. If complained, move to a server outside the U.S. and note that the copyright owner contradicts a use in U.S. --Liondancer 12:23, 6 May 2007 (UTC)
• 3 --AlexF 12:35, 6 May 2007 (UTC)
• 1, see comments. Yonatan ^talk 22:38, 6 May 2007 (UTC)
• 5 - if that is really the point of the Foundation: ignoring pretty much all other countries to justify a highly questionable US law, we should move the Commons to Europe. --AndreasPraefcke 06:49, 7 May 2007 (UTC)
• #3 prefered (but what about #5 of AndreasPraefcke??), -jkb- 07:39, 7 May 2007 (UTC)
• 3. .:. Sarazyn 09:33, 7 May 2007 (UTC)
• 3 -- Bobo11 15:06, 8 May 2007 (UTC)
• 2 or 3, but please sign the petition from m:American non-acceptance of the rule of the shorter term. 14 signatures in 10 days are not enough. When deleting images due to American non-acceptance of the rule of the shorter term, they have to be listed for easier undeletion later.--Jusjih 23:17, 10 May 2007 (UTC)
• 3 Chaddy 19:55, 12 May 2007 (UTC)

Comments

• 2=Of course, the "complaint" cannot be from anybody, but an argumented demand from a rightholder.
• 3=After discussing the case at Patry's blog, the jurisconsulte opinion is that "rule of shorter term exception" is the US option, but it has never been judged as such, at least since the US joined the Berne community; so the opposite line of reasoning can at least decently be pleaded. Michelet-密是力 20:13, 5 May 2007 (UTC)

I guess it would be a good idea that I informed the board of this :-) Meanwhile.... do not delete ! (which does not seem to be the consensus anyway)Anthere 14:09, 6 May 2007 (UTC)

• 4=If there's not a threat, there's not a threat. I'm thinking here of UK Crown Copyright works that are over 50 years old in the UK, so PD here. They would technically not be PD in the US, but the likelihood of an objection, let alone suit, is zero - David Gerard 14:22, 6 May 2007 (UTC)

  Not so: Capitol Records v. Naxos is precisely a case where the UK crown copyright was more than 50 years old, but the case has been sait to be protected in the US. Naxos is said to go up to the supreme court, to be followed... Michelet-密是力 16:09, 6 May 2007 (UTC)

Polling is evil

Heading above inserted by Michelet.[17]

Polling about this strikes me as utterly nonsensical. Whether we're allowed to host content that is not PD in the U.S. but PD elsewhere is something that only the WMF can answer. And I think the WMF should clarify this quickly. But in any case we should not make false declarations. We must not claim these works were PD in the U.S. Under option 2, 3, or 4, these images would need to be tagged appropriately to state that they are not PD in the U.S. (Or, if you prefer to follow Michelet's reasoning, for which there's no external confirmation, to state that they are most likely not PD in the U.S. under the legal practice of the U.S.) Lupo 19:30, 6 May 2007 (UTC)

I strongly agree with Lupo here. First these have to be tagged in a way to warn US re-users of the copyright issue and also the polling with notices across projects like this is not going to help anyone find a solution. Besides being very limited, the options given above are not even very well explained. One other solution I can think of is allowing only those works in this category which are not registered with the US Copyright Office. Since I believe unregistered works cannot be awarded damages for infringement in US that would substantially lower any risk to WMF and allow many works in question. Also there is the possibilty of obtaining permissions from the copyright holders to allow WMF to use these works in the US, which would not detract from their PD status in other parts of the world. So really it is up to the WMF to decide how much legal risk they are willing to allow, if any, and then find the best solution for those parameters--BirgitteSB 19:53, 6 May 2007 (UTC)

I also strongly agree with Lupo. --MichaelMaggs 20:07, 6 May 2007 (UTC)

I agree with Lupo, Birgitte, et al. #3 isn't really a viable option as who says the WMF can withstand a prolonged court case? Polling is evil and this poll is even more evil as it's not even up to us to decide. Consensus here doesn't matter, in the same way that it doesn't for OFFICE actions. If there's the possible threat of a lawsuit (and considering we have so many of these images, it seems like a real threat) - we shouldn't keep these images. Yes, it's too bad that the law is stupid but wiki isn't its own country and has to abide by the law. Knowingly circumventing or simply ignoring it doesn't really do us too much good. Also, the images must be tagged as not being PD in the US as otherwise we could be misleading reusers and causing them to break the law which could make the original uploaders of the pictures the target of a lawsuit. Yonatan ^talk 22:38, 6 May 2007 (UTC)

Besides, if we accept these, why shouldn't we accept any works created before 1909 or all works published in the US before 1923 seeing how a very large portion of our users are US-based...? It'd be nice as we'd be able to host H. G. Wells' The Time Machine and lots of other good stuff as well (sarcasm). Yonatan ^talk 22:49, 6 May 2007 (UTC)

Polling is not evil. WMF should know what the users think about the case. I strongly disagree with the opions and the tone of Lupo and the others. Consensus does matter. That's simple and fair. --Historiograf 23:28, 6 May 2007 (UTC)

We're not in the business of making or breaking laws. We're in the business of creating Wikimedia projects, generally "publishing free knowledge". If the WMF decides it wants to also lobby against ever-expanding copyright, then fine. But for the time being, better sign that petition. I don't understand how people can seriously choose to ignore laws (and not the laws of an obscure country, but the laws of the country where the WMF and its servers are based). Michelet's theory, intriguing as it may be, is just that: a theory. Moreover, it is a completely unsourced theory: I have yet to see a single independent external source that would also express the opinion that the U.S. did actually (have to) follow the rule of the shorter term. It's also a theory that directly contradicts Patry's statements. He has stated now repeatedly that the U.S. does not follow the rule of the shorter term. See [18]. I trust Patry's opinions on U.S. law more than I do trust my own reasonings or that of any other Wikipedian.

