Photos were 50 years from creation, as well. So any photo in Luxembourg from before 1946 is safe from the URAA (though not the 70pma of the current law, if the author is known). Carl Lindberg (talk) 10:54, 12 April 2020 (UTC)Reply[reply]
@Clindberg and MGA73: This looks messy... My understanding:
If on the URAA date a work was out of copyright in the country of origin and did not meet the United States criteria for copyright protection, it is usable here unless the current law in the country of origin is retroactive and the work is back in copyright, which would be unusual.
I would guess that in several countries 50 pma on a URAA date of 1996 has been extended to 70 pma, but that is irrelevant even if retroactive. If 50 years had elapsed since death in 1996, 70 years would have elapsed by 2016.
But if the law on the URAA date was based on date of creation or publication, now changed to date of death, we need to clarify the situation.
It would be good to mention the URAA situation, since that is also part of policy. Foreign law changes after the URAA date have no further effect on the U.S. copyright. It either gets restored to the 95 year U.S. term, or it doesn't. Obviously for the country of origin part of policy, we have to follow their current law. So, Luxembourg photos before 1946 are fine for en-wiki. We do have to follow normal EU rules for the photos on Commons of course, as Luxembourg retroactively restored their works to the EU norms in 1997, but it means works are much less likely to be a URAA problem once those EU rights expire, that's all. The photo just had to be created before 1946 to also be PD-1996, as publication does not enter into it. Carl Lindberg (talk) 12:45, 12 April 2020 (UTC)Reply[reply]
@Aymatth2 and Clindberg: Yes that makes sense. If it was PD on the URAA date then it is still PD in the US. But for the country of origin we have to follow the current law. So it may have been PD once in Luxembourg but now copyrighted again.
I think most can figure out the copyright in the country of origin it is the combination with URAA that makes it hard.
So I think it would be really helpful if "we" - meaning Aymatth2 ;-) - add a note on all countries in the same situation. Perhaps a note like this will do:
"On the URAA restoration date 1 January 1996 the law in 1995 stated that photos were only copyrighted for 50 years from creation. It means that all photos taken before 1 January 1946 are not restored by the URAA."
An additional question: If the law says that simple photos are protected for 50 years from creation Luxembourg then the US law will ignore that and say it is protected for 70 pma? Or will the US law "respect" the law of Luxembourg and also treat simple photos as PD? --MGA73 (talk) 14:32, 12 April 2020 (UTC)Reply[reply]
@Clindberg and MGA73: My head is starting to hurt... I see the scenarios as:
Out of local copyright on URAA date
Out of copyright in the USA
May have been restored to local copyright if the current local law is retroactive, e.g. changed from create/publish + 50 to death + 70.
In local copyright on URAA date
USA status: If published before 1978, copyrighted for 95 years after first publication. Otherwise, copyrighted until at least 2047.
Local status depends on local law: may have gone out of copyright, then back in due to retroactive change.
Is that correct?
There are 250+ pages like Commons:Copyright rules by territory/country, many translated into 10 or more languages. They all have a standard intro saying: "Note that any work originating in country must be in the public domain, or available under a free license, in both country and the United States before it can be uploaded to Wikimedia Commons." All the pages have {{Infobox copyright rules}} at the top and Commons:CRT disclaimer and {{CRT list2}} at the bottom. We could insert standard language on URAA in those templates, but if the instructions are too complicated, people will not read them. I would prefer to make changes only to the "owner" Commons:Copyright rules by territory. Which of the Commons:Copyright rules by territory/country pages must be changed? Aymatth2 (talk) 15:44, 12 April 2020 (UTC)Reply[reply]
@Aymatth2 and Clindberg: I see your point. It makes sense to try to avoid to change 250+ pages.
The problem is that we need a link between the pages "Copyright rules by territory" and the URAA nightmare.
Third we could make the the text on Commons:URAA-restored_copyrights#Main_tests so it is a bit more clear that there can be cases where URAA was not restored. For example change number 2, dot 3:
"...terms after the relevant URAA date; the copyright term in effect on the URAA date is the one that matters for working out whether a work was in copyright on that date." to
"...terms after the relevant URAA date; the copyright term in effect on the URAA date is the one that matters for working out whether a work was in copyright on that date (see this table for exceptions)."
