--- Ray Saintonge saintonge@telus.net wrote:
Birgitte SB wrote:
The WMF licensing policy puts the burden on being
able
to declare a work to be "free content" or else use
an
EDP. Unless something is *really* old you have to know who held the copyright in order to show that their rights have expired. Not being able to determine the copyright holder, or even being able
to
prove the copyright holder is 100% unknown and
always
was, does not release the work into the Public
Domain.
Orphaned works are still copyrighted in the US. There is no provision for a work to be declared
"free
content" unless it a) released under a free
license or
b) in the Public Domain. *Many* works do not fit either of those criteria and still have 0% chance
of
anyone being awarded damages for copyright infringement.
But we are limited by the WMF licensing
resolustion,
which has a very high standard for "free content"
and
what is allowed to be hosted as such on WMF
servers. I
don't particularly like the licensing resolution
for a
number of reasons, but we can't just ignore that
it
exists and decide use a different standard that is more appealing.
When talking about these things it's always important to distinguish between actual copyright law and WMF policy. Mixing them together in a blender is not an effective way to achieve clarity.
I agree with this principle and I believe I have been careful not to do this. WMF policy allows as "free content" works which a) have been specifically released under a free license and b) works in the Public Domain. Examining the first does not require going too deeply into copyright law. However in the latter situation we must examine actual copyright law to determine whether a work is in the Public Domain. (BTW The fact that the WMF resolution treated PD as definitive, homogeneous body of work rather than an internationally fractured determination does not lend any clarity here)
It is clear that WMF policy is far stricter than the law. Of course there is no mechanism for orphaned works to be released under a free licence, so ther is no argument about that aspect. The real argument is around the definition of when a work goes into the public domain. There is a difference between an owner that is not determinable and one that does not exist. This is the difference between a true 0% chance and a 0.0000000001 % chance.
An easy example of a true 0% chance could be a corporate publication from a company that has ceased to exist through bankruptcy. Its corparate publications in the absence of a transfer in the bankruptcy action have become nullities, and that puts them in the public domain.
How does this put a work in the public domain? As far I am aware a work enters the public domain if a) a jurisdiction never recognizes copyright on the work at all, b) the copyrights originally recognized by a jurisdiction expire, or c) the copyright owner intentionally releases her rights to the work. I have never heard of something "defaulting" to the Public Domain because of the dissolution of the copyright owner. If things "defaulted" the Public Domain we would not have the existing situation with Orphan Works. If I am wrong about this, please show me some statues or case law about a work being put in the Public Domain in the manner you have described above.
We do ourselves a disservice when we take the doctrinnaire position that there is no provision that would allow us to declare a work free. There are limitations on prosecutions, and there remains the common law doctrine of "laches", perhaps other avenues as well. Our mission is not simply a matter of accepting freeness as a concept in stagnation. It also involves the verb "free", and making things free. It requires exercising a little imagination to find ways of doing that.
Perhaps the WMF does itself a disservice in this way, but I am simply trying to abide by the resolution that was passed. I am not against your aims Ec, but considering works with limitations on prosecution (i.e. unregistered works) is really overreaching the current policy.
Please let us try and differentiate between where we disagree in interpreting the current WMF policy and areas we agree are outside of the current "stricter than law" policy but we would like WMF to reconsider. I have discussed this with you different occasions and understand some of your thoughts, yet even I am uncertain about whether some are your points are meant in general or in regards to the current WMF policy.
Birgitte SB
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