On Sat, Mar 22, 2008 at 7:28 PM, Durova nadezhda.durova@gmail.com wrote:
The United States Holocoaust Memorial Museum has a symbiotic relationship with Wikipedia also, but in a way that raises no objections. The image below is featured in different versions (restored and unrestored) on both Commons and en:Wikipedia:
http://en.wikipedia.org/wiki/Image:Stroop_Report_-_Warsaw_Ghetto_Uprising_06...
Durova, I'm very pleased to see this kind of image being featured, but I'm wondering what kind of licence you used. Several of us have had lots of problems with Holocaust images, forced to claim fair use because of the age and lack of a release, but with fair use sometimes contested too, because we often don't know who the copyright holder is. Sarah ****** There was a long discussion at Commons about Stroop report images. They were taken in Poland by an anonymous photographer and first published in Poland, so the conclusion was that German law is inapplicable, and under Polish law these are public domain.
-Durova
of course I trust the commons people that they can work out this kind of stuff, but I assume you considered that if this was during WW2, Polish laws might not apply? (I am not even by far a legal specialist on international laws, and to determine which law is when applicable, but it makes me wonder though)
BR, Lodewijk
2008/3/23, Durova nadezhda.durova@gmail.com:
On Sat, Mar 22, 2008 at 7:28 PM, Durova nadezhda.durova@gmail.com wrote:
The United States Holocoaust Memorial Museum has a symbiotic
relationship
with Wikipedia also, but in a way that raises no objections. The image below is featured in different versions (restored and unrestored) on
both
Commons and en:Wikipedia:
http://en.wikipedia.org/wiki/Image:Stroop_Report_-_Warsaw_Ghetto_Uprising_06...
Durova, I'm very pleased to see this kind of image being featured, but I'm wondering what kind of licence you used. Several of us have had lots of problems with Holocaust images, forced to claim fair use because of the age and lack of a release, but with fair use sometimes contested too, because we often don't know who the copyright holder is. Sarah
There was a long discussion at Commons about Stroop report images. They were taken in Poland by an anonymous photographer and first published in Poland, so the conclusion was that German law is inapplicable, and under Polish law these are public domain.
-Durova _______________________________________________ foundation-l mailing list foundation-l@lists.wikimedia.org Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
This came up in the discussion, but since the German occupation during WW2 is considered illegitimate under international law, Polish law applies, even in areas where the de jure Polish government didn't have de facto control. The discussion is here: http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Category:Stroop_...
-Mark
effe iets anders wrote:
of course I trust the commons people that they can work out this kind of stuff, but I assume you considered that if this was during WW2, Polish laws might not apply? (I am not even by far a legal specialist on international laws, and to determine which law is when applicable, but it makes me wonder though)
BR, Lodewijk
2008/3/23, Durova nadezhda.durova@gmail.com:
On Sat, Mar 22, 2008 at 7:28 PM, Durova nadezhda.durova@gmail.com wrote:
The United States Holocoaust Memorial Museum has a symbiotic
relationship
with Wikipedia also, but in a way that raises no objections. The image below is featured in different versions (restored and unrestored) on
both
Commons and en:Wikipedia:
http://en.wikipedia.org/wiki/Image:Stroop_Report_-_Warsaw_Ghetto_Uprising_06...
Durova, I'm very pleased to see this kind of image being featured, but I'm wondering what kind of licence you used. Several of us have had lots of problems with Holocaust images, forced to claim fair use because of the age and lack of a release, but with fair use sometimes contested too, because we often don't know who the copyright holder is. Sarah
There was a long discussion at Commons about Stroop report images. They were taken in Poland by an anonymous photographer and first published in Poland, so the conclusion was that German law is inapplicable, and under Polish law these are public domain.
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On Sun, Mar 23, 2008 at 5:42 PM, Delirium delirium@hackish.org wrote:
This came up in the discussion, but since the German occupation during WW2 is considered illegitimate under international law, Polish law applies, even in areas where the de jure Polish government didn't have de facto control. The discussion is here: http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Category:Stroop_...
Does this mean that the images taken inside Auschwitz can be marked PD, either as PD in Poland or PD in the U.S. because seized enemy property? We've been told by several Wikipedians who specialize in images that we could only claim fair use for them, which has meant the images have been challenged quite a few times by people who say we can't claim fair use unless we know the name of the copyright holder. We've had several attempts to delete some of them on that basis.
Sarah
It seems to me that common sense should be used in this as in all other matters. A 60-year-old photograph that has never been the subject of any claim of ownership and which has been repeatly used in multiple media around the world without challenge is freely usable in any practical sense.
