Commons:Deletion requests/All files copyrighted in the US under the URAA

This deletion discussion is now closed. Please do not make any edits to this archive. You can read the deletion policy or ask a question at the Village pump. If the circumstances surrounding this file have changed in a notable manner, you may re-nominate this file or ask for it to be undeleted.

All files copyrighted in the US under the URAA

Note: Mass deletion is no longer under consideration. Please visit the #Proposals or #Other notes and discussion sections and leave your opinion in one or more of the subsections there.

• List of files affected: Special:WhatLinksHere/Template:Not-PD-US-URAA (transclusions only) (3475 files)

The Uruguay Round Agreements Act or URAA is a US law that restored copyrights in the U.S. on foreign works if that work was still copyrighted in the foreign source country on the URAA date. This URAA date was January 1, 1996 for most countries. This means that foreign works became copyrighted in the U.S. even if they had been in the public domain in the U.S. before the URAA date. See also en:Wikipedia:Non-U.S. copyrights.

Some of these works remain in copyright in the U.S. even though they have since fallen into the public domain in their source country. Traditionally, Commons has accepted such images even though they are in copyright in the US under the URAA, in contravention of the usual policy (and the Foundation's requirement) that all our works must be in the public domain or freely-licensed in the United States, under the theory that the URAA will probably be held unconstitutional.

In a 6-2 decision on January 18, 2012, the Supreme Court of the United States affirmed the decision of the district court. The principle findings were: "1. Section 514 [of the URAA] does not exceed Congress’ authority under the Copyright Clause. [...] 2. The First Amendment does not inhibit the restoration authorized by §514." Supporters were Ginsburg, Roberts, Scalia, Kennedy, Thomas, and Sotomayor. Breyer and Alito dissented. Kagan recused. See SCOTUS Blog. The Wikimedia Foundation is not a reliance party, granted special privileges under the URAA, because we were not using any of these media before the law was passed.

As such, I believe our position on the URAA is now indefensible, and all files in copyright in the US under the URAA must be deleted. I remind discussants that although some of these files may be usable under fair use exemptions, Wikimedia Commons serves as a repository for all WMF projects, a number of which have rejected non-free content altogether.

I believe I've tagged all affected files (let me know if I missed any). Because many thousands of files are affected, I am also advertising this discussion widely here on Commons and also on the English Wikipedia. Please spread the word to your own projects. If there is consensus to delete, I will write a simple bot to delete all 3475 files bearing the {{Not-PD-US-URAA}} tag using my own administrator account, and Commons:Licensing and Template:Not-PD-US-URAA will be modified to indicate that these files are no longer accepted on Wikimedia Commons. The talk page of every deleted file will be added to Category:Files deleted under the URAA. (See update below: a more detailed review of the files appears to be called for).

Some users have proposed creating a repository for such works in another country. They are welcome to do so, and I will systematically re-upload the files to such a repository on request. However, I do not believe there is any legal manner in which the WMF projects, as long as they are hosted in the US, could directly use these media. (Update: Wikilivres seems like a good place to reupload most of these files, and I will plan to do so. Images in use on the English Wikipedia will also be re-uploaded there as fair use candidates.)

Update: I think consensus is moving in the direction that the affected files should be nominated individually (or in smaller related groups, e.g. pages from a single book). Although it will take a long time and a lot of work to do so, this will help to address a lot of complex and mistagged cases properly. I would support a closure to this effect.

Note for closer: Since this is surely a Keep, feel free to blank Template:Delete-URAA when this is over, and I'll remove the tags a bit later after I get bot permission to do so. --Dcoetzee (talk) 18:13, 18 January 2012 (UTC)

• I can handle this with my bot with ease. Do you have a list? -- とある白い猫 ^ちぃ？ 18:46, 18 January 2012 (UTC)
  • At first I didn't think tagging them was a good idea, but I'm working on that now. It's no big deal. Dcoetzee (talk) 19:11, 18 January 2012 (UTC)
  • (Edit conflict) :There are the categories: Category:Works copyrighted in the U.S. etc. See also my comment below. —innotata 19:16, 18 January 2012 (UTC)
• I've notified the German wikipedia and German wikisource. --Rosenzweig τ 18:48, 18 January 2012 (UTC)
• oppose mass deletion. Find the files and tag them individually. Some are incorrectly licenced because it is rarely taken into account whether the expiration of copyright in the country that produced the work wasn't laid out by the author/publisher of the photo when it was taken. A large example of this are government produced photos in Canada created prior to 1962, which are verbatimly public domain 50 years after publication - this extends world wide, and not just to Canada. However, many post-1949 photos are incorrectly tagged as being copyright still in the US. - Floydian (talk) 18:51, 18 January 2012 (UTC)
  • I invite you to remove the {{Not-PD-US-URAA}} tags from any images to which it does not apply, for separate nomination at a later time. Clearly, individual nomination of over 3000 images would be overwhelming. You would also be welcome to nominate individual images for undeletion afterwards. Dcoetzee (talk) 19:04, 18 January 2012 (UTC)
  • I thought the whole point is that we can now only accept images from
• Of course these images must now be deleted from Commons. On the other hand, until now the hosting of images on language-specific Wikipedias which were never free in the U.S., but are copyright-free in their country of origin, has apparently been tolerated by the WMF. For example, the German-language Wikipedia hosts many images "locally" that are free in Germany (and Switzerland as well as in Austria), but not in the U.S. (e.g. photos of modern statues in public spaces). I think it would be rather hard to understand for the community of a project mostly created and used by people from the German-speaking countries why they suddenly should delete images that are perfectly legal in their area. Yet, if we follow your position, Dcoetzee, "I do not believe there is any legal manner in which the WMF projects, as long as they are hosted in the US, could directly use these media", it would be necessary to delete these images as well (and not just the URAA ones discussed here). My position is that this indeed might, sadly, be the case, but that it should only be done if the WMF clearly decides that from now on all Wikimedia projects, including the language-specific ones with a regional focus outside the U.S., should host only images legal in the U.S. and are not allowed any longer to host images which are copyright-free in their countries, but not in the U.S, i.e. an Office Action. Otherwise I'm pretty sure that many of the images discussed here will got re-uploaded e.g. to the German Wikipedia, where the local contributors act in the knowledge that what they are doing is completely legal (in their countries). If we don't want this, an Office Action is needed, otherwise, as I know the German community, I suspect it would be hard to stop them. Of course, even better would be if the current practice in "local Wikipedias" could be continued. It might even be a defensible legal position to let e.g. the German or the Swedish Wikipedia keep images that aren't free in the U.S., even if hosted by the WMF and in the U.S., by using the "target audience" argument. Though I don't know how this is seen in the U.S., at least certain German legal commentaries seem to assume that copyright in international websites should not be judged by the physical location of the servers, but by the target audience - making a German-language website a "German website" for legal purposes, which a German court would feel to have jurisdiction over. Gestumblindi (talk) 19:14, 18 January 2012 (UTC)
  • Swedish Wikipedia currently doesn't allow any local files. Only Commons files are allowed (namespace 6 is empty), so it would first require a change in software settings and probably a discussion on the Swedish village pump if those images are to be allowed. --Stefan4 (talk) 19:19, 18 January 2012 (UTC)
  • I will let a WMF representative speak on whether they will tolerate files copyrighted in the US under the URAA on local projects or not. This may be less a case of "we're letting this slide" and more a case of "we had no idea this was going on." Dcoetzee (talk) 19:35, 18 January 2012 (UTC)
    • I suppose that it might be technically possible to keep at least a few of them on the local projects by claiming fair use. If the images are eligible for fair use, that is. --Stefan4 (talk) 20:23, 18 January 2012 (UTC)
  • We could set up an IP geolocation-based Mediawiki module (or JS for now) that blacks out / removes the images from the file pages of non-uraa files for US users. ;-) WMF does use geolocation for their begging banners - why not for that? → Target audience = USA → no (maybe) copyrighted files to see. --Saibo (Δ) 00:27, 19 January 2012 (UTC)
    • Besides the fact that geolocation is unreliable, I'm pretty sure it's not a defense against copyright infringement to say the recipient was outside the US, if you are inside the US. Dcoetzee (talk) 00:34, 19 January 2012 (UTC)
      • Besides, it would be necessary to block the images for US users using proxy servers in other countries. I sometimes look at Wikipedia pages using Opera Mini, and that gives me a Norwegian IP address although I'm not in Norway. It might be the same for US users of Opera Mini. --Stefan4 (talk) 00:38, 19 January 2012 (UTC)
        • That is law - if the judge surfs to a website and cannot see it it may be okay. Heard somewhere... Yes, this may not work. --Saibo (Δ) 00:46, 19 January 2012 (UTC)

• (Edit conflict) Of course, there can be no objection to the deletion of files which are indeed copyright in the United States now. However, as Floydian has brought up, the Canadian government (and Canadian law, is that what is meant?), like the U.K. government (see {{PD-UKGov}}) says that its works from over 50 years ago are public domain worldwide. Also, I do remember finding some that were wrongly tagged, at least Indian works from 1936 (see {{PD-India}}). So if this is feasible, tagging all files this covers by the other license tags used would be a good solution (and maybe deleting admins should check the copyright tag for each set of works). For a repository in another country, the closest thing I know of is wikilivres:, Canadian. —innotata 19:16, 18 January 2012 (UTC)

Can you please link to the official reference where "the Canadian government (...) says that its works from over 50 years ago are public domain worldwide" ? Thanks. -- Asclepias (talk) 20:19, 18 January 2012 (UTC)

As far as I'm aware, a government declaring a work "in the public domain worldwide" contradicts the concept of sovereignty (the US and only the US can govern which works are PD inside the US). Dcoetzee (talk) 20:38, 18 January 2012 (UTC)

The statement by the U.K. government is here, and linked on the template, which states that this expiration of copyright is worldwide—though HMSO just stated that it is so. I assumed there was one for Canada because Floydian clearly stated so—ask Floydian—and because I vaguely remembered seeing such a statement. So, what does HMSO saying Crown works are public domain in other countries, among them the U.S., mean? —innotata 20:48, 18 January 2012 (UTC)

A copyright owner can declare his works licensed worldwide or released to the public domain worldwide (as much as that is possible under each country's law). People do that everyday on Commons. No particular reason why that wouldn't work when the copyright owner is a government. It's valid under U.S. law. The only thing is, I don't remember seeing a declaration to this effect from the Canadian government about its works. Not that it would necessarily change the practice on Commons, as it seems many users assume that every government in the world implicitely follows the U.K.'s government decision. But it would be nice to have a statement from the Canadian government, if it exists. Then, the relevant files could be tagged more confidently. That's why I'm asking for a reference. -- Asclepias (talk) 21:36, 18 January 2012 (UTC)

That's what I was intending to ask about immediately above, specifically. (And, is the U.K. statement enough?)

As for a reference, I assume you're not specifically asking me; I didn't see any in the latest discussions at COM:VPC etc. just now, but Floydian says that there is some sort of reference like this above, as I read it. —innotata 21:41, 18 January 2012 (UTC)

Sorry, I misunderstood. The US will of course respect a release by the copyright holder. Dcoetzee (talk) 21:44, 18 January 2012 (UTC)

If it's safe to assume HMSO's statement is enough, the Not-PD tag should be removed from all PD-UKGov files, the same if it turns out to be similar for Canada. —innotata 21:48, 18 January 2012 (UTC)

I did a search with a bot and this argument is vacuous, at the moment - none of the tagged images are PD-UKGov. Still waiting for info on Canada. Dcoetzee (talk) 00:18, 19 January 2012 (UTC)

For any countries which have a special term with government works, I could see treating that as PD-author, following the UK example. It does make a certain amount of sense. Canada/Australia/New Zealand in particular tend to follow the UK's lead a lot of the time. Carl Lindberg (talk) 03:00, 19 January 2012 (UTC)

The problem is that any countries which have special terms with government works may consider them as applying only domestically, as seen here. --Stefan4 (talk) 22:53, 8 February 2012 (UTC)

That (at best) may apply country-by-country, I think, and it's even more nebulous since the U.S. joined Berne (the previous claim was based on a particular interpretation of the UCC). See my post here for more links on that situation. But I suppose we could look to see if there is an explicit notice that a foreign copyright may be claimed over and above the domestic terms, though I'm not sure that would matter in countries using the shorter term. Carl Lindberg (talk) 18:55, 11 February 2012 (UTC)

I hope that's the case, since I removed the tag from a few on the assumption the HMSO statement was correct, but left others I found alone … they must have had the tag removed as well. —innotata 20:04, 19 January 2012 (UTC)

12. Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.--Copyright Act, 1985 (Canada)[1]--Keith Edkins (talk) 22:09, 19 January 2012 (UTC)

Sure, but that is not the question. That is the status of the works in Canada. -- Asclepias (talk) 22:34, 19 January 2012 (UTC)

This is actually a much bigger issue which isn't limited to the URAA. Soviet and Russian currency are in the public domain in Russia. I take it that all currency was published without copyright notices and without registrations with the US Copyright Office, so everything published before 1 March 1989 would be in the public domain in the USA (no URAA restoration due to no copyright in Russia, no copyright in the US due to failure to fulfill required formalities), but are Russian and Soviet coins and banknotes first published on 1 March 1989 or later copyrighted in the United States? The same problem applies to various public works from a lot of other countries. --Stefan4 (talk) 13:37, 23 January 2012 (UTC)

Just a note, the URAA line for India is 1941, not 1936. Carl Lindberg (talk) 03:00, 19 January 2012 (UTC)

The copyright term since 1992 is 60 years after the death of the author, or publication for some works, the URAA date is 1 January 1996: how is that so? —innotata 20:04, 19 January 2012 (UTC)

The 1992 law (which increased from 50 to 60 years) was retroactive from 1991 only. So, 1991-50=1941. See the India section and footnote at en:Wikipedia:Non-U.S. copyrights. Carl Lindberg (talk) 14:31, 20 January 2012 (UTC)

OK, I'll go add {{PD-India-URAA}} to works from 1941 and earlier; and I've posted at template talk:PD-India —innotata 00:19, 21 January 2012 (UTC)

•  Delete most of them. If they are stored in Category:Works possibly copyrighted in the U.S., it might be better to check them more carefully first. If they are stored in Category:Works copyrighted in the U.S., it would be very nice if someone could dig up the year of first publication so that they could be stored in Category:Undelete in 2019, ..., Category:Undelete in 2073, but I suspect that this might be too much work. --Stefan4 (talk) 19:22, 18 January 2012 (UTC)
  • At least major categories like Category:Ringelnatz Flugzeuggedanken should be put in undelete categories. —innotata 19:45, 18 January 2012 (UTC)
• A complete list naming all files should be archived, so that projects can - if possible - transfer them locally to their projects. This list should be about all files that where uploaded until the (possible) deleting actions and will be deleted in front of URAA, this list should be added by all files deleted in future (but yet uploaded) to URAA. --Quedel (talk) 19:38, 18 January 2012 (UTC)
  • I've added a note that the talk page of every deleted file will be added to Category:Files deleted under the URAA. Dcoetzee (talk) 19:49, 18 January 2012 (UTC)
•  Comment I agree with Dcoetzee, but it is very sad to waste so much work of so many editors, because of strange laws in US. It is especially troubling since most of those works are published outside of US where they are now in PB, and are used by non-English projects. If German or Polish Wikipedia still hosts images do German or Polish images held there have to be be also PD in US? If not than clone of Commons held in another country might be a good option for such images. --Jarekt (talk) 19:56, 18 January 2012 (UTC)

•  Oppose Those media are PD in coo - 70 years pma are long enough. We have to act politically not according the irrelevant opinion of some silly judges --Historiograf (talk) 20:25, 18 January 2012 (UTC)
  • I'm not surprised to see you writing this. But I don't think what you want will happen, because those “silly judges” are unfortunately from the US Supreme Court, and most people here (and at the WMF too) will find that what they say is rather the opposite of “irrelevant”. --Rosenzweig τ 20:29, 18 January 2012 (UTC)
  • I find 70 years PMA to be unjustifiable. It's worse then 95 years from publication in that it censors the minor voices that are hard to find death information on. Unfortunately, while the law is a ass, the law is the law.--Prosfilaes (talk) 21:01, 18 January 2012 (UTC)

•  Comment There are also a few files in en:Special:WhatLinksHere/Template:Not-PD-US-URAA which I suppose also should be proposed for deletion. --Stefan4 (talk) 20:34, 18 January 2012 (UTC)
  • Most likely the majority of them can be kept as fair use. But let the English wikipedia decide that. --Rosenzweig τ 20:37, 18 January 2012 (UTC)
•  Oppose This nomination is becoming pre-mature. We still don't know whether they were either published within 30 days after first non-US publication, published before the first non-US publication, published after 30 days of first non-US publication, or published in only source country. I have recently changed several images of thousands of them; see my contributions page. --George Ho (talk) 20:53, 18 January 2012 (UTC)
  • If we don't know, then we have to delete.--Prosfilaes (talk) 21:01, 18 January 2012 (UTC)
  • The only thing which matters is whether the items were published in the United States within 30 days. If so, copyright notices et cetera are mandatory. If not, they were restored by URAA regardless of whether the works have been published in the United States or not. A lot of your retagging looks wrong to me and should probably be reverted. --Stefan4 (talk) 21:02, 18 January 2012 (UTC)
    • That, and, you don't seem to be using the current template properly: "Unless it was published before either first non-US publication or 31st day after first non-US publication". —innotata 21:24, 18 January 2012 (UTC)
      • How so? I just stated that US publication hasn't been researched lately and known at this time. Within 30 days or first released in US. ...well, how do you say it? --George Ho (talk) 22:16, 18 January 2012 (UTC)
•  Delete per Stefan4. To the extent that these are correctly tagged, they do not meet Commons' inclusion criteria. Ideally many of them can be sorted into the "Undelete by year" categories. Also, we should delay deletion by a sufficient amount of time to allow interested projects (e.g. English Wikipedia) to copy them, as may be appropriate, under fair use claims. cmadler (talk) 20:54, 18 January 2012 (UTC)

