Commons talk:Copyright rules

Maximum limit?

This applies unless a country has made a specific law. Which means that 50 years is a minimum, not a maximum. Someone might take that a bit literally. Many western countries hold on to a 70 year limit. There might be a country where it is 90 years. What is the longest tem known? Are there any countries with an infinite period?

Moreover: do we need these extra rules? Have there been many discussions recently which couldnt be settled using common sense?

Teun Spaans 15:08, 26 December 2006 (UTC)

It is not a minimum either. Copyright terms for photos are not necessarily prolonged retroactively, and copyright terms were much shorter 50 years ago. The copyright of photographic images of 1965 from e.g. Finland have expired, although they are not 50 years old. --LPfi (talk) 07:25, 8 September 2012 (UTC)

Anonymous works and pma

If a work is truly anonymous, then pma (after death of author) makes no sense. I doubt any country has such terms. If the work is not anonymous, but the author is unknown to us, then we should use the more common 70 years pma, unless country of origin is known. I changed the wording of the Borda example (again). --LPfi (talk) 07:25, 8 September 2012 (UTC)

Germany has a 70 years p.m.a. term for graphic works published (or possibly created) before 1 July 1995. See the warning in the {{Anonymous-EU}} template. A very odd rule, I think. --Stefan4 (talk) 07:37, 8 September 2012 (UTC)

How to handle problematic copyright issues?

I found following interesting case. There is a user on Flickr, who takes public domain images, adds a frame and republishes them under a CC-BY-SA license. It was subsequently uploaded by Commons user and as this CC license is acceptable for Wikimedia Commons it passed the FlickreviewR process as well. IMHO the practice of this Flickr user is at least problematic. Should this be deleted in Commons? In the specific case we have the original file imported as well...

• File:Loen Kjendalskronebrae Nordfjord Norway (1).jpg - the picture under CC-BY-SA from Flickr source
• File:Loen, Kjenndalsbreen, Nordfjord, Norway, ca. 1897.jpg - same picture as public domain from the Library of Congress

--LC-de (talk) 11:01, 4 August 2016 (UTC)

70 years PMA

The following text (from the article) seems illogical:

Assume that the author of the image on the right is unknown to us, but not unknown in the copyright sense. We know that the image represents the ship Borda, which was scrapped in 1891. The image could have been taken that year by a 20-year-old man, who could die of old age in his 90s; this brings us to 1960. Assuming the normal terms for "works" apply and a 70-year long copyright term pma, the image would be covered by copyright until the 2050s. If the work was truly anonymous, then the copyright probably did not exceed 1891 + 70 = 1961, which means it is free if it was published before 1923 (or free in USA for other reasons).

Surley 70 years after 1960s is the 2030s? Greenshed (talk) 19:56, 29 October 2016 (UTC)

Album Covers

How do you properly cite an album cover? — Preceding unsigned comment added by PeterMGrund (talk • contribs) 03:30, 21 August 2017 (UTC)

Copyright law change in the European Union: do we need a new PD-EU-ToO tag?

Picture of a 3D object made in 1537, not photographed by the uploader. Is this an "author's own original creation"?

DIRECTIVE (EU) 2019/790, which is to be put in national law until 7 June 2021 (Art. 26), says in Article 14:

• Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author's own intellectual creation

(see Article 6 of [Directive 2006/116/EC).
That means that photos even of 3D objects like coins or reliefs that don't surpass the threshold of originality (ToO) would be PD. As an example, let's look at the pictured 16th century artwork (more photos here). If the photographer aims to depict the original work as close to reality as possible, then it's a technical effort but not own intellectual creation. So even the "sweat of the brow" rules otherwise applicable don't come into account here (this is what "or related rights" means in Art. 14 cited).
There's no doubt that photos of sculptures or buildings (works of visual arts) are subject to copyright because the photographer chooses point of view and perspective and/or lighting (sun or not, time of day etc.), but can there be slavish copying of a 3D object like the Langer Puff box or a coin or, at least, a reproduction that is not an "author's own intellectual creation"? Would the picture look different if the object were simply put on a scanner and reproduced without any human intervention?
In my opinion, the new EU law now would allow uploading "unoriginal" photos of 3D objects that are in PD and to use them at least in the EU countries.
Considering the global scope of COM and the number of users in the EU, should we create a new license tag that describes pictures usable under the new EU law? Or is it only necessary to alter the text of COM:When to use the PD-Art tag and modify the deletion policy for pictures taken of PD art in EU member states?--Chianti (talk) 12:59, 6 June 2021 (UTC)

@Raymond: wirkt sich obiges Gesetz dann auch auf das Reiss-Engelhorn-Museum aus? --Frank Schulenburg (talk) 18:20, 6 June 2021 (UTC)

