Friday, February 05, 2010

Copyright limbo

Today's example of Sigmund Freud isn't so much an example as a contemplation of copyright law.  The portrait was taken in 1914, which makes it public domain under United States law.  If the portrait had been taken ten years later then Wikimedia Commons wouldn't be able to host it.  Although all of Freud's writings entered public domain in the European Union at the start of 2010, United States law doesn't recognize all of his work as public domain.  It's a really weird quirk that causes big obstacles.

Copyright terms in the European Union run for the life of the author plus seventy years.  Freud died in 1939.  So on January 1 2010 all of his copyrights expired in Austria and the United Kingdom.  Most countries reflect that lapse in their own law by a provision known as the rule of the shorter term, but the United States doesn't follow the rule of the shorter term.

So I could republish all of Freud's writings from Vienna where they're public domain, but not from the US where they remain under copyright.  The Wikimedia Foundation servers are located in the United States.  So because the servers fall under United States law, Austrian Wikimedians can't bring Freud's later writings onto the German language Wikisource (which hosts free licensed texts).

United States copyright law is complex, but one rule that holds true nearly all of the time in the States is that material which was published before 1923 is public domain (no matter when the author died).  So this 1914 portrait is fine to reuse but a 1924 portrait wouldn't necessarily be free.  That copyright gap is going to widen: Anne Frank's autobiography will lapse into public domain in The Netherlands in 2015 but will remain under copyright in the United States.  Broadly speaking, United States copyrights are in a holding pattern until 2020.  So 1923 works won't lapse public domain for at least another ten years.

For the last thirty years U.S. copyright law has been getting a series of extensions.  Those extensions have something to do with lobbying by the Walt Disney Corporation: Mickey Mouse was created in 1925.  It doesn't actually protect the value of Mickey Mouse to keep Sigmund Freud under copyright in the United States, though.  The United States could adopt the rule of the shorter term without harming Disney's profits.

Other culturally valuable material is getting tied up because of this legal hitch: William Butler Yeats's works entered public domain in his native country of Ireland this year.  I can republish this 1911 portrait of him freely, but I can't republish his late poems.

And one thing worth wondering is this: with a normal copyrighted work it could be possible to contact the copyright owner and request a release under copyleft license.  How does one seek access to material that remains under a copyright which no one seems to own?

15 comments:

Anna said...

Came across your blog via Babe Ruth; a great photo is that!

Nice blog too. I find the entire copy write issue quite baffling. We lived in Britain for eleven years and found laws there so different, as you so well stated.

I remember reading about Jenny Lind when I was younger, in an old Guinness Book of World Records, that she'd set some mark of which now I don't remember. I suppose I could go look it up, but...

Great blog and WONDERFUL work!! Thank you for being a caretaker of history.

Lise Broer said...

Thank you very much for the kind comments. It's wonderful to see people engaged and excited about these subjects. I'll do my best to keep more coming.

Cheers!

Rklawton said...

"How do I find out who owns the copyright of a work?"

http://www.caret.cam.ac.uk/copyright/Page48.html

Lise Broer said...

Right. This query is about works that have lapsed into public domain and no longer owned by anybody in their home country, but still copyrighted under U.S. law.

Would the estate of Anne Frank still be meaningful in 2015? How would one find a responsible person with the power to relicense her diary under copyleft, at the point where no such rights exist anymore under Dutch law?

Rklawton said...

Just because a work is PD in one country doesn't mean a copyright holder isn't interested in protecting the copyright in countries where the copyright remains in force.

True, it will be impossible to locate copyright holders for certain works for any number of reasons.

Speaking of which, Google has an interesting take on this subject as it scans all the world's books.

However, Google's philosophy isn't compatible with the Wikimedia Foundation's philosophy.

Lise Broer said...

I'm more interested in practical solutions.

Has anyone ever successfully approached the estate of a lapsed European copyright and obtained copyleft license for U.S. hosting purposes?

Are there Wikimedians who would be willing to approach the heirs of Yeats or Ford Madox Ford to try such a request? It may need face-to-face meetings to pursue that seriously.

These next two points are more remote but they do come to mind:

The Obama administration is friendly to free culture. Has anyone approached them to discuss the rule of the shorter term?

Canada has much friendlier copyright laws than the United States. Currently WMF has no plans to move its servers there (I've asked), but would it be a good idea to raise a discussion?

Tgr said...

The usual (though IMO not very convincing) argument against the shorter term is that it would create an incentive for countries with shorter copyright protection than the US to raise theirs.

Another pain in the ass is the very long us protection for unpublished works of unknown artists (120 years from creation date, as opposed to 70 in the EU). This for example means that family photographs for for people who lived in Europe in the first half of the 20. century are usually PD there, but not in the US. For a notable but not very famous person, such images are often the only ones that exist.

Lise Broer said...

Very good point. The biggest loss to the public stems from the minor authors whose work has generated no income for many decades.

George said...

And of course, in Canada and New Zealand his work has been PD for 20 years.

As is the case in Australia, where all work before 1955 is PD, but post 2005 the 70 year rule applies.

The upside of this is that you can buy re-issues of early blues and jazz artists very cheaply in New Zealand.

Perfidious Albion said...

"Canada has much friendlier copyright laws than the United States. Currently WMF has no plans to move its servers there (I've asked), but would it be a good idea to raise a discussion?"

There's always Wikilivres (the Canadian equivalent of Wikisource).

A Europe-based equivalent (and other continents) would be useful too but I suspect it would be too expensive to set up and run.

Perfidious Albion said...

"Canada has much friendlier copyright laws than the United States. Currently WMF has no plans to move its servers there (I've asked), but would it be a good idea to raise a discussion?"

There's always Wikilivres (the non-Wikimedia Canadian equivalent of Wikisource).

A Europe-based equivalent would be useful too (as well as other continents), taking into account different laws. However, I suspect it would cost too much to set up and run.

Raystorm said...

So if the servers fall under United States law, why don't all wikis use Fair Use?

I've heard many users comment on the reasons about why not, but it'd be interesting to know if any lawyer (maybe one employed by the Foundation?) has seriously explored the issue if it would be okay to use non-free content like the English Wikipedia does in other wikis.

I'm thinking for example about the Spanish Wikipedia, where only images from Commons are allowed. Several other Wikipedias forbid using non-free content too. But if the servers are in the United States, why not follow the English Wikipedia rationale?

I'm no lawyer. :) But I wonder if any lawyer has given any opinion on this. Cheers!

Lise Broer said...

Each wiki decides upon its own standards, which may be stricter than US law.

Raystorm said...

So it's about local wiki policies, not country laws? They could technically use Fair Use?

Lise Broer said...

If they chose to, yes.