•  Delete We have to follow the law.--Prosfilaes (talk) 21:01, 18 January 2012 (UTC)
•  Comment Commons:Deletion requests/File:Philip Alexius de Laszlo-Princess Elizabeth of York, Currently Queen Elizabeth II of England,1933.jpg was opened shortly before this issue. It has the complicating issue of possible US publication.--Prosfilaes (talk) 21:01, 18 January 2012 (UTC)
  • I've detagged it. Its own existing DR can take care of that one. Dcoetzee (talk) 21:06, 18 January 2012 (UTC)
• Oppose mass deletion. Each image has to be reviewed individually. This image from 1890 has been wrongly tagged.--Wuselig (talk) 21:34, 18 January 2012 (UTC)
  • Can you prove that it was published somewhere before 1923? 1890 is the year of creation whereas the year of first publication could be a different year. Someone hanging a painting on the wall in his home doesn't constitute publication. This is actually the worst thing with the US system: it is often impossible to tell whether an item has been published or not. But I agree that mass deletion might not be ideal; it might be better to review the images one at a time, although it would mean a lot of extra work. --Stefan4 (talk) 21:41, 18 January 2012 (UTC)
    • The original tag was automatically (or stealthyly, individually - since it doesn't show in the image history) applied according to the Date as set down in the description. If we go beyond this and try to find out in which exhibition or in which catalogue each painting was first presented, we will have even more images to look after. So as a few other people have noted here already the answer to this problem will most probably be to find better server locations or individual server locations for the needs of individual national wikipedias. What an appropiate date to discuss this matter. This is really the black day of the wikipedia world. --Wuselig (talk) 22:20, 18 January 2012 (UTC)
    • I will be happy to leave this discussion open for as long as it takes to review the works and remove the tag from those to which it does not apply, separately nominating any ambiguous cases. I don't think individual nomination of all of them would be productive, as most of them are clear-cut URAA violations. Dcoetzee (talk) 23:33, 18 January 2012 (UTC)
•  Oppose deletion; move the servers to the country that applies the rule of the shorter term - Canada might be a suitable choice. /Pieter Kuiper (talk) 21:50, 18 January 2012 (UTC)
  • Canada does not apply the rule of the shorter term on US copyrights, though. This would mean that a lot of other images would have to be deleted instead. But I suppose that some appropriate country could be found. --Stefan4 (talk) 21:52, 18 January 2012 (UTC)
  • During the SOPA discussions many people proposed moving the servers as well. Jimbo Wales made this statement saying "it would be highly problematic for a number of reasons" and "it isn't a very plausible threat unless things radically change." Dcoetzee (talk) 23:45, 18 January 2012 (UTC)
•  Comment Before starting such a mass deletion I would like to see a statement from WMF, if they tolerate these images or if they would think about moving Commons' servers into another country where this law doesn't apply. There is no need to act instantly. --Martina talk 22:40, 18 January 2012 (UTC)
  • Move it where? Iran? I don't know that there's a single nation out there that won't require deleting some files. Note that PD-Art is based on US law; I'm not sure there's a single other nation that so clearly protects our right to host PD paintings, and several of the obvious choices would put them in clear danger.--Prosfilaes (talk) 22:55, 18 January 2012 (UTC)
    • Would it be possible to have two central repositories in different countries? The standard one in the United States and an extra one elsewhere for the URAA images. --Stefan4 (talk) 23:00, 18 January 2012 (UTC)
      • On de-WP somebody wrote that Sweden or Russia could be possible countries to save these images legally on Commons. In my understanding any 70pma-country should be fine. WMF should first check out such possibilities before a mass deletion. --Martina talk 23:05, 18 January 2012 (UTC)
        • If you are talking about moving the whole Commons project to Sweden, I suggest that you first read COM:ART#Other countries very carefully. --Stefan4 (talk) 23:10, 18 January 2012 (UTC)
          • I am not talking about a certain country but asking to let WMF first check out such possibilities wherever. --Martina talk 23:26, 18 January 2012 (UTC)
•  Oppose oppose mass deletions; or, it is the time ti create an European Commons. -jkb- (talk) 23:15, 18 January 2012 (UTC)

  cool, like with a common currency? :) —Pill (talk) 23:54, 18 January 2012 (UTC)

•  Info and  Oppose If you delete the images which are in most countries (and also in the source country) free but not just in this one country USA ... then I am probably out of Commons - no problem. You do well know that it is by far not just 3k files affected. Deletion is not an option. WMF needs to handle this and set up a Commons server somewhere else but in this one single country called USA. --Saibo (Δ) 23:44, 18 January 2012 (UTC)
  • As long as the projects that use the files are hosted in the US, this strategy would not be legal. If they are not used in any WMF project, they might as well be on Wikilivres (which they will be). Dcoetzee (talk) 23:50, 18 January 2012 (UTC)
    • Deal with it / Ask the WMF to deal with it. They are US-based - it is just their problem - not the problem of most of us. I am quite impressed about this pushing DR. Don't you had other means to initiate the discussion? --Saibo (Δ) 00:00, 19 January 2012 (UTC)
      •  Question Would it be possible to set up a separate "European Commons" (or "Canadian Commons") containing only {{Not-PD-US-URAA}} images if WMF projects only hotlink to those images whenever fair use would apply? It might not be an ideal solution, but it would at least mean that images could be kept centrally. --Stefan4 (talk) 00:01, 19 January 2012 (UTC)
        • I suppose, but why bother? If projects want to allow fair use, they can enable local uploading - and there's nothing that says they can't restrict local uploading to special cases of fair use. --Philosopher ^{Let us reason together.} 00:03, 19 January 2012 (UTC)
        • Fair use would need fair use justifications on the file page and stuff... Also it causes restrictions on use (replaceable, resolution, ...). Those works are free - totally free - but just (maybe) not in this one country with the different copyright law. I do not see fair use as an option - also because fair use is opposite to our free content philosophy. --Saibo (Δ) 00:20, 19 January 2012 (UTC)
    • To further add: did you know that e.g. the German Wikipedia tries very hard to get all uploads to Commons (new and already present ones) - nice job. Can you imagine how the reputation of Commons will vanish now and we get many uploads local again? Your proposal is like beating in the face of all those who were working hard to get people to Commons and who have transferred files to Commons. Thanks! --Saibo (Δ) 00:33, 19 January 2012 (UTC)
      • Blame SCOTUS, not me. Dcoetzee (talk) 00:36, 19 January 2012 (UTC)
        • You set up this DR without previous discussion (AFAIK). --Saibo (Δ) 00:46, 19 January 2012 (UTC)
          • @Saibo, in case you really don't know, this here is a discussion. And you knew already that on Commons, even when we are only looking for good arguments to have something stay, we not so rarely use a DR for discussion as this is the most established forum to get input from many voices. --Túrelio (talk) 08:52, 19 January 2012 (UTC)
            • Tagging >3k files without discussion is not useful - spam. That happened here. In addition this "discussion" was started with the clear statement that they have to be deleted - not appropriate for such a big policy change (that it is in fact - not a simple deletion discussion). --Saibo (Δ) 15:21, 19 January 2012 (UTC)

•  Procedural oppose/Premature: We should wait until User:Geoffbrigham has weighed in. --Philosopher ^{Let us reason together.} 23:57, 18 January 2012 (UTC)
  • I'm happy to wait for Geoff's opinion on the matter before this discussion is closed. I hope he'll weigh in here with the WMF's official position. Dcoetzee (talk) 00:22, 19 January 2012 (UTC)
•  Info Some links of previous discussions - in case somebody is interested: Commons:Village_pump/Archive/2011/03#URAA, Commons:Village_pump/Archive/2011/01#Public_Domain_Day_2011, Commons:Village_pump/Archive/2011/01#outcome_of_the_Public_Domain_Day_2011_discussion --Saibo (Δ) 00:00, 19 January 2012 (UTC)
•  Delete Unfortunately, the current necessity is that as long as the law is what it is, and the Wikimedia hosting situation is what it is, the files must be deleted... AnonMoos (talk) 00:03, 19 January 2012 (UTC)

•  Comment Please wait and don't act without having a look into the list for deleting: a lot of files are including scans of Germany's most important literature of early 20th century (also well known in USA) - by Karl Kraus, Ringelnatz, Klabund..., which is free licensed in Europe. Please learn about these authors before you act. Don't enable the international press to construct a case of aweful historical ignorance of WMF... --Felistoria (talk) 00:46, 19 January 2012 (UTC)
  • So we should encourage copyright infringement of historical European authors?--Prosfilaes (talk) 09:10, 19 January 2012 (UTC)

•  Comment If the decision is to delete, then it should neither be an immediate automated act for ANY image that is actually in use and linked to another WMF wiki. These wikis should be notified and a process can be determined on whether they can host the image elsewhere or on their wiki, or through a means of fair use. My reasoning is that the default place that WMF community asks that should be storing images is Commons, and that therefore puts the Commons community with the requirement to notify and to assist the expanded community with the holistic response when we are facing a political change from a court decision.  — billinghurst sDrewth 01:30, 19 January 2012 (UTC)
  • I agree, at least for images used on any wiki with a non-free content policy. I already have my bot for enwiki fair use candidate transfers, and was planning to use it, but in order to do this on all wikis I will need help with translation and local policy. Dcoetzee (talk) 01:52, 19 January 2012 (UTC)
  • Those images are free - no need for fair use. --Saibo (Δ) 02:12, 19 January 2012 (UTC)
•  Oppose the mass deletion without review. We don't need to hurry, do we? How about listing 70 files every week ? This way, the reviewers will have time to see if the template was mistakenly added or not, and the whole process will take about one year. If a given uploader wants his uploads to be deleted more quickly, he may do so by nominating his uploads separately. I agree to delete most of them, but more slowly, with a review, as usually. Another advantage of a slower process is that some files might be listed in some "undelete in 20xx" subcategories of category:undeletion requests. To DCoetzee "I will let a WMF representative speak on whether they will tolerate files copyrighted in the US under the URAA on local projects or not" : I disagree with any unbalanced decision the WMF would take that would look at this issue without considering also the case of the freedom of panorama statues kept here, while they are still copyrighted in the USA, or the case of the "Template:PD-US-1923-abroad" pictures available on the English speaking Wikipedia while they might still be copyrighted in some English speaking countries, like the UK. I disagree with any unbalanced decision the WMF would take which would result in making life harder for non-US contributors, while there is ample reason to make life harder to the US contributors too. Teofilo (talk) 02:35, 19 January 2012 (UTC)
  • That's an interesting suggestion. We could do it that way, so greater scrutiny is given to those tags to make sure works are really copyrighted in the US. We've kept such works for some years now, so there doesn't need to be a rush to delete them. I suspect we have very inadequate documentation on what the various laws actually were in 1996 for many countries, actually. Carl Lindberg (talk) 03:03, 19 January 2012 (UTC)
  •  CommentAlso, we should try to find out the actual number of concerned files. I guess only a small portion of them are actually tagged with the {{Not-PD-US-URAA}} tag. For example, most books published in 1923 or later are most likely to be concerned (the exceptions would be mostly a few US government works and those whose authors died before 1 January 1926). So the contents of Category:1923 books, Category:1924 books and so on should be carefully reviewed. Just one example : Category:Scans from 'The Wonder Book of Engineering Wonders', 1931 is still untagged. The same goes with the paintings : Category:1923 paintings, Category:1924 paintings etc. must also be reviewed. And the sculptures : Category:1923 sculptures, Category:1924 sculptures, etc... (those may include a number of FOP pictures, but also a number of no-FOP ones too) Teofilo (talk) 03:38, 19 January 2012 (UTC)
    • You're absolutely right that I've underestimated the number of affected files, and I'm sure we'll continue to discover them for a long time. I'm afraid there's no simple way of estimating the number of affected files without a thorough review. Dcoetzee (talk) 12:36, 19 January 2012 (UTC)
•  Info from WMF: "Hi Saibo, I know that the legal team is aware of the debate and looking into the situation. Let's remember, though, that today was a wild day for us here, and resources have been focused on SOPA. I know they're looking into this and plan to issue some sort of statement, but I don't think it will be until next week at the earliest, most likely. Philippe (WMF) (talk) 02:40, 19 January 2012 (UTC)" (talk page) --Saibo (Δ) 02:57, 19 January 2012 (UTC)

Oh that's smart. As far as I can see there is 1 commonsuser/-administrator who built 1 bot to fulfill a US-court-statement anybody else seems to know except poor old Europe? And delete scans of (for example) important European literature which is free all over the world and nobody in any part of the world - even in the USA - would dare to delete except 1 user and his 1 bot? Strange, but interesting too... --Felistoria (talk) 03:18, 19 January 2012 (UTC)

•  Comment - maybe no one has noticed, but this means that Commons:FOP is going to have to be completely changed, because works in the PD in their source country are only in the PD if they were published before ~1996 in their home country. That means public works in a permanent place that are considered "published" - probably meaning they were put in the public before 1978. The work also must have been considered published by the definition of publication according to the URAA. However, this is a total legal head-scratcher, and the analysis I gave above is only my dry interpretation while surely a given US judiciary might see differently. Magog the Ogre (talk) 05:50, 19 January 2012 (UTC)
  • I don't think this affects FOP much. Carl Lindberg (talk) 15:03, 19 January 2012 (UTC)
•  Oppose Es ist totaler Unsinn die Bilder jetzt auf Commons zu löschen und vielleicht sogar mehrfach in den einzelnen Projekten (Wikipedia, Wikisource etc.) wieder hochzuladen. Datenredundanzen hoch drei. Viel eher sollte die Foundation darüber nachdenken, ihre Server in einem anderen Land aufzustellen und auch den Sitz der Foundation in einem anderes Land zu verlagern. Die Vereinigten Staaten sind kein sicheres Land für urheberrechtsfreie Werke, dort wird dann schon mal mit willkürlichen Gesetzen die Urheberrechtsmafia gestärkt zu lasten des freien Wissen. Hier sollte nicht in vorauseilendem Gehorsam irgendwelche Daten gelöscht werden. Im Einzelfall, d. h. wenn geklagt wird, kann man reagieren aber nicht vorher. Letzentlich kann man den Beitragenden nur empfehlen, keinerlei Daten mehr auf Commons hochzuladen, da dort jederzeit die Gefahr der rücksichtslosen Vernichtung besteht. Liesel (talk) 06:20, 19 January 2012 (UTC)
• (Edit conflict) : No Deletion until every single file is checked manually- there are lots of failures in this category. Before deletion, a solution in free an open country with PD70 should be considered, may be in the free old europe. What about amsterdam where a lot of servers are. Maybe that the german Chapter can buy an additional server with european Money - to be free from possible american ideas it is not possible because it is bought with american money. If a file have to be deleted according to this foolish decision, it should be listed to recover it, when it is in the freedom agein. -- Joergens.mi (talk) 06:25, 19 January 2012 (UTC)
  • In most cases, 70 pma is much worse than the U.S. situation. Carl Lindberg (talk) 15:03, 19 January 2012 (UTC)
•  Oppose I'm against deleting files that are in the public domain under German law. Those files should be transferred to German Wikipedia, or Wikisource, as we already do with, e.g., logos or any other files that may not be used under a free license that cannot be uploaded to Commons, but are free for use in an encyclopaedia.--Aschmidt (talk) 07:07, 19 January 2012 (UTC)

• Comment: Please don't be misled by the rather small number of 3745 files mentioned above. I am sure we have tens of thousands of files more that will have to be deleted. One big problem is that very many of the paintings from painters where may URAA may apply for some works don't have a proper year of production or publication (e. g. everything not from the major artists that is just signed and not dated). Mostly we just don't know the date. --89.247.162.136 08:12, 19 January 2012 (UTC)

•  Oppose One has to be surprised about this mass display of de:Vorauseilender Gehorsam, where not even the Wikimedia lawyers had time to comment, or, for example, other important sites like The Archive or Project Gutenberg could be observed to do anything. And PG knows their law, I'm sure. So, stop this overly-submissive thinking---something like this made Nazi Germany possible, you can believe me. --Ayacop (talk) 08:38, 19 January 2012 (UTC)

OMG, Godwin's law less than 24 hours after start of discussion; that's a bad omen. --Túrelio (talk) 10:20, 19 January 2012 (UTC)

• • If you knew anything about Project Gutenberg, you would know that they have never fallen into this trap in the first place. They have never accepted works that weren't clearly PD in the United States. Again, with feeling--if you think that PG knows their law, then you should support this deletion, because they have stayed clear of any post-1922 non-US works.--Prosfilaes (talk) 09:10, 19 January 2012 (UTC)
• Comment. I support the deletion in principle, but I don't think we should act hastily. Let's give the WMF legal team a chance to analyze the situation, and let's give the Commons community a chance to look through the files and clean out any false positives. I also share others' concern that the ~3000 files are just the tip of the iceburg, but I guess that's what we have to work on for now. I'm especially sad that we have to delete the works of Mahatma Gandhi. I wonder what he would think about this. Kaldari (talk) 09:46, 19 January 2012 (UTC)

•  Oppose the deletion of those files in bulk. The first file that I clicked on in the groups was File:German_photo_with_English_Tank.jpg, which is 95 years old. The deletion requests have to be made one by one, not in bulk, as different files might have different situations.--Strainu (talk) 09:54, 19 January 2012 (UTC)

•  Comment I think it would be wise to copy files to Wikilivres before deleting them. Yann (talk) 10:08, 19 January 2012 (UTC)
  • I plan to do so. I may even create a Toolserver script to facilitate future Commons → Wikilivres transfers. Dcoetzee (talk) 10:27, 19 January 2012 (UTC)
•  Comment Since US copyright and Rest-of-the-world "authorship right" are so very different that they have barely anything to do with each other, we clearly need at least two Commons. Everything new could be uploaded on one or the other or both simultaneously depending on the copyright status. All old files would have to be reviewed (which could easily done by bot for most of the files). --FA2010 (talk) 10:18, 19 January 2012 (UTC)

•  Oppose Anticipatory obedience doesn't make any sense... Let's better search for a more appropriate server location outside the USA. Chaddy (talk) 10:35, 19 January 2012 (UTC)

•  Comment Now this stupid URAA legislation has been in effect for quite some time. What I'd like to know: Has there ever been any problem with a European rights holder who tried to make us delete or pay for a file similar to those we discuss here on the basis of US law? Why not wait and decide on each individual case as soon as such a problem arises? Which might, or might not be the case. If we are indeed flooded with such complaints, we need to take action. --FA2010 (talk) 11:08, 19 January 2012 (UTC)
  • "They probably won't sue us" is not an acceptable argument - just a single lawsuit by a copyright holder who appears out of the blue can be devastating for content reusers, as we recently discovered. Dcoetzee (talk) 11:26, 19 January 2012 (UTC)
    • That only means we have to reword the disclaimer to make it unmissably clear. --FA2010 (talk) 11:52, 19 January 2012 (UTC)
      • No. This strategy clearly directly violates the precautionary principle. Dcoetzee (talk) 12:58, 19 January 2012 (UTC)
        • If this principle means deleting half the cultural heritage of Europe, it has to go. Alternatively, we have to leave the US. --FA2010 (talk) 13:41, 19 January 2012 (UTC)
•  Comment Another thought: many here discuss the issue and the Commons in gernal only in the terms of usefulness for the various Wikipedia (or Wikisource) projects. Please do keep in mind that the Commons are much more and this site has a value in itself, not just as a servant to other sites. Example: Our art categories comprise one of the largest and, considerd all imperfections, best described/categorized online art collection in the world. This is very much threatened by US copyright idiocy (I think it's idiotic since the legislation was probably not aimed at keeping minor European artists that even Europeans have hardly heard about, but also major German writers virtually unknown in the US and hence without much commercial interest, out of the Public Domain. However, this is what it effectifely does).--FA2010 (talk) 11:15, 19 January 2012 (UTC)

The URAA is not US copyright idiocy. It's European copyright idiocy. It was shoved down our throats by other countries unhappy with how the US was implementing the Berne Convention.--Prosfilaes (talk) 11:44, 19 January 2012 (UTC)

Nobody told the US to implement some 95 year term after publication. They could have implemented 70 years pma and everybody would have been happy. --FA2010 (talk) 11:50, 19 January 2012 (UTC)

They have implemented 70pma, just for works published since 1978. In most cases 70pma is more restrictive than the old U.S. rules anyways. The URAA, of course, was forced on the U.S. to comply with the Berne Convention -- many recent works would have remained PD otherwise. Carl Lindberg (talk) 15:03, 19 January 2012 (UTC)

•  Comment let us consider, while waiting what the wmf legal team has to say about it before we kick off this mass deletion of content, whether or not we could use our server capacity in the netherlands in any way for a workaround, even if its just partially.
  how many of these files could be saved in principle by moving them there, can the tech-department of wmf do it at all, does it makes a different whether or not they would remain here (commons) in terms of use while being as such (in terms of bits & bytes) relocated or would we need to invent another wiki for it (i predict we could rush through the meta-process & the incubator, if it would help), if another wiki would fix the problem _and_ could be done: how would that work in relation to commons and the wider project-interrelations? etc., regards, --Jan eissfeldt (talk) 11:28, 19 January 2012 (UTC)
  • If placed on a server in the Netherlands, the images can be accessible to users of that separate Commons project in the Netherlands. If a US wiki project, including all current WMF projects, would want to use an image hosted on that server, the use of the image would have to qualify as fair use under US law (and similarly, Dutch users of mw:InstantCommons can only use images stored on this project if they are free in the Netherlands, which is not necessarily true). Such a project in the Netherlands would thus probably not help WMF wikis a lot, but it could help mw:InstantCommons users in Europe, Canada and other countries. --Stefan4 (talk) 11:40, 19 January 2012 (UTC)
    • A server outside the US would be valuable as a freestanding media repository, and for hotlinking for users outside the US. However, it's not clear to me whether the WMF could legally operate/maintain such a repository, so it might be better operated by a third party. Also, I think local uploads make more sense for fair use images, so that they can decrease resolution and provide fair use rationales. Dcoetzee (talk) 12:48, 19 January 2012 (UTC)

