[WikiEN-l] Images that are PD in their country of origin

[Ray Saintonge]

SlimVirgin wrote:
> Can anyone help with an authoritative opinion about this? The doubts about
> it are causing problems on a number of articles, including during featured
> article reviews.
>
> Where an image is in the public domain in its country of origin, and that
> country is not the U.S., I believe we still have to show that it is PD in
> the U.S. before we can use it, because the Foundation's servers are in the
> U.S.. There seem to be widely differing views on this, even among
> Wikipedians who seem knowledgeable about images. Some people say that if the
> image was not copyrighted in its country of origin on January 1, 1996, it is
> regarded as PD in the U.S., and may be uploaded to the Commons and used on
> Wikipedia as PD. This is according to the [[Uruguay Round Agreements Act]].
> Others are saying no, this *may* mean they are in the public domain, but
> their status as such is not secure.
>
> So my first question is: if an image was regarded as in the public domain on
> January 1, 1996 in its (non-U.S.) country of origin, is there a consensus as
> to whether we are allowed to use it on Wikipedia as a PD image? If so, what
> is the correct tag to use?
>
> My second question: for images that are in the public domain in their
> (non-U.S.) country of origin, but were not PD in that country as of January
> 1, 1996, is there any way we can use them apart from claiming fair use?
>   
In examining this one needs to distinguish between Wikipedia policy and 
copyright law.  Wikipedia can establish its own policies, which largely, 
but not exclusively, tend to be more stringent that copyright law.  In 
that it can be authoritative; it chooses what level of risk to accept.

As long as you depend only on copyright law there can be no 
authoritative answer. The failure of the United States to adopt the rule 
of the shorter term throws everything into a muddle. Every situation 
needs to be studied on its own merits. The case is still working through 
the legal system challenging, on first amendment grounds, whether that 
law would operate to re-protect works that had already gone into the 
public domain. It seems clear that UK authors who died in 1923, 1924 or 
1925 would not have been captured by the URAA. In other cases much 
depends on how the law of some other country transitioned the extension 
of copyright from life plus fifty to seventy.  There are many possible 
permutations of that problem.

Canada still uses life plus fifty, and it's anybody's guess whether it 
will adopt the extension. The last couple controversial efforts to add 
DRMs did not include term extension language. Stephen Leacock died in 
1945 so his works would have gone into the public domain in Canada at 
the end of 1995; nevertheless some later works were published in the US, 
and the copyrights duly renewed at the appropriate time.

Images present additional problems about who owns the copyright.  The 
simple fact that an image was included in a book does not automatically 
mean that the book's author owned the copyrights for the images.  For 
the Winnie the Pooh books Shepherd, the illustrator, outlived Milne by a 
considerable margin so in a life plus system the copyrights on the 
images would last much longer than those on the texts.

In summary, it's up to Wikipedia to adopt its own policies. Personally, 
I would avoid too doctrinaire an approach; I would more tend to assume 
that if one takes a fair-minded approach to including material with 
uncertain copyright status the worst that can happen is that some 
ghostly obscure heir will emerge from the woodwork to make his claims. 
More likely, he will thank us for reviving the memory of his dead ancestor.

Ec