Newyorkbrad
On 3/23/08, SlimVirgin slimvirgin@gmail.com wrote:
On Sun, Mar 23, 2008 at 5:42 PM, Delirium delirium@hackish.org wrote:
This came up in the discussion, but since the German occupation during WW2 is considered illegitimate under international law, Polish law applies, even in areas where the de jure Polish government didn't have de facto control. The discussion is here:
http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Category:Stroop_...
Does this mean that the images taken inside Auschwitz can be marked PD, either as PD in Poland or PD in the U.S. because seized enemy property? We've been told by several Wikipedians who specialize in images that we could only claim fair use for them, which has meant the images have been challenged quite a few times by people who say we can't claim fair use unless we know the name of the copyright holder. We've had several attempts to delete some of them on that basis.
Sarah
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On 23/03/2008, Newyorkbrad (Wikipedia) newyorkbrad@gmail.com wrote:
It seems to me that common sense should be used in this as in all other matters. A 60-year-old photograph that has never been the subject of any claim of ownership and which has been repeatly used in multiple media around the world without challenge is freely usable in any practical sense.
Newyorkbrad
We however stick with the legal sense. Reason being that "practical sense" has an annoying tenancy to turn out not to be and is way too subjective.
On 23/03/2008, Newyorkbrad (Wikipedia) newyorkbrad@gmail.com wrote:
It seems to me that common sense should be used in this as in all other matters. A 60-year-old photograph that has never been the subject of any claim of ownership and which has been repeatly used in multiple media around the world without challenge is freely usable in any practical sense.
That would only work if the law made any sense, common or otherwise.
On Sun, Mar 23, 2008 at 6:26 PM, Newyorkbrad (Wikipedia) newyorkbrad@gmail.com wrote:
It seems to me that common sense should be used in this as in all other matters. A 60-year-old photograph that has never been the subject of any claim of ownership and which has been repeatly used in multiple media around the world without challenge is freely usable in any practical sense.
Newyorkbrad
You would think so, but people have challenged them nevertheless. An editor who's knowledgeable about images told me it was because the Geman photo agency Ullstein Bild, http://www.topfoto.co.uk/aboutus/suppliers/ullstein/ullstein.html who claim ownership of some WWII images, had made threatening noises to the Foundation. Apparently that made people nervous even about images the agency had no claim over.
The situation hasn't been helped by the United States Holocaust Memorial Museum routinely claiming copyright of images on their website, even when there's no reason to suppose they own the copyright, which meant editors who wanted to challenge the images could point to that copyright claim. We'd write to the museum to get clarification, but usually wouldn't get a response. It's been an ongoing problem for years.
"Freely usable in any practical sense" was not the standard adopted by WMF in the licensing resolution. They adopted a very stringent standard for what the can be considered free content and hosted on the WMF servers outside of EDPs. Perhaps the board should revisit this resolution. But I don't think following a different standard in practice then has been outlined by the WMF is a good idea.
BirgitteSB
(Wikipedia)" newyorkbrad@gmail.com wrote:
It seems to me that common sense should be used in this as in all other matters. A 60-year-old photograph that has never been the subject of any claim of ownership and which has been repeatly used in multiple media around the world without challenge is freely usable in any practical sense.
Newyorkbrad
On 3/23/08, SlimVirgin slimvirgin@gmail.com wrote:
On Sun, Mar 23, 2008 at 5:42 PM, Delirium
delirium@hackish.org wrote:
This came up in the discussion, but since the
German occupation during
WW2 is considered illegitimate under
international law, Polish law
applies, even in areas where the de jure Polish
government didn't have
de facto control. The discussion is here:
http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Category:Stroop_...
Does this mean that the images taken inside
Auschwitz can be marked
PD, either as PD in Poland or PD in the U.S.
because seized enemy
property? We've been told by several Wikipedians
who specialize in
images that we could only claim fair use for them,
which has meant the
images have been challenged quite a few times by
people who say we
can't claim fair use unless we know the name of
the copyright holder.
We've had several attempts to delete some of them
on that basis.
Sarah
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Would the copyright holders of said images ever be able to reasonably make a claim to copyright? How could they prove that? They can't, probably, assuming they are still alive.
Mark
On 23/03/2008, Birgitte SB birgitte_sb@yahoo.com wrote:
"Freely usable in any practical sense" was not the standard adopted by WMF in the licensing resolution. They adopted a very stringent standard for what the can be considered free content and hosted on the WMF servers outside of EDPs. Perhaps the board should revisit this resolution. But I don't think following a different standard in practice then has been outlined by the WMF is a good idea.
BirgitteSB
(Wikipedia)" newyorkbrad@gmail.com wrote:
It seems to me that common sense should be used in this as in all other matters. A 60-year-old photograph that has never been the subject of any claim of ownership and which has been repeatly used in multiple media around the world without challenge is freely usable in any practical sense.
