United States non-acceptance of the rule of the shorter term
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Please read #Adaptation to American non-acceptance of the rule of the shorter term to see how to adapt to the current situation while considering Legal/Wikimedia Server Location and Free Knowledge.
Wikimedia projects must abide by United States copyright laws because of the location of the servers in the U.S. state of Florida; however, not all aspects of that law are clear, and this article discusses one of those unclear aspects. Even though Wikimedia plans to move its office to San Francisco, California, USA, the main cluster of Wikimedia servers will remain in Tampa, Florida, USA.
- "the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work."
This rule says that PD-old material (according to the publishing country) is PD-old everywhere, unless national (eg: US) law explicitly says the contrary. What is the US law on this subject, and does it provide a "shorter term exception"?
Current U.S. copyright laws, under 17 U.S.C. 104(c) and 17 U.S.C. §104A, seem not to accept the rule of the shorter term, creating confusions for users wishing to post foreign works and putting burdens on administrators who must verify if a work is in fact copyrighted in the United States even if it has already been in the public domain in the country of original publication.
- 1 US position on foreign copyright
- 2 Why is this a major problem?
- 3 Official works
- 4 The negative impacts on various Wiki sites
- 5 Action alert
US position on foreign copyright
Historically, the US position has been not to apply this rule of shorter term in the conventions in which it was a member. This is the origin of the phrase "The United States has never applied the rule of the shorter term", which is 100% correct if it is specifically completed by "as it is defined by the Buenos Aires Convention and Universal Copyright Convention". Under those conventions, the rule of shorter term had to be explicit, and the USA never considered implementing it.
The fact is that for Berne adhesion, the "rule of shorter term" has not been considered by the US congressional discussions, according to the House report on the BCIA. The points discussed in the report are largely political and economical (GATT constraints), the two "technical" legal issues being (1) not to let "moral rights" (to which US had no experience) get out of hand, and (2) make sure no constitutional problem would arise (the constitution says the president signs treaties, but says the congress has authority on intellectual property rights), thus justifying this insistence on "non self-application of the Berne convention" (see Berne Convention Implementation Act of 1988). The question of "F. Retroactivity and the public domain" has indeed been addressed in a half-a-page section, but the conclusion was that since nothing was mandatory (Berne Art. 18-2) things were left untouched ("The public domain is neither expanded nor reduced"); and the conclusion was "Title 17, United States Code, as amended by this Act, does not provide copyright protection for any work that is in the public domain in the United States". At that point, the US position with respect to the "rule of shorter term" had not been discussed at all: since the rule was optional, and the USA wanted a minimal legislation change (House report), it was considered secondary (and was useless anyhow). The difference between the UCC shorter term (explicit) and the Berne version (implicit) probably went unnoticed, and was unnoticed until recently (see Patry's comments).
The restoration of copyright introduced by the NAFTA implementation act was initially limited to motion pictures (introduction of "‘§ 104A. Copyright in certain motion pictures"). The Uruguay Round Agreements Act then generalized the restoration to "Copyright in restored works", with effect from January 1, 1995 [§ 514(a)]. In those acts, the "rule of shorter term" was not considered. But the indirect effect was that because of the unequal protection term previously introduced by United States Code/Title 17/Chapter 3, work created before 1978 could have a longer protection term than that given in the country of origin, even before the Copyright Term Extension Act added twenty years of protection:
- Those published from 1923 to 1977 would be copyrighted for 75 years since publication.
- Those published since 1978 would be copyrighted for:
- Lifetime plus 50 years for individuals (Berne minimum), or
- The shorter term of 75 years since publication or 100 years since creation for corporate works.
Political and constitutional aspects
The reason why the rule of shorter term was an unimportant point is that the USA historically had not been in a position to use it anyway: the USA had the minimal protection term required in all conventions it was part. The USA may have been a victim of the "rule of shorter term", but was not in a position to use it, apart from marginal cases with no economical importance (private photographs, for instance). The situation changed with the Copyright Term Extension Act (1998): The "rule of shorter term" went into discussion, because the USA was a victim of it, and it had an economical importance (the protection of Disney works). "The purpose of the bill is to ensure adequate copyright protection for American works in foreign nations and the continued economic benefits of a healthy surplus balance of trade in the exploitation of copyrighted works. The bill accomplishes these goals by extending the current U.S. copyright term for an additional 20 years. Such an extension will provide significant trade benefits by substantially harmonizing U.S. copyright law to that of the European Union".
