On Thu, Feb 23, 2012 at 3:52 AM, John Vandenberg jayvdb@gmail.com wrote:
On English Wikisource, we consider these to be public domain. We tag them that as public domain and explain why.
https://en.wikisource.org/wiki/Template:PD-Ethiopia https://en.wikisource.org/wiki/Template:PD-Iran https://en.wikisource.org/wiki/Template:PD-Iraq
I didn't know Wikisource did this. This would seem to imply that Wikisource is willing to import virtually any text at all from these countries, which seems like an ethically bad idea to me, for much the same reason that importing all possible images on Wikipedia seems like a bad idea.
However, setting aside the ethical issues for the moment, it is important to note that these templates are frankly very incomplete, which makes their conclusions potentially erroneous.
Under US copyright law (and more generally the Berne Convention), establishing that a work is in the public domain due to a lack of treaty status requires meeting several requirements, and those templates only address the most obvious one. These requirements are:
1) The work was first published in a country that has no copyright relations with the US. 2) None of the authors of the work are citizens of any country that does have copyright relations with the US. 3) Within thirty days of publication in the non-treaty state, the work was never also published in any other state that does have copyright relations with the US.
Currently, those templates only mention the first point. However, the Berne Convention extends copyright protection to all citizens of the treaty states regardless of where they publish (point #2), so it is also important to consider the nationality of the authors involved.
The third point is actually the most difficult in practice, since it requires proving a negative. The Berne Convention and US Copyright Law consider any publications occurring during the first thirty days to be effectively simultaneous, and authors will enjoy full protection under the treaty if their work was published in any country where the copyright treaty would apply. It is often very difficult to determine with certainty that a work was never published internationally during that first 30 day window. This is especially true as technology has made it easier for works to be widely distributed across international borders. In Kernal Records OY v. Moseley (US District Court, 2011), the court held that putting a sound file online for download amounted to simultaneous publication in all countries where the internet was available. Following that logic, no work first published on the internet could be considered as public domain due to non-treaty status. However, the US case law also contains a largely contradictory ruling in Moberg v. Leygues (US District Court, 2009), involving images appearing on a German website. So the issue of determining national origin in the internet age would seem to be somewhat unsettled in the US.
However, the one thing that is clear though is that any claim to public domain status due to the lack of copyright relations needs to address all three factors raised above. John, can you raise these concerns at Wikisource?
-Robert Rohde