WikiQueer:Public domain

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For all practical purposes on WikiQueer, the public domain comprises copyright-free works: anyone can use them in any way and for any purpose. Proper attribution to the author or source of a work, even if it is in the public domain, is still required to avoid plagiarism.

The public domain is generally defined (e.g. by the U.S. Copyright Office) as the sum of works that are not copyrighted, i.e.

  • that were not eligible for copyright in the first place, or
  • whose copyright has expired, or
  • that were released into the public domain by the copyright holder.

However, there is no such thing as the public domain on the Internet. International treaties, like the Berne Convention for the Protection of Literary and Artistic Works, are not self-executing and do not supersede local law. There is no globally valid "International Copyright Law" that would take precedence over local laws. Instead, signatory countries of the Berne Convention have adapted their laws to comply with the minimum standards set forth by the treaty, often with stronger provisions than required. Whether or not something is copyright-free in some country depends on the laws of individual countries.

WikiQueer, and The Aequalitas Project, its legal parent organization, are based in Michigan, United States. Although legislation is sometimes unclear about which laws are to apply on the Internet, the primary law relevant for WikiQueer is that of the United States. For re-users of WikiQueer content, it is the laws of their respective countries.

In the U.S., any work published before January 1, 1923 anywhere in the world[1] is in the public domain. Other countries are not bound to that 1923 date, though. Complications arise when special cases are considered, such as trying to determine whether a work published later might be in the public domain in the U.S., or when dealing with unpublished works. When a work has not been published in the U.S. but in some other country, that other country's copyright laws also must be taken into account. Re-users of WikiQueer content also might find the explanations here useful.

Important documents[edit source | visual editor]

  • The Berne Convention is the primary legislative document governing international copyright. Signatory states agree to amend their legislations to meet the minimum requirements of this convention, but the convention itself is not law. Signatory countries have the right to "opt out" from a few of its paragraphs (most are mandatory and non-negotiable, though), and how any particular country implements the Berne Convention is a question of local legislation. The full text of the Berne Convention is available at the WIPO web site.
  • The U.S. Copyright Law is Title 17 of the United States Code (17 USC), chapters 1 through 8 and 10 through 12. Chapters 9 and 13 contain design protection laws on semiconductor chips and ship hulls that are of no interest or relevance for WikiQueer.
  • The EU Directive on harmonising the term of copyright protection is a binding directive for all member countries of the European Union, harmonizing the term of copyright. It became effective on July 1, 1995. Individual countries have amended their laws to comply with this directive. The EU legislation web site has the full text (1993), plus a 2001 amendment modifying §3(2). See Retroactive changes in copyright legislation below for some discussion.

The U.S. Copyright Law explicitly makes clear that the Berne Convention is just a treaty, not some "super-law" that would take precedence over U.S. Law: 17 USC 104(c) states 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...."

When discussing copyright issues informally (and all such discussions on WikiQueer are informal), one may nevertheless argue in terms of the Berne Convention: writing "according to §y of the Berne Convention..." is then just a short-hand for writing "according to §x of country's copyright law, which implements §y of the Berne Convention, ..." However, one should bear in mind that some paragraphs of the Berne Convention are optional, and that any country may go beyond the minimum standards specified by the Berne Convention for the most part.

Other documents[edit source | visual editor]

There are some other documents related to copyright issues that one occasionally comes across, but they are generally less important for WikiQueer's purposes.

Works ineligible for copyright protection[edit source | visual editor]

In short: U.S. Federal Government works, or no creative content
See also: Copyright on emblems.

U.S. government works[edit source | visual editor]

U.S. federal government works are not eligible for copyright protection (17 USC 105). It is not clear whether this applies world-wide -- see the CENDI Copyright FAQ list, 3.1.7 and a discussion on that at the LibraryLaw Blog. The U.S. government themselves state that they "may assert copyright outside of the United States for U.S. government works."[2]

In practice, this means that much material on *.gov and *.mil, as well as material on some *.us web sites (such as the sites of the U.S. Forest Service), are in the public domain. Please note that not all such material is in the public domain, though:

  • U.S. governmental web sites may use copyrighted works, too; either by having licensed them or under a "fair use" provision. In general, such copyrighted works on web sites of the U.S. federal government and its agencies are indicated by appropriate bylines. An example are "visitor image galleries" on U.S. National Park Service websites: unless these have some indication that the photographs are placed in the public domain by publishing them on that NPS web site, these images are copyrighted by their photographers, who are visitors of national parks, not employees of the NPS. According to the CENDI FAQ on "Frequently Asked Questions About Copyright", "Copyrighted works that are not owned by the Government should be included on government web sites only with permission of the copyright owner and should include an appropriate copyright notice."[3]
  • Some U.S. state and local governments also have web sites in the *.gov domain. State and local governments usually do retain a copyright on their works. 17 USC §105 only places federal documents in the public domain.[4]
  • Works produced under a commission from the U.S. government by a contractor are most likely copyrighted. This typically includes any documents from research labs. The Oak Ridge National Laboratory, for instance, is operated by a contractor for the U.S. Department of Energy, but that does not mean the works it produces are "works of the federal government". ORNL works are copyrighted, and the U.S. government is granted a non-exclusive license to use, publish, and allow republication of such works. The precise terms vary from one lab to the next, but in general, commercial re-use of their works is prohibited.[5] This also applies to works authored by independent contractors or freelance writers or artists, even when their works are commissioned by some U.S. government agency.[6]
  • Even the U.S. federal government may hold copyrights, if the original copyright holder assigns or transfers the copyright to the U.S. government. A notable example of this is the obverse of the Sacagawea dollar coin, which its designer Glenna Goodacre claimed copyright of before she transferred the design and copyright to the United States Mint.[7] When a U.S. government agency holds such a transferred copyright, it may declare the work to be in the public domain (or not).[6]

Under U.S. law, laws themselves and legal rulings also form a special class. All current or formerly binding laws, codes, and regulations produced by government at any level, including other countries' governments, and the court opinions of any court case are in the public domain. [2] This applies even to the laws enacted in states and municipalities that ordinarily claim copyright over their work. The US Copyright Office has interpreted this as applying to all "edicts of government" both domestic and foreign.[8]

The United States Copyright Office, in section 206.02(b), 206.02(c), and 206.02(d) of the Compendium II: Copyright Office Practices, has stated its position that works of the U.S. Postal Service, of the government of the District of Columbia, and of the government of Puerto Rico are not "works of the U.S. government" and thus are subject to copyright.[9] Works of the United States Post Office Department prior to the formation of the U.S. Postal Service are still considered government works and are in the public domain.[citation needed]

Most other countries' governments do hold copyrights, and their works are copyright protected. At the same time, many countries declare their edicts, as well as those of other countries, such as laws and court decisions, to be exempt from copyright. Such exemptions are typically narrowly defined and cannot be construed to mean "any publication by a government office".

Works of the United Nations or its agencies or of the OAS are subject to copyright. [10] Some UN documents are in the public domain; see Works of the United Nations.

Non-creative works[edit source | visual editor]

In short: Bare facts are in the public domain. Works must show sufficient human creativity to be eligible to copyright at all.

A second category of works that in general cannot be copyright protected are those that have no (or no significant) creative content: they do not pass the threshold of originality. In the U.S., the classic example is a telephone directory. The names and numbers therein are, in the doctrine of case law (e.g. Feist v. Rural), "facts that were discovered", rather than the result of a creative expression or judgment. The U.S. has explicitly rejected the position that the amount of effort involved in the discovery of a fact can justify its protection. As a result of this doctrine, addresses, phone numbers, most scientific data, sports scores, the results of polls, and similar facts are exempt from copyright.

While the facts themselves are exempt, other creative elements in a compilation of facts may warrant copyright protection. For example, Eckes v. Card Prices Update established that the specific selection of which facts to include in a list, when done as the result of a creative act, merits protection even when the individual elements do not. (See also 17 USC 103(b).) The WIPO Copyright Treaty is an international treaty that follows this concept; it has been adopted also by the European Union (EU) in its EU Database Directive, a sui generis protection that prohibits any significant "extraction" or "re-utilization" of information from a database created by significant effort. In all these cases, the copyright is on the database as a whole, i.e. the selection of the collection. The individual items in such databases still have their own copyright, which may have expired.

Similarly, though scientific data are usually exempt from copyright, the specific figures and styles of presentation used to present that data will in most cases merit copyright protection. Also, in some cases facts that are exempt from copyright may still be protected as a result of patent law.

This painting was produced by the chimpanzee "Congo" and is therefore not copyrighted. The photo of the painting is not copyrightable per the Bridgeman v. Corel ruling.

Another class of uncreative works which are unable to claim copyright protection in the U.S. are those resulting from mechanical reproduction. Following Bridgeman Art Library v. Corel Corp., a simple reproductive photograph of a two-dimensional artwork does not give rise to a new copyright on the photograph. Many other countries (but not all!) recognize a similar ineligibility for copyright for reproductive photographs of two-dimensional public domain works.

