Wikilegal/Use of Foreign Works Restored under the URAA on Commons
|Note: This page shares the Wikimedia Foundation’s preliminary perspective on a legal issue. This page is not final – if you have additional information, or want to provide a different perspective, please feel free to expand or add to it.
Please remember – this is not legal advice!
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Wikimedia Commons is intended to be a media file repository for works that are in the public domain or freely licensed. As described in the Commons licensing policy, the Wikimedia Foundation is incorporated in Florida with its headquarters in California, so in order for a work to be posted to Commons, it must be covered by a free license or in the public domain in both the United States (U.S.) and the country of origin of the work (or “source country”). Recently, the Foundation has been asked for guidance on how the Uruguay Round Agreements Act (URAA) and the United States Supreme Court’s decision in ‘‘Golan v. Holder’’, 132 S. Ct. 873 (2012), affect foreign works which are in the public domain in their source country but under copyright in the U.S. that are posted on Commons.
The URAA amended copyright law in the United States and restored copyrights on certain foreign works. Prior to the URAA, the United States only extended the copyright protections afforded by the Berne Convention to foreign works that were first published after March 1, 1989, which is the date that the U.S. joined the Berne Convention. The URAA restored copyright protection to certain foreign works that were protected in their source country but had entered the public domain in the United States, either due to a lack of an international copyright agreement between the U.S. and the source country or due to the owner’s failure to meet U.S. copyright registration and notification formalities. The term of the restored copyright is the same term that the work would have had if it had been under copyright in the United States originally (e.g., 95 years from the date of publication for a work with a corporate author).
In ‘‘Golan v. Holder’’, the URAA was challenged as a violation of the First Amendment and Copyright and Patent Clause of the Constitution because it took works out of the public domain and put them back under a copyright regime. Organizations, including the Wikimedia Foundation and the American Association of Libraries, agreed that Congress exceeded its power in enacting URAA and signed onto an amicus brief filed by the Electronic Frontier Foundation. However, the Supreme Court upheld copyright restoration in ‘‘Golan’’.
Application to Works on Wikimedia Commons
In some cases, copyright restoration under URAA means that a foreign work may be under copyright in the United States for a longer term than it is its source country. This situation may affect a number of files residing on Commons, as users may presume that a work that is in the public domain in its source country will be in the public domain in the U.S.
Unfortunately because of legal ethical rules, the legal department of the Wikimedia Foundation cannot provide legal advice to Commons administrators evaluating individual foreign works whose copyright may be restored under the URAA. We would suggest, however, that administrators, if they wish to undertake such a review, do so on a case-by-case basis. As was discussed in this post, not all foreign works in the U.S. public domain at the time that URAA took effect had their copyright restored. The post lists some of the factors that are taken into consideration when trying to determine whether a copyright was restored, and the exhaustive list can be found in 17 U.S.C. § 104A.
There are many situations where a foreign work would not be copyrighted as a result of the URAA (e.g., if the work was in the public domain in the United States at the time URAA took effect for a reason other than those listed in the statute or if the author has released the work to the public domain). However, there will be cases when a foreign work is in the public domain in the source country, but still under copyright protection in the United States. Unless permission is given by the author or copyright holder, these works should not be posted on Commons pursuant to US law and community policies.
Works Released Into the Public Domain By Foreign Governments
One case that has been discussed by Commons users involves works said to be, by foreign governments, in the public domain globally once the copyright term in their country has expired. For example, Her Majesty’s Stationery Office (HMSO) takes the position that once the U.K. copyright of a government-owned work expires, the copyright has expired globally. In the case of works formerly owned by HMSO, a user obtained a written statement that the works are in the public domain globally.
Other governments may make an oral or written statement to the same effect. As a technical matter, an oral statement may not be sufficient to release a work into the public domain in the U.S. if the work is still under a restored U.S. copyright. However, as a practical matter, if one of these works was posted to Commons, the foreign government may be less likely to enforce a copyright in such circumstances. The best way to minimize the risk of a copyright challenge would be to seek a brief written statement from the foreign government releasing the works in question into the public domain globally.
However, it is important to note that a statement from a foreign government stating that the work is merely “in the public domain” is insufficient to place the work into the public domain under U.S. copyright law if the work is otherwise protected by a restored copyright. In order to place the work in the public domain in the U.S. (or globally), the foreign government must (1) be the copyright holder of the work in question; and (2) release the work, in writing, into the public domain (which may be as simple as stating that they release the work into the public domain).
Some Commons users have asked whether a foreign work under U.S. copyright protection but in the public domain in its source country could be posted on Commons under a fair use exception. Fair use laws vary by country -- something that is fair use in the United States may not be fair use in another country. Additionally, fair use analysis must be done on a case-by-case basis, taking into account each fair use factor as applied to the particular work being evaluated. It is also worth noting that Wikimedia Commons does not accept fair use media files. These works may be be able to be used on other Wikimedia projects that permit fair use, but each use would have to be carefully evaluated by the community under fair use principles.
Other users have inquired as to whether foreign works with restored copyrights could be used on Commons if the source country permits non-commercial use. However, placing a non-commercial use restriction on the work is not permitted under Commons policy because the stated goal of Commons is to provide media files that can be used “by anyone, anywhere, for any purpose.”