Newyorkbrad
On 3/23/08, SlimVirgin slimvirgin@gmail.com wrote:
On Sun, Mar 23, 2008 at 5:42 PM, Delirium
delirium@hackish.org wrote:
This came up in the discussion, but since the
German occupation during
WW2 is considered illegitimate under
international law, Polish law
applies, even in areas where the de jure Polish
government didn't have
de facto control. The discussion is here:
http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Category:Stroop_...
Does this mean that the images taken inside
Auschwitz can be marked
PD, either as PD in Poland or PD in the U.S.
because seized enemy
property? We've been told by several Wikipedians
who specialize in
images that we could only claim fair use for them,
which has meant the
images have been challenged quite a few times by
people who say we
can't claim fair use unless we know the name of
the copyright holder.
We've had several attempts to delete some of them
on that basis.
Sarah
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On 24/03/2008, Mark Williamson node.ue@gmail.com wrote:
Would the copyright holders of said images ever be able to reasonably make a claim to copyright? How could they prove that? They can't, probably, assuming they are still alive.
That's something I've always wondered - is it possible to hold copyright anonymously? It would seem to be completely unenforceable.
You mean, hold a copyright via pseudonym or other agency and enforce it in the same manner until otherwise impossible, or completely anonymously? The first, of course, we do on Wikipedia every day. The issue with this seems to be no assertion of copyright or traceability to discover if its owed, rather than an anonymously asserted claim.
Nathan
On 3/24/08, Thomas Dalton thomas.dalton@gmail.com wrote:
On 24/03/2008, Mark Williamson node.ue@gmail.com wrote:
Would the copyright holders of said images ever be able to reasonably make a claim to copyright? How could they prove that? They can't, probably, assuming they are still alive.
That's something I've always wondered - is it possible to hold copyright anonymously? It would seem to be completely unenforceable.
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On 24/03/2008, Nathan nawrich@gmail.com wrote:
You mean, hold a copyright via pseudonym or other agency and enforce it in the same manner until otherwise impossible, or completely anonymously? The first, of course, we do on Wikipedia every day. The issue with this seems to be no assertion of copyright or traceability to discover if its owed, rather than an anonymously asserted claim.
Anonymously, not pseudonymously. If it's just pseudonymous, you can plausibly prove that it's your pseudonym (might be difficult, but not impossible). If it's completely anonymous, there's no way you can prove it's yours.
It doesn't really matter if it's anonymous by intent or not, either way you can't prove it's yours.
Nathan wrote:
You mean, hold a copyright via pseudonym or other agency and enforce it in the same manner until otherwise impossible, or completely anonymously? The first, of course, we do on Wikipedia every day. The issue with this seems to be no assertion of copyright or traceability to discover if its owed, rather than an anonymously asserted claim.
Nathan
On 3/24/08, Thomas Dalton thomas.dalton@gmail.com wrote:
On 24/03/2008, Mark Williamson node.ue@gmail.com wrote:
Would the copyright holders of said images ever be able to reasonably make a claim to copyright? How could they prove that? They can't, probably, assuming they are still alive.
That's something I've always wondered - is it possible to hold copyright anonymously? It would seem to be completely unenforceable.
This is one of those areas where the fundamental differences between civil law and common law countries comes into play. Where civil law countries view copyright as a personal civil right, common law countries view it as an object based economic right. In common law counties there is also a tendency to avoid having copyrights default to the state when there is no other heir.
I remember reading where Swedish courts had ruled that "Mein Kampf" was still protected despite the fact that it did not recognize the claim by the Bavarian state government, and could not determine who was the rightful owner.
To comply with he Berne Convention the United States had to abandon its system of compulsory registration, with the result that registration became "permissive". Registration was not completely discarded. Registration is not required for copyright protection, but lack of registration can severely restrict an owner's rights in an infringement action. Sections 408-412 of the US Copyright Act warrant serious reading. See [[ws:United States Code/Title 17/Chapter 4]]. Anonymous works can be copyright, but registration still requires that the person seeking registration has some connection with the work. The requirements are somewhat more stringent when a person has waited more than five years to seek registration.
Notwithstanding the lack of specificity, it seems that US law has more latitude for dealing with orphan works than one would expect. Perhaps the biggest stumbling block remains in the requirement that a copyright owner intending to start an action must seek registration no more than 30 days after learning of the infringement. How do we determine when a copyright owner has learned of the infringement? Especially someone who may have first noticed the infringement several years ago but did not realize until recently that he was the copyright owner.
Ec
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.
Birgitte SB
--- Mark Williamson node.ue@gmail.com wrote:
Would the copyright holders of said images ever be able to reasonably make a claim to copyright? How could they prove that? They can't, probably, assuming they are still alive.
Mark
On 23/03/2008, Birgitte SB birgitte_sb@yahoo.com wrote:
"Freely usable in any practical sense" was not the standard adopted by WMF in the licensing
resolution.
