[WikiEN-l] Wikipedia and U.S. specific laws (was Non-free images etc.)

[David Newton]

>But that's exactly what's happening as long as
>all the focus is on U.S. laws. Fair use won't
>protect you if you're publishing Wikipedia derived
>content in Denmark. Nor will Bridgeman v. Corel.

>Recently a picture of the Lindisfarne Gospels
>taken from the British Library website became
>a featured picture even though the BL explicitly
>claims copyright on it and that claim may well
>hold up in a British court.

There are two critical facts that people seem to be missing in this
debate. Firstly people moan about things that old having a copyright.
My answer to that is, unfortunately, TOUGH! British copyright law is
NOT just life of the author plus 70 years. That is the rule for
PUBLISHED photographs and works. UNPUBLISHED works have an entirely
different set of rules. If the author of an unpublished work died more
recently than 1968, then the copyright term of published and
unpublished works by that author are exactly the same. For unpublished
works of those authors who died before 1969 then the rule is that
there is a period of 50 years from the time of first publishing, or
2040, whichever is earlier, for copyright to expire.

To take the example of William Shakespare:

1. His published works were out of copyright before the concept even existed.
2. His unpublished works REMAIN IN COPYRIGHT TO THIS DAY.
3. Works published posthumously, and after the invention of copyright,
expired as appropriate to the laws of the day. A Shakespeare work
first published in 1954 would only have come out of copyright six
months ago in the UK.

The second factor that people are missing is that US law on fair use
is irrelevant to this discussion when it comes to images on the
British Library server. That server is physically located in the
United Kingdom. It is therefore governed by the copyright law of the
United Kingdom. Anyone accessing it from the UK is only governed by
British copyright law. Anyone accessing it from another country is
covered both by British copyright law and the copyright law of the
country they are accessing it from.

Those two factors mean that I draw the following conclusions. Unless
it can be shown that the Lindisfarne Gospels were published more than
50 years ago, they are still in copyright in the United Kingdom. Since
they are unique objects, they cannot have been published in their
original form. That means that in order to be published a scholarly
work on them or a facsimilie version would be the most likely sources.
If they are still in copyright, which is most likely the case, then
the British library has every right to slap a copyright notice on
images of them. Even if the images do not themselves qualify for
copyright protection, the object they depict DOES qualify for
copyright protection. Since the object is deliberately, and not
incidentally, included in the scene the photos are derivative works of
that object. Under British copyright law, which is the one we have to
worry about here, the exceptions to copyright are called fair dealing.
It is illegal to copy a photo from a website in the manner which has
been done here. None of the fair dealing exceptions apply.

Discussing US copyright law is irrelevant until British copyright law
is out of the way. If the Lindisfarne Gospels themselves are out of
copyright, then it becomes a whole new ballgame.

David Newton