User talk:Lupo/Notes

Countries which don't exist any more

I am less pessimistic than you on this point, at least with respect to the ex-Soviet republics. All of the post-Soviet republic (including the Baltic States) had a legal (if subsidiary) existance under the USSR, and their border did not change at independance. It seems reasonable to me to say that a work first published in Minsk has a link with Belarus, whatever the future nationality of the author. The US definition of "source country" is so vague as to be practically useless in the absence of judicial input, so I guess we are damned to try to come up with our best second-guesses! Physchim62 (talk) 13:17, 12 September 2006 (UTC)

PC's analysis

As indicated above and elsewhere, I am not altogether happy with Lupo's analysis on a certain number of points. In the spirit of being constructive, I propose this alternative!

Territorial application

No single law can cover all the situations arising after the split of the USSR in 1991, this being the very essence of "independance"! The territorial application of laws can only be ascertained by a careful examination of the Civil Codes or Interpretation Acts of the 15 states. However, as a guide, all fifteen split along the borders of the former Soviet Socialist Republics (twelve states were established, three regained independance...). It is reasonable to interpret their Laws, where retroactive, as covering the territory of the corresponding SSR, and no further, unless there is provision or strong historical reason (e.g. border changes of the Baltic States) to suppose otherwise. In general, for copyright purposes, the equivalence between the independent states and the former SSRs will usually prove to be sufficient.

Unpublished works

All unpublished works are protected by U.S. copyright, and can only be used on Wikipedia under fair use.

Retroactivity and restoration

All the countries which formed part of the Soviet Union, with the possible exception of Turkmenistan, have extended their periods of copyright protection since independance. Art. 18 of the Berne Convention requires such extensions to be retroactive (i.e. applying to events which occured before the passage of the law) unless the works have already fallen into the public domain: however it does not prevent countries from withdrawing works from the public domain, as happened, for example, in the European Union with the implementation of Directive 93/98/EEC or in the United States with the implementation of the Uruguay Round Agreements Act of 1994. To avoid confusion, I have used the term "restorative" to refer to laws which restore a copyright protection which the work did not have at the time of the passage of the law, and the term "retroactive" for laws which merely fulfill the conditions of Art. 18.

Restored U.S. copyrights

Our first job should be to satisfy ourselves that these works are not covered by a restored U.S. copyright under 17USC104A. All states arising from the USSR apart from Turkmenistan are now eligible for copyright restoration. If the work in question was under copyright in one of these states on the date of restoration, and was first published after 1922, then it is under U.S. copyright until at least 2019. The earliest date of restoration, 1996-01-01, applies to the Russian Federation, Ukraine, Georgia and the three Baltic States.

Estonia

Estonian copyright law at the date of restoration was clearly restorative [Art. 88(1) "This Act extends to works and results of the work of performers, producers of phonograms or broadcasting organisations which are created before 12 December 1992."]. It also contains a presumption of copyright in Art. 3(3): "A work is presumed to be protected by copyright except if, based on this Act or other copyright legislation, there are apparent circumstances which preclude this. The burden of proof lies on the person who contests the protection of a work by copyright." At 1996-01-01, the duration of Estonian copyright protection was 50 years pma (Art. 38). Hence all works of Soviet authors who died after 1945-12-31 must be considered to be under copyright unless we can show that they were not published in Estonia or the Estonian SSR within thirty days of their first publication elsewhere. The nationality of the author is immaterial if they were first or simultaneously published in Estonia [Art. 3(1)].

Russia

Russian copyright law at the date of restoration was also restorative, as has been discussed elsewhere. The duration of copyright was also 50 years pma, subject to the provisions of the third paragraph of Art. 27(5): "If the author worked during the Great Patriotic War of 1941-1945 or participated in it directly, the copyright protection period, provided by this Article shall be prolonged for four years." This applies to works first published or simultaneously published "on the territory of" the Russian Federation or whose authors are citizens of the Russian Federation [Art. 5(1)]. Hence the works of authors who died after 1941-12-31 must be considered convered by copyright unless we can show that the works were not published in the Russia Federation or the Russian Federated SSR within thirty days of their publication elsewhere, or that their authors cannot have participated in the Great Patriotic War (e.g., for reason of exile).

