[Wikimedia-l] Uncopyrightable works and cross-jurisdictional protections was Re: Copyright on Xrays

[Birgitte_sb at yahoo.com]

On Aug 23, 2012, at 7:35 AM, Anthony <wikimail at inbox.org> wrote:

> On Thu, Aug 23, 2012 at 8:20 AM,  <Birgitte_sb at yahoo.com> wrote:
>> Snip
> 
>>>> And even if it is only the US, other countries would not recognize copyright on diagnostic
>>>> images created in the US, which gives us at least the NASA situation.
>>> 
>>> Do you have a citation for this?  Also, is it where the image is
>>> created, or where it is first published, or something else?
>>> 
>> Copyright, internationally, is bilateral agreements. If it is not protected in the US, it cannot
>> demand bilateral protection elsewhere.  It would be based on the jurisdiction of creation.
>> Publication has had nothing to do with the creation of copyright since the 1970's as far as I
>> am aware.  Before 1976, in the US, place of publication was significant for determining
>> copyright protection because of the notice requirement. Now copyright is automatic at fixation.
> 
> Are you sure, or are you guessing?
> 
> What about all that "country of origin" stuff in the Berne Convention?
> That certainly suggests to me that the location of first publication
> matters.
> 

Publication shortens the copyright term that was enjoyed by the unpublished work. That is the only significance I am aware that the first publication has since the 1970's.

However, the Berne Convention is insane.  It is not set up as a bilateral treaty like I had thought. (Some of the other relevant agreement are.) It reads: 

> [the enjoyment and exercise of copyright] ... shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed. — Berne Convention, article 5(2).


Here is an example of how insane that is.  In the US edicts of government are uncopyrightable. A few years ago Oregon "forgot" about this; they notices on their website and actually attempted to enforce copyright on the statues of Oregon. I am not sure how far this went in litigation before they were educated about copyright law. Now in the UK, edicts of government are copyrightable. The UK recently switched its license on the local statute from Crown Copyright to some new "Free Government" license. One way that Berne can be read is that if you had printed a copy of the Statues of Oregon from their website in Oregon; you were not infringing on copyright.  However if you had printed a copy of the Statues of Oregon from their website *in the UK*; you were infringing on the copyrights owned by the State of Oregon.  And if Oregon had sought to enforce these rights in the UK, they would have been able to.  

Now this is the really insane part. The US policy relies on common law, so there isn't a quotable  statue.  The summary is "such material as laws and governmental rules and decisions must be freely available to the public and made known as widely as possible; hence there must be no restriction on reproduction and dissemination of such documents." Now imagine the US federal government passed a law stating that "in order allow for the widest distribution possible, all edicts of government are to be protected by copyright for a term of 1 minute." If that were to happen then Oregon would no longer be able to enforce copyright on the Statutes of Oregon in the UK or any other Berne signatory that does not explicitly revoke the rule of the shorter term (one the "provisions of the Convention" that can invalidate the the quoted idea above).

Obviously, I just pulled all this together. And I am "just guessing", as you might say, about how it would actually play out. And while it is a crazy corner of international copyright, it is not an issue I am concerned with about the diagnostic images. I do not believe such images are copyrighted anywhere. Until someone cites some copyright law that is profoundly differently from generic US basis for what copyright is about, I am will remain confident that mere diagnostic images are universally without copyright protection.

Birgitte SB