[Foundation-l] English Wikipedia considering declaring open-season on works from countries lacking US copyright relations

[Robert Rohde]

Short version:

A few countries currently do not participate in international
copyright treaties.  Most such countries have domestic copyright laws;
however, many works originating in these countries are considered to
be in the public domain in the United States due to the lack of a
treaty relationship.  In 2005, Jimbo declared that we would
nonetheless respect the copyright laws of non-treaty countries as best
we can [1].  Since mid-January, English Wikipedia has been having a
well-advertised, but poorly-attended discussion that contemplates
overturning this Jimbo-created rule.

The proposed change would mean all works where the "country of origin"
(as legally defined by US statutes) is a non-treaty state would be
declared as public domain for the purpose of Wikipedia and allowed to
be freely used.  The current discussion features a 9-3 "consensus" in
favor of this outcome [2], and some participants are now pushing for
implementation on this basis [3].

Though all participants agree there no US copyright protection for
works originating in non-treaty nations, this proposal raises a number
of ethical and logistical problems.


Longer version:

As September 2010, Afghanistan, Eritrea, Ethiopia, Iran, Iraq, San
Marino and Turkmenistan have no copyright relations with the US. [4]
All works published in these countries by nationals of these countries
are considered to be in the public domain in the US unless they were
also published in a country that has US copyright relations within 30
days of their original appearance.

This means many modern and historical works originating in these
countries may currently be used freely in the US.

Nonetheless, most of these countries have domestic copyright laws
protecting the intellectual property rights of their nationals.

The law here is not in dispute, the question is how Wikipedia should
respond to these works.  Under Jimbo-created policy originating in
2005, we treat works from these countries as if they the countries DID
have copyright relations with the US, even though they do not.  This
means excluding many works from Wikipedia that we would be legally
entitled to.

Personally, I agree with Jimbo that respecting the intellectual
property rights of authors in non-treaty states is ethically the right
thing to do.  Simply appropriating all content published in Iran,
Iraq, etc., as free is disrespectful to the authors involved.  This is
especially true since individual authors in these countries generally
have no influence over whether their government chooses to participate
in international copyright agreements.

Allowing such images to be used on Wikipedia would also create a
number of foreseeable problems for us and for reusers.  Firstly, works
in the public domain due to non-treaty status can be restored to
copyright if the nation at issue chooses to join the relevant
treaties.  At the stroke of a pen, these nations could ensure their
works were no longer usable.  Such a change could create significant
additional work for Wikipedians and numerous hassles for any reusers
that chose to rely on such images.  It is unclear how likely these
countries are to seek treaty status in the future.  However,
membership in international copyright treaties is generally seen as a
prerequisite for full member status in the World Trade Organization.
Afghanistan, Iran, Iraq, and Ethopia all have been applying for full
member status in the WTO (the process takes years, and Iran began the
application in 1996).  The desire to join the WTO would appear to make
it significantly more likely that these countries will join
international copyright treaties in the foreseeable future.

Personally, I think Wikipedia ought to focus on truly free content
rather than "public domain" content with a significant chance of being
revoked in the future.

There are also practical problems with determining that a work
originates in a non-treaty state, that the authors are all nationals
of that country, and that the work was not also published in a treaty
state.  (Some US courts have suggested that placing a work on the
internet actually counts as publishing in all countries were it is
available, which would imply that internet works would be frequently
covered by treaty obligations.)


Anyway, I think a change of this magnitude needs a more thorough
vetting by the community.  A "consensus" of 9-3 shouldn't really be
sufficient to change how Wikipedia deals with content from non-treaty
states.  Though this discussion has been presented to RFC and has been
open for quite a while, I suspect that the way the issue was framed
made it hard for most people to participate.

I'm raising the issue here, because I know many people on foundation-l
care about issues surrounding copyright and reuse, and a change like
this could set a precedent for what we ultimately do on the other
projects.

-Robert Rohde


[1] http://lists.wikimedia.org/pipermail/wikien-l/2005-August/027373.html
[2] http://en.wikipedia.org/wiki/Wikipedia_talk:Copyrights#Usage_Option_1_Support
[3] http://en.wikipedia.org/wiki/Wikipedia_talk:Copyrights#RfC:_What_to_do_with_respect_to_the_copyright_of_countries_with_which_the_US_does_not_have_copyright_relations.3F
[4] http://www.copyright.gov/circs/circ38a.pdf