Commons:Deletion requests/File talk:Кино-Правда №21 (1925).webm

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File talk:Кино-Правда №21 (1925).webm

This is a work by an author who died in 1954; it is thus in copyright in Russia. According to the template, film published between 1929-1946 are out of copyright, but not film published in 1925, which is life of author + 70. (nominating talk page because file page is currently protected.) Prosfilaes 22:11, 8 May 2016 (UTC)--Prosfilaes (talk) 07:27, 12 May 2016 (UTC)

•  Keep The film was published in 1925 by Kul'tkino [1], Goskino documentary section [2], whose patrimonial rights were confirmed by art. 5 of the Federal Law No. 231-FZ of December 18, 2006, amended by Federal Law No. 296-FZ of December 30, 2008, with a term of 50 years from publication for the authors, as such term predated 1993 and a maximum term of 70 years from publication for the studio per art. 6 of the same law (referred to in {{PD-Russia-2008}}) [3]. For URAA's sake, PD in Russia on Jan 1, 1996. — Racconish^☎ 09:31, 9 May 2016 (UTC) corrected on 18:00, 12 May 2016 (UTC)
  • It has no valid license tag. The tag on there right now is quite clear; cinema films first shown before January 1, 1929 are subjects of points 1 and 2 of this template, which is life+70. If it's wrong, then let's fix that.--Prosfilaes (talk) 07:27, 12 May 2016 (UTC)
    • I agree the template is confusing. Let me try to clarify the situation. Russia inheritated the Soviet copyright approach concerning films. In Soviet Russia, the copyright to the film belonged to the studio (art. 486 Civil code RSFSR [4]). In practical terms, Vertov's own copyright as director, initially set to 10 years from the first publication [5] [6], was "fobbed off" (per Michiel Elst"s terms in Copyright, Freedom of Speech, and Cultural Policy in the Russian Federation, p. 409) by later laws which assigned film copyright to the studio. In others words, the copyright on the film as a whole was owned by the studio, Kul'tkino, while individual contributors to the film, such as "the author of the script, the composer, director, chief cameraman, artistic director, and the authors of other works which constitute a component part... own the copyright in each of their works" (Jove v. Berov [7]), i.e. for a separate and distinct use. The copyright law of 1993 confirmed the studios were the copyright owners for the films, with a term of 50 years from publication (Elst, p.529). The decree of May 1998 clarified the studios were only "legal right holders of the cinematographic work" and confirmed the term of 50 years from publication (Elst 531-532), which was again confirmed with a maximum as 50 years from publication for the authors, if this term predates 1993, and 70 years from publication for the studios by the Federal Law No. 231-FZ of December 18, 2006 referred to above, with the following provision : "The copyright of legal entities which has arisen before August 3, 1993, that is, before the entry into force of Law of the Russian Federation No. 5351-I of July 9, 1993 on the Copyright and the Adjacent Rights, shall be terminated after the expiry of seventy years as from the day of the legally justified publication of the work... For the purposes of their application, such legal entities shall be seen as the authors of the works." — Racconish^☎ 17:11, 12 May 2016 (UTC)
    • @Alex Spade: could you please give your opinion on this and on the wording of the template ? In particular the legal basis for "Cinema films first shown before January 1, 1929 are subjects of points 1 and 2 of this template".— Racconish^☎ 18:00, 12 May 2016 (UTC)
      • Studios had become authors of non-amateur films since Jan.1, 1929 (see s:ru:Постановление ВЦИК и СНК РСФСР от 8.10.1928 об авторском праве) only. Previous legislation have not such regulation. Alex Spade (talk) 16:45, 13 May 2016 (UTC)
        • Alex Spade, thank you for explaining your point of view. Your comment that "previous legislation have not such regulation" requires some discussion. Prior situation cannot be described as the assignment of copyright to the authors, in the sense of the current Russian copyright law instead of the studios, as you seem to imply. In Soviet Russia prior to the 1925 copyright law there was no provision for copyright on films, in a context of nationalization of the film production by Lenin's decree of August 27, 1919 and further expropriation of assets, creation of Goskino and state control of film distribution. Movies, in particular propaganda movies like this one, were produced following Government's orders and financed by Government's budget. According to Michiel Elst, "films were for the first time mentioned as subject matter of copyright" in the Fundamentals of Copyright Law of January 30, 1925 (Copyright, Freedom of Speech, and Cultural Policy in the Russian Federation, p.75). Yet, art. 2 of these Fundamentals referred only to scripts of cinematographic works having the characteristics of an independant work. In any case the 1925 copyright law postdates Leninskaya kino-pravda and the exception for an independant script would not have been applicable. As expressed by Dmitry Golovanov, the "point of departure" for the application of copyright to films in modern Russia was "the principle that legal entities were recognised as authors of cinematographic works" [8]. In any case, either we consider that cinematographic works created by Soviet governmental entities prior to the application of the 1928 copyright law are in the public domain, following Vladimir Entine for whom works which have not been granted protection have fallen in the public domain [9], or we consider that the later copyright laws apply retroactively, in which case this should be analysed as a synthetic work whose copyright belonged to the publishing studio, and has now fallen in the public domain since 70 years from the publication have elapsed, but there is no reason to assume a kind of personal copyright which never existed in Soviet Russia did exist before 1929. — Racconish^☎ 12:56, 14 May 2016 (UTC)