Common to all these cases is that only works created by a human are eligible to copyright.[11] Works created by animals (such as a painting produced by a chimpanzee) or machines (such as illegal spam) are not copyrightable, although in the case of drawings produced by a computer program, the program itself of course may be copyrighted. In certain cases, even graphics produced by computer programs may be copyrightable; see e.g. Stern Electronics, Inc. v. Kaufman.

Descriptions (including diagrams) in patent applications in the U.S. are "published into the public domain" by the U.S. Patent and Trademark Office [3]. Portions may contain the non-obligatory notice of copyright © or mask work Ⓜ protection, but the patent applicant must state in the text of the description that the owner of the rights in the protected part agrees to allow anyone to make facsimile reproductions of those portions of the description, but otherwise reserves all rights 37 CFR § 1.71(e).

Photographic reproductions, as a form of derivative work, may inherit the copyright of the original work. If that artwork is in the public domain, then so is the photograph. If, however, the depicted work is copyright protected, then, although there is no independent copyright on the photo itself, it cannot be considered to be in the public domain as the original rights holder still has the authority to control how reproductions of his work, including photographs, are made and distributed. The same applies to digitized images.

It should also be noted that the exemption of reproduction photographs extends only to two-dimensional artwork in the U.S. A photograph of a three dimensional statue may acquire copyright protection even if the statue itself belongs to the public domain. Such rights derive from the creativity involved in the positioning of camera, lighting, and other variables.

In the U.S., the Compendium of Office Practices II of the U.S. Copyright Office gives some concrete examples and hints at under what conditions a work is sufficiently original to be eligible for copyright.

Fonts[edit source | visual editor]

In short: Scalable fonts as such are copyrighted as computer programs; typefaces as such may be protected by design patents, and, in a few countries, by copyright; actual use of the typeface is not restricted, even if the font used was based illegally on a protected typeface.

Under U.S. law, typefaces and the characters they contain are considered to be utilitarian objects whose utility outweighs any merit that may exist in protecting their creative elements. As such, typefaces are exempt from copyright protection in the United States (Code of Federal Regulations, Ch 37, Sec. 202.1(e); Eltra Corp. vs. Ringer). However, this finding was limited in Adobe vs. Southern Software, Inc., wherein it was held that scalable computer fonts, ie., the instructions necessary to render a typeface, constitute a "computer program" for the purposes of copyright law and hence are subject to protection. Hence the computer file(s) associated with a scalable font will generally be protected even though the specific design of the characters is not. Furthermore, a rasterized representation (e.g. bitmap) of the characters in a scalable font is not protected by copyright in the United States. According to section 503.02(a) of Compendium II: Copyright Office Practices, typography and calligraphy are not copyrightable in themselves in the U.S. This treatment of fonts is not very unusual with respect to international law, and most other jurisdictions do not consider fonts subject to copyright either (with the notable exception of the UK, which however also only covers typefaces as such, as they are for example employed in fonts, and not their actual use[12]). However, typefaces as such may be protected by design patents in many countries (either automatically, or by registration, or by some combination thereof). A prominent example is the European Union,[13] where the automatic protection (without registration) expires after three years and can be extended (by registration) up to 25 years.[14]

International aspects[edit source | visual editor]

In short: The threshold of originality varies between countries.

Like the duration of copyright, eligibility to copyright in the first place is governed by national laws. The Berne Convention, §5(2) explicitly states that

The enjoyment and the exercise of these rights [i.e., copyrights] shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of [copyright] protection in the country of origin of the work.

In other words: a work that is not copyrightable in one country (even if that country is its country of origin) can still be copyrighted in other countries, if the work is copyrightable there. An example of this is Image:Christoph Meili 1997.jpg: this image is not copyrightable in its country of origin (Switzerland) by a decision of the Swiss Federal Supreme Court. However, in all likelihood it fulfills the criteria in other countries: it would pass the threshold of originality in the U.S.; and it would probably also be eligible for copyright in the EU.

Mere ideas, procedures, methods of operation or mathematical concepts as such are not copyrightable as per article 2 of the WIPO Copyright Treaty.[15]

Publication[edit source | visual editor]

In short: A work is published when tangible copies of it are made available to the public at large.

In the following, we will frequently refer to the "publication" of a work. A work is published when copies of the work are made accessible in some non-ephemeral form to the public at large with the consent of its author or copyright holder. Ephemeral forms of making the work accessible do not constitute publication. To quote the Berne Convention, §3.3:

The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication.

The U.S. Copyright law defines "publication" in 17 USC 101 in basically the same way using different words:

"Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

"Public display" includes broadcasts and other transmissions. The U.S. Copyright Office states in its Circular 40:

A work of art that exists in only one copy, such as a painting or statue, is not regarded as published when the single existing copy is sold or offered for sale in the traditional way, for example, through an art dealer, gallery, or auction house. A statue erected in a public place is not necessarily published.
When the work is reproduced in multiple copies, such as reproductions of a painting or castings of a statue, the work is published when the reproductions are publicly distributed or offered to a group for further distribution or public display.

Thus, a work is unpublished unless copies (which may be print publications, photos, postcards, lithographs, but also non-print publications such as replicas of a statuette) of it are published. It is of course implied that such a distribution of copies occurred legally, in particular with the consent of the copyright holder. An illegal distribution of copies (for instance one that itself would be a copyright violation) does not constitute a publication of a work. The right to publish a work is an exclusive right of the copyright owner (17 USC 106), and violating this right (e.g. by disseminating copies of the work without the copyright owner's consent) is a copyright infringement (17 USC 501(a)), and the copyright owner can demand (by suing in court) that copies distributed against his or her will be confiscated and destroyed (17 USC 502, 17 USC 503).

Notwithstanding the quoted paragraph from the Berne Convention, broadcast and public performance of literary or dramatic works may constitute publication in other countries, e.g. in Australia (see Infosheet G-23: Duration of Copyright).

We will get back to this issue in the sections "Published works" and "Unpublished works" below.

When does copyright expire?[edit source | visual editor]

In short: It depends, but always at the end of the year in which it expires.
Copyright durations for works (excluding audio works) first published in US. Click for a larger view.

The Berne Convention was designed to ensure that works protected in the country of origin were also protected in all other signatory countries without the rights holder having to register claims in each and every one of these countries. Thus the laws of the originating country of a work determine whether something is copyright protected at all, and if so, the Berne Convention ensures that it is automatically copyright protected in all other signatory countries, too, under their respective laws (§5(1) of the Berne Convention).

(The originating country or country of origin is that country where the work was initially published, or in the case of unpublished works, defined by the author's nationality or "habitual domicile". See §3 of the Berne Convention. If a work is published within 30 days in several countries, it can have multiple "countries of origin".)

Copyright protection is granted only for a certain period of time—barring pathological cases where some work is placed under a perpetual copyright protection. Different countries have different copyright terms: in some countries, copyright expires 50 years after the author's death (also called "50 years p.m.a.", post mortem auctoris; this is the minimum standard required by the Berne Convention), others have a 70-year period (70y p.m.a.), Mexico even 100y p.m.a. Many countries also have special rules, depending on when a work was first published, whether it was first published in that country or not, whether the author is known or not, and other things. For instance, a work published with a © notice in the U.S. between 1963 and 1977 (inclusive) is copyright protected in the U.S. until 95 years after the date of the initial publication. Peter Hirtle has compiled a very useful chart showing when and under what conditions the copyright of a work expires in the U.S. The default rule in the U.S. for works published since 1978 or for unpublished works is 70 years p.m.a. If a work is a "work made for hire", it has corporate authorship and is protected to the shorter of 95 years from publication or 120 years from creation. Many countries also know or at least knew different copyright terms for text and photographic works.

Basically all countries in the world specify that when a copyright expires, it does so at the end of the year. Thus, works of an author who died on June 27, 1937 did not become copyright-free on June 28, 2007 but only on January 1, 2008 under a "70 years p.m.a." rule.

Rule of the shorter term[edit source | visual editor]

In short: The "rule of the shorter term" says that copyright protection in any signatory country of the Berne Convention ends when the copyright expires in the originating country. This rule is not binding. The U.S. has not adopted it; the European Union (with exceptions!), Japan, Macao, and Taiwan have done so.

While the Berne Convention does harmonize bringing works under copyright protection in the first place, it does not similarly harmonize the expiration of copyright. The Berne Convention prescribes a minimum standard for copyright terms any signatory country must adhere to (50y p.m.a.), but any signatory is free to prescribe longer durations in its laws. To be fair, §7(8) of the Berne Convention does specify a "rule of the shorter term", which says that the copyright term can in no case exceed the copyright term in the originating country of a work. However, signatory countries have the right to "opt out" from this rule, and it depends on individual countries' implementation acts whether they do follow this rule. The copyright on a work may thus expire in one country and enter the public domain there, but the same work may still be copyrighted in other signatory countries.

The United States does not recognize this "shorter term" rule while 17 U.S.C. 104(c) reads: "Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto." Furthermore, 17 U.S.C. 104A(a)(1)(B) may restore copyright on a work published outside the USA for the remaining American copyright term even if its copyright may expire sooner in its source country.

