Commons:Deletion requests/Recently published historical photographs under copyright

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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.
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Reasons for deletion request -- I apologize in advance for the large amount of text here, but I can assure that none of it is fluff. The criteria from the following link is enough for deletion, but because there has apparently been some confusion during the a deletion discussion for one of the pictures, I have discussed this in detail below just in case. See here (under the unpublished works section) where the policy deals with U.S copyright on works created before 1978. Note the bottom of that section. The bottom line is that the images are not public domain because they were published recently under the USC archive even though they were created after 1978, and are held under copyright by the Basel mission. I had meant for this to be a speedy deletion request, but had made the mistake of nominating it here as I thought this was where to go for multiple images.

Basel Mission claims copyright on its pictures from various archives: (All the images (photographic and non-photographic) made available in this collection are the property of the Basel Mission and are managed by mission 21. mission 21 / Basel Mission claim copyright on the images in their possession and require those publishing any of the images -- both individuals and organisations -- to pay a user's/copyright fee). A search in the history of some previous deletion discussions of one of the photographs came to the conclusion that the picture is valid because it is in public domain as it was created before 1914. This is wrong, and I have explained why below. It is not public domain per either Indian copyright law, or U.S copyright law, which I have also explained below. Keeping a picture in commons requires the picture to adhere to the copyright laws of the other country ‘’and’’ U.S copyright law, and more specifically, the more strict criteria on commons. The key thing to keep in mind here is that even though the work was likely created around 1914, it was not ’published' until posted in the USC archive (The USC archive says that it is the publisher on the information section of the pictures).

  • First I would need to clarify that for this photo there is no direct specification that someone known as Inspector Frohnmeyer was the one who had taken the photos, as apparently a previous deletion discussion for one of the pictures had confused this. The information tables just say that it is part of the collection called “photographs from Inspector Frohnmeyer” which is part of the larger collection under photographs from the Basel Mission. Photographs from the collection of Frohnmeyer do not mean that they were taken by Frohnmeyer; it would just as likely mean that the photographs were brought to custody through him, and it is even likely true that this was a person working under the Mission. Even if Inspector Frohnmeyer was the creator, the photos were evidently not published by him as we have no evidence of any publishing prior to the USC archive’s publication. The picture would only be in public domain if this individual had ‘’published’’ the picture prior to when copyright effects would take place. Creation is not what constitutes public domain, unless it is for sure more than hundreds of years old. Evidently, the photographs part of this collection were only published in the recent USC archives. Which leads to why they fail copyright.
  • The pictures failing U.S copyright is enough for it to be deleted (at the area where it says interaction of U.S and non-U.S law) per commons criteria, but I will explain this part of it too just to be sure. The picture fails Indian copyright law, (ie., is not in public domain in India) as it has not been 60 years since the work has been published. The pictures would have been public domain if the works were published earlier during the author’s lifetime, which in this case is not only highly unlikely, but more importantly there is no evidence of that being so. Not only this, its true that the pictures was said to be created before 1914, but there is no evidence of the pictures being made before 1908 (the tag for Indian copyright has one such criteria that the picture would be in public domain if it was made before 1908). There is also no given evidence of the author of the photograph dying before 1958 either, as likely as it may be. Nevertheless, even in the highly unlikely chance that we did find that the author of the picture had died before 1958, the picture would still be deleted because it fails United States copyright rules.See here for more information on Indian copyright (under copyright rules:India).
  • Per U.S copyright rules, the standard terms do not apply with works created before 1978 but only published 1978 or later. Hence, the criterion explained here (under the section unpublished works) would apply. These terms apply in the U.S. also for foreign works. Note that the world wide web was created around 1989, and the “publishing” of the pictures in the University of California internet archive could only have happened after that minimum date as the picture was obviously published online. The real date of publishing is likely much later than 1989, but the work will still not enter public domain anyway as explained below. Anyway, it puts us in the time frame of these two copyright times.
    • If the work was published 1978 to 2002 (inclusive), it is copyrighted according to the longer of the standard U.S. rules, or until the end of 2047. (17 USC 303) It is currently not 2047.
    • If never published, or published after 2002, the work is copyrighted according to the standard U.S. rules.

No matter what the date is, the date of publication to the UC archive must fall between the dates of 1978-2002 or 2002-date of uploading to WMC. Either way, the work will not meet the minimum required date in order to enter public domain or be free from copyright. On a side note, there is also likely more of these type of photos from the mission. BreadBuddy (talk) 17:10, 16 July 2018 (UTC)[reply]