Due to retroacivity of Law-1993, Code-2006 and Berne Convention it is unimportant in what status work was on moment of puplication (copyrightable or not, object of copyright or not, PD or not). It is unimportant for copyright term - "who is copyright holder?", it is important - "who is author?". Law-1928 (and Code-1964) had changed authorship in the first place, then (right after that) copyright. Decretum-1919 had nationalized means of film production, material form of films, and income. Russian legislation (compare to US-legislation concerning Nazi copyright) did not and does not know about nationalization or seizure of initial author copyrights (it knows about nationalization/seizure of income from copyrights, nationalization/seizure of copyrights delivered to (inherited by) other person or legal entity, and nationalization/seizure of copyrights of legal entity even if it is initial author by law). Moreover in Russian nationalization/seizure changes copyright holder (rights pass to state/government), it does not move work to PD-zone. Russian copyright legislation recognizes initial author copyrights of legal entity only if possibility for initial authorship of legal entity has clearly indicated in law (internal or foreign, based on country of origin).
P.S. I did not say or presumed, who is copyright holder of pre-1929-film - as I have said, that is unimportant for copyright term. I did not say or presumed that author of pre-1929-film defined by article 1263 of Code-2006; I presumed that pre-1929-film is work by natural person or group of natural persons created (созданное творческим трудом) this film. For example, Mosfilm is copyright holder of its films since 1924 (by old contracts with initial authors) and since 1929 (as initial author by law). Alex Spade (talk) 19:38, 14 May 2016 (UTC)

First, we cannot say the Bern Convention applies retroactively in Russia. The Russian Government has expressly clarified the opposite when entering the Convention : see Decree No. 1224 of November 3, 1994 and Berne Notification No. 162. Second, we cannot say "it is unimportant in what status work was on moment of publication". Article 5 of Federal Law No. 231-FZ of December 18, 2006 says the opposite : "The author of a work or another initial right holder shall be identified in conformity with the legislation operating as at the moment of creating the work". As I said, prior to the 1928 copyright law which assigned film copyright to studios, there was no recognition of copyright on films made in Soviet Russia, hence no initial copyright holder, in a context where this was a non-issue, as the cinema industry had been nationalised. Third, it is quite ironical (or maybe simply anachronical) to have such a discussion about Dziga Vertov who advocated the use of documentary for Bolshevik propaganda and claimed the exact opposite of personal authorship, the collective and participative nature of the "Cine Eyes" (kinoks) producing the Kino-Pravda and beeing collectively the authors-creators of their film-objects. In Vertov's own words :