•  Comment Among the files suggested for deletion are some 600 in Category:Meyers Blitz-Lexikon, scanned from a German book from 1932. This is an anonymous work, so any rights belong to the publisher. In theory, we could write to the publisher and ask them to release the book under a free license. But can they do this, when the book is no longer under copyright in Germany? --LA2 (talk) 12:35, 19 January 2012 (UTC)
  • I would assume that they would be able to release it under a free licence in the countries where it still is under copyright. Of course, this licence wouldn't have any effect in the countries where it is in the public domain. --Stefan4 (talk) 12:41, 19 January 2012 (UTC)
•  Oppose, human review is necessary, particularly since the list linked to at the top is obviously inaccurate: it is including many images with Template:PD-1996 (which as far as I understand is compliant with the URAA amendments) in addition to those tagged with Template:Not-PD-US-URAA (which, I imagine, are all that is being targeted). I also think we should wait for more specific guidance from the WMF. Postdlf (talk) 12:42, 19 January 2012 (UTC)
  • Sorry, wrong link. I fixed the link now, have another look at the list, it should only include files using the {{Not-PD-US-URAA}} tag. Dcoetzee (talk) 13:11, 19 January 2012 (UTC)
    • ...that's better, but there should still be human review rather than a mass-bot deletion, both because of that well-illustrated possibility of error even on a large scale, and for the reasons given by other commenters here that there is the possibility of nuance and exception. I don't see an urgent reason to hit the panic button and purge rather than take our time to sort through it all. Postdlf (talk) 13:52, 19 January 2012 (UTC)
•  Comment Plenty of files are tagged as URAA on sv.wikisource, but not on Commons, e.g. File:Kungl teatrarna J Svanberg del 1 - 4.pdf. See s:sv:Special:Whatlinkshere/Template:URAA. This is a sign that we are dealing with far more than 3475 files. --LA2 (talk) 13:11, 19 January 2012 (UTC)
  • Hm? That file looks OK ({{PD-1923}}) to me. --Stefan4 (talk) 13:26, 19 January 2012 (UTC)
    • My mistake. That file is free. The template:URAA in sv.wikisource is used for some texts that are free. I need to consult the categories instead of Special:whatlinkshere. However, File:Berzelius Bref 10.djvu has a co-author who died in 1933, so it falls under URAA, but this is not yet indicated on Commons. There could be more such examples. --LA2 (talk) 18:59, 19 January 2012 (UTC)
•  Wait This could be a good reason to delete (or maybe it isn't), but a lot of these images can be presumed to have been published before 1923. Usually, first publication dates are not recorded in Commons, but we can do so (just an example). However, we need some time to do so, and we need to see the images to check against its original sources. Then we need a delay before deleting, especially for images made before 1923.--Pere prlpz (talk) 13:36, 19 January 2012 (UTC)
  • That's a good find. I'm now convinced a more thorough review would be fruitful. Dcoetzee (talk) 14:06, 19 January 2012 (UTC)

•  oppose mass deletion I am sure that we have the template on files where it does not belong. When it was a "no consequence" template, we did not pay as much attention as we should have to files where it was established. I would add 25 a day to the DR log, each day's batch being a mass DR, and work through them, with user's able to comment on any that they think should be saved. Default would be delete.      Jim . . . . Jameslwoodward (talk to me) 14:01, 19 January 2012 (UTC)
•  oppose mass deletion A lot of these images from Spain can be presumed to be now in Public Domain in the United States because in order to upload it to Commons their copyright must have expired in Spain and in the United States: in Spain the copyright endures for a term consisting of the life of the author and 80 years after the author’s death. In the United States endures for a term consisting of the life of the author and 70 years after the author’s death. The 95 years after publication are for Anonymous Works, Pseudonymous Works, and Works Made for Hire. Cameta (talk) 15:37, 19 January 2012 (UTC)
  • 95 years from publication applies to everything published before 1978. The year of death of the author is irrelevant. Works from Spain published 1923 or later by people who died in 1916 or later are affected. --Stefan4 (talk) 15:50, 19 January 2012 (UTC)
  • We have a very big problem. The restoring the copyrights is a dangerous precedent. How will do it with the Quixote?Cameta (talk) 18:26, 19 January 2012 (UTC)
    • That's a terrible argument. Quixote is from the 12th century. This isn't all or nothing. If we're going to do all or nothing, then by your logic we would be hosting any copyrighted work. No, we abide by local laws and by the rules given by the Wikimedia Foundation itself. Magog the Ogre (talk) 22:02, 22 January 2012 (UTC)

 Comment - I know very little about the URAA, and honestly I'm not going to bother reading all the stuff above. However, from what I understand, the issue here is files which are PD in the country of origin but not in the US. This violates our rules which require PD in country of origin and in US.

However, we don't abide by that rule. As Dcoetzee himself well knows, we have a PD-ART policy which is in direct contravention of that rule, and the argument there is that an obscure US legal precedent means it's PD in the US, even if it isn't elsewhere, but we simply stick our fingers in our ears when people try to tell us it's not PD outside the US.

So... what in particular makes this different? -mattbuck (Talk) 15:56, 19 January 2012 (UTC)

We are bound only by the law of the US, as that is where the servers and WMF are located. Hence, PD in US but not abroad is okay, PD abroad but not in US is not. Our licensing policy that works must be PD in the source nation is self-imposed, and we can adopt any exception to it that we please. See also en:Template:PD-US-1923-abroad. Dcoetzee (talk) 16:16, 19 January 2012 (UTC)

The URAA was a result of the U.S. joining the Berne Convention, which doesn't allow copyright formalities like required notices and renewals. The U.S. tried to avoid restoring foreign works which had lost their copyright by failing to follow such formalities, but the Berne Convention does require that copyright be restored to at least 50pma to such works, and the URAA was the result of that. Provided that works were still under copyright in their source country on the "URAA date" (either Jan 1, 1996, or the later date that a country joins Berne or WIPO or similar treaty), their U.S. copyright got restored to the term that normal U.S. works get. Thus, these works, by all precedent, still have copyright protection in the U.S. and therefore copyright owners can quite legitimately sue for infringement, just like any other copyrighted work. It does not matter if works have become PD in their source country since (but neither does it matter if works have become re-copyrighted in their source country since; those remain PD). Carl Lindberg (talk) 17:22, 19 January 2012 (UTC)

•  Oppose wikiwithoutsource.de Pah! --Jowinix (talk) 15:58, 19 January 2012 (UTC)
•  oppose mass deletion, review tagging and start individual deletion requests (tagged with Undelete in X year) Bulwersator (talk) 16:38, 19 January 2012 (UTC)

•  oppose mass deletion Vitor Mazuco ^Msg 17:07, 19 January 2012 (UTC)

• Ask Foundation counsel. While I deplore the Golan v. Holder decision, I agree that it appears to mean that the media nominated here are likely nonfree under US law and as such must be removed from Commons. But a number of ways in which this could be done that would be less harmful to the projects than simple deletion have been proposed, e.g., transfer to language-specific Wikipedias. Because this is a legal matter of some significance, Foundation counsel should determine what (if any) leeway the communities have in that regard. Sandstein (talk) 17:12, 19 January 2012 (UTC)

•  oppose mass deletion -- this is insanely premature; the legal implications of this ruling (& how it will affect wmf projects) are JUST STARTING to be analyzed. & my tentative understanding of the results includes the key point that: the "rule of the shorter term" is NOT COMPLETELY invalidated; this decision ONLY affects/verifies-copy"rights" in materials that were re-copyrighted by legislative actions.

until this whole situation becomes clearer, we should follow a policy of WAIT & SEE

Lx 121 (talk) 17:20, 19 January 2012 (UTC)

I think files should go through some individual scrutiny rather than mass deletion; however there is most definitely legal precedent on the URAA -- there have been successful copyright infringement cases on restored works since it went into place. Secondly, it is also pretty well established that the U.S. does not use the rule of the shorter term, nor do they use the rule of the longer term, but rather they use their own term regardless if a work is domestic or foreign. The one exception is on the restorations themselves -- if works were PD in their source country when the URAA went into effect, those works were not restored. Thus, this affects works which have become PD in their source countries since 1996. But otherwise, there is no application of the rule of the shorter term that I see. The Berne Convention does allow it, so Congress could do so if it chose, but there is no indication they have ever done so. Furthermore, the U.S. has signed copyright treaties with a number of individual nations which pledge to use the U.S. term for works from those countries, so even if the U.S. adopted the rule of the shorter term, those treaties would still be in effect, and works from those countries would still get the full U.S. term. One example is Germany, where that individual treaty conversely means that U.S. works are protected for the full 70pma term in Germany even if they are now PD in the U.S., in spite of the fact that Germany uses the rule of the shorter term for most other countries. Carl Lindberg (talk) 17:41, 19 January 2012 (UTC)

It's insanely premature to start following a law that was passed 13 years ago? We know what the legal implications of this ruling are; there's no changes from the well-understood baseline. (Which does not include the rule of the shorter term.)--Prosfilaes (talk) 20:07, 19 January 2012 (UTC)

"IT'S INSANELY PREMATURE" TO APPLY A SCOTUSA RULING THAT WAS ISSUED <48 HOURS AGO, & has barely begun to be analysed in the legal community, to mass-delete files from commons.

please don't "straw-man" my position Prosfilaes; i know you are smart enough to have understood my meaning ;p Lx 121 (talk) 20:25, 19 January 2012 (UTC)

Except that the ruling didn't change the law at all. It merely upheld existing law, of which the effect is well known. It has been the law for 16 years now. There had merely been a slim hope the Supreme Court would change the law by ruling parts of it unconstitutional, but they didn't. Now, of course, we haven't been obeying all that law on Commons for the last couple of years (we used to though), so there is probably no need to rush, but if we wish to be compliant with U.S. law, and to only host "free" materials, we really don't have much choice. I don't think there should be a mass deletion immediately, but we should start a process to review such works, transfer them to local projects or wikilivres if possible, and eventually delete ones which are still under copyright. The wording of this DR may have been a bit alarmist, but the reasoning is sound. Carl Lindberg (talk) 14:27, 20 January 2012 (UTC)

•  Comment Wikipedia allows fair use (hosting of copyrighted files). Is there any legal arguments that say we can't change the policy to allow files PD in source nation but not in U.S.? --MGA73 (talk) 17:33, 19 January 2012 (UTC)
  • Fair use might not be allowed in any article and the files might have to be in a low resolution. This could mean problems. --Stefan4 (talk) 17:38, 19 January 2012 (UTC)
  • The Foundation wmf:Resolution:Licensing policy forbids Commons from using content under a fair use rationale. So, that would need get overturned (not just Commons policy). Legally, there may be some arguments, but Commons would be in a weaker position than Wikipedias since files here are more for general use (granted, primarily educational) as opposed to WIkipedia where they are used in a specific context. Carl Lindberg (talk) 17:41, 19 January 2012 (UTC)
•  Delete yes, we should check the existing uploads that are tagged as still copyrighted in the U.S. for images that are in fact legal and merely mislabelled, but on the whole we now know the status of files copyrighted in the U.S. and should treat them like other copyrighted uploads that don't have evidence of permission for a license considered free by the Commons. No matter how much people don't like it, policy is policy. Hekerui (talk) 17:50, 19 January 2012 (UTC)

•  Oppose mass deletion Let's not be hasty here: as others have said, let Geoff Brigham have a chance to weigh in on the impact of Golan v. Holder for these images, then if that is negative, let's allow a few weeks for sister projects to optionally check these for potential fair-use, and also to go through and tag with proper dating and undelete categories. If the law is against us on this, then let us have an orderly and measured deletion, but let's hold off until we've got legal advice and we have a chance to check the images a bit more thoroughly. —Tom Morris (talk) 18:06, 19 January 2012 (UTC)

• I'm inclined to agree with Tom Morris, but we a strong air of pessimism that they will have to go soon. But a couple more weeks wouldn't hurt. Jarry1250 (talk) 18:09, 19 January 2012 (UTC)
•  Oppose per Tom Morris --Miha (talk) 18:15, 19 January 2012 (UTC)

• strongly  Oppose mass deletion - if we are not able to present paintings and other media due to only one states laws like paintings from the German painter Max Liebermann, wich are with no doubt free from copyright in Germany and many other countries and are part of the cultural landscape in the artists homeland, we simply failed the (our) mission of free knowledge for everyone in the world. If we really are not able to find any suitable solution to present these paintings in those WMF projects like the Germany Wikipedia where they are legal to use and part aof the public domain and part of the public culture we can bury all activities like GLAM and even the whole "movement" -- Achim Raschka (talk) 18:23, 19 January 2012 (UTC)

•  Oppose the mass deletion. Individual review is mandatory for uploading files, hence it is for deleting files. Many people participating in this discussion are unaware of the legal implications of URAA, the Berne Convention, PD Status in the US and the source country and the interaction between these legal tools. I'd like to thank Carl Lindberg for his endeavour in commenting on these misunderstandings and rectifying them.

The discussion in general is not well structured: from detailed solutions for certain categories to news concepts on where to place the servers, we see numerous approaches to the issues, depending on the background and interest of the contributor. My interest as a contributor is to find consensus. Therefore I created a new section "Proposals", where we might find answers about the interests in different approaches. Feel free to suggest a new proposal, or contribute to an old one. Once we have some input on each proposal, we can use them in order to find a solution for this problem. Regards, PETER WEIS TALK 18:25, 19 January 2012 (UTC)

Very well, I'll fill them in. Dcoetzee (talk) 18:39, 19 January 2012 (UTC)

Thanks a lot for this fast response Derrick. Regards, PETER WEIS TALK 18:55, 19 January 2012 (UTC)

•  Oppose mass deletion per reasons above. —DerHexer (Talk) 20:36, 19 January 2012 (UTC)
•  Oppose deletion. These media are very important for European Wikisource projects. --Paulis (talk) 20:50, 19 January 2012 (UTC)
  • If the images are moved to wikilivres:, I suppose that Wikisource pages also could be moved there. Using Special:Export and Special:Import, this task is fairly simple, although it also has the problem that it may cause misattribution of edits in some cases. I suppose that Wikisource could advertise wikilivres: as a temporary Wikisource for those works until they become PD in the US. It looks as if wikilivres: doesn't want works which can be hosted on Commons/Wikisource, so I suppose that the wikilivres: crew wouldn't mind too much if those works were to be deleted there and reuploaded here when they become PD in the US. --Stefan4 (talk) 21:11, 19 January 2012 (UTC)
•  Oppose mass deletion per above. Individual review is needed. De728631 (talk) 20:52, 19 January 2012 (UTC)
• Contra: Keine Löschung in voreilendem Gehorsam. Wenn die Amerikaner Sonderwege begehen, müssen eben die Server nach Europa transportiert werden. -- Gustavf (talk) 21:02, 19 January 2012 (UTC)
•  Delete As much as I will hate myself for saying this it is the law and I don't see any way of it. Sure it is a bad law and copyright legislation is, in this day and age, so intense that it is curtailing creativity (which is ironic because that is the main justification for it in the first place) but that should be dealt through political organisation and not wanton disregard. However I do agree that the deletion should be done at a slow and methodical pace so as to ensure that no non-copyrighted material gets deleted by accident. --Discott (talk) 21:48, 19 January 2012 (UTC)
•  Comment If images would be deleted, which I strongly disagree with, this would also cause images to disapper that are claimed PD in the USA (WW2 images seized from the enemy) as they were most often still copyrighted in their source country and URAA would have restored their copyright protection in the USA. --Denniss (talk) 21:57, 19 January 2012 (UTC)
  • Doesn't URAA contain some specific exception saying that these were not restored? --Stefan4 (talk) 22:01, 19 January 2012 (UTC)
    • Yes, the URAA already contained a clause which meant those seized images (provided the foreign copyright is owned by a government) were not restored. The U.S. PD claim on such images is in line with the URAA (it would have to be, as that is U.S. law and has been for 16 years now). Carl Lindberg (talk) 23:47, 23 January 2012 (UTC)
•  Oppose mass deletion. We don't want to delete files which can be saved by being transferred to other projects. Therefore individual review seems essential. Aridd (talk) 22:25, 19 January 2012 (UTC)
•  Oppose mass deletion - individual review is required. There could be an expedited process put in place if necessary... --SarekOfVulcan (talk) 23:25, 19 January 2012 (UTC)
•  Oppose mass deletion. Move to any available sites such as en:wiki. moriori (talk) 23:42, 19 January 2012 (UTC)
•  Oppose deletion, many projects are using file. --minhhuy ^(talk) 04:09, 20 January 2012 (UTC)
•  Oppose We don't even know what the HOLDING of the case is. The 50 page documents that are SCOUS decisions create many nuances. They are often scalpels not chain saws. --Guerillero 06:03, 20 January 2012 (UTC)
•  Oppose mass deletion. JÄNNICK Jérémy (talk) 09:02, 20 January 2012 (UTC)
•  Oppose mass deletion without human control... many of these files are PD in their own country... how a US-Court could put them back under "copyright law" when they are free everywhere else... a "case by case" review seems absolutely necessary... It's boring enough to not being able to upload books from writers that have been in the PD for years, just because the book has been published after 1923... - in Europe, the PD is 70 years after death... - US cannot "rule the world", which would be the case here :S !!--Hsarrazin (talk) 09:12, 20 January 2012 (UTC)

Given what has happened to Hong Kong based Megaupload and its bosses in New Zealand the US can "rule the world". At the very least the US does rule the US where the Wikimedia servers are based. Don't assume that those proposing deletion support the attacks on intellectual and artistic freedom that are going on at the moment. The Commons is an attempt to create a repository of material that is usable, by everyone, within the law. --Simonxag (talk) 22:02, 20 January 2012 (UTC)

•  Oppose mass deletion : free in all other countries. TiboF® 10:01, 20 January 2012 (UTC)
•  Comment Like Ron says, bloody hell!!! --NaBUru38 (talk) 23:32, 23 January 2012 (UTC)
•  Oppose mass deletion --Vladek Komorek (talk) 08:34, 24 January 2012 (UTC)
•  Oppose mass deletion without individual review to confirm that the law applies, that the template was placed on the image properly and that there are not other methods or licenses under which the image can stay on commons --Trödel 16:13, 24 January 2012 (UTC)
• Note: Mass deletion is no longer under consideration. Please visit the #Proposals or #Other notes and discussion sections and leave your opinion in one or more of the subsections there. Dcoetzee (talk) 01:12, 25 January 2012 (UTC)
  • There is clear consensus above for proposal 5 - keep affected images and review individually, so I think it is not useful to include that in the proposals below. What isn't clear is what to do with the images that need to be deleted because of URAA and that they are hosted in the US. I suggest redrafting the proposal to indicate this rather than ignoring the concess expressed above and basically starting all over again. --Trödel 15:20, 25 January 2012 (UTC)

Proposals

1 - Server migration to another country

All WMF projects (and the WMF itself?) are migrated to another nation, where these works are in the public domain. Cons:

• Requires cooperation of the WMF, and Jimbo Wales has said this would be "highly problematic."

with all due respect; i don't really care if jimmy wales wants to move or not. he doesn't get a veto. if it makes sense to relocate in whole or in part, he can still be sabdfl from florida :P Lx 121 (talk) 20:53, 19 January 2012 (UTC)

Wales actually lives in London these days I believe. Kaldari (talk) 12:03, 20 January 2012 (UTC)

• Puts Commons at mercy of the new nation's laws; PD-Art, based in US case law, may be weakened.