They adopted a very stringent standard for what
the
can be considered free content and hosted on the
WMF
servers outside of EDPs. Perhaps the board
should
revisit this resolution. But I don't think
following
a different standard in practice then has been outlined by the WMF is a good idea.
BirgitteSB
(Wikipedia)" newyorkbrad@gmail.com wrote:
It seems to me that common sense should be used
in
this as in all other matters. A 60-year-old photograph that
has
never been the subject of any claim of ownership and which has
been
repeatly used in multiple media around the world without
challenge is
freely usable in any practical sense.
Newyorkbrad
On 3/23/08, SlimVirgin slimvirgin@gmail.com
wrote:
On Sun, Mar 23, 2008 at 5:42 PM, Delirium
delirium@hackish.org wrote:
This came up in the discussion, but since
the
German occupation during
WW2 is considered illegitimate under
international law, Polish law
applies, even in areas where the de jure
Polish
government didn't have
de facto control. The discussion is here:
http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Category:Stroop_...
Does this mean that the images taken inside
Auschwitz can be marked
PD, either as PD in Poland or PD in the U.S.
because seized enemy
property? We've been told by several
Wikipedians
who specialize in
images that we could only claim fair use for
them,
which has meant the
images have been challenged quite a few times
by
people who say we
can't claim fair use unless we know the name
of
the copyright holder.
We've had several attempts to delete some of
them
on that basis.
Sarah
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Hello,
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.
I think that this argument can be easily reversed. Copyright without a copyright holder is just nonsense, because only the copyright holder can claim it. Nobody, not even the "State" or any public body, can do it on the holder's behalf. So I think that we should apply common sense, and allow images of which the copyright holder has disappeared in the mists of time.
Birgitte SB
Regards,
Yann
On 24/03/2008, Yann Forget yann@forget-me.net wrote:
I think that this argument can be easily reversed. Copyright without a copyright holder is just nonsense, because only the copyright holder can claim it. Nobody, not even the "State" or any public body, can do it on the holder's behalf. So I think that we should apply common sense, and allow images of which the copyright holder has disappeared in the mists of time.
Are you prepared to agree to cover any costs that result from such a policy?
While you and I might be unable to trace a given copyright holder that does not mean that such a person does not exist and decide to start exercising their rights.
A few years back you might have thought it fairly safe to conclude that Alberto Korda wasn't going to enforce his copyrights. As Smirnoff discovered you would have been wrong.
Worse still IP can be inherited. The nice old Mrs Smith may not chose to enforce their copyrights be the son who works in the city and sees another opportunity for profit? Or Getty buy up yet another defunct photo agency and guess what they find in the collection that you thought no one would ever enforce copyright on?
After decades of mergers sales and bankruptcies you might think that certain copyright have become orphaned. United Amalgamated Consolidated Holdings are likely to think otherwise.
Gets better than that. You claim the state can't get involved? Well firstly that isn't universally true and even where it is what of the case where a person dies without a will or any heirs at all?
Then there is the problem of defining orphaned works. Fact is legally it is extremely hard for a work to become orphaned. How exhaustive does the search have to be before you consider a work to be orphaned?
Oh and if you think you can answer the above questions remember since we are talking foundation policy you realistically need to be able to answer them under US law, non US English common law based systems and Napoleonic code based systems.
Wikipedia copyright policy is generally crafted to keep grey areas to an absolute minimum. Advocating a course of action that would increase the number of grey areas is not a good idea.
Hello,
I am talking about cases where no actual copyright holder can claim anything, not about other cases.
I see at least two cases where this occurs:
1. As Ray mentioned, the copyright holder was a corporation which is bankrupt, and no entity has acquired the rights. This can be determined fairly accurately.
2. If the death date of the author is not recorded anywhere, especially not in any national databases, such as the Library of Congress, how could you claim any copyright? This is fairly common for translators of minor works before WW2. If this date is not known, no copyright holder can claims anything, as the burden of the proof is on the accusation. Again I don't talk about the fact that the heirs are certainly not aware of their rights if the date of author's death is not known.
So there exists some cases when nobody can claim any copyright, although the work is not legally in the public domain. Most of your arguments below do not apply in that situation. Alberto Korda does not belong to this case. It is still different that the case where "the copyright holder could claim something, but he is not known and/or he is not aware of his rights". Please do not mix cases in a grand argument against "orphan works".
Regards,
Yann
geni wrote:
On 24/03/2008, Yann Forget yann@forget-me.net wrote:
I think that this argument can be easily reversed. Copyright without a copyright holder is just nonsense, because only the copyright holder can claim it. Nobody, not even the "State" or any public body, can do it on the holder's behalf. So I think that we should apply common sense, and allow images of which the copyright holder has disappeared in the mists of time.
Are you prepared to agree to cover any costs that result from such a policy?