I have made those changes, which are good, but I am not sure that they are enough to cover cases like this. Need to think more... Aymatth2 (talk) 19:15, 12 April 2020 (UTC)Reply[reply]
*A non-US work is usually protected in the US if it is a type of work copyrightable in the US, published after 1927 and protected in the country of origin on the URAA date.
The difficulty is that the reader will need to know the local laws on the URAA date, and it would be a lot of work to add them to all the pages like this one. Aymatth2 (talk) 22:51, 12 April 2020 (UTC)Reply[reply]
(edit conflict, I was answering stuff earlier, but maybe this will still help.) I would just ignore the local copyright side of things. That is the same as it has always been, and is the subject of the "copyright rules" sections as you have them. The issue is only for the U.S. side of Commons policy, because they used the law in the given country as it was on the URAA date, which is not always documented on these pages but is important when determining URAA status for policy. Many EU countries did their restorations before the URAA date, so you can basically just take the current rules and apply them to 1996 to figure out if they were protected then. But several did not, and those get very technical -- but can result in more deletions if people are not aware of the situation and they delete because they think the URAA applies when it does not.
France is one example -- they did not restore until 1997 themselves, and they had 50pma terms before. But... they also had wartime extensions, and the WWII ones can add 8+ years so the actual term was more like 58.3 years. Italy also did it after, and they had six year wartime extensions. Portugal was 50pma then, and so on. Austria was at 70pma before then, but they made an important change for old photos early in 1996, meaning photos from before 1932 got restored in Austria but not in the U.S. The w:Wikipedia:Non-U.S. copyrights page has some of that information, but not for all countries. I'm not sure the best place to capture the information, but frankly it is needed somewhere. Maybe that en-wiki page is enough. Lack of that info helped stall Commons:WikiProject Public Domain/URAA review, though there are many who understandably find those deletions distasteful and wanted it stalled anyways. For any countries which don't do retroactive restorations, those old laws can matter a lot -- you have documented Mexico correctly, for example, whose actual terms are far less than the 100pma it looks like they are. (You are missing the Ivory Coast, who is a member of the Bangui Agreement and used that treaty's copyright law prior to 1996 which had 50pma terms, and the increase was not retroactive -- though that may be moot if they have gone back down to 70pma, which I was not aware of.) But any countries which did retroactive restorations, the historical stuff is of academic interest only because those changes usually mean all the old laws no longer matter and are irrelevant in that country. Carl Lindberg (talk) 23:25, 12 April 2020 (UTC)Reply[reply]
This set of pages is where the rules for Commons should be documented, not en.wiki. There are two separate concerns:
Is a file free under local laws? That may depend on whether those laws were retroactive. Usually they are not, but sometimes they are, and sometimes they are for some types of work but not others. I have tried, based on skimming through the copies of the laws on WIPO, to capture current rules and earlier versions that may be relevant, but am sure I have missed a lot of points. Local experts should correct the errors.
Is the file free in the US? That definitely depends on the local laws on the URAA date. Most countries have changed their laws since 1996, usually not retroactively, so I cannot see any way to give a clear answer without outlining the local laws on the URAA date.
Yep, that's about it. You've done a yeoman's job on these pages honestly -- it just seems as though there is always more to document :-). Most countries don't do retroactive stuff. The EU did, which was the biggest deal. And countries joining the Berne Convention / WTO for the first time are supposed to, but if other countries don't care enough, they can usually get away without doing it. (The U.S. tried to get away without doing the Berne restorations when they joined in 1989, but other countries most definitely cared, which is what led to the URAA.) Russia did a retroactive one in in 1993 (when they joined Berne) and another round in 2008. Outside of those, most times countries usually just leave PD works alone and extend the duration for ones still under copyright. But that means you have to go back and see what the terms were in the old laws, as they can still affect things. In general, for the current law in each country, the way you are going is good I think. Document details as you find them.
However, I think it would be a good thing to have a section on the URAA interaction for a given country, at least for the ones who had significantly different terms on the URAA date. For countries who never did a retroactive restoration, it's possible the general history of their law in the regular section covers it though even then it might be good to point out the situation on the URAA date specifically. Carl Lindberg (talk) 02:01, 13 April 2020 (UTC)Reply[reply]
I also think that the relevant pages should be on Commons and not en.wiki but it is a lot of work and since many really don't care about URAA then it would be a big job to help the few.
If someone had really good time I think it would be the best to have 1 section on each country page where there is a text about URAA. So instead of sending the readers to the big table it would be easier for the reader if there was a section saying.
