Klaus - You already have a reply to that point on Wiki.
Unfortunately, Moeller's comment does not help even if he was in fact intending (which I doubt) to override longstanding Commons policy that images must be PD in both the US and the source country.
Firstly, if you read the thread you will see that the comment was made in response to the closure of [http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Images_from_Darw... a DR relating to Darwin Online images] as "delete". That DR has since been re-opened and closed as "keep", and Commons policy has been changed accordingly.
Secondly, the previous posting to which he was replying quoted Lord Oliver in ''Interlego'' as saying "But copying, per se, however much skill and labour may be devoted to the process cannot make an original work". As explained at [[Commons talk:When to use the PD-Art tag#Reply to call for revision]], that quote has since been explicitly disapproved by the Court of Appeal in the later Sawkin case. It is not wrong, but it applies in narrow circumstances only such as where an engineering line-drawing has been copied. The Court of Appeal has held that it does not apply in cases such as the present where the photographer has to apply significant skill and labour in setting up lighting, filters and so on.
Nobody wants to delete these images but Commons policy is that the image must be PD in both the and the UK. According to this recent case law, these are clearly copyright images in the UK.
Michael
2008/7/23 Michael Maggs Michael@maggs.name:
Nobody wants to delete these images but Commons policy is that the image must be PD in both the and the UK. According to this recent case law, these are clearly copyright images in the UK.
Michael
Strangely no. Commons requires works to be PD in the US and country of origin. Anywhere a work has been published will do as it's country of origin. In their ah more extreme attempts to expand their jurisdiction UK courts have decided that if a website is viewable in the UK it is published there. Extending this doctrine we can conclude that they would take the view that if a website is visible in the US the work is published there. Since the works have been published in the US we only need concern ourselves with US law.
An interesting theory, but it does not work, of course, or Commons policy would be in chaos. You cannot arbitarily choose which country is the one in which the works were published to suit Commons' convenience.
There is no choice of law here: the photographs were taken in the UK, of paintings held in the UK, on behalf of a UK museum, and have been published by that museum on a UK website and by issuing postcards and other reproductions in the UK. Why would any UK court think that US law should be applied?
Michael
geni wrote:
2008/7/23 Michael Maggs Michael@maggs.name:
Nobody wants to delete these images but Commons policy is that the image must be PD in both the and the UK. According to this recent case law, these are clearly copyright images in the UK.
Michael
Strangely no. Commons requires works to be PD in the US and country of origin. Anywhere a work has been published will do as it's country of origin. In their ah more extreme attempts to expand their jurisdiction UK courts have decided that if a website is viewable in the UK it is published there. Extending this doctrine we can conclude that they would take the view that if a website is visible in the US the work is published there. Since the works have been published in the US we only need concern ourselves with US law.
2008/7/23 Michael Maggs Michael@maggs.name:
An interesting theory, but it does not work, of course, or Commons policy would be in chaos. You cannot arbitarily choose which country is the one in which the works were published to suit Commons' convenience.
That depends on the legal system. Under UK law the national gallery has chosen to publish in the US. You will note the the BBC goes out of it's way to limit what people from the US can view and listen to on it's website. The national gallery was free to do that but did not. Thus the images were published in the US and as long as they were copied across by someone in the US are no different from any other pure US image.
There is no choice of law here: the photographs were taken in the UK, of paintings held in the UK, on behalf of a UK museum, and have been published by that museum on a UK website and by issuing postcards and other reproductions in the UK. Why would any UK court think that US law should be applied?
Michael
They wouldn't but they would think the photos have been published in the US. They would of course argue that commons is publishing the photos in the UK so UK law also applies but they would argue that about all our photos.
Hi,
i doubt you can say that the national gallery has choosen to publish in the USA. There servers are probably in the UK, so i'd say that they publish in the UK. That the pages can be viewed in the USA is a different matter.
Analogy: If i print and publish/sell a book in the Netherlands, I publish it here in the Netherlands. If some USA retailer orders 2000 copies to sell in the states, that doesnt mean i publish them in the USA, merely that they are for sale in the USA.
But a lot depends on the definition of "publication" / "publish"
wish you health and happiness, Teun Spaans
On Wed, Jul 23, 2008 at 7:10 PM, geni geniice@gmail.com wrote:
2008/7/23 Michael Maggs Michael@maggs.name:
An interesting theory, but it does not work, of course, or Commons policy would be in chaos. You cannot arbitarily choose which country is the one in which the works were published to suit Commons' convenience.