While you and I might be unable to trace a given copyright holder that does not mean that such a person does not exist and decide to start exercising their rights.
A few years back you might have thought it fairly safe to conclude that Alberto Korda wasn't going to enforce his copyrights. As Smirnoff discovered you would have been wrong.
Worse still IP can be inherited. The nice old Mrs Smith may not chose to enforce their copyrights be the son who works in the city and sees another opportunity for profit? Or Getty buy up yet another defunct photo agency and guess what they find in the collection that you thought no one would ever enforce copyright on?
After decades of mergers sales and bankruptcies you might think that certain copyright have become orphaned. United Amalgamated Consolidated Holdings are likely to think otherwise.
Gets better than that. You claim the state can't get involved? Well firstly that isn't universally true and even where it is what of the case where a person dies without a will or any heirs at all?
Then there is the problem of defining orphaned works. Fact is legally it is extremely hard for a work to become orphaned. How exhaustive does the search have to be before you consider a work to be orphaned?
Oh and if you think you can answer the above questions remember since we are talking foundation policy you realistically need to be able to answer them under US law, non US English common law based systems and Napoleonic code based systems.
Wikipedia copyright policy is generally crafted to keep grey areas to an absolute minimum. Advocating a course of action that would increase the number of grey areas is not a good idea.
On Tue, Mar 25, 2008 at 5:54 AM, Yann Forget yann@forget-me.net wrote:
Hello,
I am talking about cases where no actual copyright holder can claim anything, not about other cases.
I see at least two cases where this occurs:
- As Ray mentioned, the copyright holder was a corporation which is
bankrupt, and no entity has acquired the rights. This can be determined fairly accurately.
Maybe, though it is not uncommon for creditors to acquire copyright holdings from defunct companies, especially if publishing was part of the business of the company.
- If the death date of the author is not recorded anywhere, especially
not in any national databases, such as the Library of Congress, how could you claim any copyright? This is fairly common for translators of minor works before WW2. If this date is not known, no copyright holder can claims anything, as the burden of the proof is on the accusation. Again I don't talk about the fact that the heirs are certainly not aware of their rights if the date of author's death is not known.
This case I don't understand at all. Either A) you have no reason to believe the author is dead, in which case the point seems moot since you ought to be acting on the assumption the author is still alive up to quite substantial ages. Or B) you somehow have confidence that the author is dead, even though it wasn't formally recorded, in which case one ought to assume that the author's heirs could easily demonstrate this in court. There is a world of difference between "the death date is not publicly known" and "the death date is not known". The former can happen for a variety of reasons (e.g. publication under a pseudonym, change of country of residence, etc.) and yet the rights holder or his heirs may still be entirely aware of the relevant information and able to provide it in court.
-Robert A. Rohde
Robert Rohde wrote:
On Tue, Mar 25, 2008 at 5:54 AM, Yann Forget yann@forget-me.net wrote:
Hello,
I am talking about cases where no actual copyright holder can claim anything, not about other cases.
I see at least two cases where this occurs:
- As Ray mentioned, the copyright holder was a corporation which is
bankrupt, and no entity has acquired the rights. This can be determined fairly accurately.
Maybe, though it is not uncommon for creditors to acquire copyright holdings from defunct companies, especially if publishing was part of the business of the company.
Agreed, but as I mentioned above, this can be known fairly accurately.
- If the death date of the author is not recorded anywhere, especially
not in any national databases, such as the Library of Congress, how could you claim any copyright? This is fairly common for translators of minor works before WW2. If this date is not known, no copyright holder can claims anything, as the burden of the proof is on the accusation. Again I don't talk about the fact that the heirs are certainly not aware of their rights if the date of author's death is not known.
This case I don't understand at all. Either A) you have no reason to believe the author is dead, in which case the point seems moot since you ought to be acting on the assumption the author is still alive up to quite substantial ages. Or B) you somehow have confidence that the author is dead, even though it wasn't formally recorded, in which case one ought to assume that the author's heirs could easily demonstrate this in court. There is a world of difference between "the death date is not publicly known" and "the death date is not known". The former can happen for a variety of reasons (e.g. publication under a pseudonym, change of country of residence, etc.) and yet the rights holder or his heirs may still be entirely aware of the relevant information and able to provide it in court.
I am talking about cases when the work was published long ago, and the author is certainly dead, but the exact fate is not known.
A concrete example can explain that most precisely: the book "La Jeune Inde" is a translation of Mohandas K. Gandhi writings published in France in 1924. The original texts are from 1919 to 1922, and are already in the public domain in USA, and will be in India by 1st January 2009, 60 years after Gandhi's death. The translator is Hélène Hart, she never wrote nor translated anything else beside this book, and her date of death is not known, even to the French National Library (BNF). I personaly called the BNF to ask for details. The book was published only once in 1924, and is out of print since then. If even the BNF does not know anything about Hélène Hart, I doubt anybody else knows it.