"The URAA date for Luxembourg was 1 January 1996. At that time Luxembourg had a law saying works (only photos or also paintings, books, music?) were copyrighted for 50 years from creation. That means that all works created before 1 January 1946 are not covered by the URAA and they are therefore out of copyright in the US.
Luxembourg later changed the law so some works that was out of copyright may be covered by the new local law and therefore again copyrighted in Luxembourg. For example if the creator died less than 70 years ago. But the work is still out of copyright in the US." (I hope this example is correct)
But I think the changes already made help a lot because now it is easier to find the right page to look at. --MGA73 (talk) 08:12, 13 April 2020 (UTC)Reply[reply]
I have added a footnote on URAA to {{Infobox copyright rules}}, and added a section on US laws to this page. Maybe the section can be used as a model for the other country pages. But upgrading them all would be a huge job. Aymatth2 (talk) 12:31, 13 April 2020 (UTC)Reply[reply]
@Aymatth2: I think/hope it is possible to use a standard phrase on all the pages where the copyright law was the same at the URAA date as it is now. That way we only need to add a special text on the countries where the rules have changed. --MGA73 (talk) 20:15, 13 April 2020 (UTC)Reply[reply]
Almost all countries have changed their copyright laws in the last 25 years, in many cases with a major overhaul or rewrite. There will be some where none of the changes affect what was in copyright on the URAA date, but the only way to find out is to compare the previous and current laws. We may as well add a section to the pages where there has been no relevant change, saying that. It can of course have standard text. Aymatth2 (talk) 11:46, 14 April 2020 (UTC)Reply[reply]
@Aymatth2 and Clindberg: I think the text added looks really good. It is much easier now to find out if the work was restored by the URAA or not.
But then what? In Luxembourg anonymous works are only protected for 70 years. So a work from 1949 will now be out of copyright. But in the US the rules for anonymous works is Publish + 95 years / Create + 120 years (whichever is shorter).
The same for Denmark where we have Template:PD-Denmark50 for photographic images that is not "photographic works". But in the US it is always 70 pma.
I added a link, although the general "usually protected if published after 1924" will cover most non-US works. I still do not see any easy way to handle all the other countries. Aymatth2 (talk) 18:04, 19 April 2020 (UTC)Reply[reply]
"96. — 1) La présente loi s’applique aux œuvres et prestations réalisées avant son entrée en vigueur et non tombées dans le domaine public à ce moment."
"96. — 1) This law applies to works and services produced before its entry into force and which did not fall into the public domain at that time." (Google Translate)
So all works that was PD before April 2001 is still PD per law of Luxembourg.
Does that mean that all photos taken in 1950 or before are PD according to Luxembourg law? But because of URAA it also need to be PD on January 1 1996 so that means that photos have to be taken in 1945 or before?
I think it is correct to say that a photograph taken in Luxembourg in 1945 or before would have entered the public domain before the URAA date of 1 January 1996, and would therefore be in the public domain in both the USA and Luxembourg. I do not see any PD tag that covers this, but can make one up if nobody objects. Perhaps it should have a generic name like PD-create-50. Aymatth2 (talk) 11:47, 14 May 2020 (UTC)Reply[reply]
Aymatth2 For Denmark we have {{PD-Denmark50}} but I do not know if that is the standard name. Anyway the name is not important to me. But there are some photos on lb.wiki I would like to move to Commons but I do not have a template. Since Clindberg have spend a lot of time on Luxembourg already perhaps we can ask him to comment too (perhaps if we give him a beer?). --MGA73 (talk) 17:24, 14 May 2020 (UTC)Reply[reply]
I don't think so. The 1997 law amendment was retroactive -- The term of protection shall apply to all works and all performances which, on July 1, 1995, were protected in at least one Member State of the European Union or of the World Trade Organization. It allowed people currently using PD works to continue using them (Works that passed into the public domain before July 1, 1995, and have already been freely exploited may continue to be exploited by the same persons, who shall be exempted from copyright insofar as they engage in the same forms of exploitation) but any new exploitations would not be allowed. The clause in the 2001 law may at least mean going forward any term increases will by default be non-retroactive, but since the terms were already increased to EU lengths in 1997, I don't think that clause in the 2001 law means that much. Carl Lindberg (talk) 18:53, 14 May 2020 (UTC)Reply[reply]
Clindberg Hmmm I would read that as a way to make sure than works that were copyrighted somewhere in the EU (but not in Luxembourg) is from now on also protected in Luxembourg. But if it was PD in Luxembourg it would still be PD unless it for some reason was not PD in another EU country.