I was going off of what the Indian copyright information on commons had said. With the new criteria given, I am willing to agree that the work may be okay under Indian copyright providing that what he said was true. But Indian copyright is irrelevant to commons if it fails United States copyright, which it quite explicitly does according to here https://commons.wikimedia.org/wiki/Commons:Hirtle_chart and the main page regarding the U.S copyright, which i've linked above and also in the below discussion. BreadBuddy (talk) 20:03, 20 July 2018 (UTC)[reply]
  •  Keep There is no reason to delete these files. These are images from India from 1914, and in that case, the copyright duration is counted from the date of creation. So these went into the public domain in India in 1965, and are also free of URAA. Regards, Yann (talk) 19:21, 20 July 2018 (UTC)[reply]
@Yann: (I copied my response from the admins noticeboard to here) Even if that were the case, commons requires files to be public domain in both India and the United States if they are to be kept. The files fail copyright in the U.S because they were created before 1978, but published in the online USC archives (which has to be sometime for sure after 1989 because the www had not existed before that). Basel Mission claims copyright on them per this criteria. BreadBuddy (talk) 19:31, 20 July 2018 (UTC)[reply]
I believe that the given criteria is because the wikimedia servers are in the U.S and have to comply with U.S copyright law. I have explained this and given a link to the policy in what I've wrote in the reason for deletion. BreadBuddy (talk) 19:31, 20 July 2018 (UTC)[reply]
You are wrong about Indian copyright. It is very clearly explained in {{PD-India}} (last line). There are several reasons you could be wrong about the US copyright. If the author is known, there are in the public domain 70 years after the death of author, even if unpublished. And one author is mentioned. Then what constituted publication at that time is quite different than what it is today. We have had several discussions about that. I don't remember the details, which could be found in the archives of COM:VPC. Regards, Yann (talk) 19:43, 20 July 2018 (UTC)[reply]
  • What is explained in the commons policy literally says here https://en.wikipedia.org/wiki/Wikipedia:Public_domain#Unpublished_works would apply. The bottom of the first page on this official document and the hirtle chart ensure that this is true. Essentially all works created before 1978, if the work was published after 1978, would be under United States copyright. Now, we have no evidence of the works being published (which is very different from creation) before 1978 under any magazine or newspaper. But we do have evidence of the works being published after 1989 in the USC archive. Hence, the works are under United States copyright. This isn't my interpretation, this is just what the rules say.
  • I would like to state what it says here in the link for unpublished works that I have given. It says, " Actually, that can happen easily with photographs in archives. Remember that "publication" requires the consent of the rights holder (initially the photographer). Many historic photos may thus actually be unpublished works, unless it can be shown that they were published in olden times. Especially items like private letters or family photographs, or photos found in some album, may well be unpublished. There are special exemptions in copyright law for libraries and archives that allow them to reproduce (even for the general public) such works for non-commercial uses, but that does not constitute "publication" unless done with the authorization of the rights holder. " Keep this in mind in addition to the failing of U.S copyright law.BreadBuddy (talk) 12:08, 21 July 2018 (UTC)[reply]
  • Regarding the author, "Photographs from inspector frohnmeyer" is just the name of the collection and it does not state nor imply the person who had taken the images. Because we have no conclusive evidence or idea on whom the real photographer is, we would have to apply the precautionary principle (which you would have to do anyway because the works literally have a copyright attached to it under the file descriptions on the source).
  • I would like to remind that the files must pass United States copyright in order to be eligible for uploading in commons. Even if it does pass Indian copyright, the files would still fail U.S copyright. BreadBuddy (talk) 20:38, 20 July 2018 (UTC)[reply]
  • One very important piece of information is also said here here. I quote from this where it says " Even though many countries have accepted the rule of the shorter term based on Article 7 of the Convention, please note that the United States Copyright Act has not honored such a rule. For example, 17 U.S.C. 104A(a)(1)(B) may restore copyright on a work published outside the USA for the remaining American copyright term even if its copyright may expire sooner in its source country. This may affect works that were still copyrighted on 1 January 1996 in their source countries. This means that a work now in the public domain in a Commons user's home country might still be legally copyrighted in the USA. "Besides the fact that the works fail United States copyright, the work being public domain in India does not apply or correlate to any relation in the United States. BreadBuddy (talk) 21:51, 20 July 2018 (UTC)[reply]
  •  Delete Since the photos were created in (or around) 1914 in India, they became public domain there after 1964, per {{PD-India}}. As they were public domain in India prior to the URAA date (January 1, 1996), their copyright wouldn't have been restored in the United States by URAA. However, the available evidence appears to show that they were first published when USC put them online, so they fail the first requirement (and probably the second) of {{PD-1996}}, though they pass the third. Therefore, we have to treat these photos according to US copyright law unless it can be proven that they were first published outside the US. We don't know anything about the author of the photos, so the public domain date depends on when they were first published, per COM:HIRTLE. It seems likely that it would have been after 2002, in which case the photos will become public domain 120 years after creation (that's 2035, assuming a 1914 creation date). Since there's significant doubt over their copyright status in the US and Basel Mission claims to own the copyright to them, they should be deleted per COM:PRP. clpo13(talk) 22:54, 20 July 2018 (UTC)[reply]
  • For each of these images, an author is mentioned, so they are not anonymous, so this rule doesn't apply.
  • Also, we consider all old images to be published at the time of creation, or shortly thereafter, unless extraordinary claims. So you have to prove that they were not published. Regards, Yann (talk) 07:40, 21 July 2018 (UTC)[reply]
  • The creator of the individual pictures is not mentioned. You are speculating the author from the name of the miscellaneous collection, which you shouldn't be doing. There is no definitive author given for the individual pictures.Besides this, the original Basel mission website and archives literally state that the creator is unknown for each of the photos.

Kept: PD-India. --Jcb (talk) 15:11, 6 January 2019 (UTC)[reply]

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