This has been the constant policy of the USA: "Since the United States runs a positive balance of trade for copyrighted items, Berne membership should contribute to a continuation of that net advantage. [...] The net benefits will flow to American authors and to the American public." and "American popular culture and information products have become precious export commodities of immense economic value. That value is badly eroded by low international copyright standards. Berne standards are both high, reasonable and widely accepted internationally. Lending our prestige and power to the international credibility of those standards will promote development of acceptable copyright regimes in bilateral and multilateral contexts. Ultimately, a strong and viable international legal regime will develop to the benefit of the United States, not only to the advantage of proprietary interests but also to the public good." (House report on BCIA).
Such economical justification is needed, because the US constitution states that "[t]he Congress shall have Power [...] to Promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their Writing and Discoveries." (US Const. §1-8). A copyright regulation that would exceed this limit would be unconstitutional.
- <<The Constitution does not establish copyrights, but simply provides that Congress has the power to grant such rights if and as it thinks best. As this Committee observed during the 1909 revision of the copyright law, [n]ot primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. This statement still rings true today. Recently, the Supreme Court confirmed its validity by stating that the monopoly privileges that Congress may confer on creators of intellectual property are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. Stated otherwise, the primary objective of our copyright laws is not to reward the author, but rather to secure for the public the benefits from the creations of authors.>> (House report on BCIA)
Furthermore, this constitutional provision implies that treaties on copyrights cannot be self-executing in the USA. Because the president "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties" (US Const. §2-2) but intellectual property is a congress prerogative, there must be a legislative act to enforce the treaty:
- ""'Pursuant to the United States Constitution, treaties are the supreme law of the land. As such, they supersede prior laws with which they conflict. Some treaties are self-executing: once ratified, they take effect without additional governmental action. Other treaties are not self-executing, and they take effect only after additional governmental action, such as implementing legislation passed by the Congress and signed by the President. While the failure to enact necessary implementing legislation may place a country in violation of its international obligations, the terms of the treaty itself generally do not supersede existing laws that conflict." (House report on BCIA).
These considerations led to the USC 104-c formulation on "Effect of Berne convention", on which William Patry commented "Since U.S. courts have been expressly told by the U.S. Congress not to apply Berne, but to apply title 17, that's what they do". Such an interpretation is excessive: Justice is independent in the USA, and s:Constitution of the United States of America#Article VI states that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby". While a judge would have an interpretation problem if the Congress failed to fulfil a treaty obligation, there is no objection to consider the treaty as an interpretation source for the Congress legal implementation of it.
- Transposition of Berne convention in the United States Code
Copyrighted material published in Berne treaty parties is also protected in the USA - This is mandatory for the USA, according to Berne convention art. 5 which says "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.". Accordingly, 17 U.S.C. 104-b states that:
- "The works specified by sections 102 and 103, when published, are subject to protection under this title if— [...] (2) the work is first published [...] in a foreign nation that, on the date of first publication, is a treaty party; [...]"
Berne convention art. 5-2 states that : "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". When a protection is given to artistic or intellectual work by US law, this protection cannot be extended or restricted in the USA because of the Berne convention. Accordingly, 17 U.S.C. 104(c) says that Berne convention does not interfere with US laws:
- "Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto."
- Priority of interpretation
The catch is that the Berne convention has provisions pertaining to the duration (art. 7) whereas USC does not mention them, making it unclear whether the provisions of the Berne convention nevertheless apply to the term of protection, when the work was first published outside the USA.
- It may be argued that in this sentence, USC does not consider the Berne Convention superior to the American law, whatever the aspect of the protection: where the Berne treaty would have required the USC to provide for a specific "shorter term exception", in order to lengthen the term of protection, this sentence says that US law applies.
- It may also be argued that this sentence can be interpreted with consideration to the parallel sentence in the Berne convention, which clearly says that the local law rules the matter, except for the rule of the shorter term, for which the exception cannot be implicit.