Dcoetzee (talk) 18:48, 19 January 2012 (UTC)

• It's not realistic to expect that WMF will move the servers, because of less than 1% of total Commons pictures (not to mention that Commons is not the primary WMF project). And if this solution will involve GeoIP (in other words, the country-wise discrimination that everybody hate), the cure would probably worse than the disease. Trycatch (talk) 18:57, 19 January 2012 (UTC)
• Less than 0,025% Bulwersator (talk) 19:00, 19 January 2012 (UTC)
• In reality, it is more than that, probably more like 5 times that; the images aren't all tagged with this template though. Anyway, this would have to go through the lawyers of course, but it's not clear if it would make a difference or not: if the Foundation and its resources are located in Florida, then, depending on local laws, someone might be able to sue in Florida and thus the jurisdiction is irrelevant. Magog the Ogre (talk) 19:06, 19 January 2012 (UTC)
  • The few pictures are critical for many historical subjects between 1923 and 1940. These are mostly postcards and other pictures sources, not personal pictures where a fotografer can grant a PD licence. In later periodes (70 years >) there are the personal slides and prints wich can be scanned, but they are few. Finally there is the digital age, where there is an abundance of pictures.Smiley.toerist (talk) 17:40, 20 January 2012 (UTC). It is nearly imposible to ask permission with the descendants. Most of these pictures are of very low or non-existant commercial value. The increase in the licence period delivers almost no commercial gain for the pictures wikipedia uses.Smiley.toerist (talk) 17:45, 20 January 2012 (UTC)
• If we wanted to do this, what is the perfect country? What country has no censorship, free speech, fair use, and the desired copyright terms? Here's one probably small but typical problem: in countries other than the U.S., the U.S. government can have copyright, so even if all works of the U.S. government aren't automatically copyright, the U.S. can copyright what it doesn't want to be distributed freely. —innotata 20:04, 19 January 2012 (UTC)
  • If a country applies the rule of the shorter term on US works, the US government works would still be in the public domain, wouldn't they? It could mean problems in countries such as Canada or Germany, though. --Stefan4 (talk) 20:48, 19 January 2012 (UTC)

Well, at leat people fom other countries can use data in public domain data in its country... Common is used for images uploaded from country where it is legal upload them, but that maybe illegal to be stored in the US, and so, causing trouble in the first country. I am not sure I am clear, but the final point of keeping the servers in the US, is US law is making unavailable photos in country where the US have absolutely no right. Vatekor (talk) 20:40, 19 January 2012 (UTC)

US law is also making it so we can't host Harry Potter (books or movies) for people in Iran where there's no copyright on them. Is that a bad thing? Since when is it wrong for a country to police its own soil? Should a site be able to host Nazi propaganda in Germany or France if it claims to only be targeting countries where it's legal?--Prosfilaes (talk) 02:42, 25 January 2012 (UTC)

2 - Local uploads to avoid international copyright clashes

Files which are in the public domain in their source country, e.g. German works in the public domain in Germany, are uploaded to the corresponding project, e.g. the German Wikipedia. The argument is that if the target audience is outside the US, this would not be infringement. Local projects could upload files either before deletion, or retrieve them afterwards from Wikilivres. As a note to local projects: I would not recommend proceeding with this option without clear legal permission from the WMF, as it is possible the location of the servers controls copyright jurisdiction (waiting to hear clarification from WMF on this). (Note: this is not about fair use uploads of these files to local projects, which will always be acceptable.) Dcoetzee (talk) 18:48, 19 January 2012 (UTC)

• Unrelated to decision on commons Bulwersator (talk) 18:35, 19 January 2012 (UTC)
• Agreed, this is unrelated to Commons. If projects choose to upload these locally under their own policies, that's up to them. We should allow them the chance if they want to. Carl Lindberg (talk) 18:53, 19 January 2012 (UTC)
•  InfoThis proposal comes from German Wikipedia. Those authors who are interested in developing the idea, may do this here. Regards, PETER WEIS TALK 19:02, 19 January 2012 (UTC)
• I repeat it here: with a list (i noticed earlier here) of all files, each project can check, if and which files are needed and which files should and (legally) could be uploaded local. With this, we can delete the pictures here and can use them where it is possible. Background: many pictures were transferred to commons, if the files are deleted without rescue them, some uploaders will stopp their work for commons. With back-transferring we can do what will be needed for US-related copyright-things here (maybe deleting) and the files are rescued and can be more easy re-backtransferred when the URAA-copyright is out-of-date. --Quedel (talk) 19:47, 19 January 2012 (UTC)
• Local uploads put the idea of Commons and in the course of transfer surely some metadata into trash. No, thanks. Thousands of people have worked hard to build Commons and work towards Commons for years and moving back should be the result? Not really. --Saibo (Δ) 20:14, 19 January 2012 (UTC)
• This IS indeed related to Commons if we implement a tweak of software that would allow other wikis to use files uploaded on other local wikis. We can link to articles using ":de:Article name" so it should also be possible to use files by adding a "de:file...". If we do that it would solve some problems but it would also make the benefits of having Commons smaller. So I prefer a solution that does not undermine Commons. --MGA73 (talk) 20:33, 19 January 2012 (UTC)
• Would very much prefer this proposal - but only with clear legal permission from the WMF, as Dcoetzee says. The question of which jurisdiction has to apply for international websites is very complicated and the opinions of scholars in legal commentaries differ greatly. There are indeed some who say "jurisdiction of physical servers' location", but this seems to be increasingly controversial and the "target audience" argument is winning some ground, I think. - Saibo, the German Wikipedia is already doing this with files not acceptable on Commons. The URAA files would only be a continuation of existing practice. But it's exactly because of this I would like to have a clear statement from the WMF - as pointed out by Pill on my talk page in the German Wikipedia, the recent wording in the new WMF Terms of Use seems to suggest that what German Wikipedia is doing isn't acceptable at all for them. Gestumblindi (talk) 20:37, 19 January 2012 (UTC)
  • I do well know about de:Category:Datei:NoCommons, yes. But: those files e.g. never were at Commons. I really disrespect how some people here, of whom I thought they would be Commons members, try to break Commons as fast and hard as possible and just have fair use and local projects in their heads. Didn't we all had the idea of the common repo which brings such tremendous time-savings (and less copyvios due to incomplete transwiki image transfers) especially to the smaller projects? --Saibo (Δ) 20:59, 19 January 2012 (UTC)
    • I hope that we all will try to get a legal solution that is good for Commons. But that does not mean that we should not look for alternatives if first priority fails. Personally I hope that WMF will contact relevant persons in or around the White House to discuss a change of law if needed. --MGA73 (talk) 21:14, 19 January 2012 (UTC)
    • Saibo, in theory I do agree with you, certainly I want Commons to be "the common repo which brings such tremendous time-savings" - but if, for legal reasons, the choice for certain images would be "not available at all" vs. "available in local projects only", I would prefer the latter option - if we have this choice at all. Gestumblindi (talk) 21:21, 19 January 2012 (UTC)
    • You've spent years censoring Commons for European law, deleting images we could have hosted just fine under US law, but when it comes time to follow US law, we're the ones breaking Commons? How can it be less copyvios if you're arguing to keep copyvios?--Prosfilaes (talk) 02:55, 25 January 2012 (UTC)
• This doesn't do much for Canadian, British or Australian images, since they don't have their own wikipedia projects, afaik. - Themightyquill (talk) 02:59, 20 January 2012 (UTC)
• Commons is a project on its own. Pictures on Commons can be used by others than local wikipedias or WMF project. I'm working with museums that use commons (even for their own publications), local newspapers uses Commons too. Commons is not Wikipedia, it's special, it has a different goal, it's nice it is useful for Wikipedia but Commons is more than that. PierreSelim (talk) 08:36, 20 January 2012 (UTC)
• Canadian Wikilivres can display files hosted here, subject to Canadian Copyright Act, but whether to reciprocate to allow Wikimedia sites to display files hosted at Canadian Wikilivres deserve careful review regarding the feasibility to write in fair use rationales in the USA. For example, as Canada, China, Hong Kong, Macao, and Taiwan generally copyright works for life plus 50 years until year end, most files at Canadian Wikilivres may be freely used on Chinese Wikipedia usually read in Greater China, then those still copyright-restricted in the USA will have fair use rationales written on Chinese Wikipedia to legally use them in the USA. If ever displaying files hosted at Canadian Wikilivres to claim fair use in the USA is not feasible, web links will probably be fine.--Jusjih (talk) 18:24, 29 January 2012 (UTC)

3 - Geolocation

Images copyrighted in the US under the URAA are not shown to readers with IP addresses located in the US. Cons:

• Geolocation is unreliable (sometimes gives wrong location, easily circumvented with proxies, etc);
• Location of the servers would still be in the US, so this would still probably be illegal;
• Different users seeing different versions of the same article could lead to problems.

Dcoetzee (talk) 19:05, 19 January 2012 (UTC)

• Comment This approach is currently being used by Google Books. US readers see anything published in the UK before 1909; UK readers only see material from before 1865. It would show us making at least a reasonable good effort. Such a proposal might be applied in conjunction with a commons.eu repository (currently proposed below). Jheald (talk) 19:16, 19 January 2012 (UTC)
  • • This is wrong. The moving wall is actually at 1871. --Historiograf (talk) 20:23, 19 January 2012 (UTC)
  • Further Comment. If geolocation were used in this way, geo-controlling commons.eu and de.wiki would be a potentially two separate questions. I would be very much against de.wiki being anything short of whole-world-readable; would this be preservable if de.wiki were controlled from and hosted in the EU, in the same way that we only expect en.wiki to be U.S. law compliant, not necessarily EU, Aus, In, NZ, ZA law compliant etc. ? Jheald (talk) 19:31, 19 January 2012 (UTC)
    • Note that this is only about images, not textual material (except possibly pages at Wikisource). Last year, WMF proposed an image filter. This filter could maybe be used for filtering images depending on PD status. --Stefan4 (talk) 20:32, 19 January 2012 (UTC)
  • Note that what Google Books is doing is different; they're limiting which files that are legal in the US that are getting served to their foreign audience, not the other way around.--Prosfilaes (talk) 20:27, 19 January 2012 (UTC)

• • note that this proposal does not fully-resolve legal concerns about us-based HOSTING of files that are copyrighted in the usa. Lx 121 (talk) 22:53, 19 January 2012 (UTC)

Why? Everyone can retain or host copyright media. Illegal is using, selling, sharing, spreading... So if ip filtering should work fine...--Pierpao.lo (listening) 14:01, 20 January 2012 (UTC)

The question here is: if X is in the US and Y is outside the US, and X sends a file to Y over the Internet, and that file is in the public domain in Y's country but not in X's country, is this copyright infringement? This appears to depend on whether the "target audience" or the location of the servers controls the jurisdiction. This is a complex question that I'd like the WMF to address - I believe the conservative thing to do is to assume that it is infringement. Dcoetzee (talk) 14:25, 20 January 2012 (UTC)

4 - Commons Abroad

A second "Commons" wiki, call it Commons Abroad, is set up hosted in another nation. Deleted URAA files are moved there. Provides hotlinking to users outside the US. Notes:

• If WMF permits some projects to use works in copyright in the US under the URAA, they could share them through Commons Abroad.
  • My opinion: It would probably not be legal for WMF projects (hosted in the US) to show thumbnails of images from Commons Abroad, so it would only be useful to websites hosted outside the US.
• It may not be legal for WMF to operate/maintain such a server, or it may reflect poorly on them.
• Third-party site Wikilivres, hosted in Canada, already does something very similar to this.
• Orthogonal to proposal "keep affected images and review individually".

Dcoetzee (talk) 19:05, 19 January 2012 (UTC)

• Most files, in particular all the free-licensed ones would remain on Commons on a US-based server. Only the 1923 and younger artworks are moved to Commons Abroad. Individual projects may choose to enable the display of Commons Abroad files in addition to those from commons. (Idea first raised above by jkb and Stefan4) Teofilo (talk) 19:10, 19 January 2012 (UTC)

I do not believe linking would be much of a problem, as use on enwp would almost always be fair use; many of the URAA images would be locally stored on enwp if deleted here; that is just one of the absurdities. /Pieter Kuiper (talk) 19:18, 19 January 2012 (UTC)

Any images reuploaded to enwiki would need an extensive fair use rationale and need to be downscaled. As such I don't think this proposal is a substitute for local uploading. Dcoetzee (talk) 19:24, 19 January 2012 (UTC)

Even if an image is hosted at Commons, English Wikipedia may choose to have a file information page for the file. If an image is placed at Commons Abroad, this option could be used for the fair use rationale (and a bot could maybe delete images without fair use rationales from English Wikipedia articles). It would maybe be possible to adjust mw:InstantCommons so that it only provides thumbnails if you request that (for solving the downscaling problem). --Stefan4 (talk) 20:36, 19 January 2012 (UTC)

• Comment Perhaps it's time that wiki.de was constituted as its own arms-length legal entity, operating servers somewhere in Europe, which could also operate a commons.eu ? Is such a step remotely conceivable? Jheald (talk) 19:11, 19 January 2012 (UTC)

This is not outside the realm of possibility, if the WMF embraces it. Obviously remote wikis can use ordinary Commons (through InstantCommons). PD-Art is okay in Germany, Poland, Romania, and Switzerland. Each of these nations has its own copyright issues though; Germany has Strafgesetzbuch section 86a, and many European nations have moral rights and related rights like database rights and performers rights that do not exist in the US. Dcoetzee (talk) 19:33, 19 January 2012 (UTC)

• This sounds like a good solution, but we need to contact the legal representative first.--Ymblanter (talk) 20:05, 19 January 2012 (UTC)

It may not be legal for WMF to operate/maintain such a server we could ask Wikimedia France, or Wikimedia Germany, etc. to operate them. Teofilo (talk) 19:19, 19 January 2012 (UTC)

• Well, I', not lawer. But anyway, I don't think it could be a problem to host german pictures (whos copyright has already expired according to the german law) on a german server - the provider of the server, hmm .. I'm quite sure, that a cooperating "registerd club" is a possible solution. greetings Redlinux (talk) 22:55, 19 January 2012 (UTC)
• I think that we should seek a constructive solution to this problem. We do not want to infringe valid copyrights in the United States but we should not enforce these restrictions to countries outside the United States. And we have an alternative: In Amsterdam, Netherlands, we have the toolservers which are maintained by a German organisation, Wikimedia Deutschland. They could easily host these images and make them available for all wiki projects who chose to include them. How the WMF protects itself best in such a situation should be preferably left to WMF's legal advisor Geoff Brigham. --AFBorchert (talk) 07:59, 20 January 2012 (UTC)
• Commons Taiwan (sorry for my poor English) According to w:List of countries' copyright length, protection length of Taiwan is Life + 50 years. And according to w:Freedom in the World, Taiwan is free. What about establish Commons Taiwan? Only include files the author of which died between 50~70 years? And we make some tool that move files to Wikicommons International automatically when it is expired. The user database and most of user guidelines will be just as same as Wikicommons International. Beside this, Taiwan is near China mainland and Japan. So meanwhile, we can build accelerate servers for other wikiprojects in Taiwan for east Asian users.--王小朋友 (talk) 10:02, 20 January 2012 (UTC)
  • This sounds like proposal 4, Commons Abroad... consider moving this comment there? Dcoetzee (talk) 10:10, 20 January 2012 (UTC)
    • OK.--王小朋友 (talk) 10:13, 20 January 2012 (UTC)
• Commons Marshall Islands - no copyright laws, users can upload anything they want. RISK: Because Marshall Islands is close to U.S., they may start to use US copyright laws sometime.--王小朋友 (talk) 10:20, 20 January 2012 (UTC)
• Commons Educational- If there is to be a second Commons than it should aim to solve also many other problems (like FOP), which all have to do with prioritising US free-use and the precautionary principle against the global educational scope. Instead Commons Educational, unlike Commons, would have the educational scope as primary mission, truly serving all the Wikipedias, so look for a country with 50+ PD and full FOP, drop or relax the precautionary principle and accept CC-NC. --ELEKHH^T 12:14, 20 January 2012 (UTC)
• The policy that all material should be universaly free in al countries is not posible to maintain. There are already small exceptions where users are violating local laws by downloading some commons "free licence" work. It is in practish imposible to satisfy al local laws an dit should not be tried. The responsability for use should be some cases placed back to the user. The commons should be as free license as posible and provide clear labels where not. The US WMF foundation is obliged to respect US law and cannot have illegal material om its servers. That is why some materiaal (not US PD should be placed exclusivaly abroad). The VS wikipedia users could get a blackout of the non-US PD images. The servers should also be run by independant non-US WMF's. It is not the problem of people outside the US. There are a lot of other legal problems because of conflicts between local laws and US-laws wich also applies outside the US.
  I get the impression that WMF people do not understand the frustration of wikipedians outside the US and only think of applying the US-law. If this goes on, wikipedians outside the US, wil create their own WMF's to be independant of US law. The US is not the centre of the world and we can go on without the US if need be.Smiley.toerist (talk) 12:56, 20 January 2012 (UTC)

@Smiley.toerist, I wonder on what your "impression" is based, since so far nobody from WMF has officially commented at this discussion. Besides, neither the WMF nor Commons only think of US law, as we require works to be free also in their country of origin. In addition, please don't forget that the recent URAA ruling wasn't done by the WMF, but the US supreme court, to which the WMF is rather unrelated. --Túrelio (talk) 13:50, 20 January 2012 (UTC)

I went a bit off scale and of course WMF has to deal with a mess not of there own making. However, if you dont bark before you are hit, you cant complain later: I have not warned you. Once the decision has been taken it is to late. You have to give WMF input for making the good decision.Smiley.toerist (talk) 17:59, 20 January 2012 (UTC)

What about servers run by Wikimedia local chapters?--王小朋友 (talk) 14:37, 20 January 2012 (UTC)

It is technically posible, however the organisation has to follow fast. As long the WMF has a directing influence on these outside servers, they are responsable for the American courts. Utimately they should only have advisory role. You cannot do these things halfway. But if this is done for only about the 1 % of the total pictures, it should be managable. There has to be only a link to a separate website. That is stil allowed in US law (just).Smiley.toerist (talk) 17:59, 20 January 2012 (UTC)

What about frame a page include such photo?--王小朋友 (talk) 05:07, 21 January 2012 (UTC)

For what it's worth, I have my doubts that even linking to a foreign site including an image that is copyrighted in the US is legal. This is one of the questions I've asked the WMF. Dcoetzee (talk) 17:55, 21 January 2012 (UTC)

• Absolutely in favor of this option. It turns out to be a big mistake to centralize all servers in the US. Upgrading the Amsterdam cluster could be the way to go. --Prüm (talk) 12:40, 22 January 2012 (UTC)
• When studying the merits of creating a commons abroad, I think the Wikimedia Foundation and concerned parties (such as the local WMF chapters) should also extensively list the advantages and disadvantages of opening one or more Wikimedia trademarked websites, run by a WMF chapter, and governed by the laws of a non-US country, beyond copyright matters. For example, one of the merits of creating a Wikimedia-Abroad website in Europe, beyond copyright matters, is for the matters related with personal data laws. As a citizen of the European Union, I think it would be most beneficial for European Union citizens to have their personal data stored in a European Union server, where European laws apply, instead of having their personal data stored in a nearly-lawless country such as the United States of America. Privacy and personal data are much better protected in the EU than in the USA. Having at least some of the Wikimedia-trademarked websites abide by the EU laws would help improve the Wikimedia trademark's image in the EU. It would help brand the Wikimedia trademark as EU-friendly among EU citizens, EU policy makers, and EU public opinion makers. Teofilo (talk) 19:32, 28 January 2012 (UTC)
• I would like to see Wikimedia have proper storage servers in Europe and also in a Commonwealth country (probably Canada), so we do not always need to delete files because of US copyright for works not copyright in country of origin. John Vandenberg ^(chat) 08:40, 29 January 2012 (UTC)
• According to me, this is the only one valid proposal. I'd like to see WMF project's servers in EU. I suggest Italy, my home country.--Erasmo Barresi (talk) 14:35, 31 January 2012 (UTC)

5 - Keep affected images and review individually

Some images may be incorrectly tagged with {{Not-PD-US-URAA}}. There are many reasons for this:

• It may now be at least 95 years from the publication date, since the image was tagged.
• The tagger may not have been familiar enough with copyright of the source country to determine if the image was in copyright on the URAA date.
  • In particular, some nations extended their copyright terms after the URAA date, and works restored abroad after the URAA date were not restored in the US.
• Further research may be needed to find the publication date. If it is before 1923, the work was not restored.
• It may have been published inside the US within 30 days of its original publication, and a U.S. public domain tag applies.