@Frank Schulenburg Soweit ich schon vor Monaten gelesen habe: positiv in unserem Sinne. Aber den aktuellen Gesetzestext habe ich noch nicht gelesen. Raymond 18:32, 6 June 2021 (UTC)

Prima, das freut mich richtig! --Frank Schulenburg (talk) 18:42, 6 June 2021 (UTC)

Der neue § 68 UrhG lautet: Vervielfältigungen gemeinfreier visueller Werke werden nicht durch verwandte Schutzrechte nach den Teilen 2 und 3 geschützt..--Chianti (talk) 15:40, 7 June 2021 (UTC)

Some thoughts on a new license tag:
(1) At the outset, many member states will not have implemented the Directive in time. This is unfortunate but not unusual, and there have been delays of months and years in the past. Therefore, the fact that the Directive is supposed to be transposed everywhere by some date X is immaterial. Right now, it isn't, and we don't know when it will be.
(2) Most member states do not have a related right for photographs. A license tag that suggests something along the lines of "This EU image is in the public domain because of art 14 DSM Directive" would unnecessarily cause a headache for people in those countries ("Is this a work of visual art?" etc., see below). For them, it is much simpler to stick to their existing templates.
(3) Having a single template would obfuscate forseeable differences between national transpositions.
(a) By way of example, the (recently Senate-approved) transposition draft by the Italian government expressly merges the category of "works of visual art" of the DSM Directive with the existing category of "opere delle arti figurative" (Copyright Act arts 2 no 4, 145(1)), which by definition comprises - for instance - "i quadri, i 'collages', i dipinti, i disegni, le incisioni, le stampe, le litografie, le sculture, gli arazzi, le ceramiche, le opere in vetro e le fotografie, nonchè gli originali dei manoscritti". Conversely, the German transposition introduces the new category of "works of visual art" into the Copyright Act, and like the EU Commission chose not to define it. We will have to see how this evolves. Would Germany really consider a manuscript a work of visual art? Highly doubtful. Even the traditionally pro-user European Copyright Society acknowledges that manuscripts are not "works of visual art" within the meaning of the Directive (see ECS Comment on the Implementation of Art. 14 of the DSM Directive 2019/790, 11 (2020) JIPITEC 122 para 31). It should be emphasised that if this is correct, it would not make the Italian transposition "wrong". Member states do not have to protect unoriginal photographs in the EU in the first place, so a member state going further than art 14 DSM acts entirely within its discretion (see also Andrea Wallace and Ellen Euler, "Revisiting Access to Cultural Heritage in the Public Domain: EU and International Developments" (2020) 51 IIC 823, 839, criticising that "[n]ational laws might control what constitutes a 'work of visual art' differently among Member States [...] Differences in national categorisations may subsequently undermine harmonisation aims."). It cannot be repeated often enough that EU copyright law is no unified law. Therefore, as a general matter, I see attempts to create "unified" EU license tags on Wikimedia Commons (looking at you, Category:PD European Union license tags) critical. As a side note, Chianti's en passant claim that buildings are works of visual art is also dubious, and, similarly, in the Italian Copyright Act the category of "opere delle arti figurative" is clearly distinct from "opere dell'architettura" (Copyright Act art 2 no 5).
(b) To add a bit on the uncertainties dimension surrounding art 14 DSM Directive, the temporal scope is also rather unclear (also recognised by the ECS, op cit, paras 22ff). It might mean that when a work falls into the public domain, all reproductions created going forward are subject to the effects mentioned in art 14. Or it might mean that as soon as the work enters the public domain, all non-original reproductions are fair game. We will have to watch closely how member states respond.
(c) Another point of concern is that, to take the example given above, the protection of a 16th century board game has never "expired" (as required under a literal reading of the statute) because it had never been protected. As pointed out elsewhere, it is therefore controversial whether art 14 would even apply to such photographs. Again, this might be an issue where transpositions differ: Germany seems to favour a broad reading (the complete provision simply reads: "Reproductions of public domain visual works are not protected by related rights pursuant to parts 2 and 3."; my translation), which might indeed allow very old works to qualify; on the other, the Italian draft copies verbatim the operative language from the Directive ("alla scadenza della durata di protezione ..."), leaving the issue open.
(4) As to the practical questions posed, if one looks at member states that do have a related right for photographs, there is often some uncertainty regarding the question of what exactly takes a photo from an "unoriginal" product to an "original" work. However, for instance as far as Germany is concerned, it can be assumed that trivial photographs reproducing a particular object are certainly not necessarily works, although the issue is not very well explored. This is also indirectly supported by Painer (C‑145/10), where the Court stated that (emphasis added): "Consequently, as regards a portrait photograph, the freedom available to the author to exercise his creative abilities will not necessarily be minor or even non-existent. In view of the foregoing, a portrait photograph can, under Article 6 of Directive 93/98, be protected by copyright if, which it is for the national court to determine in each case, such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph." Reading through the considerations in Painer that lead to a finding of originality, it is however very difficult to ascertain the status of a random photograph. So, for instance, the Court held that "[a]s regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production", and goes on to give the following examples of such choices: "In the preparation phase, the photographer can choose the background, the subject’s pose and the lighting. When taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer software." But, of course, many of these factors require a knowledge about how the photographer exercised their choices that often cannot be simply inferred from just looking at the picture. Therefore, I don't think Wikimedia Commons should begin to declare all photographs of "sculptural" objects non-original photographs, and rather assume that such images are original works. Images of coins, for instance, are of course somewhat borderline, but from a German perspective I would definitely assume them to be, in general, non-original. I simply don't see how the choices involved in the photographic reproduction of a coin differ from those involved in the photographic reproduction of an oil painting. And, besides, if not even a plain picture of a coin constitutes a non-original photograph, then there is hardly any subject matter left for that related right to protect. But, again, it makes sense to discuss this question from a national perspective, although from my impression the countries that do have a related right for non-original photographs tend to be more restrictive when it comes to according protection as photographic works. This might generally be a helpful tendency from the point of view of Wikimedia Commons.

