Template talk:PD-Australia/U.S. copyright issues

Principles

Wikipedia's copyright policy is based on two general principles:

1. Wikipedia (as with all Wikimedia Foundation projects) has to abide by U.S. copyright law;
2. Wikipedia tries, as far as is reasonably possible, to abide by the copyright lwas of other countries, even in cases where we don't actually have to.

Hence, in Wikipedia terms, an image is only "public domain" if it is in the public domain in both the U.S. and in its source country (e.g. Australia). An image which is in the public domain in its source country but still under copyright (for whatever reason) in the U.S. can only be used on Wikipedia in accordance with our non-free content policy (often referred to as "fair use").

Restored U.S. copyright

The current law on restored U.S. copyright is found in § 104A of Title 17 of the United States Code (17 U.S.C. 104A), which was completely amended by the Uruguay Round Agreements Act (Pub. L. No. 103-465, 108 Stat. 4809, 4976) in 1994. The provision is intended to comply with Article 9.1 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which obliges compliance with Articles 1–21 of the Berne Convention by all members of the World Trade Organization. In particular, § 104A is meant to fulfill the United States' obligations under Article 18 of the Berne Convention, which states that copyright protection is to be granted to all works existing when the Convention comes into force, so long as they have not fallen into the public domain in their country of origin.

U.S. copyright was restored on the "date of restoration" to a large number of works which had fallen into the public domain in the United States for almost any reason. The "date of restoration" for the vast majority of countries, including Australia, was 1996-01-01.

There are a number of exceptions to the restoration of copyright:

1. works which were first published or simultaneously published in the United States;
2. works which, on the date of restoration, were in the public domain in their source country because a period of copyright protection had expired;
3. works which had already enjoyed their maximum period of copyright protection (including the renewal period) in the United States;
4. a few works of enemy governments, notably the works of Adolf Hitler: this exception is not relevant to Australia.

Otherwise, the restoration of copyright was automatic on the date of restoration.

Duration of restored copyright

Restored copyright lasts for the remainder of the term for which the work would have been protected in the United States had it never fallen into the public domain. In effect, the work is treated as if the author had complied with all the formalities imposed by U.S. copyright law. For most works for which copyright was restored, this means 95 years from the year of first publication.

For works which were first published before 1923-01-01, the United States copyright would by now have lapsed, and so it is not necessary to consider restored U.S. copyright in these cases.

It is important to note that the United States, unlike most other countries (including Australia), does not apply the optional provisions of Article 7.8 of the Berne Convention, technically known as the "comparison of copyrights" and more commonly known as the "Rule of the Shorter Term". That means that the duration of U.S. copyright can be longer than the term of copyright in the source country.

Practical case of restored copyright in Australian works

The date of restoration for Australia was 1996-01-01: hence to determine whether U.S. copyright was restored on that date, we need to determine whether the work had already fallen into the public domain in Australia.

The durations of copyright in Australia in 1995/96 were:

1. fifty years from the year of death of the author, except as below [s. 33]
2. fifty years from the year of first publication for photographs [s. 33(6)]
3. fifty years from the year of first publication for anonymous and posthumous works [s. 34]
4. twenty-five years from the year of first publication for "published editions" (typesetting) [s. 96]
5. perpetual for unpublished Crown literary-dramatic-musical works [s. 180(1)(a)]
6. fifty years from the year of creation for published Crown literary-dramatic-musical works [s. 180(1)(b)]
7. fifty years from the year of creation for Crown photographs and engravings made before 1969-05-01 [ss. 180(2), 233]
8. fifty years from the year of first publication for Crown photographs and engravings made on or after 1969-05-01 [s. 180(3)]

Hence, the works of an author who died in 1945 fell into the public domain in Australia on 1995-12-31: as such, they were not elegible for restoration of their U.S. copyright.

However, a photograph first published in 1946 was still under Australian copyright on 1996-01-01, and so its U.S. copyright was automatically restored on that date. It fell into the public domain in Australia on 1996-12-31, but remains protected in the United States until 2041-12-31.

Subsisting U.S. copyright

Australian authors have been able to secure U.S. copyright for their works since at least 1918. Hence, any Australian work published since 1923-01-01 is potentially protected by U.S. copyright. However, the number of foreign works which were actually registered is relatively small.

In practical terms, to enforce a policy based on subsisting U.S. copyright would require uploaders to prove a negative: that the work wasn't registered according to the Copyright Act of 1909, or that its copyright was not renewed. This seems an undue imposition to make on uploaders, particularly given the difficulties in tracking down the registrations of images. The principle of "assume good faith" should be sufficient in the absence of any clear indication that the work was registered in the United States, so long as uploaders and editors are aware that there may be certain rare occasions where Australian works first published between 1923 and 1945 are still protected by U.S. copyright.