If any file is deleted under the URAA, it will be re-uploaded to any projects in which it is in use as a fair use candidate (see User:Commons fair use upload bot), and re-uploaded to Wikilivres in Canada. Dcoetzee (talk) 18:48, 19 January 2012 (UTC)

•  Support Dcoetzee (talk) 10:11, 20 January 2012 (UTC)
• I would tend to go with this approach. I would deprecate the tag for any newly-uploaded images, then start a process to review the works. Some may have assumed 70pma in the foreign country, whereas in some the term was shorter on the URAA date (Mexico, Portugal, Italy, and France for some quick examples). Some may have been 70pma at the time, but did not make the increase retroactive. But, I'm sure most tags are probably correct and I think such files should be removed eventually. We may also want to wait for the Foundation to make a statement though, if they are planning on one -- it might affect our policy. Carl Lindberg (talk) 19:00, 19 January 2012 (UTC)

Article 13 - 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Articles 1 to 11 of this Directive before 1 July 1995 of 29 October 1993 harmonizing the term of protection of copyright, therefore the 70pma term was applying in France on 1 January 1996. Teofilo (talk) 19:37, 19 January 2012 (UTC)

France did not implement the extended terms until 1997. Thus, 50 pma + wartime extensions were the actual terms in France in 1996. See here; the new law took effect April 1, 1997. It explicitly notes that there could not be any criminal proceedings regarding uses of restored materials before April 1, 1997. Carl Lindberg (talk) 19:53, 19 January 2012 (UTC)

Your interpretation is interesting but it has not been tested in court. We are presently in 2012, so a legal proceeding using the 1 July 1995 date as deadline can succeed. There is also a theory that European directives have precedence over national legislation, and the European directive was enacted in 1993. Wouldn't the US legislators be aware of the European directive with its 1 July 1995 deadline when they voted for the URAA ? Also, saying that enforcement cannot be sought for two years between 1995 and 1997 is not the same as saying that the work is in the public domain. Teofilo (talk) 20:49, 19 January 2012 (UTC)

As far as I'm aware, European directives are not considered law -- this is why countries must implement them into their own law. They had some broad changes but many small details of copyright law still must be defined by national legislations. As that act itself makes clear, if you made use of a restored work in January 1996, the eventual restored copyright owners could not take any action against those who used the works in that period. See article 16, part III of the law I just linked: Holders of these [restored] rights can not be opposed to lawful acts of exploitation performed before the date of entry into force of this Act [April 1, 1997]. In other words, in January 1996, those works were considered public domain in France (and still are; they were free to be exploited in that time period, but not after April 1, 1997). The URAA only restored works which were not in the public domain in its source country through expiration of term of protection; such works had clearly expired in France on that date (as explicitly stated by the 1997 law). The URAA was not really concerned about the EU copyright directive; it was to restore rights mandated by the Berne Convention, which France's 50 pma terms were fully compliant with (and were the terms for decades prior). Law changes in countries after January 1, 1996 have no further effect on the U.S. copyright. Carl Lindberg (talk) 22:33, 19 January 2012 (UTC)

I asked Lupo here (about File:Paul Signac Lighthouse at Groix.jpg) and his answer is that you are probably right unless that EU directive had had some overriding effect. So let me explain what I mean by overriding effect. The "direct effect" theory is explained at en:Direct effect and fr:Directive de l'Union européenne#Position de la CJUE. In 2007 the French court of Cassation ruled that the wartime copyright extensions which the French lawmakers did not abrogate in 1997 (unlike the Belgian lawmakers who abrogated the Belgian law's wartime extensions), were abrogated by the 1993 European directive (except where Directive article 10 paragraph 1 applies). As you said, the French law of 1997 states that the "restored rights" cannot be enforced against 1995-1997 exploitation. On 1 January 1996, the 1997 law had not been enacted yet, so the works were at best in a juridical limbo. If the French lawmakers decided to make this clear in 1997, it is because it was unclear until then. Also, a "direct effect" theorist would say that as the conditions written on fr:Directive de l'Union européenne#Position de la CJUE are met, the 1993 directive overrides the 1997 French law. My conclusion is that we need to know if there are legal precedents where a US court endorses the "direct effect" theory when dealing with European matters. Teofilo (talk) 15:48, 20 January 2012 (UTC)

I don't know of any such situations in U.S. courts, but they would look to French law specifically, and French law is quite clear that owners of restored rights had no control over exploitation of those works in the period of 1995 to 1997 -- if they did, there probably would have been lawsuits and the French law would have allowed them. I can't imagine U.S. courts ignoring the clarifying bits of the 1997 law which explained what the situation was in 1996. Furthermore, even the en:direct effect article says there is no such effect if the directive is dependent on any national implementing measure -- which I think the copyright term directive clearly required, and therefore was dependent on. Even more, that article states that it has been made clear there is no horizontal direct effect for directives (i.e. actions from one citizen against another), but only a vertical effect (a citizen taking action against the state itself). If there really was some sort of direct effect, it would have been recognized in French law, but instead was explicitly rejected -- and I think U.S. courts would look to that interpretation (not that there are any which would indicate otherwise, from what I've seen). Carl Lindberg (talk) 16:12, 20 January 2012 (UTC)

You have convinced me. The "no horizontal direct effect for directives" principle seems to be a very strong one (and the 2007 cour de Cassation ruling sounds increasingly strange). So, thank you very much. You have just saved all the French works (except the musical compositions that had a long standing 70pma term) and illustrated that it is useful to review images and have a debate on the difficult cases. Teofilo (talk) 19:14, 20 January 2012 (UTC)

Wow, impressive work and very interesting discussion. Thanks to both! Jean-Fred (talk) 19:50, 20 January 2012 (UTC)

Hmmm… Works published before 1939 in France enjoy 8 more years of protection because of World War II. This is usually not important since 50 + 8 was later absorbed into the 70pma. But in this, case, shouldn’t we consider that the work was still copyrighted in 1996 ? Jean-Fred (talk) 20:14, 20 January 2012 (UTC)

Yes, I think that is just as clear - I did say 50pma + wartime extensions above. Italy had those as well, so they were effectively 56pma, at least for works published there before August 1945. Posthumously published works may not have had the extensions, but most under discussion here would. The 30-year "died for France" extension can also apply. Carl Lindberg (talk) 21:02, 20 January 2012 (UTC)

According to en:Wikipedia:Non-U.S._copyrights#endnote_tab_france, the world war II extension applies to works published before January 1, 1948. Teofilo (talk) 22:05, 20 January 2012 (UTC)

Yes, for France. Sorry about the earlier comment; I made a brief tangent into Italy, which was 1945 (something I just found out today). Carl Lindberg (talk) 23:03, 20 January 2012 (UTC)

Speaking of those musical compositions... ;-) The law which extended those from 50 to 70 pma is here, and took effect on Jan 1, 1986. Do you have any idea exactly how retroactive that was? I.e. did it only apply to works made or published after that date (not retroactive at all), or did it just extend all existing copyrights without restoring any (the usual case), or did it actually restore any such copyrights which had previously expired? The law does not seem to have any transitional instructions to give direction on that. Normally, if there are restored copyrights, there are all sorts of provisions which specify that acts done on previously-PD works were OK, and that existing derivative works are still allowed, or allowed for a period of time, and that kind thing -- none of which I see there. I would presume, given stuff about the Internationale that such copyrights were at least extended, but if if nothing PD had actually been restored, then the URAA restorations may actually count back 50pma + war extensions from 1986, rather than 70pma + extensions from 1996. This would probably only affect a tiny sliver of works for the URAA (only those published 1923 or later by an author who died about 1927/1928 or earlier), but you never know. Carl Lindberg (talk) 21:02, 20 January 2012 (UTC)

I have said so many mistakes today that I don't dare to answer you. Let us just consider that currently Commons hosts quite few musical compositions from France... Teofilo (talk) 21:39, 20 January 2012 (UTC)

As far as I know, French laws cannot be retroactive (it's unconstitutional, except for penal law, when it's in favor of the convict) - so it extended the existing copyrights, but certainly "could not" restore rights on already DP works... --Hsarrazin (talk) 16:38, 21 January 2012 (UTC)

I am having a new doubt. I am afraid that can not be opposed to lawful acts is not an accurate English translation. The translation provided at http://www.wipo.int/wipolex/en/text.jsp?file_id=127207 for article 16 seems to be accurate with the following text : Art. 16.—I. The provisions of Title II of this Law shall be applicable as from July 1, 1995. However, only those violations of the said provisions that are committed following the date of publication of this Law may give rise to criminal proceedings.. This means that, although a criminal lawsuit cannot succeed, a civil lawsuit is possible for infringement between 1995 and 1997. So it seems that the works were protected on 1 January 1996. Teofilo (talk) 15:35, 22 January 2012 (UTC)

Keep reading, in section III of Article 16. That makes clear that even civil lawsuits cannot succeed. I suppose there is some ambiguity on works which were set to expire on January 1, 1996 itself -- the law may have allowed lawsuits on those if they were exploited during 1996 -- but works which expired on January 1, 1995 and earlier under the old terms seem clear. Carl Lindberg (talk) 15:45, 22 January 2012 (UTC)

Oops sorry. Article 16 section III is clear. Teofilo (talk) 16:15, 22 January 2012 (UTC)

•  Support. I suspect not only some but rather a lot of images are wrongly tagged with {{Not-PD-US-URAA}}. E.g. I have just fixed some instances of {{PD-Canada}} where the work was not copyrighted any more on 1 January 1996. De728631 (talk) 21:14, 19 January 2012 (UTC)

It has already been explained to you that those images are not in the public domain in the U.S., and that in 1996 they were not in the public domain in Canada either. (However, being Karsh photos, they might have been copyrighted directly in the U.S. instead of through the URAA rules, but, either way, they are copyrighted in the U.S.) Please revert the wrong PD-US claim you inserted. -- Asclepias (talk) 22:19, 19 January 2012 (UTC)

Where has that been explained? The URAA template alone is not indicative just because it has often placed wrongly. And those images were in fact PD on 1 January 1996 in Canada since they were created before 1949. De728631 (talk) 23:25, 19 January 2012 (UTC)

See "Other notes and discussions" below. De728631 (talk) 00:56, 20 January 2012 (UTC)

•  Support Let's do this before we do anything else. We of all people should know that our licensing tagging is fallible; no one will serve us with a cease-and-desist order while we're making a good-faith effort to identify exactly what now-infringing material we may or may not have. Daniel Case (talk) 21:46, 19 January 2012 (UTC)
•  Support Need to verify that file is tagged correctly before it's deleted. --SarekOfVulcan (talk) 23:26, 19 January 2012 (UTC)
•  Support, seems to be a prudent and logical step. -- Cirt (talk) 02:29, 20 January 2012 (UTC)
•  Support, looks like the most sensible approach: respect the law but do not overreact with mass deletions. --Hispalois (talk) 05:44, 20 January 2012 (UTC)
•  Support, Follow Berne Convention, which states that unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work. If some of images are public domain in source country now, they are in public domain. – Kwj2772 (msg) 09:01, 20 January 2012 (UTC)
  • U.S. law does not follow the Rule of the Shorter Term. Kaldari (talk) 12:14, 20 January 2012 (UTC)
    • Ah, Thank you. – Kwj2772 (msg) 11:53, 13 February 2012 (UTC)
•  Support - only way to "not delete" works that do not need to be deleted... we all know how difficult it is to mark a work... especially, when we are not US citizens, and use our national law as a basis (e.g. European 70 years law) --Hsarrazin (talk) 09:57, 20 January 2012 (UTC)
•  Support-- We already have many categories with backlogs. One more category won't really affect us much.--Gauravjuvekar (talk) 11:24, 20 January 2012 (UTC)
•  Comment We need a whole new set of licensing templates. PD-Old and PD-Old-80 have just became useless. We need a "PD-Old-80 years before URAA date" and a "PD-Old-70 years before URAA date", and other templates with publishing dates. Where should these templates be discussed?--Pere prlpz (talk) 16:25, 20 January 2012 (UTC)
  • I'm afraid it's not that simple. {{PD-old}} and friends are still appropriate for works published simultaneously abroad and in the US, in combination with a suitable US tag (e.g. {{PD-US-no notice}}). Trying to build tags for every possible combination of a foreign and US PD tag would lead to many thousands of tags. Adding to the complexity is that many nations which are now PD-old-70 or PD-old-80 were not in 1996. However, I am starting a discussion at Commons:Village_pump#Proposed_changes_to_PD_tags. Dcoetzee (talk) 17:32, 20 January 2012 (UTC)
•  Support --Archenzo (talk) 20:17, 20 January 2012 (UTC)
•  Support provided copyvios get deleted. Hekerui (talk) 20:32, 20 January 2012 (UTC)
•  Support If there is a definite copyvio, we can delete them. Sumanch (talk) 00:39, 22 January 2012 (UTC)
•  Support. Retag or delete individually. Artem Karimov (talk) 05:02, 22 January 2012 (UTC)
•  Support --Władysław Komorek (talk) 07:17, 25 January 2012 (UTC)
•  Support. Retag or delete individually. Just to confirm, although there is clear consensus from the views initially expressed for this proposal. --Trödel 15:22, 25 January 2012 (UTC)
• Comment. An example of an artist where individual review of each single work is needed is Paul Klee, see Commons:Village_pump/Copyright#Paul_Klee_paintings_-_individual_copyright_review_needed. Klee paintings published prior to 1923 are in the public domain in the U.S., but later paintings only if the country of origin is Switzerland, where he lived from 1933, as they were in the public domain in Switzerland on the URAA date of January, 1, 1996 - but not in Germany. So, in the period of 1923-1940, some of Klee's works have Germany as their country of origin, and some Switzerland, making a big difference for their current copyright status in the U.S. Gestumblindi (talk) 01:30, 26 January 2012 (UTC)
•  Support. Yann, the webmaster of Canadian Wikilivres, is willing to receive affected files, but he is also concerned of the costs to run Wikilivres.--Jusjih (talk) 18:18, 29 January 2012 (UTC)

6 - Delete all affected images

All files bearing the {{Not-PD-US-URAA}} tag are deleted summarily. The proposer has abandoned this option and does not recommend it. Dcoetzee (talk) 18:48, 19 January 2012 (UTC)

• Rejected - see #All_files_copyrighted_in_the_US_under_the_URAA Bulwersator (talk) 18:34, 19 January 2012 (UTC)

7 - Let WMF make a proposal

In the end, the hoster WMF has the choice (and legal responsibility) for what will happen next. I'm missing a statement by WMF's legal advisor Geoff Brigham or Sue Gardner or the Board if they tolerate these pictures until individual claims raise for single images or if a move of servers into another country (and which) could be helpful to save these and other pictures, or if WMF would tolerate them on local projects or if they should be deleted from all Wikimedia servers. --Martina talk 20:26, 19 January 2012 (UTC)

• This is the only option. You can discuss the issue all you want, but if WMF legal council decides these files should be deleted they will be deleted. Our opinion is utterly irrelevant. Yoenit (talk) 21:52, 19 January 2012 (UTC)
• Of course. If they say the images are fine, we can keep them. If not, we (or they) can delete them. Fairly simple. --Philosopher ^{Let us reason together.} 05:47, 20 January 2012 (UTC)
  • While I think a statement from the WMF is important, I don't think they have the resources to go through the thousands of files and figure out which ones are in copyright in the US under the URAA and which ones aren't (even for the community it will be a struggle). So I hope they'll adopt an approach of delegating that responsibility to us. Dcoetzee (talk) 10:42, 20 January 2012 (UTC)
    • Yes, indeed - they have to say what has to happen with those files that are really "URAA cases", but which individual files this applies to the community has to research, I think. Not all files currently tagged with "NOT-PD-US-URAA" may be in fact "URAA cases", see e.g. there (it seems that France had still 50 years p.m.a. in effect on January 1, 1996), and on the other hand, there are certainly many pictures here which are free in their source country and tagged "PD-old", but not free in the U.S. due to URAA, not tagged with "NOT-PD-US-URAA" as yet. Gestumblindi (talk) 12:21, 20 January 2012 (UTC)
  • Tweeted both Brigham & Gardner ZeaForUs (talk) 13:08, 20 January 2012 (UTC)
• The WMF tolerates copyrighted stuff on enwp. This is just a matter of Commons policy. MikeGodwin (writing as the Foundation lawyer) said that Commons could relax its standards and just await a takedown notice. /Pieter Kuiper (talk) 10:04, 21 January 2012 (UTC)
  • Regardless of what Mike Godwin has said, the Board of Trustees has said Wikimedia Commons may not adopt an Exemption Doctrine Policy. Dcoetzee (talk) 18:00, 21 January 2012 (UTC)

I think that misinterprets Godwin's rationale. As far as I can tell, when he was asked about the status of some specific types of images, he said he believed that those images did not pose a copyright problem, but that in the event that someone nevertheless thought they had a reason to send a takedown notice about those images, then WMF would of course look at it and respond accordingly. He did not say that Commons should deliberately host copyvios and wait for takedown notices. -- Asclepias (talk) 20:26, 21 January 2012 (UTC)

Could you link the Mike Godwin's statements mentioned above?--Pere prlpz (talk) 09:06, 25 January 2012 (UTC)

The problem with quotes from Godwin is that, often, they are parts of unofficial conversations reported by users from e-mails or IRC chat, and they are hearsay relying on the level of accuracy of the report and with the risk that they may be out of context. The quote I had in mind when I wrote the paragraph above was one that was reported in a discussion about the wine bottle labels, there. However, to answer your question, I searched some more and found another quote reported by another user in a discussion more directly about the URAA situation, there. That is probably more the type of quote that Pieter Kuiper had in mind, so I must say it seems he was correct about it. Although we don't have the full context of that quote to evaluate exactly what was meant, it does sound like Wikimedia projects might host some material possibly infringing the URAA and wait for takedown notices. You could probably also find other quotes with more search. -- Asclepias (talk) 02:05, 26 January 2012 (UTC)

8 - Keep all affected files

If a rights holder from a 70 year pma country makes a claim WMF may decide to delete. Commons should host all files which are PD in the US OR its country of origin (if this country isn't the US) --Historiograf (talk) 21:15, 19 January 2012 (UTC)

See COM:PRP. --Stefan4 (talk) 21:22, 19 January 2012 (UTC)

Abandoning COM:PRP would irresponsibly endanger our content reusers and is completely unacceptable. Dcoetzee (talk) 21:27, 19 January 2012 (UTC)

This is nonsense. We have the case that it is higly unlikely that foreign rightsholder would sue for works which are PD in their country. Outside the US is nearly no danger for re-users and US users could be warned. It is dogmatic and irresponsible to hold a rule which is causing extreme trouble for all European projects. I do NOT accept any US-centric opinion like Dcoetzee's --Historiograf (talk) 21:33, 19 January 2012 (UTC)