I agree that the second part could suggest otherwise but why include "...which, on July 1, 1995, were protected in at least one..." in the first part if the law was meant to include all works? Then it would be simpler to just write "The term of protection shall apply to all works." --MGA73 (talk) 20:57, 14 May 2020 (UTC)Reply[reply]
It's worded that way because that was the specific wording in the EU directive -- they required countries to restore all works which were protected in any single EU country as of July 1995. Some countries just restored all works without that clause, since it amounted to the same thing, but most just repeated the directive wording. Since all works (even Luxembourgish) were protected in other EU countries for longer (Spain had been 80pma and several were 70pma), then those works were protected as of that date and got restored. I'm not sure we've identified any work which avoided restoration by the directive rationale, other than those already past 70pma. Luxembourg even added "or of the World Trade Organization", meaning it's not just EU countries -- if it was protected in most world countries it got restored in Luxembourg. So even if it was protected in Colombia (80pma) in 1995 it got restored in Luxembourg to 70pma. There's nothing really different in that 1997 law than all the other EU restorations. The second part of that makes it clear -- if you were currently exploiting such works you could continue, but that means if you were not exploiting such works you no longer could, meaning they were no longer public domain. Most countries put a time limit on the people currently exploiting them, but Luxembourg did not from the looks of it. But they got restored just like the rest of the EU as far as I can tell. (Romania may have avoided restoring them, but they were not EU members at the time, and only made their law changes later.) Carl Lindberg (talk) 22:57, 14 May 2020 (UTC)Reply[reply]
@Zinneke, Jamcelsus, and Les Meloures: Pinging a few users from lb. Perhaps any of them know more. Please ping other users if you thing anyone might know. --MGA73 (talk) 21:05, 14 May 2020 (UTC)Reply[reply]
I agree with Clindberg. The law was retroactive, so the photo would have returned to copyright in Luxembourg until life+70. But I think the photo would be PD in the United States because it was PD on the URAA date. Aymatth2 (talk) 12:26, 21 May 2020 (UTC)Reply[reply]
@Clindberg: We can probably ignore the 1997 amendment that applied the Luxembourg protection term to all works which, on 1 July 1995, were protected in at least one Member State of the EU or WTO. This would mean a Hong Kong work that became PD in Hong Kong in 2001, 50 years after the author's death, would be protected in Luxembourg until 2021. But we are only concerned with its status in Hong Kong and the USA. Aymatth2 (talk) 16:31, 4 June 2020 (UTC)Reply[reply]
Really, the "protected in at least one Member State" stuff can just be translated as "all works", since it amounts to the same thing, but they were just repeating the EU directive text. The wording is more that if a Luxembourg-published work had become PD in Luxembourg, but was still protected in say Spain or Hong Kong in 1997 per those countries' laws, then it got restored to 70pma in Luxembourg -- that was the general intent of the EU directive. Luxembourg would still use the rule of the shorter term with actual Hong Kong-originated works. Since you can always find at least one EU country where Luxembourgish works (less than 70pma) were still protected in 1997, then they all got restored within Luxembourg as well. The subsequent 2001 law returned to the default non-retroactive transition rules going forward, but since all their works had already been restored in 1997, that law does not help us any for the country-of-origin side of things (which you stated above). The fact they did not restore until 1997 does help us with the URAA quite a bit, but otherwise Luxembourg is now like the rest of the EU at 70pma.