The European Union does, however, adopt such a rule via-a-vis non-EU members (see §7(1) of the EU directive 93/98/EEC). Within the EU itself, however, the contrary is true: §10(1) states that longer terms already running remained in effect, and §10(2) states that the 70 year p.m.a. applied to all works protected in at least one member country. As a result, there is a transitory phase in which works that were already out of copyright in one EU country suddenly became copyright protected again in that country on July 1, 1995 because they were still protected in some other EU country. See "World-War II images" below.

East Asia, Japan, Macao, and Taiwan also honor the rule of the shorter term. See §58 of the Japanese Copyright Law, Article 51 of Decree-Law n.o 43/99/M of Macao, and Article 106bis of the Copyright Act in effect in Taiwan administered by the Republic of China.

However, some countries make exceptions to this rule. A notorious case is Germany, which has had a bilateral treaty with the U.S. governing copyright since January 15, 1892. That treaty, which is still in effect, defined that a U.S. work was copyrighted in Germany according to German law irrespective of the work's copyright status in the U.S, and it did not contain a "rule of the shorter term". In one case, a German court therefore decided that a U.S. work that had fallen into the public domain in the U.S. was still copyrighted in Germany in 2003 in spite of §7(1) of the EU directive.

See also OpenFlix for a useful list of countries and areas that do or do not honor the rule of the shorter term.

Country-specific rules[edit source | visual editor]

In short: First publication is important, but difficult to ascertain.
See also Commons:Licensing and Non-US copyrights.

Because copyright expiry is governed by local laws, some special noteworthy cases exist, in particular for photographs. These cases are interesting for WikiQueer if a work was not published in the U.S., because then, the law of the originating country must be examined. There is a whole slew of country-specific image copyright tags for precisely that purpose; see the list of image copyright tags. However, being in the public domain in its home country does not automatically mean that the work was also in the public domain in the U.S. because the U.S. does not follow the "rule of shorter term". Wherever these country-specific tags are used, they should be accompanied by a rationale explaining why the image is thought to be in the public domain in the U.S., too. (Remember that WikiQueer is primarily subject to U.S. law!)

Some examples of such country-specific rules are:

  • In Australia, the copyright on published photographs taken before May 1, 1969 expired 50 years after the creation. (For photographs taken later, it expired 50 years after the first publication.) As a result of the Australia-U.S. Free Trade Agreement (AUSFTA), new legislation became effective on January 1, 2005, extending the copyright term (also on photographs) generally to 70 years p.m.a, but explicitly ruling out a revival of copyright on works whose copyright had already expired. Any photographs created before January 1, 1955 are thus in the public domain in Australia. The same also holds true for other works, which were protected 50 years p.m.a. prior to January 1, 2005: any work published before 2005 of an author who died before January 1, 1955 is in the public domain in Australia. See Infosheet G-23: Duration of Copyright by the Australian Copyright Council. These rules even apply for works where the government holds the copyright, i.e. that are under Crown copyright. (There is the template {{PD-Australia}} for tagging such images.) See also copyright expiration in Australia.
  • In Canada, any photograph created (not published!) before January 1, 1949 and not covered by Crown copyright is in the public domain. This is a consequence of the Canadian Bill C-32: An Act to Amend the Copyright Act, which replaced the old rule for photographs ("copyright expires 50 years after creation of the work") by 50 years p.m.a., but not retroactively applying the new rule to works that were already in the public domain by the effective date of the bill, January 1, 1999 (see [4] at the bottom). WikiQueer has the template {{PD-Canada}} for tagging such images.

For an exhaustive list of the current situation in many countries, see WikiQueer:Copyright situations by country. This may help dealing with such cases. UNESCO also maintains a collection of copyright laws from many countries around the world. For works (photographs and others alike, but excepting sound recordings made prior to February 15, 1972) not published in the U.S., the following rule applies:

If the work was in the public domain in the country of origin as of January 1, 1996, it is in the public domain in the U.S. (Even if it was published after 1923, but only if no copyright had been registered with the U.S. Copyright Office.)

January 1, 1996 is the effective date for the copyright restorations of the U.S. Uruguay Round Agreements Act (URAA).[16] The URAA implemented TRIPS, part of the Uruguay Round of the GATT negotiations, in U.S. law. The URAA essentially is codified in U.S. law in 17 USC 104A. It had the effect of automatically restoring copyrights of works that were still copyrighted in their country of origin but whose copyright had lapsed in the U.S. due to non-compliance with technical formalities such as proper registration of the copyright with the U.S. Copyright Office or that were not protected in the U.S. due to a lack of international or bilateral agreements with the country of origin. Since works that have entered the public domain in their country of origin prior to January 1, 1996 are not eligible to this copyright restoration, such works remain in the public domain in the U.S. This, however, is valid only in cases where the U.S. federal copyright law (17 USC) applies. There are some specialized cases that are subject to state law, where other rules may apply (see the section on sound recordings below). If the country of origin became a member of the Berne Convention or the two WIPO treaties or the WTO only after January 1, 1996, the URAA still applies and that country's earliest adherence date to any of these treaties or organizations must be taken as the URAA copyright restoration date instead of January 1, 1996.

For the above cases, this means:

  • Australian photographs taken before January 1, 1946, not published in the U.S., and where no copyright was registered in the U.S., are in the public domain in Australia and the U.S.
  • Other works first published in Australia whose author has died before January 1, 1946 and where no copyright was registered in the U.S. are also in the public domain in Australia and the U.S.
  • Canadian photographs taken before January 1, 1946, not subject to Crown copyright, not published in the U.S., and where no copyright was registered in the U.S. are in the public domain in Canada and the U.S.

Additionally, because of the rule of the shorter term, such photographs are likely to be also in the public domain in Europe and in Japan, unless published there. (For the EU, one may probably even apply the 1955 and 1949 cut-off dates.)

The obvious difficulty here is to show that any particular work was indeed not published in the U.S, especially when considering works by Canadians. Even worse, one has to show that the work was indeed first published in Australia or Canada, respectively. If it was published in the U.S., the whole deliberation about copyright expiry in other countries does not come to play at all—the work is copyrighted in the U.S. (unless it was published before 1923, or in a few very specific, difficult to verify cases, see "published works" below). If the work was published first in some third country—such as the United Kingdom—that third country is the country of origin, and consequently, one has to apply that country's copyright regulations to determine whether the work's copyright had expired by January 1, 1996. There are some other problems, too:

  • If a work has multiple countries of origin because it was published in several countries within 30 days, it is unclear what rules would apply. Most probably, the copyright on the work would have to be expired in all of them by January 1, 1996 for the work to be in the public domain in the U.S.
  • It is entirely unclear how retroactive legislation would affect this rule. What if a work had been in the public domain in its country of origin on January 1, 1996, but that country subsequently modified its copyright laws such that the work's copyright was reactivated?

In summary, the rules in the U.S. for works published abroad are as follows:

  • If the work was published before 1923, it is in the public domain in the U.S.[1] (With a caveat for works published without copyright notice, see the footnote.)
  • If the work was published 1923 to 1995 (inclusive) and not copyrighted in its countries of origin in 1996, it is in the public domain in the U.S.
  • Otherwise, if the work was published before 1978, it is copyrighted in the U.S. for 95 years since the original publication (i.e. at least until 1923 + 95 = 2018), and if it was published 1978 or later, the work is copyrighted until 70 years after the (last surviving) author's death.

While the author of a photograph can often be determined quite easily, it may be rather difficult to ascertain where and when a particular image was first published. And strictly speaking one would also have to verify that a non-U.S. work was not covered by copyright in the U.S. by virtue of some bilateral agreement of the U.S. and the foreign country (see [5] and "Circular 38a" in the "external links" section below). Country-specific public domain tags must therefore be used with the utmost care only.

Crown copyrights[edit source | visual editor]

Shortcuts:
In short: UK Crown copyright expires world-wide.

Crown copyright is a special form of copyright on governmental works (including works made by employees of government agencies in the course of their duties) that exists in the United Kingdom and a number of other Commonwealth realms. Crown copyright for published works generally lasts for 50 years since the first publication (this is true not only for the UK but also e.g. for Canada or Australia). When Crown copyright expires on a work in its country of origin, the work enters the public domain in that country, but it may still be copyrighted in other signatory countries of the Berne Convention because these other countries apply their own laws, which may have longer copyright terms and not even know the concept of a "Crown copyright". (See e.g. Sterling 1995 towards the end, section titled "Protection of Crown copyright in other countries".)

An exception to this is UK Crown copyright. Although UK works on which the Crown copyright has expired also could still be copyrighted elsewhere, the British Office of Public Sector Information (OPSI), which manages all Crown copyrights on behalf of the coypright holder (the Crown), has explicitly stated in an e-mail to Wikipedia that they consider UK Crown copyright expiry to apply world-wide.