(Conclusion) In conclusion, I would at this point not make any EU-wide change. As member states transpose the DSM Directive, the country-specific notes on Commons:Copyright rules by territory should be updated accordingly. If there is a need for a new license tag explaining the copyright situation in a particular country, it should be added as a country-specific template. If clarifying case law/language in official motives/legal literature exists in a country regarding the level of originality seperating non-original photographs and original photographs, it should also be added to the country-specific notes. — Pajz (talk) 19:30, 6 June 2021 (UTC)

@Pajz: Do we know which countries have already implemented DIRECTIVE (EU) 2019/790 or is there a way to determine this? Nosferattus (talk) 03:18, 8 June 2021 (UTC)

Nosferattus, nothing official, but there's an "Implementation Tracker" by the advocacy group Communia. — Pajz (talk) 03:26, 8 June 2021 (UTC)

Thanks! As each country adopts an implementation, we should update Commons:Reuse of PD-Art photographs and Commons:Copyright rules by territory. Nosferattus (talk) 03:33, 8 June 2021 (UTC)

Observations made after closing of the discussion

@Frank Schulenburg, Nosferattus, and Pajz: : I don't see any problem. The EU directive states that

"an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author's own intellectual creation".

The Wikimedia Commons situation (Commons:When to use the PD-Art tag) is that

"{{PD-Art}} may be used by the uploader of a photograph taken by somebody else to assert that the photograph can have no independent copyright as it is simply a faithful reproduction of an old, public domain, two-dimensional work of art."

In other words the EU states that copyright will exist where the author has used his interlectual capability to create a new work whereas Commons states that there is no new copyright if the new work is a "faithful copy" (ie a "mechanical reproduction) of the original. As an example, under current Commons rules, a photograph of an old 3-D object is assumed to be subject to copyright, but a faithful reproduction of a 2-D work (eg a faithful copy of the Mona Lisa) is not assumed to be subject to copyright. Martinvl (talk) 22:06, 3 May 2022 (UTC)

Martinvl, I don't understand your point. This thread asked if Commons "should [] create a new license tag that describes pictures usable under the new EU law". As argued above, that seems unhelpful given the diversity of the legal situation in member states. The current {PD-Art} template can, of course, also be used on material originating in the EU. {PD-Art} is a result of a political decision by the Wikimedia Foundation, which assumes that the material described in the template is not protected by copyright anywhere in the world (Commons:When to use the PD-Art tag#Why do we allow the PD-Art tag to be used for photographs from any country?). That has never been true, of course, so in order to alert reusers of material to potential legal risks, there is Commons:Reuse of PD-Art photographs. Therefore, at the outset, it is not clear why the transposition of the DSM directive necessitates a new template. — Pajz (talk) 08:22, 4 May 2022 (UTC)

Inter-Government Organisations

The criteria for inclusion in Commons is that the work in question should be free in both the United States and in the country of origin. In most cases, this does not pose a problem, but in the case of Inter-Government Organisations (IGO) there is a problem because the law under which the IGO operates is unclear. In particular, if there is a dispute involving an IGO, the dispute is settled by means of as somewhat unclear process of arbitration. (See here). Problems can arise because of variations on copyright law from country to country, so how should Commons proceed? In particular, the Threshold of originality varies greatly from country to country, so which WP:TOO should be applied in Commons? Martinvl (talk) 21:50, 3 May 2022 (UTC)