--- Ray Saintonge <saintonge(a)telus.net> wrote:
Birgitte SB wrote:
The WMF licensing policy puts the burden on being
to declare a work to be "free content"
or else use
EDP. Unless something is *really* old you have
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
prove the copyright holder is 100% unknown and
was, does not release the work into the Public
Orphaned works are still copyrighted in the US.
There is no provision for a work to be declared
content" unless it a) released under a free
b) in the Public Domain. *Many* works do not
either of those criteria and still have 0% chance
anyone being awarded damages for copyright
But we are limited by the WMF licensing
which has a very high standard for "free
what is allowed to be hosted as such on WMF
don't particularly like the licensing
number of reasons, but we can't just ignore
exists and decide use a different standard that
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
from a company that has ceased to exist through
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
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
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.
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