The convoluted "protected in at least one Member State" stuff does mean that if you did actually manage to identify a work which had in fact expired in *every* EU country by July 1995 -- maybe a simple photo, or applied art which often had shorter terms -- then those works would not have been restored. I'm not aware of any such work actually being identified though (not all countries had shorter terms for simple photos or applied art, and all it takes is one), so we presume that the clause effectively means "all works". Some countries (like Finland, which I looked at recently) simply did say "all works" in their law which implemented the directive, to do away with the seeming complexity of that clause. Carl Lindberg (talk) 20:53, 4 June 2020 (UTC)Reply[reply]
I do not read it that way. By default a work is protected under the law of the country of origin, and other Berne/WTO countries respect that protection. But the 1997 amendment Art.49 goes further and says "The term of protection shall apply to all works and all performances which, on July 1, 1995, were protected in at least one Member State of the European Union or of the World Trade Organization." In this context "Term of protection" must refer to the term defined in the 1997 amendment: Luxembourg terms apply in Luxembourg to Hong Kong works that were protected in Hong Kong on July 1, 1995. Aymatth2 (talk) 22:12, 4 June 2020 (UTC)Reply[reply]
A work is protected under the law where protection is claimed. If you bring a lawsuit in Hong Kong, it would use their law. If you bring a lawsuit in Luxembourg, it would use Luxembourg law. This is why TOO etc. is different in every country -- each country uses their own level. From the Berne Convention -- Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention. So in another country an author gets the protection that country's authors get, no more. Luxembourg is just defining their law for within their borders, which will apply to all copyrighted works no matter the origin. The Berne Convention just makes sure that the protections in member country are reasonably consistent, to some minimum standards -- but the details can differ.
From the EU directive: The terms of protection provided for in this Directive shall apply to all works and subject matter which were protected in at least one Member State on the date referred to in paragraph 1 [July 1, 1995]. So all EU countries were required to restore all works to 70 pma in their own country if they were protected in any EU country as of 1995. That is what this part of Luxembourg's law is implementing -- they will restore all works, provided they were protected in any EU member state (which, as far as we can tell, is simply all works). Why Luxembourg added "or of the World Trade Organization" I'm not sure, but since it was basically all works anyways, I don't think it makes a difference.
The EU directive also generally requires countries to use the rule of the shorter term for non-EU countries: Where the country of origin of a work, within the meaning of the Berne Convention, is a third country, and the author of the work is not a Community national, the term of protection granted by the Member States shall expire on the date of expiry of the protection granted in the country of origin of the work, but may not exceed the term laid down in Article 1. So normally EU countries would treat Hong Kong works (by non-EU authors) to only 50pma, since that is Hong Kong's term, unless there is a separate treaty previously signed (the latter is why many EU countries will protect U.S. works to the full 70pma, since many of them signed bilateral copyright treaties with the U.S. in the late 19th and early 20th century which are still in force). Luxembourg however also added "or of a World Trade Organization country" to their implementation of this clause as well (article 47), so it appears that they would protect Hong Kong's works to the full 70pma. I guess it is just countries who are a member of the Berne Convention but not the WTO where they would use the rule of the shorter term (that would be a very small list). So maybe both of our interpretations are correct -- but I think the clause in question is about the restoration of works within Luxembourg. Carl Lindberg (talk) 23:05, 5 June 2020 (UTC)Reply[reply]
WTO/TRIPS rules are based on Berne rules apart from moral rights. Under both TRIPS and Berne, protection of foreign works in a member country may end when protection ends in the country of origin, even if the member country has a longer term. Under the the EU directive Art 7.1, may is replaced by shall.
The Luxembourg amendment of 1997 was implicitly retroactive, although use of copies taken while a work was PD could continue after the work had returned to copyright. Retroactivity was not connected to the clause extending Luxembourg terms to all EU/WTO works that were protected on 1 July 1995, which seems to be in conflict with the EU directive Art 7.1.
For our purposes though, all that matters is the law of the country of origin and of the USA. Aymatth2 (talk) 13:00, 6 June 2020 (UTC)Reply[reply]
Agreed with all that, except that I read it as explicitly retroactive, with the clause referencing works protected on July 1, 1995 as being the actual implementation of the directive article 10.2. It's similar wording as many other EU laws implementing the directive -- they have to identify which works qualify for protection going forward (which is basically all), and since works were being restored, you need to indemnify existing uses at least to a point, which as you note Luxembourg allowed open-ended (most EU countries ended that permission after a number of years). And yes, the implementation of 7.1 is odd, and seemingly at odds with the EU directive with respect to WTO countries. It's possible that Luxembourg had a pre-existing obligation of some sort, which the directive allowed preserving, but otherwise I don't know of a good reason for that deviation from the directive (which I don't recall in any other EU country). Luxembourg does have a bilateral treaty with the U.S. dating from 1910, so they probably would need to protect U.S. works to the full 70pma regardless of article 7.1 (a case in Germany was ruled that way too), so maybe they had enough such treaties it was easier to apply that to all WTO countries. But I don't really know. Carl Lindberg (talk) 15:51, 6 June 2020 (UTC)Reply[reply]