There is a flowchart explaining the precise rules for UK Crown copyright expiry. For photographs the rules are as follows:

  • For photographs taken before June 1, 1957, Crown copyright expires 50 years after the creation of the image. All such photographs are therefore in the public domain.
  • For photographs taken after that date and published before August 1, 1989, Crown copyright expires 50 years after the first publication. For photographs created between these two dates, but published only on or after the 1989 date, Crown copyright expires on December 31, 2039.
  • For photographs created on or after August 1, 1989, Crown copyright expires 125 years after the creation or 50 years after the first publication of the image, whatever is earlier.

There is the template {{PD-BritishGov}} to tag images which are claimed to be in the public domain under these rules.

Companies House - When downloading accounts for a Company listed, they are free of copyright and may be posted on any website. They are public record and statutory. The situation is the same for birth and death certificates. There is no copyright for this type of public record. Please see www.companieshouse.gov.uk.

Works of the United Nations[edit source | visual editor]

In short: parliamentary documentation (official records, such as resolutions) and documents not offered for sale are in the public domain; other UN documents are copyrighted.

Works of the United Nations or one of its bodies are generally copyrighted.[10][17] In the interest of facilitating dissemination, the UN explicitly excludes some categories of its works from this general copyright and places them into the public domain: UN parliamentary documentation as well as public information material published under the UN document symbol and not offered for sale.[17] Such documents are in the public domain. UN parliamentary documentation comprises a broad set of official reports prepared by the UN secretariat and the UN official records.[18] UN official records are

"publications relating to proceedings of organs or conferences of the United Nations. They include verbatim or summary records, documents and check-lists of documents, issued in the form of annexes to those records, including periodic supplements, such as the quarterly ones of the Security Council; and the reports of those organs of subordinate or affiliated bodies, compilations of resolutions, certain reports of the Secretary-General, and other selected publications"[19]

UN resolutions are therefore in the public domain world-wide. Concerning images one should bear in mind that the UN may include in their publications (in print, on the Internet, or otherwise) images from third parties for which the UN has obtained an appropriate license.[17] Such third-party images retain their copyright, even if published in an otherwise public domain UN document as mentioned above. Only UN images appearing in such documents may be assumed to be in the public domain.

Published works[edit source | visual editor]

In short: Copyright notices are not needed anymore.

Under the Berne Convention, copyright is automatic: no registration is needed, and it is not even necessary to display a copyright notice with the work for it to be copyright protected. Prior to the U.S. adopting the Berne Convention (by amending its copyright law through the Berne Convention Implementation Act, effective March 1, 1989), this was not the case in the United States. A work was only copyrighted if published with a copyright notice, which could be as simple as a line saying "© year copyright holder". For U.S. works there are therefore some special cases that place even works published after 1923 in the public domain. However, the necessary conditions are hard to verify.

  • Published in the U.S., without a copyright notice:
    • From 1923 to 1977: in the public domain
    • From 1978 to March 1, 1989: only in the public domain if not registered since.
  • Published in the U.S., with a copyright notice:
    • From 1923 to 1963: only in the public domain if copyright not renewed. This may be hard to determine, and if renewed, the protection runs until 95 years after the initial publication. See the external links below and Circular 22 of the U.S. Copyright Office for information on how to search the registry of the U.S. Copyright Office for copyright registrations and renewals.
    • From 1964 to 1977: not in the public domain for some time to come; copyright expires 95 years after the original publication.
    • From 1978 to March 1, 1989: current standard rules apply (see just below).

Even if a work was published in the U.S. between 1923 and 1977 without a copyright notice, there would need to be proof to that effect. The proof must contain a valid resource justifying the claim in order for the U.S. copyright office to accept it.

For works not published in the U.S. but published first in some other country, see "country-specific rules" above.

Current standard copyright duration in U.S. law[edit source | visual editor]

Works originally published in the U.S. on or after March 1, 1989 (with or without copyright notice or registration) are protected until 70 years after the author's death (70 years p.m.a.); anonymous works, works made for hire, works of unknown authors or where the author's death date is unknown are copyrighted until the shorter of 95 years since the first publication or 120 years since their creation. See 17 USC 302.

Unpublished works[edit source | visual editor]

In short: the 1923 date does not apply to unpublished works.

So far, we have only considered published works. To re-iterate from the Berne Convention, §3.3:

The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication.

As long as a work is not published, it is unpublished. (Also note that by publication, the work must be made accessible to the general public, not only some closed audience. Furthermore, the publication must have had the consent of the author/creator or copyright holder of the work.)

Why is this important at all for WikiQueerians? How could you come across an unpublished work?

Actually, that can happen easily with photographs in archives. Remember that "publication" requires the consent of the rights holder (initially the photographer). Many historic photos may thus actually be unpublished works, unless it can be shown that they were published in olden times. Especially items like private letters or family photographs, or photos found in some album, may well be unpublished. There are special exemptions in copyright law for libraries and archives that allow them to reproduce (even for the general public) such works for non-commercial uses, but that does not constitute "publication" unless done with the authorization of the rights holder.

The University of Wyoming has a three-page primer on the issues involved with unpublished works. Archives often do not hold the copyright to the items in their holdings. An archive only owns the copyright in a work if the copyright itself (not just the physical document embodying the work) has been transferred to the archive in a signed writing. In practice, many archive holdings may be so-called orphaned works, i.e. works where the current copyright holder, if any, is unknown. For such orphaned works, the U.S. Copyright Office seems to push for a change in U.S. Copyright law (see [6] for a brief summary) and a bill (HR 5439) for the Orphan Works Act of 2006 has been introduced in the United States House of Representatives on May 22, 2006, but no law has been passed yet.

Unpublished works are subject to copyright, too. To determine the copyright status of works published by archives that were not published elsewhere before, one will need to consider the rules for unpublished works. Until the U.S. Copyright Act of 1976 became effective on January 1, 1978, U.S. federal law only covered published works and unpublished works that were registered at the Copyright Office. Unpublished unregistered works were covered by state law. This "common law copyright" in most states granted unpublished works a perpetual copyright, valid until an eventual publication of the work.[20][21] Since 1978, U.S. federal law also covers unpublished works (and preempts state law, see 17 USC 301). This gives the following situation in the U.S.:

  • Unpublished works created before 1978:
    • If published before 1978, the work is subject to the rules for works published before 1978. Because the common law copyright on unpublished works was perpetual, there were no unpublished works in the public domain back then, and thus the work was eligible to copyright when published. See published works.
    • If not published before 1978, the work is copyrighted according to the standard U.S. rules.
    • However, if the work was published 1978 to 2002 (inclusive), it is copyrighted at least until the end of 2047. (17 USC 303)
  • Unpublished works created in 1978 or later are subject to the standard U.S. rules.

Artworks[edit source | visual editor]

In short: Artworks are likely to remain unpublished long after their creation date. A date of publication must be ascertained to establish PD status.

Another important class of possible unpublished works are artworks, in particular paintings. Because an artwork is not published by being exhibited, and also neither by being created or sold, one needs to know when reproductions of the artwork (photos, postcards, lithographs, casts of statues, and so on) were first published. That constitutes publication of the artwork, and from then on, the work is subject to all the rules for published works.

For most artworks, a year is usually given, but this is normally the year the work was made, not the year it was published. Figuring out whether and if so when a particular painting was published can be difficult.

In the case that an artwork created before 1978 is not published until 2003 or later, it comes into the public domain 70 years after the author's death. However, if it is first published between 1978 and 2002 (inclusive), it will still be copyrighted in the U.S. until the end of 2047.

Proof of publication is mandatory; uploaders making a "public domain" claim on (a reproduction of) an artwork are required to prove with verifiable details that the work was first published before 1923, or first published after 2003 with an artist who died more than 70 years ago. To show that a work was published, one could look for printed works that contained reproductions of the artwork: art prints, art books, a catalogue raisonné of the artist's works, exhibition catalogs, and so on (although it is not clear when publishing a thumbnail constitutes publication of the original work). Reasonable effort should be made to find the earliest publication. If any is found from before 1923, that's good enough and the work is in the public domain. Remember, though, that "publication" means "lawful publication", which implies the consent of the author of the original.

If only a publication after 1922 can be asserted, the work should not be assumed to be in the public domain without evidence. If it was published before 1978 and had no copyright notice or if it was published before 1964 and the copyright was not renewed it should be in the public domain. Works published abroad rarely complied with US formalities but may still be copyrighted if they were copyrighted in their home country on January 1, 1996 when the URAA restored copyrights in foreign works.

Country-specific rules for unpublished works[edit source | visual editor]

In short: These rules vary greatly.

The Berne Convention leaves it to any signatory country to make its own rules regarding unpublished anonymous works (see §15(4)). Unpublished works by a known author, however, are subject to the same minimum protection (50 years p.m.a) as published works. But this is only a minimum protection. Individual countries can and do make their own rules regarding unpublished works, and often go beyond this minimum. Some cases to illustrate the possible complexities are:

  • In Australia, unpublished literary, dramatic and music works are subject to a perpetual copyright. Furthermore, broadcasting or publicly performing such a work does constitute publication in Australia. (See Infosheet G-23: Duration of Copyright.)
  • In the countries of the European Union, a publisher who publishes a previously unpublished work is granted the publication right on the work for a period of 25 years beginning with the eventual publication. This publication right is basically a copyright minus the moral rights, which are always granted to the author only.
  • In Germany, a work of the fine arts (such as a painting) is considered "published" if the original or a copy was permanently made available to the general public with the consent of the rights holder. ("Permanently" means "with the intent to be accessible for the normal natural lifetime of the work", c.f. the explanation at the Commons.) Hence works of the fine arts can be "published" even if there are no copies.[22]

Such cases may be important when trying to determine whether a non-U.S. work was copyrighted on January 1 1996. See "country-specific rules" above.