The Goskino kinoks’ cell should be regarded as one of the factories in which the raw material supplied by kinok-observers is made into film-objects. The Goskino kinoks’ cell should also be regarded as an educational, modelworkshop through which young Pioneer and Komsomol film groups will be drawn into production work. Specifically, all groups of kinok-observers will be drawn into the production of future kino-eye series. They will be the author-creators of all subsequent film-objects. This departure from authorship by one person or a group of persons to mass authorship will, in our view, accelerate the destruction of bourgeois, artistic cinema and its attributes: the poser-actor, fairy-tale script, those costly toys–sets, and the director-high priest.

— Dziga Vertov, Kino-Eye, quoted by MacKay [10]

.— Racconish^☎ 16:54, 16 May 2016 (UTC)

Law-1993 and Code-2006 were and are retroactive by theirself for works published in Russia or by Russian citizens (this retroactivity was confirm by the Supreme Court and Supreme Arbitration Court). And, your knowledge RF-reservation for Berne Convention (made de-facto only for works published outside Russia by foreigners) are outdated - it had been recalled in December 2012.
Films are clearly mentioned by Soviet Copyright Law 1925. Moreover, lack of direct mention for concrete kind/type of work in copyrightable section of law is not problem for copyrightability - the foundation for copyrightability (confirmed by the Supreme Court and Supreme Arbitration Court) is creativity (by human, not animal or automatic machine) and originality. The Article 5 from Law 231-FZ assists only in identification of author and copyrightholder, it does not tie copyrightability to publication time. For example, in Code-1964 unsigned photoworks were uncopyrightable, but they are copyrightable in modern Russian copyright law - both old and modern ones.
And nationalization/seizure in RF/RSFSR is change of owner (from someone to state/government), not transition to PD-zone. Alex Spade (talk) 17:54, 17 May 2016 (UTC)

Apologies for my mistake concerning the recent modification regarding the Berne convention. I still think we should leave aside the 1925 copyright law which is irrelevant. My understanding is that in all cases the current Russian copyright law considers the persons as the authors but acknowledges the fact that under the Soviet copyright law, the copyrights of films were all transferred to the studios, which became the copyright holders. Be it in 1928 or in 1964, the studio became the copyright holder for this film prior to 1993, which means article 6 of Federal Law No. 231-FZ of December 18, 2006 should be applied : "The copyright of legal entities which has arisen before August 3, 1993, that is, before the entry into force of Law of the Russian Federation No. 5351-I of July 9, 1993 on the Copyright and the Adjacent Rights, shall be terminated after the expiry of seventy years as from the day of the legally justified publication of the work [...] Towards the corresponding legal relations shall be applied by analogy the rules of Part Four of the Code. For the purposes of their application, such legal entities shall be seen as the authors of the works". — Racconish^☎ 20:14, 17 May 2016 (UTC)

Article 6 of Law 231-FZ (and similar article from previous Law-1993) says only about the initial copyright of legal entities as initial author by law (not just initial copyright holder by law), it is not about any copyright of legal entities and it is not even about the initial copyright of legal entities as employer (for work by hire) - these common misunderstandings/delusions of this article explains repeatedly in Russian jurist commentaries, supported by courts decision, because copyright terms depend on author data (author can be legal entity), not his employer or holder of his/its copyright. Moreover since Law-1928 (since Jan.1, 1929) studio had become author (again, not just initial copyright holder by law) for new films, not old ones. Alex Spade (talk) 20:48, 17 May 2016 (UTC)

Where do you see in this article 6 that it relates only to the initial copyright ? It says quite clearly "the copyright which has arisen before 1993". The new copyright law always considers the persons as the initial authors but recognizes the fact the copyright has been assigned to moral persons under Soviet law. — Racconish^☎ 21:14, 17 May 2016 (UTC)

Besides text article I have read Russian jurist commentaries, supported by courts decision about it. Similar problem we had many years ago with GSE and many Soviet posters. Alex Spade (talk) 21:24, 17 May 2016 (UTC)