Both interpretation have some coherence: If US law has priority before internal jurisdictions, whatever the Berne convention says, then USC17-104-17-c means that when an interpretation conflict is found, the USA chooses not to respect its international conventions. If the USA is supposed to respect its international conventions, then USC17-104-17-c is simply the national implementation of Berne convention art. 5-2, and should be interpreted in the light of it.
- Protection of work first published outside the USA
The duration of legal protection is the matter of USC 17-3. This section gives no indication on how to handle the case when the work was first published outside the USA, and its protection duration is not the same abroad: the duration may be at most the one of the country of original publication (following Berne's convention), or at most the one given by USC 17-3, if an explicit rule is given.
To make things even worse, when the USA signed the Berne convention, work previously PD in the USA had to be protected back, because of this new international obligation. Material in this situation are so-called "restored works", subject of Section 104A, which provides automatic copyright in restored works for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States:
- "Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States."
In this latter case, there is indeed an explicit rule that applies to foreign material. This rule may be considered as a "shorter term exception", though it is unclear whether it was meant to create such an exception: which protection duration would have been granted to a work first published outside the USA? Under which hypothesis? Two different interpretations may be considered:
- The work could have been protected because of US copyright alone, as though the necessary original copyright notice and copyright renewal had been made. In that case, "Works Published Abroad Before 1978 Without Compliance with US Formalities" gains the same protection as "Work published in the US", because of Section 104A, and is likely to be protected 95 years after publication date. This is the interpretation of Peter B. Hirtle
- The work could have been protected because the USA could have given the protection required by the Berne convention from the very beginning. In that case, if no special provision is made for foreign material, the "rule of shorter term" applies.
- Is there a "Shorter term exception"?
It may be argued, then, that the USC rejects the rule of shorter term. This interpretation may be based on the idea that USC has explicit priority on USA's international conventions (17 U.S.C. 104-c), or that this exception is (for some obscure reason) limited to material subject of Section 104A (that fell into public domain in the US while being protected in the country of origin).
Or, it may be argued that the provisions found in USC simply follow the Berne convention, and cannot therefore be interpreted as an exception to the rule of shorter term.
Whatever the interpretation, the USC is unclear, and this leads to a juridical risk.
Why is this a major problem?
This means that works published outside the USA with expired or no copyright in their source countries on January 1, 1996 are also in the public domain in the USA. However, if a work published outside the USA was copyrighted on January 1, 1996 in its source country (later dates for certain countries and areas according to w:en:Wikipedia:Non-US_copyrights#Dates_of_restoration_and_terms_of_protection), it might be legally copyrighted in the USA for the following term even if its copyright has expired sooner in its source country, according to Peter B. Hirtle:
- Those published from 1923 to 1977 would be copyrighted for 95 years since publication.
- Those published since 1978 would be copyrighted for:
- Lifetime plus 70 years for individuals, or
- The shorter term of 95 years since publication or 120 years since creation for corporate works.
With American non-acceptance of the rule of the shorter term, users of Wikimedia sites have to determine if a work, especially an image, is legally copyrighted in the USA even if it is in the public domain in the country or area where they are from. In case a work is legally copyrighted in the USA even if the owners of the restored USA copyright cannot be readily contacted, claiming fair use pursuant to 17 U.S.C. 107 may be possible at some but not all Wiki sites. Should a work be legally copyrighted in the USA without valid fair use claim, administrators may have to delete it. As some users outside the USA may not be aware of the American non-acceptance of the rule of the shorter term, such a problem would increase the burden of administrators and impede the development of Wiki sites.
American non-acceptance of the rule of the shorter term involves orphan works in even more negative impacts. Orphan works involve copyright owners who can no longer be easily contacted. Even works published within the USA may be orphan so by the time when their copyrights expire, they may have been lost. When the Copyright Term Extension Act of 1998 added 20 years of copyright protection without regard to orphan works or the rule of the shorter term, orphan works published anywhere would be legally copyrighted in the USA for excessive term. Even though 17 U.S.C. 108 allows non-commercial reproduction by libraries and archives under certain circumstances, this limited copyright permission by law is not compatible with CC-BY-SA-3.0 or GFDL, but see also the #Statement from Wikimedia Foundation that may allow limited exceptions while not encouraged. The Public Domain Enhancement Act proposed copyright renewal registrations for a low fee 50 years after publication in the USA or to release orphan works into the public domain at least in the USA, but it has never been voted on. Even if it were signed into law, it would not affect non-American works. #Asking copyright holders successfully will make the relevant works not orphan, whether any copyright permission is granted or not.