Sound recordings[edit source | visual editor]

USA[edit source | visual editor]

In short: The copyright situation in the U.S. depends on state law for records made prior to February 15, 1972. Foreign recordings from 1946 or later are subject to federal copyright (even if made before 1972).

"Sound recording" and "phonorecord" are the terms used in the U.S. federal copyright law for records of music and speech alone, i.e. not together with images: videos, for instance, do not fall in this category. A "phonorecord" is the physical medium (LP, tape, CD, or other) on which a sound recording is fixed. Sound recordings, including digital recordings, are a very complex special case in U.S. copyright law. (Note: although "sound recording" encompasses also non-musical sounds, the topic is discussed here in the context of music recordings without loss of generality.)

A sound recording is different from a musical work. A musical work would be a composition (notes and words). Publicly performing a musical work does not constitute "publication" in the sense of the copyright law. (Presumably, a musical work is published when the score sheets are published.) Making a sound recording of a performance of a musical work requires the permission of the performer. (17 USC 1101) Performing a musical work requires the authorization of the copyright holder of that musical work. (17 USC 106(4)) Distributing phonorecords made from a performance of a musical work also requires the authorization of the copyright holder of the work performed. (17 USC 106(3)). A sound recording is copyrighted separately from the musical work it records. Publicly distributing phonorecords of the sound recording constitutes publication of the sound recording. (17 USC 101)

So there are four different copyrights to be considered for a sound recording:

  • The copyright of the composer
  • The copyright of the texter, if any
  • The copyright of the performer, and
  • The copyright of the producer of the record

In the case of broadcasts, there's also the copyright of the broadcaster on the broadcast to consider. The copyrights of performers/record producers/broadcasters are called the "neighbouring rights" or "related rights" in many countries. All of these have to have expired before the work enters the public domain.

Sound recordings made prior to February 15, 1972 are not covered by U.S. federal copyright law.[7] They are, however, subject to U.S. state common or statutory laws until February 15, 2067. On that date, federal copyright law will preempt state law, i.e., federal law will supersede any state laws in matters concerning the copyright of such sound recordings, and such sound recordings will then enter the public domain in the U.S., as federal law explicitly states that no such recordings "shall be subject to copyright under this title before, on, or after" that date. (17 USC 301(c)) Sound recordings made on or after February 15, 1972 are covered by 17 USC (that is, the federal copyright law), and state law is irrelevant for such later recordings.

On an international level, sound recordings are not covered by the Berne Convention. §2(1) of the Berne Convention only lists musical works, but not recordings of performances of such. Internationally, sound recordings are brought under the auspices of copyright protection by the Rome Convention, the WPPT, and the Geneva Phonograms Convention (in full: "Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms"). The U.S. has never signed the Rome Convention, but has signed and ratified the WPPT (entry in force in the U.S. was on March 20, 2002). Additionally, the U.S. has ratified the Phonograms Convention in 1973, it entered in force on March 10, 1974.

An illustrative case in the U.S. showing some of the complexities of determining the copyright status of even old recordings is Capitol Records v. Naxos of America, decided by the New York Court of Appeals, the highest court of the state of New York, on April 5, 2005. Briefly, that decision about old recordings that were made in the United Kingdom in the 1930s and that had entered the public domain there in the 1980s (50 years after their creation) stated that these were still eligible for copyright protection under the common law of the state of New York, even though they were in the public domain in the UK prior to January 1, 1996 and thus not eligible to copyright restoration under the URAA. The reason given was precisely that records from the 1930s were not covered by federal law and the URAA and its cut-off date did not apply to state law.

Despite sound recordings not being covered by the Berne Convention, and despite the fact that the U.S. in 1996 was a member of neither the Rome Convention nor the WPPT, the URAA does cover sound recordings (17 USC 104A(h)(6), in particular sub-points (C)(iii) and (E)). The usual copyright term for performances/records/broadcasts in many non-U.S. countries is 50 years, counted from the creation (performance, fixation of the record, original broadcast), but if the performance or record is published within these 50 years, the term runs until the end of 50 years after that first publication. (The minimum term defined in the Rome Convention is just 20 years, but many countries go further.) As a result, the URAA generally restored federal copyright on foreign sound recordings made 1946 or later, even though domestic records from 1946–1971 do not benefit from such federal copyright. As far as foreign records are concerned, common law copyright applies only to pre-1946 records. Later records are covered by federal law. And, as the Capitol v. Naxos case showed, absence of federal copyright due to non-restoration does not mean the foreign recording were in the public domain in the U.S.[23]

Note: date2067
That date originally was February 15, 2047 (75 years after 1972), but was extended by 20 years in 1998 by the CTEA.

UK[edit source | visual editor]

In the UK, the copyright of a sound recording expires 50 years after it was made, or if it was first published in this time then 50 years after the date of publication. If the recording is not published during that 50 year period, the copyright will last for 50 years from when it is first played in public or communicated to the public during that period[24].

Movies[edit source | visual editor]

In short: many movies are derivative works of other, pre-existing works. They enter the public domain only when the copyrights on the movie and those on the underlying base work have expired.

Movies are called "motion pictures" in the U.S. Copyright law and belong to the class of "audiovisual works". A movie comprises both the sequence of images and the accompanying sound, if any. (Incidentally, a movie soundtrack is not a "sound recording", 17 USC 101.) They are subject to the same copyright rules as other works, with a few extras. Among the exclusive rights of the copyright holder on a movie are the rights to display publicly the movie or individual images from it. Therefore, even the display of a single frame from a movie is subject to the copyright on the film.

The matter of movies is complicated when the movie itself is a derivative work of some earlier work, for instance a previously published novel. As with all derivative works, the copyright on both the derivative and the underlying base work must have expired before the film is truly in the public domain. If only the rights on the film have expired, publication of the movie is still subject to the consent of the rights holder of the underlying work.

"In Russell v. Price, 612 F.2d 1123,1128 (9th Cir. 1979), the court held that copyright owners of George Bernard Shaw’s play Pygmalion, which was still covered by copyright, could prevent distribution of the film version of the play, even though the film had fallen into the public domain. Similarly, in Filmvideo Releasing Corp. v. Hastings, 668 F.2d 91,92 (2d Cir. 1981), the court held that even though films based on the Hopalong Cassidy stories had fallen into the public domain, a license for television exhibition had to be obtained from the owners of the copyrights in the underlying books, which were still protected by copyright."
Quoted from Besek, footnote 88 on page 31.[23]

A similar case occurred with the film It's a Wonderful Life, which was thought to be in the public domain when its copyright owner failed to renew its copyright in 1974. However, in 1993, the copyright owner determined that it still held the rights to the underlying story.[25]

The situation gets even more confusing if the effects of renewals are taken into account. In particular, what about the status of derivative works created during the base work's initial copyright term, i.e., created before the renewal of the copyright on base work? In 1990, the U.S. Supreme Court ruled in Stewart v. Abend (495 U.S. 207 (1990)) that the continued exhibition and distribution of the Hitchcock movie Rear Window was a copyright infringement on an underlying short story, on which the copyright had been renewed. On the other hand, this applies only to explicit copyright renewals, i.e. all pre-1964 renewals and those made voluntarily after 1964. As per 17 USC 304(a)(4)(A), it does not apply to automatic copyright renewals (since 1964).[26] See also Circular 15: Renewal of Copyright by the U.S. Copyright Office.

Note that in most countries, all this is not an issue at all. As movies are granted the same copyrights with the same terms as the underlying work, the copyright on the underlying work typically expires first. But in the U.S., it is quite possible that the copyright on a movie was not renewed (or the movie was published without copyright notice) while the book on which it is based was properly copyrighted and renewed. In such cases, the movie will be in the public domain only when the book is in the public domain, too.

Animated movies (Cartoons)[edit source | visual editor]

In short: Cartoons (animated movies or comic strips) enter the public domain only when the copyrights on both the movie or strip and the character have expired.

With cartoons, a slightly different issue may arise. Cartoon characters are, themselves, objects of copyright. [27] The most famous example is, most likely, Mickey Mouse. He appeared in 1928 in the animated movies Plane Crazy and Steamboat Willie, and was copyrighted at that time. The copyright was properly renewed and, because of the terms of the Copyright Term Extension Act, its copyright runs for 95 years since the original publication and is currently set to expire at the end of 2023. The Mickey Mouse case is complicated even more because the character has become a trademark of The Walt Disney Company, which means that even "fair use" of the character must be carefully evaluated to avoid trademark infringement.[28]

Similar to the above, an animated movie enters the public domain only when the copyrights on both the movie and the character have expired. Even if there were a Mickey Mouse movie that was not under copyright due to non-renewal or other reasons, that movie would not be in the public domain until the end of 2023, when the copyrights on Plane Crazy, Steamboat Willie and on Mickey Mouse will have expired.