-Robert A. Rohde
Regards,
Yann
On 30/03/2008, Yann Forget yann@forget-me.net wrote:
A concrete example can explain that most precisely: the book "La Jeune Inde" is a translation of Mohandas K. Gandhi writings published in France in 1924. The original texts are from 1919 to 1922, and are already in the public domain in USA, and will be in India by 1st January 2009, 60 years after Gandhi's death. The translator is Hélène Hart, she never wrote nor translated anything else beside this book, and her date of death is not known, even to the French National Library (BNF). I personaly called the BNF to ask for details. The book was published only once in 1924, and is out of print since then. If even the BNF does not know anything about Hélène Hart, I doubt anybody else knows it.
Surviving family members? Friends?
On Sun, Mar 30, 2008 at 2:58 PM, Yann Forget yann@forget-me.net wrote:
I am talking about cases when the work was published long ago, and the author is certainly dead, but the exact fate is not known.
A concrete example can explain that most precisely: the book "La Jeune Inde" is a translation of Mohandas K. Gandhi writings published in France in 1924. The original texts are from 1919 to 1922, and are already in the public domain in USA, and will be in India by 1st January 2009, 60 years after Gandhi's death. The translator is Hélène Hart, she never wrote nor translated anything else beside this book, and her date of death is not known, even to the French National Library (BNF). I personaly called the BNF to ask for details. The book was published only once in 1924, and is out of print since then. If even the BNF does not know anything about Hélène Hart, I doubt anybody else knows it.
As a matter of law, the US says you can assume that a work is in the public domain 120 years after creation (with some exceptions), even if you don't know the fate of the author. In other words, since the term of copyright is life + 70 years, the US presumption is that an author lives up to 50 years after creating the work unless you can provide evidence to the contrary. Other jurisdictions probably have their own rules for dealing with unknown deaths.
That said, just because the BNF doesn't know Ms. Hart's fate doesn't mean her children or friends don't. Perhaps she simply changed her name at marriage and people lost track of her, but that certainly doesn't rule out the existence of legitimate heirs.
-Robert Rohde
On Sun, Mar 30, 2008 at 2:58 PM, Yann Forget yann@forget-me.net wrote:
2009, 60 years after Gandhi's death. The translator is Hélène Hart, she never wrote nor translated anything else beside this book, and her date of death is not known, even to the French National Library (BNF). I personaly called the BNF to ask for details. The book was published only once in 1924, and is out of print since then. If even the BNF does not know anything about Hélène Hart, I doubt anybody else knows it.
I understand that Swedish book publishers in cases like these publish the book anyway, and if the copyright holder contacts them later there is a standard compensation paid out, based on the number of sold copies. This means that the copyright holder who comes too late and makes the claim after publication can get compensated but can't negotiate the price and can't veto the publication. For the publisher it's not hard to do the math: Just set aside the small amount of money for every printed copy. This is apparently a workable solution for the book printing business.
I have tried to figure out if and how this could work for online, non-profit projects. Economic compensation is ruled out for two reasons: 1) there is no money that can be set aside or paid, and 2) we most often don't know how many readers we have, so we can't compute the size of the renumeration anyway. The only workable approach seems to be to allow the late-coming copyright holder a veto, i.e. to take down the work upon request. This is similar to what the Internet Archive or Google are doing.
In many cases, where the copyright that we thought had expired is still in force, it will soon expire anyway. For example, if we publish a work by what we thought was an anonymous author, and it turns out that they died 55 years ago, the take-down will just be a temporary removal for 15 years, and then the copyright will really have expired. Still, such a removal is unfortunate and complicated. I think we can help this by clearly announcing who insisted on the removal (rather than granting a free license, which was their alternative option), so that the bad will reflects on them. The non-profit has the advantage of being the good guys.
Some might argue that you should always walk on the safe side of copyright, always have good margins and never get into trouble. However, there is no safe side. Even if Mark Twain died (in 1910) more than 70 years ago, and I publish his works in the best of faith, some person might turn up tomorrow and claim that their Dutch grandfather who died only 65 years ago was actually a secret co-author of that work, and that copyright in the Netherlands is still in force. You can never be completely safe.
Robert Rohde wrote:
As a matter of law, the US says you can assume that a work is in the public domain 120 years after creation (with some exceptions),
Really? Can you provide any sources for that statement?
--- Lars Aronsson lars@aronsson.se wrote:
On Sun, Mar 30, 2008 at 2:58 PM, Yann Forget
yann@forget-me.net wrote:
2009, 60 years after Gandhi's death. The
translator is Hélène
Hart, she never wrote nor translated anything
else beside this
book, and her date of death is not known, even
to the French
National Library (BNF). I personaly called the
BNF to ask for
details. The book was published only once in
1924, and is out
of print since then. If even the BNF does not
know anything
about Hélène Hart, I doubt anybody else knows
it.