Copyright expiration in 2019
Without further extending the copyright terms in the USA, works published in 1923 are no longer copyrighted in the USA since 1 January 2019.
Official texts, as defined in Article 2(4) of the Berne Convention for the Protection of Literary and Artistic Works, are texts of a legislative, administrative and legal nature and the official (but not private) translations of such texts. The Convention indicates that it shall be left to the discretion of each member country of the Berne Convention to determine the protection to be granted to such official texts in that country.
American non-acceptance of the rule of the shorter term may copyright non-USA works in the USA even if they are now in the public domain in the source countries, but § 206.01 of the Compendium II: Copyright Office Practices reads:
"Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments."
This Practice makes American non-acceptance of the rule of the shorter term inapplicable to foreign edicts of governments, but Wiki users should still respect any subsisting non-USA governmental copyrights in their source countries, before copying copyrighted official texts.
The negative impacts on various Wiki sites
American non-acceptance of the rule of the shorter term negatively impacts all kinds of Wiki sites. Wiki sites that cannot claim fair use are even more vulnerable to those that can. Even if fair use can be claimed on images and media that are in the public domain in their source countries but legally copyrighted in the USA, they must be uploaded to each Wiki site eligible to claim fair use but never Wikimedia Commons or Wikisource.
If your Wiki site is missing from here, please feel free to add how American non-acceptance of the rule of the shorter term may impact your site.
Some but not all subdomains of Wikipedia allow fair use as most users of certain subdomains are from countries and areas forbidding fair-use images. Claiming fair use often requires a good rationale so subsequent users of Wikipedia contents can also claim fair use without violating CC-BY-SA-3.0 and GFDL.
Most users of English Wikipedia are from the USA. Copyright tags such as w:Template:PD-old-50 are very vulnerable to American non-acceptance of the rule of the shorter term, but English Wikipedia allows fair use with good rationales.
Bare facts, including very simple dictionary definitions and translations, are not copyrightable because of the merger principle. However, claiming fair use in Wiktionary is a tricky matter though rarely necessary. Users wishing to exercise this option should carefully check the USA copyright status before copying contents of old dictionaries.
Since Wikisource articles are to collect others' published works in full, claiming fair use is impractical even though not all language subdomains have expressly prohibited it, thus often considered de facto prohibited.
After English Wikisource users have found American non-acceptance of the rule of the shorter term, Template:PD-1996 has been created as Template:PD-old-50 and Template:PD-old-60 (useful for India and Venezuela) are not automatically good.
American non-acceptance of the rule of the shorter term should have no effect to s:Template:PD-EdictGov, but English Wikisource excludes edicts of non-American governments from this template while considering users from many English-speaking countries copyrighting governmental works, such as Canada and the United Kingdom.
As most works in Chinese language have been published in China, Hong Kong, Macao, and Taiwan (sometimes collectively known as Greater China) where the usual copyright term is lifetime plus 50 years, it sounds simple for Chinese Wikisource. However, the theory of American non-acceptance of the rule of the shorter term has caused major negative impacts, so some works in the public domain in Greater China might have to be deleted if legally copyrighted in the USA. Works by Chinese, Hong Kong, Macanese, and Taiwanese authors who died in or before 1945 are fine, but those who died later might have their works affected.
Wikiquote quotes notable quotations. Even though the sources may be copyrighted, limited quotations may qualify for fair use. For works in the public domain in their source countries but legally copyrighted in the USA, fair use is still possible, but making the USA accept the rule of the shorter term will be much more secure. Already published quotes in the public domain may be copied into Wikiquote. However, users are cautioned not to copy others' published quotes that are copyrighted with creative compilations, as French Wikiquote was once closed and erased for major copyright problems.