(edit conflict with above comment) nothing is "completely unacceptable"; we could easily relax the "precautionary principle" rule, and/or convert to a "reactive" approach, rather than a "pro-active" stance. doing so would NOT "endanger" the wmf, or our end-users; the "necessary-minimum" legal requirement of due dilligence is "prompt & appropriate response" to complaints Lx 121 (talk) 21:40, 19 January 2012 (UTC)

Are you a lawyer? I am not a lawyer, but my understanding of the DMCA is that the "safe harbor provision" is only for the website hosting the material. The person who uploaded the material can be sued regardless whether the material is removed. Yoenit (talk) 22:03, 19 January 2012 (UTC)

That's not a problem for WMF but for the uploader. Similarly, people who upload {{PD-Art}} images in countries not allowing that tag can probably be sued in their own countries for doing this. Wikimedia already allows people in plenty of cases where the uploader might risk a lawsuit. --Stefan4 (talk) 22:06, 19 January 2012 (UTC)

this isn't directly-&-exclusively related to "safe harbour"; this is about "due dilligence" in general. if you are not aware that an item is under copyright (by reasonable standards of expectation), then you are not liable for damages UNTIL being made aware of it (i.e.; notice from the copyright holder). what matters is how you react after being notified... (you might have noticed that youtube works on this principle). as long as we tidy-up problems as/when they emerge, the only way anyone could be sued (successfully) & found liable for damages was if it was demonstrated that they willfully/knowingly violated the copyright. Lx 121 (talk) 22:14, 19 January 2012 (UTC)

Sorry, but that isn't generally true. I know that the copyright law of Austria expressedly says that you have to a pay license fee for an unlicensed use of copyrighted works, independant of your "guilt" or intention.[2] --Túrelio (talk) 09:23, 20 January 2012 (UTC)

yes, but we're talking about law in the usa here, not austria. completely different legal system. the usa works from a mostly "common-law" basis; certainly on the federal level. austria uses a version of the "germanic" version of civil code law. in "typical" common-law practice, for an infringment-of-rights case in a civil court law-suit, the plaintif has to demonstrate that the defendant had knowledge that they were infringing the plaintif's "rights"; the defendant's "guilt" doesn't start until they become aware of that (& "guilt" depends largely upon the defendant's subsequent actions). "intellectual property" law is now a blurry mess of civil & criminal, but the principle remains (reasonably) intact. also; we were talking about "damages", not "licensing fees"; 2 different thingsLx 121 (talk) 19:50, 20 January 2012 (UTC)

O.k., thanks. Then, the US must be a paradise for copyviolators ;-). --Túrelio (talk) 09:54, 21 January 2012 (UTC)

(god i wish the edit-conflict tool was smart enough to isolate sections! Lx 121 (talk) 22:14, 19 January 2012 (UTC))

Among other limitations, the DMCA safe harbour provisions do not apply to reusers who are not web-based, like anybody who prints Commons content in a book, magazine, brochure, or newspaper.. Dcoetzee (talk) 09:53, 20 January 2012 (UTC)

 Comment I wonder if Commons has to follow US copyright anyway? I know WMF is based in the US, but does that mean we are legally obliged to "ensure" every PD file hosted has to be out of copyright in the US? If we are, how can local projects get away with ignoring US copyright - the same rules would apply to them. In other words, we could continue with previous situation - where we tag copyrighted-in-US works with the URAA notice and leave it at that. This lets US-based reusers know of the potential issues. As long as we respect DMCA takedowns, Commons (and the WMF) is following US law but the uploader may be ultimately liable in some cases.

I also have reservations about marking Government works that have expired copyright as non-free. Can anyone really see Government of Canada vs small business in Podunk happening in a US district court over US use of a government {{PD-Canada}} image? HMSO has stated when UK crown copyright expires, the UK government takes position that it expires globally. Contacting other governments to establish their position on global copyright of their own work would be beneficial.--Nilfanion (talk) 11:04, 22 January 2012 (UTC)

I don't understand; are you claiming that Commons doesn't have to follow any copyright law? Local projects get away with ignoring US copyright law because nobody has called them on it. I'm sure that if Commons encouraged the upload of copyright-infringing material, that the DCMA provisions would stop applying to them. I don't see why if we're going to throw the law out the window, why we're going to let EU law restrict us. If we're going to stop following the law, let's stop dancing with the obscure rules and unfair restrictions thereof.--Prosfilaes (talk) 21:21, 22 January 2012 (UTC)

Please answer the question - why do we have to respect US copyright law with respect to copyright expiry? As opposed to the source country? The answer may seem "obvious" but it may not be, articulating the reasons why we have to respect the US law will make it clearer if further action is needed (eg preventing misuse of local uploads to circumvent it).--Nilfanion (talk) 21:37, 22 January 2012 (UTC)

We have to respect US copyright law because the WMF is a US foundation with servers in the US. The DMCA is supposed to protect organizations from users uploading copyrighted material, not themselves setting policy that says that uploading copyrighted material is fine.

Why do we have to respect copyright law in the source country. The only laws that affect anyone are the ones in the nations they have contact with. The WMF has to worried about the laws of the nations it has servers in, not random nations half way across the world.--Prosfilaes (talk) 21:52, 22 January 2012 (UTC)

Which is my basic understanding too - that WMF has to respect US copyright. However, the users of Commons, and therefore the Commons community is not the same thing as the WMF: Community policy isn't the same thing as WMF policy. If the community ignores US copyright, its not the WMF ignoring copyright, its the users. Commons community has chosen to try and respect the US, local projects generally only care about themselves. WMF licensing policy doesn't even mention the concept of the public domain(!)

Ultimately, WMF has power over the community and it could exercise that with an edict expanding its current policy - changing the situation from "freely licensed" or "covered by EDP" to "freely licensed", "in public domain" or "covered by EDP". In doing so, they could define what version of the Public Domain applies.--Nilfanion (talk) 22:56, 22 January 2012 (UTC)

I guess the option is to have WMF host them on a fair-use basis and perhaps the DMCA from a legal perspective (not as clear-cut as usage on wikipedia, but not impossible either), even though they are not "free" in the U.S., as we have been doing for over four years now. I don't like it, as it seems to go against the general "free" philosophy, but for a global project it is highly frustrating to have works PD virtually everywhere in the world except the US (and probably Colombia and maybe a couple others), and have them not be able to be hosted. The approach would also get more and more problematic when applied to countries with shorter copyright terms... unless you wanted to limit this approach to to countries with 70pma (as many countries do not use the rule of the shorter term), which of course will have users from other countries up in arms. Or limit it to files actually in use on another Wikimedia project, where fair use is easier to defend. It's a very messy suggestion, but it is in a way the status quo, just with zero legal backing outside of fair use as an educational website. It also may depend on if the WMF makes a statement at all; if they state they have no problem with an option like this then it may be something to consider. Carl Lindberg (talk) 23:55, 22 January 2012 (UTC)

I do believe such an arrangement is legally feasible in the US (the community uploads content not free in the US, the WMF looks the other way and pretends it's not happening unless they get a DMCA takedown). But I maintain that it would be in direct violation of the Board's binding resolution on licensing policy, which says that Wikimedia Commons may not adopt an Exemption Doctrine Policy, from which I reasonably infer that we cannot upload works that are not free in the US (since they explicitly say even EDPs must comply with US law). The Board could theoretically issue a new resolution overriding this one, but I can't imagine they ever would unless a very different set of people are elected.

Moreover, I'm pretty confident the WMF would never adopt a policy like this one, if only because it might erode their reputation as being "tough on copyright violations," which would in turn limit the impact of their lobbying against SOPA type laws, etc. We'll see when they issue their statement though. Dcoetzee (talk) 01:30, 23 January 2012 (UTC)

If the WMF makes a substantive statement on the URAA it cannot endorse this approach - for the political reasons you mention; at the same time this has been the status quo. I do not believe this is inconsistent with the existing WMF resolution either: It says works must be freely licensed (not freely licensed in the US), so an EDP is not required. The referencing of US law to support EDPs is not directly relevant. I'm not convinced that this is the "right" approach, but it is viable as long as the WMF doesn't take a position on things.

That resolution needs revision IMO - its focus is about ensuring WM projects use free media. However, "work is in public domain" is not the same thing as "work is freely licensed" - especially as a free license is a global thing, PD status varies from country to country (the whole issue here!). An expanded resolution, to incorporate public domain works, would both clarify position for Commons and other projects. For us, it could set in stone Commmons requirement to follow US law on the PD.

It could also allow for a second type of EDP-type provision, call it EDP-lite. EDP-lite content is locally uploaded, is compliant with US fair use provisions but is in the public domain in the target audience of the wiki. This would allow dewp to host German works that are 70year pma free in Germany, but URAA non-free in the US. As its PD in Germany, any reuser in Germany could make use of EDP-lite content just like any other free content. If this was done, it might help to defuse antagonism caused by the URAA.--Nilfanion (talk) 10:54, 25 January 2012 (UTC)

Projects are allowed to restrict their EDPs to only specific types of works, so what you are requesting about an EDP-lite is already allowed. For example, Japanese Wikipedia has an EDP which only allows outdoors artwork (not free per COM:FOP#Japan). I don't see why German Wikipedia wouldn't be able to adopt an EDP which only allows material copyrighted in the United States but in the public domain in Germany, Austria or Switzerland. --Stefan4 (talk) 11:00, 25 January 2012 (UTC)

That's probably true, but this suggestion more clearly seperates EDPs into the two classes "using fair use provisions of target country" and "public domain in target country". The advantage of splitting the label into those two classes is the second type can legitimately be labelled "free", so a project can have that and still be entirely "free" - and those semantics will matter to some. This second class of EDPs may not need to follow all the points relating to a "fair use" EDP, as the target audience doesn't need to worry about restrictions on use.--Nilfanion (talk) 11:17, 25 January 2012 (UTC)

There isn't really any difference. All projects are currently entirely free in some countries (e.g. Afghanistan) and fair use just means that they aren't entirely free in the United States. Besides, German Wikipedia is currently unfree in both Germany (e.g. File:Edward S. Curtis Collection People 003.jpg in de:Comanche (Volk) which was taken by a person who died less than 70 years ago) and the United States (e.g. File:François Barraud - L'Atelier.jpg in de:François Barraud which was published less than 95 years ago). --Stefan4 (talk) 22:45, 25 January 2012 (UTC)

9 - Apply the ruling, but limit its application scope, by excluding "Anonymous" licences

For known authors the ruling application is limited as most pictures published after 1923 and whose authors died after 1940, are protected by 70 year limitation rule. In practice most cases are postcards published outside the US about local subjects in the period between 1923 and 1940. Most postcards are without fotografers name and where taken by the employees of the postcard companies. (PD 70 years after publication) In the unlikely event a fotografer is discovered we wil apply the rules. For an American court these cases are COM:DM. I dont see even a theoretical posibility that such a case would come before a American court. This exclusion would save the vast majority of useful pictures. If the proposal is not accepted, I would suggest that this category be given the lowest priority. Known author cases are much more urgent.Smiley.toerist (talk) 09:47, 21 January 2012 (UTC)

This is a misinterpretation of the law. US law between 1923 and 1977 granted works copyright for up to 95 years after publication if all formalities were followed. Consequently, this is the term the URAA grants them, regardless of whether the author is known or anonymous. In fact, the issue of orphaned works was raised during the SCOTUS decision by the dissenters, and the affirmers stated that this is an issue best left to Congress. Like all orphaned works, the chance of being sued is low, but authors can appear out of nowhere with documentation proving they created the work at any time they please, and sue content reusers. This proposal is not a legal option. Dcoetzee (talk) 18:04, 21 January 2012 (UTC)

You look at it from an US perpective. I am talking for example of postcards publiced in France by local postcard companies about a typical village square. The European law applies there. If these pictures are used commercialy it mostly in local publications under French rules and laws. Their is no zero risk, but ridiculously low. Consider:

• An interested inheritor has to discover that the picture was taken by his deceased father. And mostly memorable pictures or family pics are shown to the next generation, not the ordinary daily pictures for work.
• The archives of most of these past postcard companies has long since been cleaned up, so there are no records that his father has taken the pictures.
• If proof is found and his father stil has the rigths (not employee work, as most of these are)
• He has no recourse in European law courts, but has to go to expensive American court. The village picture is of no commercial value. Certainly not in the US. (Lawyers taken on cases without fee, but there has to be a bigg gain at the end of it)
• There is no legal tradition in France, for US style opportunistic litigation. It is socialy strongly disaproved of. There is likely to be a strong public and political reaction to this. No country accepts applying American law in cases wich have no bearing. The US certainly wouldnt approve of foreign law being above their own laws.
• A take-down notice and warnings is the much more logical legal procedure first. Judges always demand that parties try to resolve their differences first.
• If after al these obstacles there is stil the problem of applying the judgement outside the US, when in the country it is legal.

I understand the American mindset where you have to take strong precautions against predatory lawsuits and hire a legal team to protect yourself from legal traps. The tradition in Europe and other places is a less legalistic one. There a more a practical tolerance and abhorance of legal nitpicking. That is why outside the US there is little patience with al these legal discussions. Applying more tolerance outside the US should be no problem. At worst we get a warning or takedown notice, wich we respect. Much better than splitting up the commons or other radical solutions. Even in the US you have conflict between local laws and federal law, for example the medicinal use of cannabis in California. A non-dogmatic solution can be found, but never be 100% legal proof. Nothing is.Smiley.toerist (talk) 13:06, 22 January 2012 (UTC)

Your entire post runs contrary to the spirit of Commons, as evidenced by the precautionary principle. Supposed lax legal enforcement in another country is not a reason to keep an image, especially in the US. We don't keep copyrighted works on Commons just because not doing so would be "dogmatic." Magog the Ogre (talk) 21:56, 22 January 2012 (UTC)

Besides, you're bringing your own European bias into this discussion of US laws (ironically): anonymous works don't receive protection in the US as if the author died in the year of publication. Magog the Ogre (talk) 21:58, 22 January 2012 (UTC)

Other notes and discussion

Some other notes:

• No action will be taken without first getting a clear statement from WMF's legal team on their position on the URAA.
• Commons:Licensing and Template:Not-PD-US-URAA will need to be updated, and we need a way to ensure {{PD-old}} and friends are used in conjunction with a US copyright tag.
• I would like to extend User:Commons fair use upload bot for the German Wikipedia, to upload deleted files as fair use candidates, but need some help from a dewiki user on the best way to do this, please visit my talk page.

Dcoetzee (talk) 19:51, 19 January 2012 (UTC)

• • Nice that you want to do something useful... but de.wikipedia has (and will hopefully never have) fair use! I repeat: those works are not copyrighted anymore! Is it that hard to understand? --Saibo (Δ) 20:09, 19 January 2012 (UTC)
    • You're right, I checked meta:Non-free content, sorry. And these works are copyrighted in the US. Dcoetzee (talk) 20:14, 19 January 2012 (UTC)
      • In the US which is one country, yes. Not in probably nearly all other countries and also not their source country. You want to call that "copyrighted"? --Saibo (Δ) 20:17, 19 January 2012 (UTC)
        • Since WMF servers are in the U.S., we have to consider their U.S. copyright status. Have to. Powers (talk) 20:52, 19 January 2012 (UTC)
          • We are Internet people - we do not care for server location. Just the WMF needs to get their feet moving if they don't choose the "we don't care unless somebody sends a take down notice" option. --Saibo (Δ) 22:11, 19 January 2012 (UTC)
            • this is exactly why i am coming to favour options that involve "deprecating" the usa, at least as "primary-and/or-exclusive host". if we accept the possibility of non-us hosting, then it becomes a question of: 1) what is to be moved? & 2) where should it be moved to? Lx 121 (talk) 22:37, 19 January 2012 (UTC)
            • If we're going to say screw the law, why have we hung this noose of life+70 around our neck? There are thousands of files that we could have uploaded here that were completely legal that we've removed out of some conformance to someone else's law.--Prosfilaes (talk) 19:54, 20 January 2012 (UTC)

Help me understand how these are marked as URAA. I just randomly picked a couple files:

File:Mellonz.jpg. According to the explanation on the treasury department page, "This portrait of Mellon was painted from life in Washington, D.C in 1931, while Mellon was Secretary of the Treasury." It is therefore in the public domain as a work of the US Federal government. My understanding of URAA is that it only applies to works copyrighted in their source country. The source country of this work is the United States. Very confused.

Similarly File:PeterLorre.jpg is in the public domain in Canada, yet it has the URAA tag on it. The source country is canada so URAA would seem not to apply.

BTW - these are images 501 and 502 in the list Pages that link to "Template:Not-PD-US-URAA". I haven't looked at others. --Trödel 20:06, 19 January 2012 (UTC)

@File:Mellonz.jpg: This is a photograph of a painting. The photograph was taken in the US and is in the public domain. The original painting was painted in the UK by Philip Alexius de Laszlo, who died in 1937, so it was in copyright in the UK in 1996, and so is in copyright in the US, under the URAA.

• How do we know that it was painted in the UK since the treasury identifies it as painted in Washington DC? --Trödel 20:20, 19 January 2012 (UTC)

• They're referencing the location the photo was taken. László never visited the United States. But let's save this discussion for the deletion discussion for these images... Dcoetzee (talk) 21:25, 19 January 2012 (UTC)

• it could still be considered as a work-for-hire to the gov.us or "employment" by same (with respect, how do we know that László never visited the usa?) Lx 121 (talk) 18:09, 20 January 2012 (UTC)

@File:PeterLorre.jpg: This file was first published in 1946, and so was in copyright in Canada in 1996, and so is in copyright in the US, under the URAA.