I understand that Swedish book publishers in cases like these publish the book anyway, and if the copyright holder contacts them later there is a standard compensation paid out, based on the number of sold copies. This means that the copyright holder who comes too late and makes the claim after publication can get compensated but can't negotiate the price and can't veto the publication. For the publisher it's not hard to do the math: Just set aside the small amount of money for every printed copy. This is apparently a workable solution for the book printing business.
I feel I have replied too much to this thread but you raise something that really gets to the heart of the matter. What you describe above is pretty much what the "Orphans Works" reports recommended to US lawmakers. They did not recommend that orphan works become PD, but rather to set a cap on royalties of works were a reasonable effort to locate the copyright holder failed. So if someone comes forward after publication the publisher had known in advance what his maximum financial risk was.
This is a practical solution for most people but not for an organization with an idealistic position like WMF. These works could be described as "practically free". You could treat for all intents and purposes like free content with practically no risk. But as long as the WMF defines free content in idealistic terms rather than practical ones, they are outside the boundaries.
Wikisource has had one copyright fork for sometime, I heard another is being started. The fork is maintained by people who are still dedicated to Wikisource, linked to by Wikisource, and a common destination of copyright deletions. While one of the main features of the fork I am familiar with is the server's location in Canada, it also takes a softer line on free content. So far the en.WP policy on images makes a similar fork for Commons unnecessary. But I just want to point out that the WMF may not be our answer to hosting these sort of works, and if they are not it is OK. The world doesn't end if you have to supplement the collection off of WMF servers.
Birgitte SB
____________________________________________________________________________________ You rock. That's why Blockbuster's offering you one month of Blockbuster Total Access, No Cost. http://tc.deals.yahoo.com/tc/blockbuster/text5.com
Lars Aronsson wrote:
On Sun, Mar 30, 2008 at 2:58 PM, Yann Forget yann@forget-me.net wrote:
2009, 60 years after Gandhi's death. The translator is Hélène Hart, she never wrote nor translated anything else beside this book, and her date of death is not known, even to the French National Library (BNF). I personaly called the BNF to ask for details. The book was published only once in 1924, and is out of print since then. If even the BNF does not know anything about Hélène Hart, I doubt anybody else knows it.
I understand that Swedish book publishers in cases like these publish the book anyway, and if the copyright holder contacts them later there is a standard compensation paid out, based on the number of sold copies. This means that the copyright holder who comes too late and makes the claim after publication can get compensated but can't negotiate the price and can't veto the publication. For the publisher it's not hard to do the math: Just set aside the small amount of money for every printed copy. This is apparently a workable solution for the book printing business.
I have tried to figure out if and how this could work for online, non-profit projects. Economic compensation is ruled out for two reasons: 1) there is no money that can be set aside or paid, and 2) we most often don't know how many readers we have, so we can't compute the size of the renumeration anyway. The only workable approach seems to be to allow the late-coming copyright holder a veto, i.e. to take down the work upon request. This is similar to what the Internet Archive or Google are doing.
I completely agree with this. I wish that Wikimedia (practically Commons and Wikisource) comes with a similar solution. This is not really difficult if we stop being too fundamentalist on the issue.
In many cases, where the copyright that we thought had expired is still in force, it will soon expire anyway. For example, if we publish a work by what we thought was an anonymous author, and it turns out that they died 55 years ago, the take-down will just be a temporary removal for 15 years, and then the copyright will really have expired. Still, such a removal is unfortunate and complicated. I think we can help this by clearly announcing who insisted on the removal (rather than granting a free license, which was their alternative option), so that the bad will reflects on them. The non-profit has the advantage of being the good guys.
Some might argue that you should always walk on the safe side of copyright, always have good margins and never get into trouble. However, there is no safe side. Even if Mark Twain died (in 1910) more than 70 years ago, and I publish his works in the best of faith, some person might turn up tomorrow and claim that their Dutch grandfather who died only 65 years ago was actually a secret co-author of that work, and that copyright in the Netherlands is still in force. You can never be completely safe.
Agreed again.
Regards,
Yann
On 05/04/2008, Yann Forget yann@forget-me.net wrote:
Lars Aronsson wrote:
On Sun, Mar 30, 2008 at 2:58 PM, Yann Forget yann@forget-me.net wrote:
2009, 60 years after Gandhi's death. The translator is Hélène Hart, she never wrote nor translated anything else beside this book, and her date of death is not known, even to the French National Library (BNF). I personaly called the BNF to ask for details. The book was published only once in 1924, and is out of print since then. If even the BNF does not know anything about Hélène Hart, I doubt anybody else knows it.