Since Wikimedia Commons is to collect images and media with free-use licenses including public domain, claiming fair use is impractical and thus prohibited. American non-acceptance of the rule of the shorter term would force users to make complicated copyright determinations. Uploading images affected by American non-acceptance of the rule of the shorter term to Wikipedia subdomains with fair use rationale for the USA is a safe way, but local Wikis have to reopen local uploads to allow this. Should the USA accept the rule of the shorter term, they can be transwikied to Commons with CommonsHelper tool so the original uploading logs will be kept.
Meanwhile, commons:Template:Not-PD-US-URAA is for images affected by American non-acceptance of the rule of the shorter term, yet there are no plans to make massive deletions that will affect many local Wikis.
Primarily, Wikispecies use binomial nomenclature for species classification. Since such classification are in public domain, rule of the shorter term has no effect on Wikispecies navigation. However, some articles have images. All of these images are from Wikimedia Commons so the rule of the shorter term could have an impact on image usages.
Adaptation to American non-acceptance of the rule of the shorter term
American non-acceptance of the rule of the shorter term does not mean the end of the world for Wiki site users. As it takes time before the USA Congress ever amends the Copyright Act, knowing how to adapt to American non-acceptance of the rule of the shorter term is also important for now.
Claiming fair use
Wiki sites able to claim fair use may apply good rationales to use non-USA works copyrighted in the USA even if they are now in the public domain in the source countries. If your site disables local image uploading, it may be needed to enable it when Wikimedia Commons cannot accept non-USA works copyrighted in the USA.
Wiki sites unable able to claim fair use should consider listing and linking but not displaying non-USA works that are copyrighted in the USA even if they are now in the public domain in the source countries.
Asking copyright holders
If any users can contact foreign authors or their successors to ask whether they will pursue USA copyright even if they can no longer copyright their works in their source countries, please forward any replies to permissions at wikimedia dot org so those with OTRS access can review any evidence of copyright permission. A positive example is the British Crown Copyright expiring world-wide.
Here are some scenarios:
|Copyright holder's permission for the USA||Further actions|
|Permission compatible with CC BY-SA 3.0 and GFDL||Acknowledge copyright holder's great kindness to allow freedom of usage.|
|Permission not compatible with CC BY-SA 3.0 and GFDL, like allowing Wikimedia to host but not commercial, derivative, or subsequent usage||Still acknowledge copyright holder's some kindness and see also the #Statement from Wikimedia Foundation.|
|Take down with no permission||Seek #Alternate websites outside the USA if #Claiming fair use is impossible.|
Alternate websites outside the USA
Opening separate websites outside the USA to host non-USA works copyrighted in the USA may be possible, but they do not belong to the Wikimedia Foundation. For example, Wikilivres is hosted in Canada and not subject to American non-acceptance of the rule of the shorter term. Six Wikisource language subdomains have designated Canadian Wikilivres as the alternate website.
Statement from Wikimedia Foundation
Legal/Wikimedia Server Location and Free Knowledge by YWelinder would not always require active deletion of materials affected by the URAA copyright restoration involving the American non-acceptance of the rule of the shorter term. However, wikis may still want some level of enforcement. Here are some scenarios on how strict wikis may pursue affected materials:
|Levels of copyright discussion by community||Scenarios||Pros||Cons|
|No active enforcement||Just tag potentially affected works and wait for office actions to answer formal takedown requests.||Community workload is light.||It possibly misleads users that affected works are encouraged.|
|Soft enforcement||Tag works like commons:Template:Not-PD-US-URAA, copy and paste them to alternate websites with clearer edit summary specifying copied page version, then replace the pages with a redirecting templates like s:Template:Bibliowiki page.||It is clearer to notify why not display the work directly.||Leaving historical versions visible may still get formal takedown requests. The workload is heavier for the community.|
|Medium enforcement||Apply soft enforcement and hide historical versions subject to American non-acceptance of the rule of the shorter term.||It prevents the public, including copyright holders not being wiki administrators, from seeing hidden versions. When proper copyright licensing or permission is confirmed, just unhide them.||The workload is even heavier for the community.|
|Hard enforcement||Import affected works including historical versions to alternate website. Delete affected works from Wikimedia wikis and restart with redirecting templates.||Copyright holders not being wiki administrators cannot even see the past trace.||The workload is even heavier for the community. Alternate websites will be heavily burdened.|