I suspect the WMF could make a case for non-English language-specific projects that they could operate under local law only, claiming the fact that the material was hosted on servers in the U.S. was only incidental, since the content is clearly targeted at these non-U.S. markets. But see also the WMF licensing resolution: EDPs on local projects must be "in accordance with United States law and the law of countries where the project content is predominantly accessed". The commons, BTW, is not allowed to have EDPs by that board resolution.

And yes, polling with campaigning and calls to arms to your followers ("vote for option #3") is despiceable. Politics, bah! Lupo 07:26, 7 May 2007 (UTC)

I don't like this polling either, this is a matter where the WMF must obviously decide, but your presentation of it is biaised. The alternative is not to respect the law or not (assuming it's clearcut), but to decide which interpretation of the law should be followed (because it's unclear). Making a choice when the legal situation is unclear is indeed to take a risk, but you have to weigh the alternatives correctly: suppress all PD-old-but-not-in-US material (which is a big drawback), or be prepared to defend (if a trial is made, which is unlikely anyway) that keeping it is compatible with US law (with indeed uncertain results). Michelet-密是力 09:06, 7 May 2007 (UTC)

Hm, if you're viewing this as a question of which interpretation is more likely to be correct... we have an unsourced interpretation of one Wikipedian (you) claiming it was unclear vs. another interpretation (favored by me) claiming it was clear enough and negative, which maybe also isn't 100% watertight (lacking an actual court decision on precisely this matter), but which is supported by lots of indicative evidence and with which a leading copyright expert in the U.S. happens to agree. (You could also try asking other copyright experts. The other heavy-weight in the U.S., David Nimmer, comes to mind. Don't know if he's as accessible as Patry, though.) The choice is clear to me. (But then, I'm biased :-) Lupo 09:21, 7 May 2007 (UTC)

As to "being prepared to defend"... that's precisely why the WMF must be clear about what they want to allow. If someone is going to have to defend it, it won't be you or me or anybody of us: it'll be the WMF. It's a cheap shot to talk about "being prepared to defend something" when doing so will not involve oneself. We are not taking personal risks here. (And I don't know whether the WMF is. That discussion should really be left to the pros, not to us armchair amateurs.) Lupo 09:21, 7 May 2007 (UTC)

I agree with that (whiew!) : This is WMF's problem, and they should take professionnal advice on it. I've done my "armchair amateur" criticisms, this is my field, but then I'm not a lawer & won't play that role. Michelet-密是力 09:28, 7 May 2007 (UTC)

A minor note on AndreasPraefcke's option 5 (moving the commons servers to another jurisdiction): besides all the practical problems, I don't think that'd work copyright-wise. We might be able to host some images that we now might have problems with due to the U.S. law, but we still couldn't use the images hosted there on the U.S.-based Wikimedia projects. And servers in other jurisdictions might have problems with a different section of their content. (Does U.S. "pre-1923" apply in Germany?) See also this message on the mailing list (thread starts here). Lupo 14:40, 7 May 2007 (UTC)

Affected templates

Which images are affected by this? Clearly most of them are PD-Old, but there are also PD-Something images which do only take into consideration the copyright term in the home country. Please add to the list: -- Bryan (talk to me) 20:39, 7 May 2007 (UTC)

• {{PD-Israel}}

Basically all country-specific PD-tags should state under what conditions such a work is also PD in the U.S. I did so way back at {{PD-Russia}}... note that it should also be enforced, though. Current practice regarding PD-Russia is that people just consider the 1954 date, and ignore the 1942/1946 date. On PD-Israel, you might also want to look at this discussion. Lupo 08:42, 8 May 2007 (UTC)

For PD-Old: the problem affects non-U.S. works published after 1922 of non-U.S. authors, if those works were still copyrighted in the foreign source country on the URAA date, which is January 1, 1996 for most countries. Since PD-Old is based upon a copyright term of 70 years after an author's death, this means that in general post-1922 works of authors who died 1926 or later are affected. The problem might also affect works of such authors published in a language other than English from 1909 - 1922 without a copyright notice, see en:WP:PD#_note-US1909, but it's unclear what that would mean for images. We generally go by the 1923 date. Lupo 08:42, 8 May 2007 (UTC)

• {{PD-China}} is affected if an image or a corporate work was made in 1946 or later or if an author of a non-photographic work died in 1946 or later.--Jusjih 23:27, 10 May 2007 (UTC)

Panic

I can glimpse at the discussion. Its scarily long. Whatever needs to be said can be said in a few words. I am completely uninterested in this long chunk of text. Please summarize your case. Also note that commons isn't a median to challenge copyright issues, the median for that is courts. -- Cat ^chi? 15:17, 8 May 2007 (UTC)

You mean "medium". No one panics. But I'm asking for clarification and that if our current policy "PD is source country and PD in the U.S." is not abolished by the foundation, that policy be enforced. If you're not interested in reading this long chunk of text, just skip it. The introductory posting did summarize the issue fairly well (I think, but then I wrote it :-), what followed were discussions when people tried shooting holes through the argument. Lupo 15:48, 8 May 2007 (UTC)