I understand that Swedish book publishers in cases like these publish the book anyway, and if the copyright holder contacts them later there is a standard compensation paid out, based on the number of sold copies. This means that the copyright holder who comes too late and makes the claim after publication can get compensated but can't negotiate the price and can't veto the publication. For the publisher it's not hard to do the math: Just set aside the small amount of money for every printed copy. This is apparently a workable solution for the book printing business.
I have tried to figure out if and how this could work for online, non-profit projects. Economic compensation is ruled out for two reasons: 1) there is no money that can be set aside or paid, and 2) we most often don't know how many readers we have, so we can't compute the size of the renumeration anyway. The only workable approach seems to be to allow the late-coming copyright holder a veto, i.e. to take down the work upon request. This is similar to what the Internet Archive or Google are doing.
I completely agree with this. I wish that Wikimedia (practically Commons and Wikisource) comes with a similar solution. This is not really difficult if we stop being too fundamentalist on the issue.
Going rate is I understand about £40 per image. A mere 2500 images less than 0.1% of commons total would be about £100,000 or about $200,000. The methods publishers use don't scale.
--- Yann Forget yann@forget-me.net wrote:
Hello,
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.
I think that this argument can be easily reversed. Copyright without a copyright holder is just nonsense, because only the copyright holder can claim it. Nobody, not even the "State" or any public body, can do it on the holder's behalf. So I think that we should apply common sense, and allow images of which the copyright holder has disappeared in the mists of time.
I agree that that such a reversed approach to the issue *could* be made. However that is not the approach WMF took with the licensing resolution.
Copyright without a copyright holder may seem nonsense, but it is an acknowledged part of copyright law. [1] I find alot of copyright law to be short-sighted and in the end to not make much sense. Personally I wish that the WMF would revist the resolution and particularly look into the incorporation of existing works into the projects, rather than only focusing on the new works being created by the projects. But right now it is what it is.
Birgitte SB
[1] http://www.copyright.gov/orphan/orphan-report.pdf
____________________________________________________________________________________ Never miss a thing. Make Yahoo your home page. http://www.yahoo.com/r/hs
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.
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.
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.
Ec
--- 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
____________________________________________________________________________________ Never miss a thing. Make Yahoo your home page. http://www.yahoo.com/r/hs
--- Ray Saintonge saintonge@telus.net wrote:
An easy example of a true 0% chance could be a corporate publication from a company that has ceased to exist through bankruptcy.
Birgitte SB wrote:
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.
Many lawyers in Europe will tell you that the public domain "doesn't exist". I wouldn't agree with this fundamentalist view. But whether you call it public domain or not is more a play with words than a practical reality. The problem with orphan works is not the kind of situation Ray described above. The problem with orphan works is that you *don't know* whether there is a copyright holder that might sue you. In Ray's example you *know* that nobody is around who can sue you, and so you can go ahead and publish without any risk. These are two different situations.
--- Lars Aronsson lars@aronsson.se wrote:
--- Ray Saintonge saintonge@telus.net wrote:
An easy example of a true 0% chance could be a
corporate
publication from a company that has ceased to
exist through
bankruptcy.
Birgitte SB wrote:
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.
Many lawyers in Europe will tell you that the public domain "doesn't exist". I wouldn't agree with this fundamentalist view. But whether you call it public domain or not is more a play with words than a practical reality. The problem with orphan works is not the kind of situation Ray described above. The problem with orphan works is that you *don't know* whether there is a copyright holder that might sue you. In Ray's example you *know* that nobody is around who can sue you, and so you can go ahead and publish without any risk. These are two different situations.
I understand what you are saying; but "no risk of being sued for copyright infringement" is not the same as "no copyrights exist". And if copyrights exist it can't be free content according to the WMF licensing resolution. I am not against WMF changing that the standard. I am only pointing out what the standard is.
Birgitte SB
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SlimVirgin wrote:
On Sun, Mar 23, 2008 at 5:42 PM, Delirium delirium@hackish.org wrote:
This came up in the discussion, but since the German occupation during WW2 is considered illegitimate under international law, Polish law applies, even in areas where the de jure Polish government didn't have de facto control. The discussion is here: http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Category:Stroop_...
Does this mean that the images taken inside Auschwitz can be marked PD, either as PD in Poland or PD in the U.S. because seized enemy property? We've been told by several Wikipedians who specialize in images that we could only claim fair use for them, which has meant the images have been challenged quite a few times by people who say we can't claim fair use unless we know the name of the copyright holder. We've had several attempts to delete some of them on that basis.
Fair use does not depend on knowing the name of the copyright holder, or even the original copyright holder since that person may be long dead. Any prosecution for copyright infringement would require the copyright holder to be identified, and in most cases to prove that he is the holder. That would not be easy
I still prefer to avoid fair use if a stronger rationale is available.
Ec
wikimedia-l@lists.wikimedia.org