The same applies, of course, to other cartoon characters such as Donald Duck, or the Warner Bros. characters such as Daffy Duck. It also applies to comic strips and comics characters, such as Superman.

Photographs of buildings[edit source | visual editor]

In short: Photographs of civilian buildings from public places are OK in many, but not all, countries.

Buildings are works subject to copyright in the U.S. according to 17 USC 102(a)(8) since the Architectural Works Copyright Protection Act was passed in 1990. It applies to all buildings that were completed (not begun) after December 1, 1990, or where the plans were published after that date. However, the U.S. federal copyright law explicitly exempts photographs of such copyrighted buildings from the copyright of the building in 17 USC 120(a). Anyone may take photographs of buildings from public places. The photographer holds the exclusive copyright to such an image (the architect or owner of the building has no say whatsoever), and may publish the image in any way. In German copyright law, this is called "Panoramafreiheit". Not all countries recognize this right; in France and Belgium, for instance, there is no such freedom of panorama and thus the copyright holder of a building has the right to control the distribution of photographs of the building. A famous example is the Atomium in Brussels, which is copyrighted. The copyright holder in this case is rather litigious about the publication of unauthorized/unlicensed images of the Atomium.[29]

17 USC 120 applies only to architectural works, not to other works of visual art, such as statues. In many other countries, this freedom of panorama extends also to works of the visual arts that are permanently located in public places, but that is not the case in the United States. In many countries, taking photographs of military installations is also illegal (but that prohibition is independent of copyright).

See also the list of panorama freedom legislation around the world at the Commons.

Derived works and restorations of works in the public domain[edit source | visual editor]

In short: These may give rise to new copyright on the new work, but not on the public domain original.
This image has been heavily postprocessed by a Wikipedia editor to restore it from a very badly deteriorated original. Although the technical work was intricate and involved many choices to be made, the creator of the digitally restored image does not think he'd have a copyright on the restored version as it is not the result of original, creative input of his. Both the original (as a work of a U.S. Army soldier in service) and the restored image are in the public domain.

A work that is derived or adapted from a public domain work can itself be protected by copyright only to the extent that the derived work contains elements of originality contributed by the author of the derived work. For example, an abstract painting of a famous photograph would be protectible, as is the distinctive rendition of the Star Spangled Banner performed by Jimi Hendrix. The protection available to these works does not remove the underlying work from the public domain, and the author of the derivation has no cause of action against another person who makes a derivation of the same public domain work.

A work that is merely a "slavish copy", or even a restoration of an original public domain work is not subject to copyright protection. In the case of Hearn v. Meyer, 664 F. Supp 832 (S.D.N.Y. 1987), an illustrator attempted unsuccessfully to claim copyright on his restored versions of original Wizard of Oz illustrations. The illustrations were in the public domain, and the court found that the act of rendering them with bolder and more vibrant colors was not an original contribution sufficient to remove the restored works from the public domain.

The Supreme Court of the United States has explicitly rejected difficulty of labor or expense as a consideration in copyrightability in Feist v. Rural. See also "Non-creative works" above.

Public records[edit source | visual editor]

In short: being in the public record generally has no bearing on the copyright status of an item. Works in the public record may or may not be copyrighted.

Public records are not necessarily in the public domain. Citizens generally have the right to access many items in the government's public records, but this right to access does not include a right to republish or redistribute the works so accessed. In general, copyright is neither lost nor waived when a work becomes part of the public record. Being in the public record and copyright are two orthogonal concepts. Uses of works from the public record must comply with copyright law.[30]

Many items in the U.S. public records are in the public domain as works of the U.S. federal government, such as court decisions by federal courts. Laws, statutes, court opinions, but also other official documents such as "tax maps", are not copyrightable in general in the U.S., even if made by a U.S. state.[31][32] The constitution and statutes of some states, such as California and Florida, generally do not permit public records to be copyrighted.[33][34]

Other kinds of works in the public record (third-party works, works of state or local governments other than laws, statutes, and so on) may be copyrighted, though;[4][5][8] even when they have become part of the public record.

In the United Kingdom, many items in the public records are copyrighted. Official works in the UK are under Crown copyright, and this copyright subsists if the item was published before it was placed in a public record repository. Only for works that were placed in such repositories without having been published before, the Crown waives its copyright.[35]

Copyright restorations[edit source | visual editor]

In short: Works that were already out of copyright may sometimes become copyrighted again!

Common sense would suggest that once the copyright of a particular work has expired in a country and it had thus entered the public domain in that country, it would always remain in the public domain there. Unfortunately, this is not true. It is entirely possible that the copyright laws of a country are changed such that works already out of copyright under the old law become copyrighted again under the new law. Such copyright restorations complicate considerably the matter of deciding whether a work is indeed in the public domain.

There are several examples of such laws restoring copyrights. In the EU, the Directive on harmonising the term of copyright protection, which is binding for all EU members and which became effective on July 1, 1995, makes any work that was copyrighted in at least one EU member on January 1, 1995 copyrighted in all EU members, even if that work's copyright had already expired there (see §10(2) of the directive). Because Spain has had a strict copyright law with a long copyright term of 70 years p.m.a. (or even 80 years for some time) and no rule of the shorter term since 1879, this effectively means that throughout the EU, one has to apply 70 years p.m.a., irrespective of shorter terms that may have existed in historic laws of a particular EU member. For an example of this, see the case of German World War II images below. In the U.S., the Uruguay Round Agreement Act (URAA) mentioned above is another such copyright restoration to the U.S. copyright law. It suddenly makes works copyrighted in the U.S. that previously were in the public domain there. Examples of such copyright restorations also exist in other countries.

Such copyright restorations typically are not ex post facto laws. (Briefly, an ex post facto law is one that retroactively criminalizes or punishes more severely acts done before the law was passed.) The EU directive explicitly says in §10(3) that the directive "shall be without prejudice to any acts of exploitation performed before the...[effective date, i.e. July 1, 1995]. Member States shall adopt the necessary provisions to protect in particular acquired rights of third parties." The URAA, to take the other example discussed above, only makes continued or new unlicensed uses of works whose copyright has been restored a copyright violation. Unlicensed earlier publications of the work (while it was still in the public domain in the U.S.) are not punished "after the fact", i.e. ex post facto. For continued uses, 17 USC 104A requires even that the holder of the restored copyright file a so-called "Notice of Intent to Enforce Restored Copyrights" (in short: NIE) with the U.S. Copyright Office for such continued uses to be considered copyright infringements (see 17 USC 104A(c)). For existing derivative works, 17 USC 104A(d)(3) stipulates that a "reasonable compensation" must be paid for continued use.

Because the URAA became effective only on January 1, 1996 (half a year after the EU directive), any copyrights restored in the EU by the directive also became restored in the U.S.

Countries without copyright treaties with the U.S.[edit source | visual editor]

In short: Use such works under a "public domain" claim only if the copyright in the country of origin has expired.

According to Circular 38a of the U.S. Copyright Office, which gives the state of affairs as of January 2003, Afghanistan, Bhutan, Ethiopia, Iran, Iraq, Nepal, San Marino, and possibly Yemen have no copyright relations whatsoever with the U.S. (Eritrea is not mentioned at all.) Works originating in one of these countries thus are not copyrighted in the United States, irrespective of the local copyright laws of these countries.

On WikiQueer, such works may be used under a "public domain" claim only if their copyright in the country of origin has expired, even though legally the work is in the public domain in the U.S. It avoids future problems with images on WikiQueer if some of these countries should enter a copyright treaty with the U.S., because then suddenly such works will become copyrighted in the U.S. by virtue of the URAA (see above) if they are still copyrighted in their country of origin. Previously uploaded images might then have to be reevaluated. As an example, consider Iraq, which is, despite all the political and military confusion, a WTO observer and is in the process of applying for WTO membership. If and when Iraq does become a WTO member, the URAA suddenly will apply, and Iraqi works that are copyrighted in Iraq at that time will become copyrighted in the U.S.

Bhutan and Nepal have instituted copyright relations with the United States since Circular 38a was published, and North Korea has joined the Berne Convention since then. Afghanistan is in the process of developing a copyright law.[36]

Example cases[edit source | visual editor]

This section is intended to show the effect of the aforementioned rules using a few example images.

German World War II images[edit source | visual editor]

In short: All deemed copyrighted by their authors. In the U.S. and the UK, special exceptions for "seized enemy property" may apply.

The issue of German photographs from World War II has created some confusion. Are they still copyrighted? What about governmental images (such as propaganda)? What about images seized by Nazi Germany?

