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

[Robert Rohde]

On Thu, Feb 23, 2012 at 3:52 AM, John Vandenberg <jayvdb at gmail.com> wrote:
>
> On English Wikisource, we consider these to be public domain.
> We tag them that as public domain and explain why.
>
> https://en.wikisource.org/wiki/Template:PD-Ethiopia
> https://en.wikisource.org/wiki/Template:PD-Iran
> https://en.wikisource.org/wiki/Template:PD-Iraq

I didn't know Wikisource did this.  This would seem to imply that
Wikisource is willing to import virtually any text at all from these
countries, which seems like an ethically bad idea to me, for much the
same reason that importing all possible images on Wikipedia seems like
a bad idea.

However, setting aside the ethical issues for the moment, it is
important to note that these templates are frankly very incomplete,
which makes their conclusions potentially erroneous.

Under US copyright law (and more generally the Berne Convention),
establishing that a work is in the public domain due to a lack of
treaty status requires meeting several requirements, and those
templates only address the most obvious one.  These requirements are:

1) The work was first published in a country that has no copyright
relations with the US.
2) None of the authors of the work are citizens of any country that
does have copyright relations with the US.
3) Within thirty days of publication in the non-treaty state, the work
was never also published in any other state that does have copyright
relations with the US.

Currently, those templates only mention the first point.  However, the
Berne Convention extends copyright protection to all citizens of the
treaty states regardless of where they publish (point #2), so it is
also important to consider the nationality of the authors involved.

The third point is actually the most difficult in practice, since it
requires proving a negative.  The Berne Convention and US Copyright
Law consider any publications occurring during the first thirty days
to be effectively simultaneous, and authors will enjoy full protection
under the treaty if their work was published in any country where the
copyright treaty would apply.  It is often very difficult to determine
with certainty that a work was never published internationally during
that first 30 day window.  This is especially true as technology has
made it easier for works to be widely distributed across international
borders.  In Kernal Records OY v. Moseley (US District Court, 2011),
the court held that putting a sound file online for download amounted
to simultaneous publication in all countries where the internet was
available.  Following that logic, no work first published on the
internet could be considered as public domain due to non-treaty
status.  However, the US case law also contains a largely
contradictory ruling in Moberg v. Leygues (US District Court, 2009),
involving images appearing on a German website.  So the issue of
determining national origin in the internet age would seem to be
somewhat unsettled in the US.

However, the one thing that is clear though is that any claim to
public domain status due to the lack of copyright relations needs to
address all three factors raised above.  John, can you raise these
concerns at Wikisource?

-Robert Rohde