Latvia

Latvian copyright law at the date of restoration appears to be restorative: the term of protection was 50 years pma [Art. 30(1), although this was extended to 70 years pma in 2000], subject to the provisions of Art. 30(4): "The duration of copyright for those authors' works which were completely prohibited or restricted from use in Latvia from June 1940 until May 1990, is extended by the number of years the work has been prohibited or restricted."

Other copyright laws

As far as we are aware, no former SSR had a copyright term of more than 50 years pma at the date of restoration.

Geogian copyright law

The Law on Copyright and Neighbouring Rights came into force in the Republic of Georgia on 22-06-1999, after the relevant date of restoration (1996-01-01). It is clearly restorative (Art. 67), and institutes a period of protection of 70 years pma. For works which were first published in Georgia and not published elsewhere within thirty days, this period obviously applies. For works which were simultaneously published in Georgia and elsewhere, the application of Art. 5(4)(a) of the Berne Convention implies the rule of the shorter term, so long as this is not less than 50 years pma. A similar argument applies to any other states which have extended their copyright terms after the date of restoration (e.g., the Baltic States): U.S. copyright restoration was a one-off event, so their copyright status in the U.S. is not affected, but status in other countries may change.

Physchim62 (talk) 14:15, 18 September 2006 (UTC)

Comments on new version

Yep, the second attempt looks a lot better! You are, of course, correct: I had failed to see that URAA requires a single source country. This country can only be one of the post-Soviet states, as purpose of the section is to give effect to Article 18 of the Berne Convention. I notice that Russian law (No. 5351-1, Art. 4) requires that the author be a natural person, which resolves the question on compulsary purchase but creates a few more regarding government copyrights... Works "made for hire" are covered by Art. 14: the employer has an exclusive licence of the proprietary rights. Note that I am quoting from the 1993 law, that which was in force at the URAA date. I would also say that where the publishing house was based at the time of publication is more important than its HQ today, although in some cases we may have to assume that they haven't changed city.

Yup, that has occurred to me, too. Maybe use the current country of the place of publication? Lupo 06:57, 21 September 2006 (UTC)

The possibility of simultaneous publication also raises one or two problems, at least if this system were exported to Commons. Let me take a practical, if fictitious, example: comrade Soviet citizen Физхим17 publishes his collection of photographs "Chernobyl - 50 years before" simultaneously in Ukraine, Russia, Belarus and Lithuania in 1936 before dying in 1955.

• With no other details to go on, we decide that the source country for URAA is Ukraine, the location of the subject matter, and that hence the 50 year pma term had expired on the date of restoration (as would have been the case for all four possible source countries): the photos are PD in the US.
• A publisher in Mexico decides to reuse the photos, and applies the test at Art. 5.4 Berne: he finds that the country with the shortest term today is Belarus (50 years pma), and so deduces that the photos are PD in Mexico.
• A descendant of the photographer living in Russia decides to issue a collection of his forebear's work. As the photographs were simultaneously published in Russia, they are considered national works and there is no Berne test: the Russian 70 years pma term applies, and the photos are still under copyright.
• A helpful Wikipedian decides to use the photos in an article on German Wikipedia: as they were simultaneously published in Lithuania, the 70 years pma term of directive 93/98/EEC now applies: they are under copyright throughout the EU.

The only way to ensure worldwide reusability seems to be to insist on 70 years pma for any Soviet images: you can imagine how popular such a move would be! A more diplomatic way to achieve a similar result would be to assume simultaneous publication in Russia: de facto application of Russian copyright law, except for URAA and except for source countries with fully restored 70 pma terms (Georgia and the Baltic States). Of course, we will still have uploaders who will insist that their image was only ever published in Turkmenistan...

Physchim62 (talk) 13:24, 20 September 2006 (UTC)

As you know, I quite agree that using 70 years p.m.a. should be used. It'd be simple, and more or less correct. (The URAA now gives us 1946/1942 for Russia; with 70y p.m.a., we'd have 1936 and moving, so the difference is small.) But since the reasoning that led me to assume 70y p.m.a. is less than bulletproof, and—as you say—that resolution is unpopular anyway, I'm trying to see if "territorial application of laws" gives us a manageable alternative. Lupo 06:57, 21 September 2006 (UTC)