That depends on the legal system. Under UK law the national gallery has chosen to publish in the US. You will note the the BBC goes out of it's way to limit what people from the US can view and listen to on it's website. The national gallery was free to do that but did not. Thus the images were published in the US and as long as they were copied across by someone in the US are no different from any other pure US image.
There is no choice of law here: the photographs were taken in the UK, of paintings held in the UK, on behalf of a UK museum, and have been published by that museum on a UK website and by issuing postcards and other reproductions in the UK. Why would any UK court think that US law should be applied?
Michael
They wouldn't but they would think the photos have been published in the US. They would of course argue that commons is publishing the photos in the UK so UK law also applies but they would argue that about all our photos.
-- geni
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2008/7/23 teun spaans teun.spaans@gmail.com:
Hi,
i doubt you can say that the national gallery has choosen to publish in the USA. There servers are probably in the UK, so i'd say that they publish in the UK. That the pages can be viewed in the USA is a different matter.
UK courts would beg to differ see Lennox Lewis & Ors. v. Don King
Analogy: If i print and publish/sell a book in the Netherlands, I publish it here in the Netherlands. If some USA retailer orders 2000 copies to sell in the states, that doesnt mean i publish them in the USA, merely that they are for sale in the USA.
2000? Try 20 we've had some interesting libel cases in the UK lately:
http://en.wikipedia.org/wiki/Funding_Evil#Libel_controversy
You are attempting to apply libel laws in a copyright context. The definition of publication is different.
Michael
geni wrote:
2008/7/23 teun spaans teun.spaans@gmail.com:
Hi,
i doubt you can say that the national gallery has choosen to publish in the USA. There servers are probably in the UK, so i'd say that they publish in the UK. That the pages can be viewed in the USA is a different matter.
UK courts would beg to differ see Lennox Lewis & Ors. v. Don King
Analogy: If i print and publish/sell a book in the Netherlands, I publish it here in the Netherlands. If some USA retailer orders 2000 copies to sell in the states, that doesnt mean i publish them in the USA, merely that they are for sale in the USA.
2000? Try 20 we've had some interesting libel cases in the UK lately:
2008/7/23 Michael Maggs Michael@maggs.name:
You are attempting to apply libel laws in a copyright context. The definition of publication is different.
Michael
Under US law yes. Can you show that it is under UK law?
This publication thing is a complete red herring. The country of publication would matter only if the images had _not _been published in the UK (or a specified country under section 155 of the Copyright, Designs and Patents Act 1988.) If the images had been published _only _in, say, Afghanistan, then under S 155 no copyright would subsist at all. But as the images have been published in the UK (at least) copyright _does _subsist and the UK courts have power over that copyright. There is a clear UK nexus with the copyright owner, the place of the photography and the location of the paintings, and accordingly the UK court will apply UK law. There is absolutely no doubt about it, I am afraid.
Michael Maggs
teun spaans wrote:
Hi,
i doubt you can say that the national gallery has choosen to publish in the USA. There servers are probably in the UK, so i'd say that they publish in the UK. That the pages can be viewed in the USA is a different matter.
Analogy: If i print and publish/sell a book in the Netherlands, I publish it here in the Netherlands. If some USA retailer orders 2000 copies to sell in the states, that doesnt mean i publish them in the USA, merely that they are for sale in the USA.
But a lot depends on the definition of "publication" / "publish"
wish you health and happiness, Teun Spaans
On Wed, Jul 23, 2008 at 7:10 PM, geni geniice@gmail.com wrote:
2008/7/23 Michael Maggs Michael@maggs.name:
An interesting theory, but it does not work, of course, or Commons policy would be in chaos. You cannot arbitarily choose which country is the one in which the works were published to suit Commons' convenience.
That depends on the legal system. Under UK law the national gallery has chosen to publish in the US. You will note the the BBC goes out of it's way to limit what people from the US can view and listen to on it's website. The national gallery was free to do that but did not. Thus the images were published in the US and as long as they were copied across by someone in the US are no different from any other pure US image.
There is no choice of law here: the photographs were taken in the UK, of paintings held in the UK, on behalf of a UK museum, and have been published by that museum on a UK website and by issuing postcards and other reproductions in the UK. Why would any UK court think that US law should be applied?
Michael
They wouldn't but they would think the photos have been published in the US. They would of course argue that commons is publishing the photos in the UK so UK law also applies but they would argue that about all our photos.
-- geni
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