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:

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(a)gmail.com> wrote:

On 23/03/2008, Newyorkbrad (Wikipedia) <newyorkbrad(a)gmail.com> wrote: That would only work if the law made any sense, common or otherwise.

"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(a)gmail.com> wrote: http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Category:Stroop… https://lists.wikimedia.org/mailman/listinfo/foundation-l https://lists.wikimedia.org/mailman/listinfo/foundation-l ____________________________________________________________________________________ Never miss a thing. Make Yahoo your home page. http://www.yahoo.com/r/hs

SlimVirgin wrote: 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

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(a)gmail.com> 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. Birgitte SB --- Mark Williamson <node.ue(a)gmail.com> wrote: http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Category:Stroop… https://lists.wikimedia.org/mailman/listinfo/foundation-l https://lists.wikimedia.org/mailman/listinfo/foundation-l ____________________________________________________________________________________ https://lists.wikimedia.org/mailman/listinfo/foundation-l https://lists.wikimedia.org/mailman/listinfo/foundation-l ____________________________________________________________________________________ Never miss a thing. Make Yahoo your home page. http://www.yahoo.com/r/hs

On 24/03/2008, Yann Forget <yann(a)forget-me.net> wrote: 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. -- geni

Nathan wrote: 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

--- Ray Saintonge <saintonge(a)telus.net> wrote: 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) 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. 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

Birgitte SB wrote: 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(a)aronsson.se) Aronsson Datateknik - http://aronsson.se

--- Lars Aronsson <lars(a)aronsson.se> wrote: 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 ____________________________________________________________________________________ Looking for last minute shopping deals? Find them fast with Yahoo! Search. http://tools.search.yahoo.com/newsearch/category.php?category=shopping

On 30/03/2008, Yann Forget <yann(a)forget-me.net> wrote: Surviving family members? Friends? -- geni

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: Really? Can you provide any sources for that statement? -- Lars Aronsson (lars(a)aronsson.se) Aronsson Datateknik - http://aronsson.se

Lars Aronsson wrote: 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. Agreed again. Regards, Yann -- http://www.non-violence.org/ | Site collaboratif sur la non-violence http://www.forget-me.net/ | Alternatives sur le Net http://fr.wikisource.org/ | Bibliothèque libre http://wikilivres.info | Documents libres