I know better" is not the best of arguments here . My understanding is Michiel Elst's Copyright, Freedom of Speech, and Cultural Policy in the Russian Federation is considered as a reliable source on the subject. He says clearly, in particular p. 586, that the physical persons are now considered as the original authors but they were assumed to have transferred their copyright to the producer who was the copyright holder as of 1993 if the work had not fallen in the public domain. — Racconish^☎ 21:35, 17 May 2016 (UTC)

In the cases I'm familiar with, whether or not the author has transferred their copyright to the producer, a life+n copyright duration is still based on the life of the author. Elst may say that clearly, but it's not clear that is relevant.--Prosfilaes (talk) 04:42, 18 May 2016 (UTC)

The best juridical commentaries (on my opinion) - why Article 6 of Law 231-FZ (and similar article from previous Law-1993) says only about the initial copyright of legal entities as authors, you can find in Gavroliv's (one of the lead Russian jurist about copyrights) commentaries to Law-1993 and Code-2006 (for example Gavrilov Eh.P., Moskva, Ekzamen, 2005, p.360-362 in the case of Law-1993 - the raw full text of his commentaries can be found here, see p.12-14 near the end of text - start with Russian phrase 12. Пункты 4 и 5 относятся к тем случаям). As I said, there had been similar problem with misunderstanding of direct reading of these articles in ru-wiki, en-wiki and commons had early with GSE, posters and many other works created by hire (служебная работа) or by contract (авторский договор), which copyrights also belong to legal entities but do not fall under Article 6. Alex Spade (talk) 09:00, 18 May 2016 (UTC)

Let me quote also Golavanov, whose articles on the subject have been published by Iris, the WIPO publication. In "The Legal Status of the Producer of Audiovisual Works in the Russian Federation" published in 2009 he writes :

According to Soviet law, legal persons could be considered as original authors. This approach caused a number of problems concerning rights in films produced by Soviet studios. The Soviet studios were treated as holders of authors’ rights according to Article 486 of the Civil Code of [1964]. The authors’ rights of legal persons had an eternal term of protection (Article 498). The rights could be transferred by an agreement to a party or to the studio’s successor in the case of the motion picture producing studio being reorganised, or to the State if the studio was liquidated. Often, however,intellectual property rights had not been recorded on a company’s balance sheet of intangible assets. The reason for this was the fact that movies were produced on the basis of governmental orders and with State funding. Governmental authorities expected that they held all rights to the products of these studios, although according to the civil law they were not allowed to hold any proprietary (economic) rights (including intellectual property rights). Besides, according to the Civil Code 1964 a script writer, a composer, a director, a producer, a director of photography and other authors who contributed to the movie-making process had the rights to separate use of their works – that is, rights to use their parts of the whole product [...] In parallel to this development, the Government passed a number of resolutions through which all rights to movies and original copies of the works were transferred to the governmental archives organisations (foundations). At the same time, some authors who had participated in a movie-making process claimed to be the proper rightsholders. They referred to the Copyright Statute 1993 as the basis of their claim. Resultantly, a very tangled jurisprudence emerged. [...] In 2004 an amendment to the Copyright Statute 1993 was introduced, providing a limited term of protection of authors’ rights belonging to legal persons. Its duration is 70 years, starting from the date of publication of a work [...] The Consummation Statute of Part Four of the Civil Code confirmed this rule.

— Dmitry Golovanov [11]

My understanding is Golovanov opposes a previous "tangled jurisprudence" to a clear current rule of 70 years from publication. Nevertheless, if one of you could point us to recent jurisprudence related to pre 1928 Soviet films, it would certainly be helpful. — Racconish^☎ 07:06, 18 May 2016 (UTC)

This cite is about films published after 1964 (only Code-1964 is mentioned). There is no doubt that authors of whose films (and films published after 1928) are studios (from copyright law POV). Moreover first clause from your cite says clearly about "legal persons... as original authors" (initial authors). The Supreme Court deprecated change of authorship by law change, it is true both for film authors 1929-1992(3) (in contrast to Law-1993 and Code-2006) and for films authors pre-1928 (in contrasrt to Law-1928 and Code-1964). Alex Spade (talk) 09:09, 18 May 2016 (UTC)

About your claim that "this cite is about films published after 1964 (only Code-1964 is mentioned)", allow me another quote :

When the Civil Code of the RSFSR went into effect in 1964, it was decided that its norms would be applied to relationships which had arisen earlier.