When we nominate individual works we will clarify points like these. Hope this helps. Dcoetzee (talk) 20:10, 19 January 2012 (UTC)

It seems that where a picture is in the public domain in a source country we should at least leave link to it to a server in the host country, like this one when the image is removed from commons servers, so that people outside the united states who have a right to use it can use it. --Trödel 20:20, 19 January 2012 (UTC)

It remains unclear to me whether such links constitute contributory infringement. This is one of the questions I have asked the WMF. Dcoetzee (talk) 20:21, 19 January 2012 (UTC)

Canadian copyright for works not in Crown Copyright applies to the date of creation, not publication. So that image was PD in Canada in 1996 (created prior to 1 January 1949). I've adjusted that. De728631 (talk) 23:32, 19 January 2012 (UTC)

Unless you found a source saying that this photo was created before 1946, we use the information from Archives Canada, which says that it was created in 1946, which means that it entered the public domain in Canada on January 1, 1997. Therefore, it was not in the public domain on January 1, 1996. Please revert your changes. It seems you misread Commons' PD-Canada template. That template says that non-Crown photographs created before 1949 are in the public domain in Canada now. It does not say that those photographs were in the public domain in Canada in 1996. (For example, non-Crown photos created in 1948 entered the public domain on January 1, 1999.) -- Asclepias (talk) 00:14, 20 January 2012 (UTC)

I've reverted that and other Canadian images to No-PD-US-URAA. And it seems to me that {{PD-Canada}} needs a general review. The current Copyright Act of Canada doesn't mention anything specific about photographs being treated differently from general terms of copyright, nor can I find any clause about old works being exempt a la PD-1923. Only copyright for anonymous works that have been published expires 50 years after their first publication. De728631 (talk) 01:04, 20 January 2012 (UTC)

I think you're looking for section 10 in the current law. Corporate photographs (i.e. when a corporation is the copyright owner) are still 50 years from creation, but in 1999 Canada changed its law to make personal photographs 50 pma. It is explained some on the talk page of the template, and some discussion on en:Template talk:PD-Canada as well. In 1999, Canada changed the law for photos owned by a person to be 50pma (thus the 1949 date for current calculations), since the law was non-retroactive, and works which became public domain under the old law remain in the public domain today. Thus, the 1949 date is not explicitly mentioned in the current law, but it is an artifact of the old law stilling being in effect for photos created before 1949. (You will note that U.S. law similarly does not explicitly state the 1923 line either; it is a result of the 1998 law which non-retroactively extended copyright from 75 to 95 years after publication -- works which were published 1922 or earlier had already expired and remain PD in the exact same manner.) However, if photos were under copyright in Canada in 1996 (which would have been true for photos created in the prior 50 years, i.e. 1946 or later), then their U.S. copyright got restored by the URAA, and are copyrighted for 95 years from publication in the U.S. despite being possibly PD in Canada. Carl Lindberg (talk) 01:13, 20 January 2012 (UTC)

Ah, thanks for clarifying that. And there I thought German legislation was confusing. De728631 (talk) 01:22, 20 January 2012 (UTC)

The Harper Government is going to rewrite the copyright laws soon anyway, to have us (Canada) comply with either the URAA or Uruguay rounds, so we should hold off until the law is finished. I also believe that due to the large amount of image from the various provincial and federal archives, we should get a statement from them saying the image is public domain worldwide, as was done for the UK crown copyright. There would then be no problems hosting them here 129.33.19.254 16:46, 20 January 2012 (UTC)

Any law changes Canada may make would not affect restored U.S. copyrights (which is what "URAA" refers to specifically) -- those were based on the law in 1996. So, that is not really relevant to the current discussion. If Canada retroactively restores copyright to some of its works, that would possibly put works which are currently public domain in jeopardy here because we also follow the law in the country of origin -- but that is a separate discussion. Carl Lindberg (talk) 17:40, 20 January 2012 (UTC)

the propopsed cdn copyright law revisions (as they stand) DO NOT involve any retroactive changes to the status of public domain works, & do not involve extending the length of the current term of copyright; the "reforms" are mainly about implementation of enforcement in the "new era" of that amazing thing, know as "the internet" x__X (yes, our politicians really are that lame) Lx 121 (talk) 18:06, 20 January 2012 (UTC)

Experts should correct me but the problem of a protection after the 70 years pma arises "only" for the US (this is unfortunately due server location important enough) and countries which don't accept the rule of the shorter term. Commons should host media which are PD in the US OR its country of origin (if the country of origin isn't the US) --Historiograf (talk) 20:38, 19 January 2012 (UTC)

The problem is that Commons is hosted in the US, so Commons can't host any material which can't legally be hosted in the US. --Stefan4 (talk) 21:14, 19 January 2012 (UTC)

I'm wondering... What about Flickr? They are owned by Yahoo! "...headquartered in Sunnyvale, California, United States....". How do they solve the problem with hosting "bad" files? --MGA73 (talk) 21:21, 19 January 2012 (UTC)

Flickr has no responsibility to content reusers like we do, allowing them to lean heavily on the DMCA (OCILLA), taking works down only on demand, just like YouTube. Dcoetzee (talk) 21:23, 19 January 2012 (UTC)

Now your are talking about content reusers - interesting. Yes, if you delete all files then there is no reuse. But why not keep them with a tag on them which describes in which countries this image is not free? Or have I misunderstood you? --Saibo (Δ) 21:42, 19 January 2012 (UTC)

Yes, that is already a problem: reusers in Canada, Germany or Mexico can't use all images hosted on Commons, and could face legal actions if they do use them anyway. It may be a good idea to always specify where an image might not be free. --Stefan4 (talk) 21:47, 19 January 2012 (UTC)

Well, in fact, we are doing this: We say it is your job to assess copyrights if you want to use our images - we try our best to help you. Look on the file pages there it is mentioned where it is free. And in fact, if you read the PD tags, you not that you need to check either if your country is listed directly there or you have to look up further. I think that is enough - we cannot afford more. Backlog, backlogs, .... --Saibo (Δ) 22:14, 19 January 2012 (UTC)

@saibo: that said, our tagging system is very much a "work-in-progress"; eventually (ideally) it would be good to be able to tag items with better, more specific, more accurate copyright (etc.) information, for various jurisdictions. Lx 121 (talk) 18:27, 20 January 2012 (UTC)

I don't seriously believe the WMF would support us illegally distributing works copyrighted in the US to people outside the US just because nobody has issued a DMCA takedown. Dcoetzee (talk) 10:03, 20 January 2012 (UTC)

this is why the wmf should not limit their operations to the usa, & us law. they should either "internationalize", seek a "safe haven" with better "intellectual property" laws, or (as another way of "internationalizing") become wmf-usa, & work co-operatively with an international group.

there is no reason why users outside the usa should have their access to what is, in their countries free content, restricted because of the laws of the usa. Lx 121 (talk) 18:27, 20 January 2012 (UTC)

Then why have you been supporting restricting access to users inside the USA to what is in the USA free content?--Prosfilaes (talk) 19:15, 20 January 2012 (UTC)

o__0 -- where on earth do you get that assumption, from anything that i have ever said/written, anywhere!? Lx 121 (talk) 19:39, 20 January 2012 (UTC)

I don't see any opposition from you to using life+70 on works that were published before 1923 and thus are out of copyright in the US.--Prosfilaes (talk) 19:49, 20 January 2012 (UTC)

Is there a way to list the tagged files that are use in a given project? It would be useful for people in projects wanting to look for publication data of the images they use. The first way to ease the problem a bit is to properly tag the images that actually are in public domain in the US because of being published before 1923, and we need a list to find them.--Pere prlpz (talk) 21:16, 19 January 2012 (UTC)

I think PD-Japan-oldphoto be availabe. The copyright was expired at 1st of January 1970 in Japan, which is 26 years before URAA date(1st Jan 1996). Published date must not be absolute canon. --ReijiYamashina (talk) 23:03, 19 January 2012 (UTC)

Yes, I don't think this affects many tags. However, works did have to be published at some point -- if they were unpublished until 1989, then their U.S. copyright was never lost in the first place, and the URAA is irrelevant as there was no need to restore copyright in the first place. So publication date can still matter, though it is not relevant to the URAA itself, just general U.S. copyright law. Carl Lindberg (talk) 01:54, 20 January 2012 (UTC)

• Comment Unless any of those leaving "legal sounding" opinions and comments on this page is actually a board-certified international copyright attorney, then this page is just chit-chat and wishful thinking. Which one of the Wikipedia editors above has actually read the Court decision in full? (None, I'd dare say.) What we need here is solid technical legal advice from someone competent to provide it. This is exactly the place for WMF leaders to step forward and provide leadership on this issue, rather than all of us trying to "guess" at the correct response without actually being confident we are making the right choices. _{Senator2029║talk} 02:09, 20 January 2012 (UTC)

The law is supposed to be understood by citizens... don't need actual lawyers to tell us what the law says, always (though it helps with the subtleties). And yes, I read the decision. The dissenting opinion was very interesting actually, which was Breyer and Alito, and may signal some support for limiting further copyright extensions in the future. But this case was simply challenging the U.S. copyright restorations on constitutional grounds, claiming Congress had no right to restore lost copyrights, and the court decided that Congress was within its rights in joining the Berne Convention and restoring old copyrights as mandated by that treaty. The law was challenged on Copyright Clause and First Amendment grounds, and both rationales were rejected. The effect of the law has been tested in court; owners of restored copyrights have successfully sued in the past. So, just like the European copyright restorations, these appear to be valid, if equally as frustrating (to us anyways -- foreign copyright owners were perennially frustrated by the old U.S. copyright rules, which denied copyright to many of them, and from their perspective this was a little bit of justice coming back). We'll see what the WMF says -- maybe they want to treat these files differently. But really, the copyright is as valid as any other in the U.S., and penalties for violations are just as severe. The mismatch in copyright terms (based on publication rather than the author's life) cuts both ways -- sometimes it helps us (files PD in the US but not foreign countries, usable on en-wiki and many other places, barred here by policy only), and hurts us some other times (these URAA restorations). Carl Lindberg (talk) 03:23, 20 January 2012 (UTC)

Yes the law is supposed to be understood by citizens, but as you said, Carl Lindberg, attorneys help with the subtleties. There are certainly a plethora of subtleties involved here! The complexity is exacerbated by the combination of U.S.-local law with non-U.S. law, and U.S. domiciled images and websites versus non-U.S. domiciled images and websites. It is a shame for everyone to expend energy contemplating this situation, let alone possibly take action to remediate the legal liability in ways that may be incorrect or even unnecessary. Situations such as these are the reason for having counsel! Legal guidance on this matter is an inherently centralized function, so it needs to be addressed by the WMD, who have been informed of this situation. I know what I know... oops, sorry, I was editing that Rumsfeld page the other day! Rather, I know what my field of expertise is. This matter should wait until receiving a statement from WMD. Even if any of the group participating here were international copyright lawyers, I doubt they would choose to act alone, without consulting WMD in order to have all information etc.
--FeralOink (talk) 04:27, 20 January 2012 (UTC)

Except that the effects of this law have been hashed out since it came into effect 16 years ago. It's not a new law, and not a new situation. We had conformed to it before, but paused when one appeals court ruled against it (in a particular aspect; they didn't really rule it unconstitutional either) and then the challenge went before the Supreme Court, in the hope they would change the status quo. They did not. It's really more a case of resuming our previous practice, which was pretty well understood (if frustrating) before. Carl Lindberg (talk) 04:54, 20 January 2012 (UTC)

We have the opinion of lawyers on the law. The Supreme Court decision has no effect on us.--Prosfilaes (talk) 19:15, 20 January 2012 (UTC)

• Comment Is anything constructive being accomplished by continuing this discussion further, at this time? The complexities, challenges and various scenarios were set forth. Beyond that, what more can be done without input from WMD and the advice of counsel? Some, but not all of my lengthy remark is redundant, viz. Senator2029 comment. I am not a lackey or hanger-on (sock-puppet?) Please forgive me if my words are strident or inappropriate in light of my lack of stature in this community. --FeralOink (talk) 04:27, 20 January 2012 (UTC)

Question. I do not understand what images falls under this law. Example: in Ukrainian law if image was in PD before 2001 it stays in PD after the new copyright law was adopted (with 70 years for PD instead of 50). So, if author of the work died before 1951-01-01, he's work in PD in Ukraine. But what about USA with new law? Are such works stay in PD?--Anatoliy (talk) 11:22, 20 January 2012 (UTC)

If they were still copyrighted in Ukrainia in 1996, they are copyrighted in the US now. Then, for authors died in 1951 with PD in 50 years (or more) after author's death, works are not PD in US.--Pere prlpz (talk) 11:35, 20 January 2012 (UTC)

Well, we should change 1951 to 1946 here, shouldn't we?--Anatoliy (talk) 12:04, 20 January 2012 (UTC)

When would such pictures become PD according to this new law? I get it that is seems to break the whole so-and-so-many-years-after-authors-death-cycle if it was copyrighted prioer to 1996, but it doesn't say when this renewed copyright will expire, not in the Wikipedia-article nor here.--2.106.255.42 23:13, 20 January 2012 (UTC)

95 years after first publication, beginning in 2018. Dcoetzee (talk) 01:32, 22 January 2012 (UTC)

It's not a new law -- this has been U.S. law since 1996, and U.S. terms of protection were last adjusted in 1998. If restored by the URAA, works published 1922 or earlier got a term of 75 years from publication (i.e. all of those are still PD in the U.S.), and works published 1923 or after get a term of 95 years from publication (this situation is a result of non-retroactively extending the term from 75 to 95 in 1998). So, if Ukrainian works by authors who died between 1946 and 1951 were published before 1923, they are still OK. The issue for Commons then are works created by authors who died in that 5-year period which were published 1923 and after. As for changing the tag... it is still very useful to document what the *current* situation is for the Ukraine, as it can help re-users in countries other than the U.S. One solution is to simply require a second tag -- one for the country of origin (the unchanged PD-Ukraine), and another for the U.S. status (such as {{PD-1923}}). Or, the per-country tags could additionally document the U.S. situation for authors from that country in a separate section, which conditions also need to be met to be kept (assume we end up deleting these type of images, as we used to). Carl Lindberg (talk) 01:52, 22 January 2012 (UTC)

• Comment Our attorneys would do well to seek the opinion of former Congressman and Constitutional Law expert Tom Campbell, http://en.wikipedia.org/wiki/Tom_Campbell_(California_politician) who, I believe, opposes acts by the Executive and Judicial that take power away from Congress in a manner that is unconstitutional. Doug youvan (talk) 14:32, 20 January 2012 (UTC)
  • I don't understand this comment - if anything, the Golan decision expanded the power of Congress, giving them free reign to put public domain works back under copyright at any time they please. Dcoetzee (talk) 15:44, 20 January 2012 (UTC)
• Comment -- I clicked on Special:WhatLinksHere/Template:Not-PD-US-URAA, and clicked on the first bunch of files. I saw no indication on those files as to why they were being nominated for deletion. I did however see a nomination page. Great! The specific explanation as to why that specific file was nominated for deletion should be there! Wrong. All those files nomination page was back here. Is this really sufficient explanation? Geo Swan (talk) 16:28, 20 January 2012 (UTC)
  • Yes. The "Not public domain in the U.S." tag is basically why it's being nominated, as that is a Commons requirement. Their status was in limbo until the Supreme Court ruled, which happened yesterday. See Commons:Licensing#Uruguay Round Agreements Act, linked from the Not-PD-US-URAA tag, for a fuller explanation. That tag was always used as a marker, so we could more easily find potential problem files once this decision hit. I'd still wait to see if the WMF wants to give any direction on the subject, but at the moment we are hosting files which are known to be under copyright in the U.S. Carl Lindberg (talk) 16:36, 20 January 2012 (UTC)
    • The Not-PD-US-URAA tag was used as a marker on some files - yes. Most users did not know about this marker and some others did know but intentionally did not apply it (which is the best choice). --Saibo (Δ) 16:54, 20 January 2012 (UTC)

95 years only applicable to works of corporate authorship?

Prüm over in the German Wikipedia says that the copyright term of 95 years after publication is applicable only to works with corporate authorship so that it would be incorrect to apply the template e.g. to works by Max Liebermann, as it is currently done. In cases of individual authorship, like paintings by Max Liebermann, 70 years p.m.a. are supposed to apply. So, in such cases, URAA would have restored the copyright, but only for 70 years after the author's death. If this were true, most files currently tagged as Not-PD-US-URAA would in fact be free, as they're not corporate authorship works. It would mean that most files by individual authors which became free in their source country in the last years due to 70 years p.m.a. are free in the U.S., too. Did Prüm get this wrong? Gestumblindi (talk) 21:05, 20 January 2012 (UTC)

Probably... those are the rules for anything published since 1978, when the 1976 Copyright Act went into effect. For works published prior to 1978, the rules under the 1909 Copyright Act (and later amendments) apply, and the death date of the author is almost always irrelevant. For works published 1922 and earlier, works get a term of 75 years from publication (which has expired), and works published from 1923 through 1977 get a term of 95 years from publication. If some work was not published until after 1978, then yes, it's possible for 70pma to be the terms, but for most works it is strictly years since publication for the U.S. Carl Lindberg (talk) 21:16, 20 January 2012 (UTC)

95 years from publication applies to any work published before 1978, not just works with corporate authorship.--Prosfilaes (talk) 21:44, 20 January 2012 (UTC)

I don't get it. Doesn't that run counter to the idea behind the URAA, to continue respecting a copyright which no longer exists in the country of origin (or in most other signatory states of the Berne convention)? --Prüm (talk) 23:14, 20 January 2012 (UTC)

What does that have to do with 70 years p.m.a.? The majority of the people in the world don't live under that long a copyright term. The US restored copyright to foreign works that had lost it due to formalities in the same way as both native and foreign works that had not lost copyright due to formalities.--Prosfilaes (talk) 23:51, 20 January 2012 (UTC)

Does URAA apply the currently-applicable US copyright rule to foreign works, or did it apply the US copyright rule that would have been applicable at the time of initial (foreign) publication? cmadler (talk) 23:39, 20 January 2012 (UTC)

What it would have been at the time. PD-1923 is also valid for foreign works inside U.S. borders. Carl Lindberg (talk) 23:50, 20 January 2012 (UTC)

Historically, the U.S. has given foreign works the exact same rights and terms that U.S. works get. They signed a number of bilateral copyright treaties along those lines, if the other countries would reciprocate (e.g., because of one such treaty, U.S. works in Germany get the full 70pma treatment even if U.S. protection has expired, as Germany cannot use the rule of the shorter term for them -- the same is true in reverse in the U.S. for German works). Of course, all that included the requirements of copyright notices, renewals after 28 years, and some other hoops. While these took into account the needs of re-users (it was usually obvious just by looking at a work if you could use it or not), they typically tripped up foreign authors, so many works fell into the public domain very early, quite often immediately upon publication, as authors in many countries were not accustomed to adding copyright notices and the like. Needless to say, this was a very big sore point of foreign countries for decades. Those requirements, plus the fact that U.S. terms were always based on date of publication, made joining the Berne Convention very difficult, so the U.S. eventually helped form the Universal Copyright Convention as a competing treaty, which allowed such formalities. With the 1976 Copyright Act, effective 1978, the U.S. switched to 50pma terms for works by individuals published after the law went into effect, but works published earlier still had 75 years from publication (and still had renewal requirements). As the barriers to adopting Berne were getting lower, the U.S. decided to join it in 1989, so notices were no longer required after that, and renewals on old works were eliminated in 1992. Initially, the U.S. tried to avoid restoring any older foreign works, as is mandated by the Berne Convention but is very much against the U.S. custom of not having any retroactive laws, but eventually were forced by international pressure to restore many of the copyrights lost by missing notices and lack of renewals, and the URAA was the result. They only restored works still under protection in their source country on the implementation date (as allowed by the Berne Convention), but if restored, they got whatever the U.S. term would be as if they had been published at the same time but had proper notices and renewals, i.e. 75 years from publication for works published before 1978. In 1998, the U.S. extended the term to 95 years from publication (and to 70pma for post-1978 works), but it was not retroactive -- this created the {{PD-1923}} line, as works published 1922 or earlier (either U.S. or restored foreign works) had expired by then, and remain public domain. So... the point of the URAA was to restore reasonable protection to foreign works. Per longtime U.S. custom, they do not use the rule of the shorter term, but rather they gave such works the exact same protection U.S. works get, for better or worse. If a German work has expired, but still has protection in the U.S., the German copyright owners can absolutely still take action in the U.S. for infringement. Some works are going to expire earlier in their country of origin, and some are going to expire earlier in the U.S. -- just the way things shake out. Not all Berne countries use the rule of the shorter term -- it is just an option (in fact, there are some which use the rule of the longer term). Even if the U.S. were to elect to use the rule of the shorter term, all those old bilateral treaties would still be in effect, and we'd have to apply it carefully country-by-country -- even more complex than it already is. I presume it's just easier to keep with a single set of rules. Carl Lindberg (talk) 23:50, 20 January 2012 (UTC)

If a work was copyrighted elsewhere in 1996 but during the following years entered the PD on account of local copyright laws (for example 70 years after death of author), when does this renewed US copyright expire? --Saddhiyama (talk) 23:51, 20 January 2012 (UTC)

It doesn't matter when it enters the PD outside the US. If it was published before 1978, it will have 95 years of copyright starting from publication.--Prosfilaes (talk) 23:53, 20 January 2012 (UTC)

I see. The information provided here and in the corresponding Wikipedia article doesn't seem to to convey that particular piece of information, but it is good to know. So that basically means that with this legislation a work would be PD in the US if it was published in 1917 or before? It is now impossible to use specialised national licensing like Template:PD-Denmark50?--Saddhiyama (talk) 00:01, 21 January 2012 (UTC)

