[Commons-l] Free in country of origin but not in US

[Robert Rohde]

This is a sort of meta-licensing issue.

My understanding has always been that images appearing on Commons are
supposed to be free in both their country of origin and in the US [1],
since WMF is hosted in the US.

The US approach to Berne and related international obligations is
fairly simple to understand though in some cases it has some wacky
implications.  In general, the US says that a work is protected by
copyright in the US if and only if a comparable work created by a US
citizen and published in the US would be protected.  Or in other
words, all works published in treaty countries are treated as if they
were the works of US citizens (with the exception that certain
historical notice and registration provisions are waived).  For the
purposes of this discussion, I'm going to ignore some of the nuances
regarding timing of treaty signatures and URAA reciprocity, which may
modify the conclusions in particular cases but not the general gist.

The philosophy behind the US implementation of Berne is an easy point
of view to express, but it has some difficult implications.  In
particular, since the US does not honor the rule of the shorter term
[2], an image may be subject to US copyright protection for longer (in
some cases much longer) than it is subject to copyright protection in
its country of origin.

As enumerated in Commons:Licensing there are many countries were the
copyright term on all or some works is shorter than the 70 years pma
usually applied in the US, e.g. China, India, Italy, Japan, etc.  This
creates a question.  Once an image's copyright expires in the country
of origin should it be included in Commons even if it hasn't expired
in the US yet?  Working precedent on Commons often seems to say yes,
though a strict reading of copyright law would seem to say no.

In addition, there are substantial classes of images, including parts
of Freedom of Panorama [3] in particular, where copyright law in other
countries includes exemptions that have no corresponding exemption in
US law.  It appears that Commons routinely includes such images, even
without considering whether a comparable image produced in the US
would be free or not.  In at least some cases, this suggests that
foreign authors could use US courts to enforce copyright protections
in the US even when there would be no comparable protection available
to them in their country of origin.


It seems to me that there are many images (and whole categories) where
the only criteria for inclusion applied has been whether the image is
free in the country of origin, without consideration to whether the
work would also be free in the US.  Or perhaps I am mistaken about
this?  Should we be reviewing all foreign images to decide whether a
comparable US work would be free, and deleting ones that wouldn't be?

-Robert Rohde

[1] http://commons.wikimedia.org/wiki/Commons:Licensing
[2] http://en.wikipedia.org/wiki/Wikipedia:PD#Rule_of_the_shorter_term
[3] http://commons.wikimedia.org/wiki/Commons:Freedom_of_Panorama