— Oleg Nikolaevich Sadikov, Soviet Civil Law, p. 26 [12]

— Racconish^☎ 09:56, 18 May 2016 (UTC)

Author of work defined by law effective on moment of creation of work - The Supreme Court, November 23, 2015. Code-1964 can be retroactive in some aspects, but not in aspect of authorship. Alex Spade (talk) 12:59, 18 May 2016 (UTC)

Your last contribution is so short I don't understand it and the link does not seem to produce anything related to our subject. Do you know of any post-2008 jurisprudence relating to pre 1928 films ? — Racconish^☎ 15:44, 18 May 2016 (UTC)

You do not use Google translate? Ohhh... Ok. On this page is stated that you can view respective document without subscriptions between 20:00-24:00 MSK on workday (and at any time on the Russian days off work (generally these are Saturdays and Sundays) and holidays) or you can freely order respective document on your e-mail (delivery time is about several hours). In this document The Supreme Court looks into case when current and old copyright laws have different statement about authorship, and define that law effective on moment of creation of work must be used.
And lets play another game, because free status must be proved. Do your know of any post-2006/08 (or post-1993 at least) publication relating to free status of pre-1928 films (not about history of Russian copyright law, but about current state of old works). Alex Spade (talk) 16:58, 18 May 2016 (UTC)

Thanks, I have finally been able to read this page. My understanding is this only case related to our discussion is point 12, concerning the Soyuzmutfilm cartoons. It refers to the same article 6 of Law 231-FZ that I have quoted to confirm the copyright owned by the studio on the films. You should also note that although some of these cartoon were made as early as 1946, the Court considers art. 486 of the 1964 Civil Code is applicable. Besides, I only mentioned jurisprudence because you wrote you knew of decisions and comments relevant to our discussion. In any case, despite the fact that according to the 1928 law and the 1964 law, even if the copyright of the film was not initially formally assigned to the studio it was later presumed to have been transferred as there was no other option, I agree the general idea of the current copyright law in Russia is that it is always persons, not legal entities who are the creators of films and that the initial ownership of the copyright should be appreciated in view of the legal situation as of the time of the creation of the film. In that respect, for films created after 1928 and before 1993, there is a presumption of initial transfer of copyright from the authors to the studios for the production of the film. The situation is different for a 1925 film which predates not only the 1928 copyright law but even the 1925 copyright law (which recognizes film copyright only for preexisting scripts). At the time, there was no notion of copyright on films. Two further complications stem from the facts that (1) this film is a rehash of previous newsreels (2) Kultkino was disbanded in 1926 [13]. Our problem is to clarify what happens in such circumstances. Should we consider the film as being from the start in the public domain because there was no assignment of copyright at that time ? Or that the presumed transfer of rights to the collectivity which was formally introduced in the law in 1928 was already implicit at that time ? Should we consider the copyright as gone into escheat because of the disappearance of Kultkino ? Do you really have a doubt about the fact Vertov did not consider this film as his personal property ? Finally, in terms of evidence such works of Vertov are now in the public domain, please note the Österreichisches Filmmuseum has released 14 issues of Kinonedelja (Кино-Неделя) dating from 1918-1919 as "freely available" [14]. Such would not be the case if personal copyright p.m.a. would be applicable. — Racconish^☎ 06:12, 19 May 2016 (UTC)

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Deleted: per COM:PCP - copyright situation has remained unclear. --Jcb (talk) 17:56, 24 June 2016 (UTC)