If restored, works get a term of 95 years from publication, if published from 1923 through 1977. If they were published earlier than 1923, they are in the public domain in the U.S. regardless, since the maximum term they had was 75 years from publication. As for templates like {{PD-Denmark50}}, they must take into account what the law was in Denmark in 1996 -- if Danish works were public domain in Denmark in 1996, they did not get restored. It sounds like, from that tag, that Denmark non-retroactively extended the term for such works from 25 to 50 years in 1995, so the line is photographs created before 1970 -- those were still public domain in Denmark in 1996, so they were not restored in the U.S. So, it sounds like, for those type of photographs, whatever was public domain in Denmark is the same today as it was in 1996, so that tag is still completely valid for both the U.S. and Denmark. In 2021, it sounds like such photographs may start expiring again in Denmark (simple photographs taken in 1970 would expire that year), but those may still retain their U.S. copyright at that point, and we'd have to update the tag to note that 1970 would remain the line for U.S. status. Carl Lindberg (talk) 00:34, 21 January 2012 (UTC)

Ok, thanks for explaining this long and winding process Carl, that helped a lot. I got another question: doesn't this 1998 extension pose questions about other works hosted here too? I.e. wouldn't we be forced to apply this law, since we want to respect US copyright law? --Prüm (talk) 00:08, 21 January 2012 (UTC)

For any works still copyrighted in the U.S. in 1998, yes they got their copyright extended. That includes restored foreign works published 1923 or later, but excludes works published before 1923, and excludes foreign works which did not get restored. We have always taken into account the U.S. terms, including of course the 1998 extensions (see the {{PD-1923}} tag). Carl Lindberg (talk) 00:34, 21 January 2012 (UTC)

So basically all works we host published 1923 or after tagged some non-US-PD would have to be reviewed, as 2012 - 95 = 1917 < 1923, is that right? --Prüm (talk) 01:00, 21 January 2012 (UTC)

Yup. Really, we have been (or should have been) reviewing them all along. The last few years though, works which after review were not PD in the U.S. got the {{Not-PD-US-URAA}} tag instead of deleting them (as we had done prior), given that the cases were moving through the U.S. court system and there was some small uncertainty. I'm sure that some files are missing, but this is not some sudden change in U.S. law. But, I'm sure that reviews have been relatively lax since that tag has been in place. Carl Lindberg (talk) 01:12, 21 January 2012 (UTC)

I am pretty sure that the real number of affected files is not like "some are missing" but rather like x-fold with x > 2 and maybe < 10. And it is good that many are not tagged since it is crazy to render free media unfree just because of one country (the US) by this inappropriate US-centricity. --Saibo (Δ) 03:33, 21 January 2012 (UTC)

I agree with Saibo. I've been checking European painters of the relevant period and there are a lot of images that could be in the PD in the US but publication date is not provided. A lot of these files can be saved, since they were probably published before 1923, but a lot are even produced after 1923.--Pere prlpz (talk) 11:46, 21 January 2012 (UTC)

So basically you're bragging about incorrectly tagging files? We've deleted thousands of files because some nations decided to go to life+70, despite that having no legal bind on us. Now, when it comes down to following the laws the WMF is bound by, people are all up in arms.--Prosfilaes (talk) 08:54, 21 January 2012 (UTC)

You have a point here. That's the difficulty of an international project... and it shows that the varying copyright laws around the world are in fact not compatible with the Internet. They're still based on assumptions of classical, offline ways of publication, and though they're gradually modernized now, most of them still don't really take the issues of instant worldwide publication through the Internet into account. But realizing that still doesn't help us a lot, of course... Gestumblindi (talk) 15:33, 21 January 2012 (UTC)

Status of anonymous works

So we know that the rule is PD-old-70 for known authors, PD-1923 (i.e., 95 years) for corporate authors, but what is the standard for anonymous non-corporate works? Unpublished anonymous works and works by authors whose date of death is unknown are 120 years from creation, according to Hirtle. Magog the Ogre (talk) 22:00, 22 January 2012 (UTC)

This page states: "(c) Anonymous Works, Pseudonymous Works, and Works Made for Hire.— In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first." So it seems to be min(95 years after publication, 120 years after creation) but switches to standard copyright length if the author is identified before the copyright expires. It seems that the Hirtle chart doesn't mention that situation. --Stefan4 (talk) 02:01, 23 January 2012 (UTC)

Fortunately we this is a wiki, and we have a local copy, so I fixed it.[3] Magog the Ogre (talk) 05:32, 24 January 2012 (UTC)

If you spot an error, please discuss on the Talk page. I do not think it is an good idea to add something to this authoritative chart without broad consensus (and it is easy to ask Peter Hirtle) --132.230.1.28 12:19, 25 January 2012 (UTC)

Wikimedia Foundation statement

I've been asked by the legal team to convey a message. :)

The Wikimedia Foundation's legal team is currently analyzing the consequence of Golan v. Holder so that the community can adjust our policies accordingly. We understand the urgency of the situation, but we also need to thoroughly review the applicable law. We will provide some guidance as soon as possible.

I know this is a priority, and I hope that they'll be able to release a substantive statement soon. --Maggie Dennis (WMF) (talk) 12:15, 25 January 2012 (UTC)

Thank you :-). I think it could be helpful if you took the whole conversation above into account, because several interesting points from greatly differing positions have been made. Gestumblindi (talk) 12:22, 25 January 2012 (UTC)

Glad to hear they're working on this issue! I also hope WMF will speak on the legal feasibility of the proposals that the community has invented, listed above, to help us narrow down our options. Dcoetzee (talk) 19:27, 25 January 2012 (UTC)

They are aware of the conversation, but may be presently focused only on legal aspects. If they do not speak to these proposals, I will certainly ask them to review. :) --Maggie Dennis (WMF) (talk) 20:46, 25 January 2012 (UTC)

Thank you. Magog the Ogre (talk) 00:42, 26 January 2012 (UTC)

In short, the WMF legal team statement says that we must follow Commons:Licensing. In other words, we should delete the restored copyright files because they aren't free in the US.

If anybody hoped to get a chance to keep those files in Commons, we don't have it. As said some weeks ago, we need to organize efficient ways to tag files in order to keep those that actually are in the PD in the US.--Pere prlpz (talk) 15:24, 14 February 2012 (UTC)

The statement says clearly: "Restored" copyright is complicated. It is possible that some of the media with {{Not-PD-US-URAA}} does not qualify for restored copyright under § 104A because it is mis-tagged or the law was misunderstood. With the possible exception of obvious copyright infringements, the Commons community should still examine media on a case-by-case basis. So, no mass deletion of all files currently tagged, but only after individual review of each image. Tagging as "Not-PD-US-URAA" was liberally applied in the past, often without scrutinizing the copyright status of the file in its country of origin on the URAA date (which needs checking for law changes in the country of origin and which term of protection applied then), which is crucial to the copyright status in the U.S. - What I miss in the statement is what "local Wikipedias" should do, e.g. the issue of files which are from Germany and in the public domain in Germany but with restored copyright in the U.S. being uploaded to the German Wikipedia by contributors who quite correctly assume that what they are doing is perfectly legal where they live (see this discussion above). Gestumblindi (talk) 20:16, 14 February 2012 (UTC)

The page en:Wikipedia:Non-U.S. copyrights#Dates of restoration and terms of protection attempts to list URAA dates and copyright terms on the URAA date, but it might have errors. For example, {{PD-Japan-organization}} isn't mentioned there, but it probably applied on the URAA date too.

Local Wikipedias have always been able to store fair use material as long as there is an exemption doctrine policy. I assume that this just means that projects will need to add a simple fair use tag (possibly combined with {{PD-old-70}}) and make sure to have an exemption doctrine policy which allows this. --Stefan4 (talk) 22:38, 14 February 2012 (UTC)

Well, the problem here is that the German Wikipedia doesn't tolerate any fair use media, the community there seems to be strongly against it; they want only images that are truly free - but interpret this as truly free according to German law. Also, using an image without valid fair use rationale in the German Wikipedia because it's in the public domain in Germany wouldn't count as allowed "fair use" even with a tag, I think? Gestumblindi (talk) 00:08, 15 February 2012 (UTC)

Other advantages of creating a Commons Abroad: the EU point of view

Moved to #4 - Commons Abroad above.

Legal team's statement

The legal department of the Wikimedia Foundation issued the following statement on 14 February 2012. Please let me know if there are specific other questions; I will be happy to communicate them and report back when there is response. Thank you. --Maggie Dennis (WMF) (talk) 14:00, 14 February 2012 (UTC)

 

[Please note that the summary below represents only generalized thoughts and observations on the implications of the Golan v. Holder case and is not an official legal opinion from the Wikimedia Foundation or legal advice. It may contain errors or may be incomplete. You should also note that the legal department can only represent the Wikimedia Foundation on legal matters, so this is not official legal advice to the community. Please see this disclaimer for more information. Stephen LaPorte (WMF) (talk) 23:05, 2 May 2012 (UTC)]

On January 18, 2012, the U.S. Supreme Court issued an opinion in Golan v. Holder upholding the constitutionality of a law that took a number of non-U.S. works out of the public domain in the U.S. and placed them back under copyright protection.

Wikimedia Commons is a large repository of public domain and freely licensed material. The community has asked the Foundation for guidance for determining if works formerly in the public domain must be removed to comply with the holding in Golan and the provisions on restored copyright in 17 U.S.C. § 104A. Ultimately, restored copyright requires a complex multi-step analysis that depends on a number of facts.

The community already has policies, such as Commons:Copyright, that ensure that all of the media on Commons is free licensed or in the public domain. Commons should continue to use this policy.

Commons can use a number of factors to identify works that may have restored copyright by operation of § 104A, some of which are addressed below. However, please note that the factors discussed below do not make up a conclusive list of the requirements a work must meet in order to have been restored. Please see the full text of 17 U.S.C. § 104A for the exhaustive list of requirements.

• Where is the source country of the work?

• The source country will determine the “date of restoration,” which is the date that the restored copyright automatically vests. For the countries that were signatories to the Berne Convention, the date of restoration will be January 1, 1996. But countries that were not signatories to the Berne Convention will have a date of restoration as of when that particular country joined the WTO.
• The source country is also significant because copyright is only restored if the source country is also an “eligible country.” Countries are "eligible" if they have either (1) become a WTO member after the enactment of the URAA; or (2) on or after the date of enactment, adhere to the Berne Convention. Currently, 165 countries are "eligible."

• When was the work originally created?

• Copyright cannot be restored if the work was in the public domain due to the expiration of its copyright term in the source country or the U.S. on the date of restoration.

Note: once copyright has been restored, the term in the U.S. may still exceed the term in the source country.

• Did the work have copyright protection in its source country on the date of restoration?

• In order to qualify for restoration, a work must have been still under copyright protection in the source country. Commons may identify obvious copyright violations, but this factor may require more in-depth factual analysis of a specific work and the copyright law of the source country.

• Why did the work enter the public domain in the U.S.?

• Copyright is only restored if the work entered the public domain for one of three enumerated reasons listed below. If the work entered the public domain for other reasons, such as expiration of a full copyright term in either the U.S. or the source country, then copyright is not restored.

• First reason: failure to comply with formalities in the U.S. Before 1989, the U.S. had formal requirements, such as registration, deposit, and mandatory copyright notice. If a non-U.S. work entered the public domain for failing to do one of these things, the work may be restored if the other required factors are met.
• Second reason: lack of subject matter protection. This reason will apply to sound recordings made outside the U.S. before February 16, 1972.
• Third reason: national ineligibility. This would be the case if the U.S. failed to recognize copyright in the work because the source country did not have copyright relations with the U.S.

These are general, non-comprehensive, guidelines for identifying content that may have been restored copyright under § 104A. If a specific work obviously has restored copyright under these guidelines, Commons may choose to apply the regular speedy deletion procedure used for potentially copyrighted works. If not, a more comprehensive analysis by the community may be needed.

If a rights-holder believes that his or her content is being used in violation of his or her restored copyright, he or she still may notify the Foundation through normal notice and take-down procedure.

Questions and Answers

Will the Foundation review media on Commons to determine if it has “restored” copyright?

The media on Commons is reviewed by the community, which has policies for identifying and removing obvious copyright violations. The Foundation will remove media that violates copyright if it has knowledge of the copyright violation. The Foundation will also respond to notice and take-down requests received in compliance with the DMCA (17 U.S.C. § 512(c)(3)), and all notices will be reported to chillingeffects.org.

Does Commons fall within the “reliance party” exception of § 104A, as discussed in Golan?

In most cases, Commons will not qualify as a “reliance party.” That provision protects parties who were using content on or before the “restoration date” of a piece of media. The restoration date for media from most countries is January 1, 1996, which is before the start of Commons. The “restoration date” may still be different in some circumstances, and in those cases, Commons may be considered a reliance party.

Must Commons delete all material tagged with {{Not-PD-US-URAA}}?

"Restored" copyright is complicated. It is possible that some of the media with {{Not-PD-US-URAA}} does not qualify for restored copyright under § 104A because it is mis-tagged or the law was misunderstood. With the possible exception of obvious copyright infringements, the Commons community should still examine media on a case-by-case basis.

For a summary of how a restored copyright affects foreign works that are in the public domain in their source country, please see this post. RPatel (WMF) (talk) 21:16, 20 December 2013 (UTC)

Let's take the chance to solve three current Wikimedia problems at once

Let's fork Commons right away to a safe haven where PD and free knowledge is honored. The National Wikipedias can than rely on either this, or the purged, Ad usum Delphini, Reader's Digest version of Commons. Sue Gardner won't need an Image filter anymore, because she, and all others that like to follow her, can used the purged "Commons-US-Version" and the National Chapters know what to do with their donations money - they can fund their own servers and their own Commons. --Wuselig (talk) 20:36, 14 February 2012 (UTC)

If Commons were to move to a different country, it might mean the removal of a lot of other stuff. For example, it might be necessary to remove all {{PD-US-no notice}} and {{PD-US-not renewed}} files (which often are copyrighted in Canada, Mexico, Germany, China, Switzerland and other countries). It would just replace some problems with some other problems. --Stefan4 (talk) 22:41, 14 February 2012 (UTC)

That is very true - let's deal with the situation we have. I suggest we do what the legal team advises and "examine media on a case-by-case basis". We can start with obvious violations, like much of the content from India from the 1940s and after. Hekerui (talk) 23:00, 14 February 2012 (UTC)

It would be nice if all material could be sorted by year of publication so that [[Category:Undelete in YYYY]] can be added in a useful way. --Stefan4 (talk) 23:28, 14 February 2012 (UTC)

It would be fine to move the material to a country which acknowledges the rule of the shorter term. This would create a few problems though:

• It could not be run by the Mediawiki foundation, because they are based in the US, and thus still are accountable to US laws. As such, interfacing with existing Wikimedia projects would be difficult.
• Even if we moved it to a country that honors the rule of the shorter term, would those foreign countries necessarily recognize PD-US-no notice? They might not, because it was based on formalities, not a length term. And they the PD-USGov files (all seriously like 3 million of them) wouldn't apply either: the US government cannot assert copyright within the US, but it reserves the right to do so abroad.

Magog the Ogre (talk) 23:55, 14 February 2012 (UTC)

Let me repeat what I stated above in a little less polemic manner: We need not one, but a few Commons, run not only by the foundation, but by independant Chapters, joined in a common cause. There are already files on Commons that cannot be used for instance in the German language Wikipedia, because they would be illegal in Germany. There will be files in expatriate Commons that will not be able to be used in the States, or any other country in the world. And why shouldn't India and other nations from the Global South, that we want to embrace so heartily have their own servers to protect images that are PD in their country. Of course every single Wikipdia around the world will be responsible to adhere to their specific legislation and pick only those images from the different versions of Commons that adhere to their legislation. But if we want to embrace the whole world with our free knowledge and make information (not only articles, but images, audios, videos and documents (wikisource)) available around the world, we have to move our infrastructrure out of Florida and install it around the globe. And the local Chapters will have to become responsible guardians of this new infrastructure. --Wuselig (talk) 00:26, 15 February 2012 (UTC)

In many cases, that is already achievable by having the local projects allow uploads of material PD in the country of their their target audience, and then just not upload to Commons. There is some similarity I suppose across Europe, but there are still differences, particularly in things like freedom of panorama, simple photographs, etc. I think we should certainly have a system whereby local projects can migrate works to the local wikipedias if they are deemed to have been restored by the URAA here. Carl Lindberg (talk) 00:40, 15 February 2012 (UTC)

I remain unconvinced this strategy is legal. Is binding copyright law defined by the target audience of a website or by the location of the servers, or do both apply? If it's defined by target audience, how does enwiki get away with ignoring UK law, who form a large portion of its audience? The audiences of other projects are similarly heterogeneous. I'm frustrated that the WMF didn't speak on this point. Dcoetzee (talk) 01:52, 15 February 2012 (UTC)

Not exactly -- just U.S. law applies for a U.S. lawsuit I'm sure -- but there is fair use protection available and such target usage may affect considerations in that area (and actually it was something of a consideration in Disney v Twin Books), and usage would be scoped to encyclopedia purposes, instead of a general database. We have, in reality, been relying on fair use ourselves (or at least DMCA provisions) ever since we stopped deleting and started tagging Not-PD-US-URAA; it should be a bit stronger case on the more targeted projects, to use the same rationale we have been using (it's not like Commons was really affected at all by the Golan question as ruled in the appeals court, let alone the Supreme Court). Local projects can have EDP policies, Commons can't, so if they choose to host such material it's not an issue for Commons. That's not our call to me, unless the WMF makes clear they do not want to give projects that option. Carl Lindberg (talk) 02:38, 15 February 2012 (UTC)

I agree that target audience affects fair use considerations, even if it's not explicitly listed in 17 U.S.C. § 107, and so this can be meaningfully factored into an EDP, but we should at least make it clear that such images are only usable under an EDP, and that being PD abroad is not sufficient, by itself, to establish fair use (other factors should also be considered). In particular, projects that don't currently have an EDP would have to adopt one in order to use these images. I don't want people thinking, "it's PD in Germany, so German Wikipedia should be allowed to upload it locally, mark it as PD, and use it in any manner they please (or leave it orphaned)." Instead it should be clearly marked as being used under fair use. Dcoetzee (talk) 03:46, 15 February 2012 (UTC)

Up to them, really. The German Wikipedia, I believe, uploads logos which are PD under German law, which very well may not be PD in the U.S. They also have a 100-year pragmatic rule for old images I think, even if it's not known they were technically published. I'm not sure either of those are actually marked "fair use" but they are marked. Some countries may already use their own country's law without regard for the URAA (I think Italy allows the simple photographs before 1992, when 1976 is the URAA cutoff). That may just be considered "pragmatic" by those projects, like the German wiki templates. They should be marked specially, I hope, but that is a matter for local project policy. It's not something we can or should police, but yes, they should be aware of U.S. ramifications, including the fact that DMCA takedowns can happen. Carl Lindberg (talk) 06:37, 15 February 2012 (UTC)

This strategy can work. There are already a few mirrors of our servers in different countries. Since browsers and servers can know in which country are the server and the reader, when there is a copyright issue with an image and law in server or reader country, software just need to display a message such as "This image that can't be seen in the server you are using. Click here to use a server in a different country" or "This image can't be seen from your country due to copyright issues. Please try from another country." Of course, we would need more servers in around the world, and somebody should make and maintain them, but if we had, we could offer the maximum of images to our readers while abiding to law of every jurisdiction.--Pere prlpz (talk) 17:48, 15 February 2012 (UTC)

Propose close

Proposed close: Kept Following the WMF statement, it's clearly time to close this DR. 1. It seems clear that we do not want to delete all tagged files en masse. We have an RFC set up to consider how best to pursue case-by-case review - Commons:Requests for comment/PD review, and further discussion of that should take place there (it needs work to design and set up as well as to implement, so please do go there). 2. Most of the rest of this discussion relates to moving all or part of Commons to outside the US, or using uploads to local projects more. Users who want to discuss that further would be best served with a separate RFC on that topic - perhaps Commons:Requests for comment/Commons Abroad and related ideas. Rd232 (talk) 03:05, 16 February 2012 (UTC) ~~~~  Done Closed per proposal.

---

 Kept, Per proposed close above. Rd232 (talk) 18:49, 19 February 2012 (UTC)