The copyright situation in Germany concerning such images is in itself confusing. Originally, these images were subject to the 1907 Kunsturhebergesetz (KUG), which provided for a copyright term for photographs of 10 years from publication, or 25 years p.m.a. for unpublished works. In 1940, the KUG was modified to provide a copyright term of 25 years from publication, also applicable to all works that were either still unpublished or still copyright protected (§26). In 1965, the first version of the German Urheberechtsgesetz (UrhG) became effective, again with a copyright term for photographs of 25 years from publication, or 25 years from creation, if the image had not been published in that time (§68). As a result, copyright on photographs from the World War II expired at the end of 1970.[37]

However, with the 1993 EU Directive on harmonising the term of copyright protection, which became effective in Germany on July 1, 1995 and is implemented in German law in §137f, these works suddenly became copyright protected again, until 70 years p.m.a! This was caused by Spain's longer copyright term of 80 years p.m.a. (see section on copyright restoration) with [38] This suddenly superseded Germany's old "25 years"-rule that had governed World War II images. As a result, an image published in 1943 that had been in the public domain in Germany since 1968 became copyrighted again in 1995 with the EU term of 70y p.m.a.[39]

As a result, such images were copyright protected on January 1, 1996[40] (which is the critical date as far as U.S. copyright law is concerned), and therefore, they are copyrighted even in the U.S.

The situation of German World War II photographs found in U.S. governmental archives is controversial. They might fall (in the US only) under 17 U.S.C. 104A(a)(2), which exempts from the URAA copyright restorations works on which the copyright was seized and administered by the U.S. Office of the Alien Property Custodian and on which a restored copyright would be held by a foreign government.[41] It is unclear to what works exactly this provisio would apply,[41] as it can be argued that copyright of hardly any of the WWII works at all were owned by the German government and the Nazi party, but by private people and organizations. Most of these seized copyrights were returned to their foreign owners in 1962 by public law Pub. L. No. 87–846,[41][42] but on motion pictures, the U.S. retained the right "to reproduce, for its own use, or exhibit any divested copyrighted motion picture films."[41] There is also the Price vs. United States (69 F.3d 46) ruling that at least places serious constraints on the practical enforceability of copyrights on such works in the U.S.[43] The United States Holocaust Memorial Museum even tags some such images as "© USHMM". It is also unclear what the U.S. position on "official" images of the Nazi regime is. It should be noted that even the NARA acknowledges the presence of copyrights from the war era on some of its holdings remaining with the institutions and individuals who own the artwork, as oppose to their Nazi plunderers.

Another example are German newsreels, a kind of weekly news shown in movie theatres before the advent of television. Most such Wochenschau films are still copyrighted; the rights are held by Transit Film GmbH in Germany. In the U.S. the copyright on these films from 1914 until the 1940s had expired due to non-compliance with U.S. formalities; the copyright was then restored in 1996 by the URAA on those published after 1922. The Transit Film company then even filed so-called "notices of intent to enforce" (NIEs) with the U.S. Copyright Office and can now even enforce its copyrights against parties who used their films (rightfully!) before the URAA became effective. The same is also true for most UFA films; the rights holder in this case is the Friedrich Wilhelm Murnau Foundation [8]. The song Lili Marleen is another such case; the rights holder is Schott Music International [9].

In the United Kingdom, confiscated German works brought into the country between September 3, 1939 and July 9, 1951 had all German interests, both physical ownership and intellectual property rights such as copyrights or patents, extinguished by the Enemy Property Act of 1953. This expropriation affected only the status of such works within the UK; the international rights on German works were left untouched. [44] This act was repealed in 1976, but the copyrights on such seized works were not restored in the UK.[45][46]

In general, wartime German images cannot be tagged as being in the public domain.

Canadian images: Yousuf Karsh[edit source | visual editor]

In short: Pre-1949 Karsh images are in the public domain only in Canada. Later Karsh images are copyrighted anyway anywhere.

Many photographs by Yousuf Karsh (19082002) can be found at the web site of the Library and Archives Canada (LAC), who state that the copyright was expired and there were no restrictions on the use and reproduction of these images. In fact, many such images have been uploaded to WikiQueer by several users and tagged as "public domain" based on these claims by the LAC. However, this applies only in Canada. The history of each and every of these images must be closely examined to determine whether they just might be in the public domain elsewhere. As it turns out, this is not the case for most of them. Some examples:

  • Image:Albert Einstein by Yousuf Karsh.jpg, from [10]. This image has generated a lot of discussion at the Commons, with an anon claiming it was copyrighted, and, more recently, another (German) user trying to get the image deleted (again) as a copyvio. The pertinent discussion is in chronological order at first deletion discussion, asking the LAC for confirmation, a second deletion discussion, and then at a third discussion. Finally, on November 16, 2005, the image was tagged both as {{PD-Canada}} and {{imagevio}} here on the English WikiQueer.
    The image was definitely published in Karsh, Y.: Portraits of Greatness, University of Toronto Press, Toronto 1959, and Thomas Nelson & Sons, London, 1959, p. 68. (See [11].) Whether that is the first publication of the image is unknown. Following Peter Hirtle's chart, and even assuming the first publishing occurred in Canada, the image was still copyrighted in Canada on January 1, 1996 (its copyright in Canada expired on December 31, 1998) and thus is still copyrighted in the U.S. The simultaneous publishing of the book also in the UK makes it copyrighted there, and by extension through the EU Copyright Directive all over the European Union. Unless the EU would also consider it a Canadian work, in which case the "rule of the shorter term", which the EU does apply to non-EU countries, might make it copyright-free there—but that's a stretch and would depend on whether the Canadian and UK publishing occurred within 30 days (and hence be "simultaneous") or not. CameraPress in London does claim copyright on this image. If this image was even published (or should that be "first published"?) in the U.S., it would definitely be copyrighted in the U.S. While one would have to check whether its copyright was renewed to be absolutely sure, it is a fairly safe bet that the Karsh Estate did do so.
  • Commons:Image:Winston Churchill 1941 photo by Yousuf Karsh.jpg (on the Commons), from [12]. It turns out that this was first published on the cover of Life, a U.S. magazine, in 1941 or 1942. (See e.g. [13].) There, too, a check whether the copyright was renewed would be needed, but it would be a surprise if it was not. That image is most probably also still copyrighted. However, since that image is so important in Karsh's career and is discussed in detail at Yousuf Karsh, it has been salvaged by re-uploading it as Image:Winston Churchill 1941 photo by Yousuf Karsh.jpg to the English WikiQueer and making a fair use claim for its use in the Karsh article.
  • Image:VerePonsonby.jpg from [14]. According to [15], this was (first) published in newspapers across Canada and Britain. Its Canadian copyright expired on December 31, 1983, and it is thus likely to be in the public domain in the U.S., too. (Not copyrighted anymore on January 1, 1996.) However, if there is a UK copyright on it, or if it was (simultaneously, first?) published in the U.S., it might nevertheless be copyrighted in the U.S.
    Note that the book Karsh, Y.: Karsh Canadians, Univ. of Toronto Press, Toronto 1978, ISBN 0-8020-2317-7, is copyrighted in the U.S. (copyright registered December 6, 1978; registration number TX-385-199).
  • Image:PaulRobesonByYousufKarsh.jpg, from [16]. Image from 1938, published in Karsh, Y.: Faces of Destiny, Ziff-Davies Publishing, New York 1946, and George G. Harrap, London, 1946. Original copyright registered with the U.S. Copyright Office on December 16, 1946 (Registration Number A9354), renewed December 3, 1974 (Registration Number R592433). See [17]. Therefore, copyright on this work (and all the images included therein, assuming that was their original publication) expires in the U.S. only on December 31, 2041.

The whole issue of Karsh images is complicated even more because Yousuf Karsh for years maintained two offices: one in Ottawa, Canada, and another one in New York City.

See also[edit source | visual editor]

Footnotes[edit source | visual editor]

  1. 1.0 1.1 Strictly speaking, only U.S. works published before January 1 1923 and foreign works published in compliance with U.S. formalities (registration, © notice) before that date are in the public domain in the U.S. For non-U.S. works published without compliance with U.S. formalities (i.e., without © notice), the situation is a bit more complicated:
    • If published before 1909, such works are in the public domain in the U.S.
    • If published between 1909 and 1922 (inclusive) in a language other than English, the Ninth Circuit has considered them as "unpublished works" according to Peter Hirtle and following the decision of the United States Court of Appeals for the Ninth Circuit in the case Twin Books v. Disney in 1996. The case was about the book Bambi, A Life in the Woods; the decision is heavily criticized in Nimmer on Copyright (ISBN 0-820-51465-9), the standard commentary on U.S. copyright law.
    • If published between 1909 and 1922 (inclusive) in English, they are highly likely to be PD, given that the aforementioned controversial case was only about a work published in a foreign language.
    • Additionally, any work first published outside of the United States without copyright notice prior to 1989, when the U.S. joined the Berne Convention, is in the public domain in the U.S. if it was in the public domain in its country of origin on the URAA date (in most cases January 1, 1996). See the section on country-specific rules for more information.
    Also, the 1923 cut-off date applies only to the U.S. This means foreign works first published before 1923 are in the public domain in the U.S., but may still be copyrighted outside the U.S.
  2. U.S. Government: Copyright and Other Rights Pertaining to U.S. Government Works, retrieved 2010-10-14.
  3. "Frequently Asked Questions About Copyright, "3.1.9 Are Government websites provided copyright protection?"". CENDI. October 8, 2008. Retrieved December 29, 2010. 
  4. 4.0 4.1 Publications of U.S. state, district, county, or municipal agencies are eligible to coypright. Only works of federal agencies are exempt from copyright; see Radcliffe & Brinson: Copyright Law, or the CENDI Copyright FAQ list, 3.1.3.
  5. 5.0 5.1 CENDI Copyright FAQ list, section 4.0, and 17 USC 105.
  6. 6.0 6.1 Gorman, R. A.: Copyright Law, 2nd ed., U.S. Federal Judicial Center, June 19, 2006; chapter 2: The Subject Matter of Copyright, section "Government works", pp. 52ff. URL last accessed 2008-08-13.
  7. See "Intellectual Property Rights" in the U.S. Mint website's privacy policy [1].
  8. 8.0 8.1 The Compendium of Copyright Office Practices (Compendium II) section 206.01 states, "Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments." and 206.03 clarifies "Works (other than edicts of government) prepared by officers or employees of any government (except the U.S. Government) including State, local, or foreign governments, are subject to registration if they are otherwise copyrightable."
  9. See 206.02(b), 206.02(c), and 206.02(d) of the Compendium of Copyright Office Practices of the U.S. Copyright Office
  10. 10.0 10.1 See section 206.03 of the Compendium of Copyright Office Practices of the U.S. Copyright Office, and also 17 USC 104(b)(5).
  11. U.S. Copyright Office: Compendium of Office Practices II, section 202.02(b) and section 503.03(a). URL last accessed July 3, 2007.
  12. Copyright, Designs and Patents Act 1988 (c. 48), section 54
  13. OAMI-ONLINE - The Community Design in Practice
  14. OAMI-ONLINE - The Community Design in Practice
  15. WIPO Copyright Treaty, article 2: Scope of Copyright Protection. URL last accessed June 21, 2006.
  16. U.S. Copyright Office: Circular 38b: Highlights of Copyright Amendments Contained in the URAA, URL last accessed 2007-01-30.
  17. 17.0 17.1 17.2 United Nations, administrative instruction ST/AI/2001/5: United Nations Internet publishing, section 5: Copyright policy and disclaimers, August 22, 2001. Also see §3.29 ("Use of photos") of that document. URL last accessed 2006-11-08.
  18. United Nations: UN OIOS Glossary, entry on Parliamentary documentation. URL last accessed 2006-11-08.
  19. United Nations, administrative instruction ST/AI/189/Add.9/Rev.2. URL last accessed 2006-11-07. This temporary administrative instruction was prolonged indefinitely by ST/AI/189/Add.9/Rev.2/Add.2 in 1992.
  20. Oakley, R. L.: Copyright and Preservation – Is the Work Protected?, CLIR, 1990. (A good explanation, but note that some dates mentioned there have been superseded by the copyright term extension of the CTEA in 1998.) URL last accessed 2007-02-16.
  21. N.N.: Historical and Revision Notes on 17 USC 301. Legal Information Institute, Cornell University. URL last accessed 2007-02-16.
  22. German Urherberrechtsgesetz, article 6(2). URL last accessed 2007-08-13.
  23. 23.0 23.1 Besek, June M.: Copyright Issues Relevant to Digital Preservation and Dissemination of Pre-1972 Commercial Sound Recordings by Libraries and Archives, CLIR pub. #135, December 2005, ISBN 1-932326-23-5. URL last accessed 2007-08-23. See in particular p. 18f on restoration of foreign sound recordings, and footnote 88 on p. 31 for evidence that all four (or five) different copyrights need to have expired.
  24. http://www.ipo.gov.uk/types/copy/c-duration/c-soundrecordings.htm
  25. Ochoa, T.: Re: Films in Public Domain, E-Mail to listserv, February 27, 2002; citing Steven Mitchell Schiffman, Movies in the Public Domain: A Threatened Species 20 Columbia-VLA J. L. Arts 663, 671-72 (1996) and Debra L. Quentel, "Bad Artists Copy. Good Artists Steal": The ugly Conflict between Copyright Law and Appropriationism, 4 UCLA Ent. L. Rev. 39, 47 n.46 (1996). URL last accessed 2007-08-28.
  26. Gorman, R. A.: Copyright Law, 2nd ed., U.S. Federal Judicial Center, June 19, 2006. Sub-section "Derivative works prepared during the initial term", pp. 60–62. URL last accessed 2007-08-27.
  27. Gorman, R. A.: Copyright Law, 2nd ed., U.S. Federal Judicial Center, June 19, 2006. Section "Pictorial and literary characters", p. 50. URL last accessed 2007-08-27.
  28. Moffat, V.: Mutant Copyrights and Backdoor Patents: The Problem of Overlapping Intellectual Property Protection, Berkeley Technology Law Journal, Vol. 19, 2004, pp. 1474–1532. (Alternate link to full article)
  29. See e.g. this take-down notice.
  30. Davis, Karen: Guidance Regarding the Use of Copyrighted Material Under the Access to Public Records Act, Public Access Counselor, U.S. State of Indiana, October 31, 2005. URL last accessed 2006-12-22.
  31. Gorman, R.A.: Copyright law, 2nd ed., U.S. Federal Judicial Center, June 19, 2006, section "Government works" on pp. 52–54. URL last accessed 2007-08-31.
  32. Perritt, H. H.: Sources of rights to access public information, section B.1, article presented at "Access Versus Privacy: Approaches to State Information Policy", a conference held on March 17, 1995 at the Marshall-Wythe School of Law, College of William & Mary. URL last accessed 2007-08-31.
  33. Microdecisions, Inc. v. Skinner, Case no. 2D03-3346, Florida Court of Appeal, Second District (Dec. 1, 2004), construing Florida Statutes § 119.07. See Microdecisions, Inc. v. Skinner
  34. Florida senate committee report On public records and copyright, September 2005.
  35. UK Office of Public Sector Information: Copyright in Public Records, November 30, 2006. URL last accessed 2006-12-22.
  36. Wick, P.; Klosek, J.: A clean slate: Drafting Afghanistan's first copyright laws, Goodwin Procter, Copyright World, November 2003. URL last accessed 2007-02-21.
  37. Rechtsanwalt D. Seiler: Fotografien und urheberrechtliche Schutzfristen. URL last accessed 2008-09-16. The distinction in German copyright law between photographic works (Lichtbildwerk, copyrighted for 70 years p.m.a.), and simple photographs (Lichtbild, copyrighted for 50 years from creation or publication) was only introduced in 1985: Gesetz zur Änderung von Vorschriften auf dem Gebiet des Urheberrechts vom 24. Juni 1985, BGBl. I Nr. 33 vom 27.6.1985, S. 1137. Directive 93/98/EEC|EU directive 93/98/EEC had the effect of making most photos qualify as photographic works. See Seiler on this.
  38. See the 1879 copyright law of Spain: the 80-year term remained valid even in the 1987 copyright law (transitional provisions, article 1(2)) and in the 1996 copyright law, which implemented that EU directive (transitional provisions, fourth article).
  39. Oberlandesgericht Hamburg, decision 5 U 159/03, March 3, 2004: The copyright on a German photograph of a surfacing submarine, taken in 1941 and published in 1943, had expired in Germany at the end of 1968. However, the image was re-copyrighted by §137f implementing the Directive 93/98/EEC|EU directive 93/98/EEC because it was still copyrighted in Spain on July 1, 1995.
  40. See the section explaining the URAA above.
  41. 41.0 41.1 41.2 41.3 United States: Federal Register Vol. 63, No. 74 / Friday, April 17, 1998, pp. 19289–19290. URL last accessed 2007-04-16.
  42. Patry, W.: Copyright Law and Practice, Chapter 1, part 7: "Trading With the Enemy Act". Bna Books, ISBN 0871798549. URL last accessed 2007-04-16.
  43. David Culbert (1997). "The Heinrich Hoffmann Photo Archive: Price vs United States (United States Court of Appeals, Fifth Circuit, 20 November, 1995)". Historical Journal of Film, Radio and Television 17 (2).  See also Civil Action 98-857 before the U.S. District Court for the District of Columbia, Judge Henry H. Kennedy. Ultimately, the U.S. Supreme Court denied the Hoffmann heirs review of the lower courts' decision in their disfavor. (See the opinion of the U.S. Solicitor General and the Journal of the U.S. Supreme Court, October 2004, p. 298.) URLs last accessed 2007-04-16.
  44. Imperial War Museum: Standard Terms and Conditions Governing the Release and Use of Film and Visual Material. URL last accessed 2007-05-30.
  45. Best, H.: The spoils of war: German Films and UK Enemy Property Act 1953, Bird & Bird, January 7, 2002. URL last accessed 2007-05-30.
  46. Best, H: Booty in the eye of the beholder, Bird & Bird, February 10, 2005. URL last accessed 2007-05-30.

External links[edit source | visual editor]

General:

Copyright renewals in the U.S.: