Template talk:PD-Portugal-photo

Retroactivity

The 70 year term applies if a photograph was protected *anywhere in the EU* in 1995, not just if it was protected in Portugal itself. I'm not sure we have gone through every EU country's law as of July 1995 and found an example of any work which slipped through -- we generally assume they were all retroactively restored to current EU terms. I don't think the first part of this tag is valid. (See also Commons:Deletion requests/Template:PD-Austria-1932.) Carl Lindberg (talk) 04:10, 22 November 2018 (UTC)

@Clindberg: I copied this template from {{PD-Portugal-URAA}}, leaving out the PD-1996 bits. Where did I go wrong? - Alexis Jazz ^{ping plz} 04:24, 22 November 2018 (UTC)

I probably never saw that tag. I don't think Portugal applied the EU terms before the URAA date, so that 1970 date may be true for URAA purposes (which is good news for works which have expired in Portugal since). But I don't think it's valid in Portugal today. You would have to show that all such photos were protected in no EU countries at all on July 1, 1995, else they got retroactively restored. The source statement for the tags even says that (protected in *any* country of the European Union, per Google Translate), so I'm not sure how that was interpreted to mean it had to be protected in all EU countries. There is usually one country with a lower threshold which protected such works much longer than 25 years (Spain was 80pma remember), so such photographs should have been restored in Portugal too by the letter of their law. Carl Lindberg (talk) 05:03, 22 November 2018 (UTC)

I got nothing. @DarwIn: you created {{PD-Portugal-URAA}}, can you say something helpful? - Alexis Jazz ^{ping plz} 05:48, 22 November 2018 (UTC)

@Alexis Jazz and Clindberg: Hello, thanks for helping with this. The new 1997 copyright law, which applied in Portugal the EU directive for the harmonization of copyright to life+70, had two very clear conditions/specifications relating retroactivity: 1) It applied to all works under copyright in any EU country as of 1 July 1995; it "reactivated the rights"(SIC) for the successors of the authors, according to the new provision of life+70.

Some very notable works which were already in the Public Domain in Portugal had their copyright restored at the time, due to the new life+70 provision, which was specifically granted to the copyright inheritors Article 5, number 2. In particular, there was the very noticed case of the works by Fernando Pessoa, which died in 1935, was in Public Domain since 1986, had the copyright restored in November 1997, and reentered Public Domain in 1 January 2006 (as it was still PD in 1 January 1996, I presume it was not affected by URAA, and is OK for Commons, therefore?).

Anyway: Besides reactivating copyright rights to the successors of authors, the new 1997 law was specifically retroactive till 1 July 1995, applying to all works who were under copyright at that date, in any EU country Article 5, number 1. What the previous 1991 copyright law stated about photographs was: Article 34. (1) Copyright in photographic works or in obtained by a process analogous to photography. as well as works of applied art, shall lapse 25 years after the work has been carried out. (2) Where the work has not been made available to the public with the author’s consent, the copyright referred to in the preceding paragraph shall also lapse 25 years after the work has been carried out.". Copyright was not derived from the life of the author, but from creation /publishing date, so there was nothing to reactivate relating photographs created/published in Portugal before 1 July 1970, and they remained in PD.

Unless photographs taken in Portugal (and territories under Portuguese administration, such as the former colonies) taken/published before 1 July 1970 were protected in another EU country in 1995, something I find extremely improbable, not to say next to impossible, I can't see how that rationale would apply. As far as I know they are indeed in PD.

I'm giving a talk on this mater at our National Library next Wednesday, so I really appreciate your input on this discussion.-- Darwin ^Ahoy! 08:40, 23 November 2018 (UTC)

I created this template primarily to combine it with PD-1923. PD-Portugal-URAA is not strictly wrong, but a bit odd. - Alexis Jazz ^{ping plz} 09:00, 23 November 2018 (UTC)

@Alexis Jazz: Thanks a lot, it must be separated, indeed. The same needs to be done for Brazil with the URAA template, as photographs there also have a very special situation.-- Darwin ^Ahoy! 11:27, 23 November 2018 (UTC)

I was reading Commons:Deletion requests/Template:PD-Austria-1932. I'm not sure if I well understood it, but someone seems to be implying that all *kinds* of works which *would be* protected in any UE state as of 1 July 1995 would be granted the life+70 protection? If so, that is very clearly an abusive and wrong interpretation, at least taking from the Portuguese version of the directive: "a todas as obras e outras produções protegidas pela legislação de pelo menos um Estado-membro". "Works and other productions": It very clearly refers to the works themselves, not to the "kinds of works" (which would sound quite absurd, and it's not what is written there at all). This is reinforced in the 1997 law, where it is said: "a todas as obras, prestações e produções protegidas nessa data" - "to all works, performances and productions protected at that date". AT least in Portuguese, this is not dubious at all. Photographs taken in Portugal and other territories under Portuguese administration before 1 July 1970 were not protected in any member state of the EU at 1 July 1995, so I can't see how they would have had their copyrights restored when the new directive was applied in Portugal in 1997.-- Darwin ^Ahoy! 09:29, 23 November 2018 (UTC)

About this mather, please read this work by leading Law specialist Alexandre Libório Dias Pereira (University of Coimbra): O Tempo e o Direito de Autor, which is specifically about the transposition of the CE directive into the Portuguese law in November 1997. It leaves no doubt about the sentence "a todas as obras e outras produções protegidas pela legislação de pelo menos um Estado-membro" referring to very concrete works, and not generic types of works, referring that it was also included a disposition there to protect the rights of people that could have been exploring those specific works while there were in Public Domain, to prevent them from paying for those rights retroactively. It also states that the transposition to the Portuguese law only applies to the works protected by 1 July 1995, and to the successors of the ones that would have their rights reactivated, resultant from the previous disposition. It very clearly does not apply to all creators, but only to those that had their rights reactivated by the retroactivity to 1 July 1995. It ends referring that the transposition to the Portuguese law is only retroactive till 1 July 1995 (as stated in the November 1997 law). I hope this helps clarifying this issue.-- Darwin ^Ahoy! 10:01, 23 November 2018 (UTC)

About the notable case of Fernando Pessoa: This case was noticed after 1997, when the nephew of Fernando Pessoa made a deal with a publisher (Assírio & Alvim), so that they could explore the rights that were supposedly reactivated back then, by the extension of life+50 to life+70 derived by the transposition of the 1993 CE directive into the Portuguese law in Nov. 1997. This case apparently was never brought to court, at least that I could find out. It seems to have been based on the interpretation that the rights of the successors of *any work* would be extended by this law, ignoring the provision that stated that it only applied to works under protection by 1 July 1995, in any member state. Not only this seem to have never been tested on court, and goes against the interpretation of Alexandre Libório Dias Pereira stated above, but it actually seems to have been an abusive and unlawful interpretation by some private individuals of the transposition of the CE directive into the Portuguese law back then. In 2016 the Court of Justice of the European Union has ruled that Directive 93/98/EEC harmonizing the term of protection of copyright in the EU does not have the effect of restoring or reviving rights that, prior to its entry into force (1 July 1995), were for any reason in the public domain in all the EU Member States. Photos taken in Portugal before 1 July 1970 not only were in the Public Domain in all member states, but there would not have been any copyright to "extend" there, as they were not included in the life+50 provision of the former Portuguese copyright law. Frankly, I don't see any reason to doubt the Public Domain state of those works here.-- Darwin ^Ahoy! 11:22, 23 November 2018 (UTC)

@DarwIn: Photos taken in Portugal before 1 July 1970 [...] were in the Public Domain in all member states. I guess that is the question. How were they PD in every member state in 1995? For example, the UK protected photos for 50 years from creation (and, after 1957, 50 years from publication). Any EEC country qualified for that protection the same as UK authors. So, a Portuguese photo taken in say 1960 would have still been protected in the UK in 1995, thus Portugal would have been obliged to restore the work, correct? And I'm sure there were countries (say France) with no separate terms for photographs, so they would have been 50pma there (subject to their threshold of originality, which may not have included all photographs, but certainly some). Or Belgium, which also had no special photograph terms, and were 70pma. The Netherlands was 50pma for photos, and I think extended that protection to any country of the European Economic Area. Wouldn't you have to go through the law of every EU country as of July 1, 1995, and show how the work was PD in that country ? Carl Lindberg (talk) 13:57, 23 November 2018 (UTC)

@Clindberg: No, I don't believe it is correct. According to the Montis EU court case, "Article 10(2) of Directive 93/98, read together with Article 13(1) thereof, must be interpreted as meaning that the terms of protection laid down by that directive do not apply to copyright which was initially protected by national legislation but which was extinguished prior to 1 July 1995.". Nobody needs to go through the law of every EU country as of July 1, 1995 to check if copyright would have expired in everyone of them. That seems to have been an abusive and unwarranted interpretation of the 1993 CE directive, which derived from an equally abusive interpretation of the non-discriminatory principle stated in the old Phil Collins case, inverting it and (ab)using it, in the supposition that after one work entering Public Domain in its own country, the author could bypass his own country law and sue for copyright in foreign jurisdictions for decades on the rights of the already PD work. Despite the obvious fact that such supposition is not even hinted at all in that Phil Collins case (quite the opposite, indeed) this seems to have made some school - at least there is some odd Hamburg regional court sentence applying it that way back in 2003 - but it was thankfully clarified by the mentioned 2016 EU court sentence. In the case at hands, those photographs had protection in Portugal under the national law, but it had already expired by 1 July 1995, so there was nothing to restore there.-- Darwin ^Ahoy! 15:02, 23 November 2018 (UTC)

@DarwIn: That is indeed an interesting case, and I'm still digesting it, but some parts of it worry me to extrapolate too far. First, that was about applied art, which do not have to be protected by copyright law (per the Berne Convention); the works in question were from before the EU harmonization (as was the extinguishing event). Secondly, that case makes repeated mentions of copyright that was "extinguished". I do remember reading that the UK abolitions of Nazi war-era copyrights were deemed "extinguished" and not "expired", and thus the EU directive did not apply to them (since that was only for works which "expired" and were not "extinguished"). The court here also states that the EU directive should have applied to any work still protected in any Member State; I still haven't completely figured out the logic whereby the court ruled that did not apply in this case, but it *might* be due to a similar distinction. This article on the decision does say it is "narrow" because there aren't many other examples where works were dependent on formalities like that one, which could "extinguish" the copyright. So, I do worry that the decision is not applicable to many other situations, where you say that it makes all of the copyright extensions non-retroactive in all EU countries, despite the wording of the directive and the same wording being added to EU copyright laws. Or, now that I look at it, it seems that it ignored that part of the EU directive in paragraph 26 of the ruling, as In the course of the procedure, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) dismissed the argument relied on by Montis that one of the chair models concerned still qualified, as at 1 July 1995, for protection in a Member State other than the Kingdom of the Netherlands, on the ground that that argument had been submitted out of time. So, because the plaintiff did not bring up that argument in time in the lower courts, the court did not allow the argument, and thus did not actually rule on it at all. So I'm not sure that is a precedent for us on my question above. Carl Lindberg (talk) 21:04, 23 November 2018 (UTC)

Looking more, the decision references "paragraph 63" of the Advocate General's opinion. That is here:

62. However, in reply to a question posed at the hearing as to whether the chairs were protected by copyright in any Member State (since in the documentation presented the validity of those rights in Germany appeared to be a matter of contention), both Montis and Goossens bluntly answered ‘no’.

63. We must assume therefore, as a proven fact, that on 1 July 1995 the Charly and Chaplin chairs lacked copyright protection in any State of the European Union. Consequently, Montis cannot invoke the retroactive effect of Article 10(2) of Directive 93/98, relying on the first alternative requirement which triggers it.

So it looks like the court took that reasoning, in that both parties had agreed that the work was not protected in any Member State, and thus did not examine it further. They worded it, in paragraph 32 of the actual ruling, and, on the other, it must be held that, on that date, those works were not protected in any other Member State., based on the "file before it" (I guess referring to paragraph 26) and paragraph 63 of the Advocate General's report, both of which seem to be technicalities of the particular case in that the plaintiff did not press that argument (or do so in time), so it's not generally applicable. Interestingly, paragraph 40 of the Advocate General mentions The Portuguese Government considers that the principle of revival of copyright is contrary to the objectives of Directive 93/98, as Portugal also submitted an opinion (which I can't find the text of), so it could be there is some resistance in Portuguese law to such revivals of copyright (though they also allowed for the CJEU not accepting that thesis, and I don't see anywhere the CJEU agreed). Past CJEU cases like Sony seemed to make clear that revival could happen so long as protection was there in any other Member State, even when a work had never been protected in the Member State where protection was sought. The Montis case seemingly just ruled that those particular works were not protected in any Member State in 1995, taking on faith the declarations of the parties. Carl Lindberg (talk) 15:00, 24 November 2018 (UTC)

@Clindberg and DarwIn: this discussion should be copied/moved to COM:VPC. If this would end up resulting in the deletion of this template, this talk page would also be deleted. - Alexis Jazz ^{ping plz} 10:41, 24 November 2018 (UTC)

@Clindberg: Thank you very much for all your extremely helpful insight (as always). This week I'm in a series of events, and time for anything elseis very short, but this case is very important (not to say crucial) to some of them, actually. My impression at this point is that it would be impossible that the Montis chairs would not be protected in any EU country that protected copyright for applied arts. And that the EU court do not even considered that as an option, but rather asked the parties if they knew of a such a copyright, because it could have been purportedly registered and protected elsewhere (not automatically protected).-- Darwin ^Ahoy! 11:11, 25 November 2018 (UTC)

@DarwIn: Understood, there is no rush, but it would be good to get to the bottom of it eventually. That point you mention is a bit odd -- it would have had to have been protected in one Member State at the time. On the other hand, if both parties agree on something, then it is unnecessary for the court to spend time on it -- they are there to rule on the differences between the parties, and maybe there is a rule to that effect. You'd think the CJEU would want to cover all bases though, as they are making precedents. But even that ruling stated that if a work was protected in any Member State, it was subject to revived copyright -- they did not disagree with that premise at all -- but they did not rule that happened, so I was trying to figure out why. And it seems like it was more on a technicality that was dismissed, while they instead ruled on the other arguments that were brought up by the plaintiffs, namely that the law which extinguished the copyrights violated the Berne Convention, and also an earlier EU directive. For those, the CJEU ruled that the Berne Convention was not enforceable at the EU level until 1996 sometime (and even ignored the part of Berne which does not require applied art to be covered by copyright at all, so countries should presumably have fairly free reign including formalities to protect it how they see fit), and the earlier EU directive did not cover applied art at all so was inapplicable. But then there is that wording you quote in the summary, which maybe was only intended to mean in the scope of the Berne Convention, and since the law was valid, the copyrights did not exist at least in that country in 1995. But by itself, it sure does sound like the scope of that last summary statement was wider. I just can't find any basis for that wider meaning in the rest of the ruling -- it sure seems like the part about being protected in any Member State was simply avoided in the ruling (and one commentary I read said that was probably Montis' best argument, and they didn't even use it). But if that is the case, then the next person could make that argument, and could well win. Earlier CJEU rulings have said the goal of the directive was to harmonize the terms as quickly as possible, and have ruled on that basis -- thus was the rationale of reviving the copyrights, rather than leaving different non-retroactive terms for a long time. Carl Lindberg (talk) 17:41, 25 November 2018 (UTC)

@Clindberg: The time thing is just for me this week, not for this matter, which indeed should only be closed when there would be some good degree of certainty about it. This matter is crucial for one of the events, as I'll talk about licensing here in Portugal, but it does not need to be settled by then at all. Actually it was very helpful that all this was questioned *before* it. I asked for help here to find court cases dealing with the harmonization of copyright here in Portugal, to see what is the court interpretation there.-- Darwin ^Ahoy! 08:14, 26 November 2018 (UTC)

@Clindberg: Next Tuesday I'll be at the EU Copyright Event we are organizing here with Tito Rendas, who wrote the Portuguese Government report for the 2016 court sentence, I'll ask him about this.-- Darwin ^Ahoy! 19:18, 2 December 2018 (UTC)

@Clindberg Apologies for only returning now to this subject. I talked about this with teresa Nobre and other jurists and lawyers specialized in copyright, and they do not supported the thesis that the harmonization of the European copyright law extended to retroactivity. Not only there is not any shred of evidence that it was considered, but it is stated very clearly in the writings of Alexandre Libório Dias Pereira, José de Oliveira Ascensão and other notable jurists that there was indeed retroactivity, but to 1 July 1995, as stated in our 1997 transposition law, and not to dates calculated from protection terms related to other countries - and that the harmonization was not full in Portugal. I really don't see how one can take a ruling in some German court and attempt to make illactions about how the law works in Portugal. Unless there is strong evidence that counters the writings of our jurists, I don't think that the cut date of 1 July 1970 for photos being Public Domain (25 years before 1 July 1995, as stated in our copyright law before 1997 concerning photo copyright) can be challenged. Darwin ^Ahoy! 01:34, 9 December 2023 (UTC)

Around the time of this original discussion, this case was also brought up at Commons:Deletion requests/Template:PD-Austria-1932, which resulted in deletion of that template. Agreed that a specific ruling by a Portuguese court would have precedence, but the EU directives are supposed to apply to *all* EU countries, and the broad strokes are supposed to be the same. So, other EU courts applying the same basic law would be of interest, and unlikely to be so dramatically different in other countries. Even the ruling in this particular case does mention that -- At the outset, it must be recalled that Article 10(2) of Directive 93/98 provides that the terms of protection provided for in that directive are to apply to all works and subject matter which, on the date referred to in Article 13(1) of that directive, namely 1 July 1995, are either protected in at least one Member State, pursuant to provisions of national law on copyright, [...].

Since other member states had longer terms of protection in 1995, I'm not sure we have yet to find any type of work which was not protected in at least one member state to the full EU term -- so we basically assume full retroactivity, as aggravating as it is (and which may have been opposed by some member states). The Portuguese law from 1997 implementing the directive is here; the translation seems similar. It does say that the terms of that law date from 1995, so I guess they consider some of the terms applying as of that date. It does mention the reactivation of rights, and even says that authors' heirs benefit, something which would be unlikely if the retroactivity was really meant to only be for a period of two years. Os sucessores do autor beneficiam da reactivação dos direitos decorrente do disposto no número anterior, sem prejuízo dos actos de exploração já praticados e dos direitos adquiridos por terceiros. Maybe Google translate isn't great on that, but that seems to be their law. I really can't see how to read that in another way which limits the restorations. It's now unlikely to have any test case in Portugal, since after 20 years everything that got re-activated, expired again so the question is now pretty much moot. Carl Lindberg (talk) 03:14, 9 December 2023 (UTC)

@DarwIn: I don't quite follow. The relevant clause seems to be here, DL n.º 334/97, de 27 de Novembro, article 5:

• "As disposições deste diploma são aplicáveis desde o dia 1 de Julho de 1995 e aplicam-se a todas as obras, prestações e produções protegidas nessa data em qualquer país da União Europeia." which Google translates to
• "The provisions of this diploma have been applicable since July 1, 1995 and apply to all works, performances and productions protected on that date in any country in the European Union." DeepL translation is
• "The provisions of this law apply from July 1, 1995 and apply to all works, performances and productions protected on that date in any country of the European Union." and Firefox Translations says
• "The provisions of this Decree-Law apply from 1 July 1995 and shall apply to all works, performances and productions protected on that date in any country of the European Union."

So it says that the law (DL n.º 334/97, de 27 de Novembro) applies to all works, performances and productions protected on July 1, 1995 in any country of the European Union. That's the same clause as in the laws of other countries (Germany, Netherlands, UK as mentioned above, most likely others). That clearly says retroactivity for everything protected on that date anywhere in the EU. It does not say retroactivity for anything freshly created from July 1,1995 onward, which would be a bizarre thing to say in any case because if your law is valid from that date anyway, why would you need retroactivity for works created/published on that date or later? --Rosenzweig τ 10:36, 9 December 2023 (UTC)

@Rosenzweig So, we have the statements from a number of relevant Portuguese jurists saying that the harmonization was not full in Portugal and retroactivity was exactly to the 1 July 1995, and not any shred of evidence that other country copyrights on works from Portugal were ever imported by 1997 when the EU copyright harmonization passed into law in Portugal - why do you keep using an Hamburg court sentence from 2004 about a German work to attempt to decide what was and was not protected in Portugal by 1 july 1995? I really don't follow. Darwin ^Ahoy! 15:02, 9 December 2023 (UTC)

@DarwIn: I do not "keep using an Hamburg court sentence from 2004" etc. I did not even mention it in what I wrote above. I just read the text of that Portuguese law, which clearly says that it applies to all works protected on July 1, 1995 in any country of the European Union. Why do you insist that this is not the case, contradicting the law's text? You seem to think that "[p]hotos taken in Portugal before 1 July 1970 [...] were in the Public Domain in all member states", or "Photographs taken in Portugal and other territories under Portuguese administration before 1 July 1970 were not protected in any member state of the EU at 1 July 1995", as you wrote above. How do you know? Portuguese works, including photographs, were protected in other countries, according to their laws. They were protected in Spain on that date (unless they were "simple" photographs which are still protected for only 25 years in Spain). They were protected in Germany on July 1, 1995, accd. to Germany's copyright law which had been changed on June 23, 1995. So if they were protected there on July 1, 1995, why do you claim that Portuguese photographs "were not protected in any member state of the EU at 1 July 1995"? --Rosenzweig τ 16:11, 9 December 2023 (UTC)

@Rosenzweig It was kind of a "collective you", in this context, sorry for not being clearer. The thing is, all experts on this area I've been contacting since 2018 have not supported the interpretation that such disposition would have as a consequence importing foreign laws of copyright and applying them over the Portuguese own laws of copyrights for works created in the country, effectively reverting the Puiblic Domain status of Portuguese own works. More concretely, they told me that if such (quite far fetching, in their opinion) interpretation is possible, something more clearer and strong evidence must exist, besides the interpretation of a regional German court dealing with a German work. This interpretation explicitly contradicts article 5 of the Berne Convention, which states: "Protection in the country of origin is governed by domestic law." In any case, I'll contact Professor Alexandre Libório, who has been writing in the subject, about this, to get his opinion. Darwin ^Ahoy! 18:46, 9 December 2023 (UTC)

I think we are trying to figure out how jurists could come to that conclusion. Portugal appears to have implemented the same directive that all other EU countries at the time did, with the same wording, and it was supposed to act the same there as everywhere else. Could you translate Os sucessores do autor beneficiam da reactivação dos direitos decorrente do disposto no número anterior, sem prejuízo dos actos de exploração já praticados e dos direitos adquiridos por terceiros? I would certainly agree that you could not prosecute anyone for using a restored work before 1 July 1995 -- laws can't be retroactive in that way -- but it certainly appears that afterwards, those works were restored and under copyright, with the terms in the new law applying. From the notes of the case, it does appear the Portuguese government was opposed to the idea of restoring works, but seems to have accepted that happened (given the wording in the 1997 law), and they consider that 1 July 1995 was the actual date of restoration, meaning it was works which expired before then which were restored. The Portuguese Government considers that the principle of revival of copyright is contrary to the objectives of Directive 93/98, but, in case the Court of Justice should not accept that thesis, it considers that the revival of extinguished copyright occurs, under that directive, regardless of the reason for its extinguishment, particularly if it was contrary to the Berne Convention. Therefore, it suggests that the answer to the third question should be that the date of revival of Montis’s copyright is 1 July 1995.. How would that latter interpretation, that Montis should get a revival, jibe with the jurist opinions? Carl Lindberg (talk) 16:12, 9 December 2023 (UTC)

I think the wording "importing foreign laws of copyright and applying them over the Portuguese own laws of copyright" is rather strange. If the Portuguese law itself says that it applies to all works protected in any EU member country on July 1, 1995, how is that "importing foreign laws of copyright"? It's a Portuguese law, not a foreign one. --Rosenzweig τ 18:54, 9 December 2023 (UTC)

@Rosenzweig That interpretation of the 1997 transposition makes Portuguese works subject to the Spanish laws of copyright, directly contradicting article 5 of the Berne convention: "Protection in the country of origin is governed by domestic law." I don't think this is a possible interpretation, nor I've found any evidence supporting it. Darwin ^Ahoy! 20:06, 9 December 2023 (UTC)

But DL n.º 334/97, de 27 de Novembro (which says that it applies to all works protected in any EU member country on July 1, 1995) is a domestic Portuguese law. --Rosenzweig τ 20:52, 9 December 2023 (UTC)

@Rosenzweig This increasingly looks like the never ending discussion of the chicken and the egg. Of course 334/97 is a domestic law, but applying it in a way that would enable the Spanish (and other countries) copyright laws on works originated in Portugal would directly contradict point 5 of the Berne Convention. Darwin ^Ahoy! 21:33, 9 December 2023 (UTC)

@Clindberg It would be something like this: "The successors of the author benefit from the reactivation of the rights resulting from the provisions in the preceding paragraph, without prejudice to the acts of exploitation already performed and the rights acquired by third parties." This applies to the retroactivity of the Decree Law to the 1 July 1995 date (the previous point). I can't find any evidence this implied any restoration of copyrights at all, nor anyone else has brought it here, so I'm a bit lost at why we are still discussing this and kind of inverting the burden of proof asking for sources of something that apparently never happened, and which would actually contradict the dispositions of the very Berne Conversion it is supposed to be enforcing and harmonizing, namely article 5. Indeed, looking at the quote you mentioned of the Portuguese Government declaration related to the Montis case, it particularly refers to cases contrary to the Berne Convention, which is the exact opposite of what we have here: Breaking the Berne Convention in order to enforce in Portugal a quite far-fetched and foreign interpretation, resulting from a German regional court sentence, of the Directive 93/98. Darwin ^Ahoy! 20:19, 9 December 2023 (UTC)

@DarwIn: You've lost me here, I can't see any logic in what you write. There is no breaking of the Berne Convention here, the law we're talking about here is a Portuguese law and not a foreign (in Portugal) law, and the Hamburg decision is just showing how the German courts have handled an identical clause in German law. Namely, that any works (regardless of origin, German or not) that are protected by copyright in another EU country on July 1, 1995 are also protected by copyright in Germany. --Rosenzweig τ 20:52, 9 December 2023 (UTC)

@Rosenzweig A Portuguese law that you claim can be interpreted in a way that would use the Spanish law of copyright to regulate works originating in Portugal before 1 July 1995. How come this interpretation do not contradicts point 3 of the §5 of the BC? And what evidence exists at all for such an interpretation in the Portuguese legal texts and jurisprudence? Darwin ^Ahoy! 21:36, 9 December 2023 (UTC)

And btw, if anyone wants to look up the Hamburg decision, it's here. It's by the Oberlandesgericht Hamburg, a tier 3 court (if tier 1 is the lowest tier) directly below the Federal Court of Justice (Bundesgerichtshof), which would be tier 4. --Rosenzweig τ 20:59, 9 December 2023 (UTC)

PS: If I interpreted the facts in the decision correctly, it's about a photo by en:Lothar-Günther Buchheim (known for Das Boot). --Rosenzweig τ 21:28, 9 December 2023 (UTC)

@DarwIn: I can't tell you if there is any evidence in Portuguese court decisions and legal commentaries, I did not search there, and the little Portuguese I know would not be enough to conduct such a search. I just read what the law says, and it clearly says that it applies to all works protected in any EU member country on July 1, 1995. And I still don't think that if the domestic Portuguese law says that it would be to "use the Spanish law of copyright to regulate works originating in Portugal before 1 July 1995". If the Portuguese lawmakers decided to write that into the law, it's a Portuguese law and a Portuguese decision. That they maybe didn't really want to do that (which may explain why it took until 1997?) is another matter. In the end, they did. --Rosenzweig τ 21:50, 9 December 2023 (UTC)

@Rosenzweig No, that's not true. As the quote from the Montis case report shows, that interpretation was not the intention nor the interpretation of the Portuguese Government: "The Portuguese Government considers that the principle of revival of copyright is contrary to the objectives of Directive 93/98". They didn't want to do that, and effectively they didn't. That interpretation of the Portuguese law AFAIK only exists here in Commons. Darwin ^Ahoy! 22:46, 9 December 2023 (UTC)

@DarwIn: So what do you think "As disposições deste diploma [...] aplicam-se a todas as obras, prestações e produções protegidas nessa data em qualquer país da União Europeia" (the date referred to being July 1, 1995 as mentioned in the section I have cut for clarity) is supposed to mean? Why did they write it into the law? What is the purpose of that (half) sentence if not retroactivity? --Rosenzweig τ 22:55, 9 December 2023 (UTC)

@Rosenzweig It refers to the country of origin of the works, following what is stated in point 3, §5 of the BC and what the Portuguese Government interpreted as the spirit of 93/98/CEE. It does not cover the restoration of copyrights by the application of alien law over domestic law, per the Portuguese Government declaration mentioned above. Darwin ^Ahoy! 23:04, 9 December 2023 (UTC)

@DarwIn: Why would one need or want to refer "to the country of origin of the works" there, and why only to the EU countries? What is the point and purpose of that? Are works from countries which are not mentioned there (among them the majority of the signatories of the Berne Convention) not protected in Portugal by Portuguese copyright? --Rosenzweig τ 23:41, 9 December 2023 (UTC)

@Rosenzweig Only to the EU countries because that was exactly the purpose of 93/98/CEE. It's a CEE (now EU) directive, not from somewhere else. The purpose was to harmonize the application of the BC, most notably focused on protection terms, of which there was considerable and unwanted diversity inside the Union. Darwin ^Ahoy! 23:48, 9 December 2023 (UTC)

@DarwIn: As you wrote above in 2018, the copyrights of the works of Fernando Pessoa, which had been in the public domain in Portugal since 1986, were restored in 1997 (and have since entered the public domain again in 2006). Why were those copyrights restored if, as you repeatedly wrote, the retroactivity of the 1997 law only goes back to 1995? I don't understand that. --Rosenzweig τ 21:52, 10 December 2023 (UTC)

@Rosenzweig No, they were not. That was a mere claim from a nephew or something like that. Darwin ^Ahoy! 23:01, 10 December 2023 (UTC)

@DarwIn: You are directly contradicting this press article (linked by yourself above) that says that Pessoa's works did return to the "private domain", meaning they became copyrighted again. Editions that had already been published while Pessoa's works were in the public domain could remain on the market (per the transitory provision already mentioned above, sem prejuízo dos actos de exploração já praticados e dos direitos adquiridos por terceiros = without prejudice to the acts of exploitation already performed and the rights acquired by third parties as translated by you), but only the publisher which had bought publishing rights to Pessoa's works from his niece could publish new editions for the next few years. Until the beginning of 2006, when Pessoa's works entered the PD again and the other publishers could continue their editions again, which is what this press article (from the end of November 2005) describes. I don't see how you come to the conclusion that this was "a mere claim" when it is clearly described as fact in that article. --Rosenzweig τ 23:39, 10 December 2023 (UTC)

Here is another press article saying exactly the same. --Rosenzweig τ 23:45, 10 December 2023 (UTC)

Here is one from Brazil, and here is a 2023 blog post, both also saying that Pessoa's works were copyrighted again in 1997. --Rosenzweig τ 23:50, 10 December 2023 (UTC)

@Rosenzweig As the article says, that's the unsourced claim of Assírio & Alvim (a Portuguese publisher), after a commercial arrangement they have done with his nephew or something like this. That's not a reliable source for anything. All other sources simple parrot the same thing, never explaining how come they imagined that work would have reentered copyright. Darwin ^Ahoy! 00:50, 11 December 2023 (UTC)

@DarwIn: So it was all a giant scam by some money-grabbing heirs, and all the other publishers they cite who say they could not continue their editions for several years are all stupid fools because they fell for it? Along with the various journalists writing these articles? Is that what you think? --Rosenzweig τ 00:57, 11 December 2023 (UTC)

It's just a matter of costs. For the most notable Portuguese publishers, it was worth paying it instead of risking being taken to court by Assírio & Alvim. But I seem to recall it kept being published elsewhere. It was not "giant", anyway, AFAIk was just some little something to gain a few bucks for 10 years or so (not much, AFAIK). You will notice that the reasoning for the alleged copyright revival is never mentioned, nor there is any legal text supporting it in anyway, AFAIK. Darwin ^Ahoy! 01:09, 11 December 2023 (UTC)

By the way, as far as I know, this was never ever supported by any court or even some other juridical source. After the arrangement with the Pessoa relative, the publisher started claiming that, apparently menacing to sue and offering arrangements for a good price - allegedly considerably less than the other publishers would spend to taking it to court - so they seem to have got away with it. It seems to have been just a commercial operation of bullying the other publishers into paying a fee, which apparently worked out with a couple of them. They never sued anyone, AFAIK. Darwin ^Ahoy! 00:59, 11 December 2023 (UTC)

I agree with most, if not all, points raised by Rosenzweig above. At the outset, the posture of this issue in Darwin's comments seems somewhat off to me. As I see it, it is generally agreed that the Term Directive intended for a revival of protection of certain subject matter in jurisdictions where protection of said subject matter had lapsed before 1 July 1995. For one, the CJEU expressly said as much (twice). To recall, in Butterfly v. Briciole de Baci (C-60/98), the Court held that "[i[t is clear from Article 10(2) of the Directive that application of the terms of protection laid down by the Directive may have the effect, in the Member States which had a shorter term of protection under their legislation, of protecting afresh works or subject-matter which had entered the public domain." Secondly, legal commentators from all parts of the EU, both pre- and post-Butterfly, have written on the issue and understand both the Directive and the CJEU's jurisprudence the same way. The leading UK textbook on copyright law to this day gives the following practical example of the provision's effect: "As it turned out, this meant not only that the copyright in many works was extended, but also that the copyright in some works that had previously expired had to be revived. For example, the UK copyright in a work by a British author who died in 1944 and which had first been published in the United Kingdom would have lapsed on 1 January 1995, but would have been revived from 1 January 1996, since the work would have been protected in Germany (which already operated a life-plus-70 term) on 1 July 1995." L Bently and others, Intellectual Property Law (6th edn, Oxford University Press 2022) 199. And if anyone needs 5 more references for this in addition to those already cited in Commons:Deletion requests/Template:PD-Austria-1932, I can give you 5 more; and if you need 10, I can give you 10. But I don't think there's any point to that—the CJEU decisions and the text of the Directive are sufficiently clear. The "But it's all just because of a Hamburg Court!" myth is of Darwin's making. The PD-Austria-1932 deletion request never relied on the decision from Hamburg but was based on the text of the directive, the decisions by the CJEU and the views of legal commentators from all across the EU. Then, in response to Darwin saying in the DR that they are "still confused," I pointed to said decision by the Hamburg Court of Appeals, which simply followed (applied) the CJEU's decision. Darwin then started—and seems to continue on that path here—to reframe the entire issue as being rooted in some crazy Hamburg judges misunderstanding everything. Of course, this is simply divorced from reality.

The argument that any of this contravenes Article 5(3) of the Berne Convention is extremely far-fetched and unconvincing on its face. Article 5(3) of the Berne Convention, Paris revision, reads as follows: "Protection in the country of origin is governed by domestic law. However, when the author is not a national of the country of origin of the work for which he is protected under this Convention, he shall enjoy in that country the same rights as national authors." To begin with, by no stretch of the imagination is protection of a work in country A "governed" by the laws of another country merely because country A decides to protect certain subject matter if it is protected in country B. The protection in A is still, in both existence and scope, governed by A's laws. Besides, the argument misses the point of the first sentence of Article 5(3) entirely. Article 5(3), first sentence (i) seeks to allow countries to treat its own citizens worse than foreigners by allowing them to not accord their own citizens "the rights specially granted by this Convention" (compare Berne Convention, Article 5(1)) (see S Ricketson and JC Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (3rd edn, Oxford University Press 2022), para 9.55; as relied upon by the United States, for instance, cf 17 USC s 104A); (ii) and clarifies that countries cannot exempt foreigners first publishing there from protection under their national copyright laws as was the practice in some countries (see G Boytha, "Some Private International Law Aspects of the Protection of Authors' Rights" (1988) 24 Copyright 399, 409). It is, in addition, not advisable to disregard the jurisprudence of the CJEU by just vaguely claiming that it somehow violates treaty obligations. Even if someone could come up with scholars or courts taking such a view, this would be an extreme conclusion to draw in light of Commons:Project scope/Precautionary principle, but, again, at this point the claim is entirely unsourced.

With that in mind, I believe, as Carl Lindberg seems to do, that the pertinent question here should simply (well, "simply") be whether Portugal departed from the Term Directive. Again, this is not a 'reversal' of a 'burden of proof' as Darwin claims. It is simply a logical consequence of the fact that Portugal is treaty-bound by the EU aquis, which includes the Term Directive, and has even transposed the latter into national law. It seems to be understood in Portugese copyright law that the CJEU's interpretation of copyright-related directives prevails over the guidance of national courts and has a binding effect on them (JA Vieira, Direito de Autor: Dogmática Básica (Almedina 2020) 34). On the matter of Portugese domestic law, Darwin remarks that "it is stated very clearly in the writings of Alexandre Libório Dias Pereira, José de Oliveira Ascensão and other notable jurists that there was indeed retroactivity, but to 1 July 1995, as stated in our 1997 transposition law, and not to dates calculated from protection terms related to other countries." Alas, no citations to these writings are provided. Please do so, @DarwIn, I'd be happy to review them, or at least try to. (As a sidenote, Darwin's statement is again apparently based on a misconception since nobody has ever claimed that the "dates [are] calculated from the protection terms related to other countries". Rather, the Term Directive requires that if a work was protected in one member state on 1 July 1995, then it must also be protected in Portugal for 70 years after the death of the author (pma) as that is the term specified in Article 1(1) of the Term Directive. It does not matter how long the work is protected elsewhere. If, say, Spain has historically protected photographic works for 80 years pma and the author of a given photographic work died in 1920, then the (expired) copyright in the Netherlands would not have had to be revived as a result of the Term Directive because the 70 years pma in Article 1(1) of the Term Directive had already run out.)

I took the time today to browse through several (mostly text)books on Portugese copyright law (namely: Vieira, Direito de autor, 2020; Rebello, O direito de autor nos tribunais portugueses, 2019; Leitão, Direito de autor, 2nd edn, 2018; Mello, Manual de direito de autor e direitos conexos, 2nd edn, 2016; Pereira, Direitos de autor e liberdade de informação, 2008; Estela, Código do direito de autor e dos direitos conexos, 2008; Rebello, Código do direito de autor e dos direitos conexos, 3rd edn, 2002). Now, I don't speak any Portugese, so my means are limited, but either way I could find only one work, the most comprehensive one, that actually discussed the issue(s) emanating from Article 10(2) of the Term Directive. Luiz Francisco Rebello, in his treatise on Portugese copyright law, remarks the following, translation courtesy of DeepL (boldface added):

"The 1985 Code maintained the term of fifty years p. m. a., but this was extended to seventy [...] by Community Directive n.° 93/98, transposed by Decree-Law n.° 334/97, Article 5.°-1 of which states that it applies "to all works, performances and productions protected on 1 July 1995 in any country of the European Union". This resulted in the reactivation of copyrights (we won't go into related rights for now) which had lapsed as of 1 January 1975, according to the Portuguese legislation in force at the time, but which still existed in countries such as Germany and Austria, where the term of protection extended for a further 20 years, regardless of the duration established in the country of origin.
[...]
"Since, however, the directive was not transposed into our legal order until 28 October 1997, and not until 30 June 1995, as required by Article 10.°-2 of the directive, the question arises as to whether the reactivation of rights operates from 1 July 1995 or only from the entry into force of Decree-Law n.° 334/97. There is no doubt that the responsibility for damages resulting from delays in transposing Community directives lies with the states to which they are addressed, but there is a debate about their direct effect on relations between private individuals, such as those established in the field of copyright. The case law of the Court of Justice of the European Communities allows us to conclude that they are immediately applicable [...], which is confirmed by the prevalence of international rules over domestic law, imposed by Article 8.°-2 of the Portuguese Constitution. In the same vein, see the judgment of the Supreme Administrative Court of 1 April 1993 (Boletim M.J., n.° 426, 1993, pp. 296 et seq.)."

LF Rebello, Código do direito de autor e dos direitos conexos: anotado (3rd edn, Âncora 2002) 74f. This appears to clearly support the concerns articulated by Carl Lindberg and Rosenzweig above. The first item in Template:PD-Portugal-photo should be removed.

Best, — Pajz (talk) 18:28, 15 December 2023 (UTC)

@Pajz Thank you for your analysis and sources. I would like, however, to point out that the vision of a former president of the Portuguese Society of Authors (SPA) - Luiz Francisco Rebello - about copyright is anything but a neutral source, given the fact that this institution is very well known as an activist and lobbyist for promoting the most favourable terms for its members. On the other hand, we have the clear declaration by the Portuguese Government official on the Montis case that, on the view of the Portuguese Government, the DL 334/97 was not reviving any copyright, so it seems clear that Rebello was not really doing any neutral or well based approach, but merely defending his personal/SPA POV. I don't think such an opinion should in good conscience be taken into account.

At this point, I believe what needs to be decided is:

• Is there any evidence at all that in Portugal copyrights were effectively revived by DL 334/97, despite the Portuguese Government claiming they were not?
• If there is not, is Commons "wikiargumentation" enough of a basis to declare, without any other evidence (at least one which is not from such an abominable source as the SPA), and actually countering the available declaration by the Portuguese Government, that in Portugal copyrights were effectively revived by DL 334/97?

Best, Darwin ^Ahoy! 15:39, 17 December 2023 (UTC)

I can't see that logic either. The full quote is: The Portuguese Government considers that the principle of revival of copyright is contrary to the objectives of Directive 93/98, but, in case the Court of Justice should not accept that thesis, it considers that the revival of extinguished copyright occurs, under that directive, regardless of the reason for its extinguishment, particularly if it was contrary to the Berne Convention. Therefore, it suggests that the answer to the third question should be that the date of revival of Montis’s copyright is 1 July 1995.

So, OK, the Portuguese government disagreed with the principle of revival of rights in the first place. That's fair (and I wish their argument had won out), but the EU ended up imposing it anyways. The government was quite aware that interpretation would almost certainly not fly, as they go on to say say in case the Court of Justice should not accept that thesis (which the CJEU clearly did not), and give an alternative in case the revival did in fact happen. In that alternative, the Portuguese government thinks the revival of rights happened in 1995. Montis' rights had expired under the old law before 1995, so if what you are saying is true (that nothing that expired before 1995 could regain copyright), then there is no basis for the second half of their statement. The Portuguese government cannot overrule the EU as a whole, I don't think. That statement, to me, clearly says that if the revivals happened across the EU as a whole, then the government accepts they happened in Portugal too. They state explicitly the date of revival of Montis’s copyright, which you are claiming never happened. I can't see that at all. Carl Lindberg (talk) 20:52, 17 December 2023 (UTC)

@Clindberg Thank you very much for your analysis of the situation. Indeed, from that POV, I believe it's at best not clear what would happen if this material gets to a Portuguese court - eventually it's clearer what would happen if it passes into the CJEU like Montis did. I agree that, even lacking proper Portuguese court evidence supporting it, it's not advisable to extend the Public domain for photos until 1 July 1970.

I therefore suggest that, unless further strong evidence supporting the non revival of copyrights appears, {{PD-Portugal-photo}} should either be redirected to {{PD-Portugal-URAA}} or kept with the updated and corrected information, that being that anonymous and collectively authored photos are public domain in Portugal and not covered by URAA if they were legitimately published or otherwise made available to the public before [current year] -70 (now 1953), or the author died before [current year] -70 (now 1953). The rationale for this calculation is that by the URAA cut date (1 January 1996), any photo created until 31 December 1970 was in the public domain, per the then existing law. Photos created in Portugal (and published in Portugal? so that the Portuguese law could apply) before 1 January 1971 ([URAA cut date]-25 years) are, therefore, exempted from URAA until that date, while still subject to the current copyright law of the country.

Points 2) and 3) should be completely removed, since they are not even about photographs and that calculation is wrong, anyway. Darwin ^Ahoy! 00:12, 19 December 2023 (UTC)

Pinging @Pajz, @Rosenzweig and @Alexis Jazz. Darwin ^Ahoy! 18:42, 19 December 2023 (UTC)

@DarwIn: Sorry, it took me a few days to come back to this discussion. So if I understand you correctly, you're proposing to abandon the notion that Portuguese copyrights before 1995 were not revived by Portugal's implentation of the EU directive in 1997? So that we treat all Portguese photographs (and other works) as protected for 70 years after the author's death, or for 70 years after first publication if the author is anonymous? If so, I would not be opposed, as that's what I suspected all along.

As for the question what to do with this template (and also PD-Portugal-URAA, see below), I'd suggest keeping both templates as such, but deprecating them in the same way as {{PD-Austria-1932}}, to a) give a clear message that the templates are not allowed anymore, b) give people seeing files with one of these two templates the opportunity to apply more fitting license tags if possible, and c) gain some time. 800+ files are using this template, and 5000+ are using PD-Portugal-URAA, so it might take some time to change the templates for all these files to some other templates from the PD-old and PD-anon families. Anything not yet 70 years old (as of January, from after 1953) would have to be deleted, also all works by named authors who died less than 70 years ago. Preferrably through regular deletion requests for transparency's sake. All of that will take some time, reallistically years. There are still some files with PD-Austria-1932 after four years, but only a few now.

I know that PD-Portugal-URAA covers other works besides photographs, but do we really need it and shoudl we keep it? Right now, it is also used for photographs, quite a few actually, and it is used for all kinds of files which don't need it, like books from the 18th century. Any legitimate uses could be replaced by PD-old-auto-1996 or PD-old-XX-1996. If we don't deprecate that template too, I fear some people will keep using it to upload files which are still copyrighted.

Any thoughts, also @Clindberg: and @Pajz: ? --Rosenzweig τ 16:22, 25 December 2023 (UTC)

@Rosenzweig We certainly need the URAA template, Portugal had a lot of works in PD by the URAA cutdate, photos, books, artworks and whatelse, with copyright expiration dates of 50 years (most stuff) and 25 years after creation (photos). The only change should be the photo adaptation, to keep anything anonymous & collective and with an author dead before 1 January 1954 (and increasing 1 year each year till 1971), as explained above. I strongly disagree using the PD-old-auto-1996 template for Portuguese works under URAA, since it's such a specific case, with photos following a rule and anything else another, which already stopped at the 1946 limit while the photos will still have an year increase for years. Darwin ^Ahoy! 00:45, 26 December 2023 (UTC)

@DarwIn: Actually, the PD-old-auto-1996 template is for works not under the URAA (I guess you meant that?) But what are, in your opinion, the advantages of a separate Non-URAA template for Portugal compared to the regular template for all countries, namely, the {{PD-1996}} template and its derivatives? The disadvantages IMO are a) it's another template that complicates matters while not really being needed, b) quite a number of photographs that are not OK now because of the retroactivity will still look like they are OK because their template is not deprecated, and c) people will probably continue using it the old way even if it is not OK anymore, making it unnecessarily hard to weed out the files which will need to be deleted.

Apart from the PD-Portugal-URAA template, what are your thoughts about the rest of what I wrote in the discussion yesterday? --Rosenzweig τ 01:24, 26 December 2023 (UTC)

@Rosenzweig Yes, I meant what is except from URAA, not under it, sorry. The point of having {{PD-Portugal-URAA}} is to make clear there are a number of special cases for Portugal, and inform readers about them, something which is not possible with the standard PD-1996 template, which gives only a vague message about being URAA exempt. It is not educative nor allows to easy confirmation if the work is indeed exempt from URAA. As for the photographs after for 1954 onwards, they should be in a reduced number, and not a priority, anyway, since not only there is not any specific jurisprudence against keeping them - only cases about other countries, which we are taking into consideration by mere precaution - but the time span they cover is just 16 years, decreasing 1 year per year. They should be nominated for deletion, with the Undelete in X year mark, so that they can be easily restored.

By the way, the vast majority (almost all of them) of the files using {{PD-Portugal-URAA}} should be OK, so I can't really see any advantage at all in deprecating it. As for {{PD-Portugal-photo}}, I suggest it should simply be redirected to PD-Portugal-URAA.

As for people using PD-Portugal-URAA to upload photos with a PD date after 1953, it's much easy to detect that if they are using that template, were the reasoning is properly explained, than with a generic one. It also avoids abusive deletion requests by people that are not familiar with the URAA cut dates for Portugal, which should be the vast majority of the users here. Darwin ^Ahoy! 01:54, 26 December 2023 (UTC)

As mentioned above, the URAA template is still useful -- most photos that are PD in Portugal should not have been restored by the URAA, and there were shorter terms for other works too. We just need to change the 1970 date to be the EU-anonymous term or 70pma (the 1970 date is just for the URAA, really). Unsure how many files would be affected by that; certainly some but not all of them. Probably best to just change that template, so no more get added. I don't see much use for the -photo template at all. I could see changing it to an invalid license like the Austria-1932 one, but would that suddenly make a lot of files unlicensed? If not, I think that would be preferred since it would create an obvious needed change when someone looks at an image, and we could use the "links here" as a to-do list. If it does make all those files to get bot-tagged with "no license", we could lose some valid photos via speedy deletion which I don't think should happen. I could also see redirecting it to the corrected URAA template I guess, but it's less obvious that it needs to be re-examined. If we go through those photos and change to PD-anon-70-EU and/or 70pma (plus PD-1996), such there are no usages left, I'd be fine with either approach. I don't think the tag exists on other wikis, so not likely that transferred images keep it (which would argue to keeping it as an "invalid license". I guess the main question is how we deal with the photos using the tag now. Simply redirecting the template would make it less likely that problem images do get deleted; I would prefer some indication that there may be a mistake that needs examination, but something less severe than speedy deletes. Carl Lindberg (talk) 16:17, 26 December 2023 (UTC)

The templates PD-GallicaScan and PD-BNF were just deprecated. In the ensuing discussion, there were fears of bot-driven mass deletions or thousands of files suddenly losing their PD status (as far as bots etc. are concerned) as well. That was over three weeks ago, and nothing of the sort has happened. Nor did anything like that happen for files with the PD-Austria-1932 tag (the recent mass DR Commons:Deletion requests/Files in Category:PD Austria 1932 was not caused by any bot action and was rejected as too broad). If license tags are deprecated, they still exist and are recognized by bots etc., only some additional text is added that they shouldn't be used anymore, if possible replaced by valid tags, etc. Also, if anything should really go wrong, User:AntiCompositeBot, which does mark files without a valid license, will only touch files which were uploaded in the last 1 month (per Commons:Bots/Requests/AntiCompositeBot 4). --Rosenzweig τ 16:58, 26 December 2023 (UTC)

@Rosenzweig @Clindberg Why don't we just fix the text to the year EU seems to be using, and place some warning about the thing with the timespan between 1954 and 1970, so that it's obvious that a file that falls in that timespan should be deleted and marked for undel at the appropriate time? 🤔 Darwin ^Ahoy! 21:57, 26 December 2023 (UTC)

@DarwIn: I don't think it's just the timespan from 1954 to 1970. Before, photos were protected for 25 years from creation, regardless of who the photographer was and when they died. After the revival of copyrights, the term of protection is now 70 years post mortem auctoris. So any photographs by named photographers who died after 1953 are also still protected, even old ones from 1900 or earlier. --Rosenzweig τ 22:09, 26 December 2023 (UTC)

@Rosenzweig Yes, I know, the timespan would apply to both situations, if the copyrights were indeed revived, which BTW still seems far from being clear.

@Clindberg You wrote "the EU ended up imposing it anyways", but looking again at the Montis case, the decision was that copyrights of works that were in the public domain in all member states before 1995 could not be revived. With all that has been written here, it is still not clear to me what is the case to say that Portuguese works were protected in Spain or anywhere else in the EU before 1995. Is there any evidence of this, at all? And if not, why should we care? I apologize if this has been already sourced elsewhere, but all I can find on this is the 2004 Hamburg case, which is both foreign and after the 1995 date. It's important also for what will be written in COM:PORTUGAL that there is a clear reasoning showing that foreign copyrights were covering Portuguese works before 1995, but not only I couldn't find any evidence of that, but there is actually at least one Portuguese Supreme Court sentence from after 1997 where the copyright was not revived (see section below). Darwin ^Ahoy! 00:33, 27 December 2023 (UTC)

@DarwIn: The EU terminology was that if a work was protected in any member nation on July 1 1994, then it was restored in all EU countries. So, if a work was protected in for example Spain per their law on July 1, 1994, then it still got revived in Portugal (thereafter using the terms and protections defined in Portuguese law). Given that there were many countries already using 70pma (or 80pma in Spain's case), sometimes with no shorter terms for photographs, we generally assume that basically all works were restored. I don't think we have yet identified any type of work which was in fact public domain in 1994 in all countries for shorter then the new uniform terms -- though yes, if we can determine that for a work, then the copyright was not restored. That would unfortunately need exhaustive documentation. The Montis case in particular did not address that -- as mentioned in the previous discussions, both parties to the lawsuit agreed verbally that the work in question had expired in all countries, so the court had to accept that as "fact" in the context of that case, and was not at liberty to debate that point (legal arguments must be made at the outset of the case, or at least early on, not deep into the case or during appeals). One of the parties tried to make it later, but it was too late, even though that was likely a winning argument had they made it from the get-go. They instead had initially that a different Portuguese law was illegal, and lost on those grounds. The only types of works which could realistically fall under those provisions may be applied art, which often had shorter terms and sometimes were not protected via copyright at all, and simple photos, which often had shorter terms as well. However, there is usually at least one country without shorter terms for those works, so you'd have to show that it was below the threshold of originality before the 1994 date in those countries, and whether it qualified as a "simple photo", both of which are tortuous questions which varied even more widely before 1995 in Europe than they do now. I'm not sure anyone has fully gone through the laws though. The question of precisely which countries is itself interesting -- the list for the EU in 1994 was Germany, France, Italy, Netherlands, Belgium, Luxembourg, Denmark, Ireland, United Kingdom, Greece, Spain, and Portugal. Austria, Finland, and Sweden became members on January 1, 1995, so they were also Member States on the effective date of the EU copyright directive and were subject to it, though not when the directive was first written. Hopefully new member states added later on don't affect the restoration further. The 2006 EU directive has a date of 1 July 1995 and not 1994 (which the 1993 directive used); unsure if that was a mistake or not. Also unsure if the 2006 directive re-set the list of countries. For most folks, it's been easier to simply restore everything to their current terms. EDIT: The 1993 directive used the 1995 date; not sure what I was looking at before. Carl Lindberg (talk) 18:24, 27 December 2023 (UTC)

@Clindberg Thank you very much for the insightful explanations. So, if I well understood, what we have from the Montis Case is:

• The transposition of the EU directive in Portugal seems to have been written without the intention of reviving any copyright besides those expired between 1 July 1995 and 1997;
• Directive 93/98/EEC harmonising the term of protection of copyright in the EU does not have the effect of restoring or reviving rights that, prior to its entry into force (1 July 1995), were for any reason in the public domain in all the EU Member States.

But is there any situation at all where the EU Court ordered copyrights to be restored, based on that interpretation, using the situation of a work being protected in another EU member? Butterfly v. Briciole de Baci (C-60/98) doesn't seem to be much helpful, since it deals with the inverse situation (the country ostensibly restored the copyrights in question) and is only about Italy, anyway. Darwin ^Ahoy! 20:01, 27 December 2023 (UTC)

Disagree with the first point -- Portugal may have argued against restoration in the original EU discussions, but they implemented the text of the directive pretty much verbatim, which plainly restored old works. The new terms have been applicable since July 1, 1995 and apply to all works, performances and productions protected on that date in any country in the European Union. I do not see any way to interpret that differently than other countries do. So it was with the intent of reviving copyrights, even if that was forced on them by the EU.

On the second point, correct. Some EU countries did not include the "if protected in any Member State" language, and revived the copyright in works regardless (thus going beyond the requirement of the directive), but most (like Portugal) simply kept that language. As to court cases, I'm sure there were some. In searching, I did find this case from 2011, which was on protection of designs, which mentioned the Butterfly case from 1999. I'm not sure why you think that was irrelevant -- those were about rights which expired before 1995 but were then revived. They certainly were not protected in Italy, but were protected elsewhere, which is why Italy had to revive the rights. Carl Lindberg (talk) 23:57, 27 December 2023 (UTC)

@Clindberg Why do you say it plainly restored old works, when there does not seem to exist a single evidence that this happened at the EU level? In Italy, the government proactively passed laws to restore the copyrights, so I don't think it is correct saying that Italy had to revive the rights. What I have red from these court cases is that the EU agreed that Italy was in their right to revive these copyrights, not that they were forced to do so. Darwin ^Ahoy! 15:11, 28 December 2023 (UTC)

I'm not sure how you can read "revival of rights" in all these court decisions, and the plain language of the directive, and think such restorations never happened. Italy did not restore works because it felt like it, they restored works because the EU directive forced them to. Member states are not allowed to not restore works. They are allowed some leeway in how they treat some edge conditions, that is all, which was what the Butterfly case was about -- one of those edge conditions. The revival of rights was understood and not at issue.

From the Butterfly text:

18. As the national court has observed, it is clear from Article 10(2) of the Directive that application of the terms of protection laid down by the Directive may have the effect, in the Member States which had a shorter term of protection under their legislation, of protecting afresh works or subject-matter which had entered the public domain.

19. This consequence results from the express will of the Community legislature. While the Commission's original proposal for the Directive provided that its provisions would apply 'to rights which have not expired on or before 31 December 1994‘',the European Parliament amended that proposal by introducing new wording which was, in essence, taken up in the final version of the Directive.

20. That solution was adopted in order to achieve as rapidly as possible the objective,formulated, in particular, in the second recital in the preamble to the Directive, of harmonising the national laws governing the terms of protection of copyright and related rights and to avoid the situation where rights have expired in some Member States but are protected in others.

21. However, Article 10(3) makes it clear that the Directive is without prejudice to any acts of exploitation performed before the date laid down for its implementation, that is to say 1 July 1995 at the latest, and that the Member States are to lay down the necessary provisions to protect in particular acquired rights of third parties.

So the government and court were clear that the directive forced restoration of works. It's interesting that they note the original idea was to not be retroactive, but the European Parliament forced the restorations. Of course, they did not reduce any longer terms, so the goal of "harmonizing" in that case was ignored. Rather unfortunate they took that decision, but they did. I'm not sure why you would think any EU country, including Portugal, would be immune (especially when Portugal added that exact text to their law). The Butterfly case was about these restored rights, which was not under question, just about how much protection previously acquired rights get.

From the other decision that I linked, right after mentioning the Butterfly decision:

43. That reasoning must also hold true in relation to the revival of copyright protection for designs which were previously protected by another intellectual property right. Indeed, in view of recitals 2 and 3 in the preamble to Directive 98/71, national law transposing the directive cannot – without undermining both the uniform application of the directive throughout the European Union and the smooth functioning of the internal market for products incorporating designs – preclude copyright protection in the case of designs which, although being in the public domain before the date of entry into force of the national law concerned, at that date meet all the requirements to be eligible for such protection.

44. Accordingly, the answer to the first question is that Article 17 of Directive 98/71 must be interpreted as precluding legislation of a Member State which excludes from copyright protection in that Member State designs which were protected by a design right registered in or in respect of a Member State and which entered the public domain before the date of entry into force of that legislation, although they meet all the requirements to be eligible for such protection.

So, member states are precluded from legislation which avoids the copyright restorations. In this case, they were about designs which were previously protected via non-copyright means, but which the directive forces to be protected by copyright. Those works also got restored. That case I think was also about an Italian law which attempted to expire the rights in the designs earlier than the directive, and that was ruled to be invalid. Carl Lindberg (talk) 18:16, 28 December 2023 (UTC)

@Clindberg Looking at C‑60/98 Butterfly Music, it's clear that Italy, unlike Portugal, specifically passed into law, at the transposition of the Directive, a concrete disposition enforcing the revival of copyrights. From point 6: "Article 17(2) of Law No 52/96, as amended, specifies that that term of protection also applies to works and rights no longer protected under the periods of protection previously in force provided that, under the new periods, they are protected afresh as at 29 June 1995." The very possibility of doing this seems to be in doubt, so the EU court states that the possibility of such revival of copyrights was clearly intended by Directive 93/98 (points 18 and 19), therefore validating the Italian law. It doesn't expresses itself in any way about the Italian records being protected in other countries, they just say that the Italian government could indeed revive the copyrights, as they did.

The Flos vs. Semeraro case is specifically about industrial design, and the court only expresses itself about industrial designs which have been registered and are accepted as valid by the Italian courts (points 33 and 34) - which, from what is stated there, actually seem to be the case of Flos (point 29). The case where they recall Directive 93/98 is only where the industrial design was properly registered, independently of being or not eligible for copyright. While it is clear that Directive 93/98 wanted to make sure that such a revival was possible, I can't see there anything supporting the notion that it was, in any way, mandatory, and Flos vs. Semeraro, by ignoring the cases with designs eligible to copyright, but not properly registered, seems to support the notion that indeed it was not.

As for 43), according to 32) this would only apply to properly registered designs (which seems to be what "revival of copyright protection for designs which were previously protected by another intellectual property right" means, only those would have the copyright restored along with the industrial design right, which then could not be precluded by a national law).

There doesn't seem to exist even a single EU court sentence forcing the revival of copyrights over the country legislation, let alone forcing it using as argument the copyright Member State X would have had on works of Member State Y, something that seem to me very tricky and touchy when it comes to the sovereignty of Member States. I understand that the "protected in any member state" bit makes perfect sense in the light of cases like the Phil Collins piracy case in Germany, but I really doubt that something as forcing Germany to accept copyright protections of the UK on their own German works would ever be sentenced by an EU court.

And indeed, apparently, it never happened. While I greatly appreciate the existence of the COM:PRP, and enforcing copyrights is one of the things I genuinely like to do here, the COM:PRP clearly defines itself as "significant doubt about the freedom of a particular file". How can a situation where a Member State jurisprudence says something, and there is not a single instance of a EU court sentence enforcing the opposite, count as "significant doubt"? Darwin ^Ahoy! 04:01, 31 December 2023 (UTC)

Evidence of no retroactivity / no revival of copyrights

JSTJ00033827, Portuguese Supreme Court sentence from June 1998 decides that a collective work (azulejo panel) published in 1937, entered the public domain in 1988 (50 years after publication), following the pre-1997 Portuguese copyright law. If the 1997 law, which was already in place, would have been applied, the copyright would have expired only in 2008, 70 years after publication, but it was not the case.-- Darwin ^Ahoy! 01:03, 27 December 2023 (UTC)

Full text is here. --Rosenzweig τ 02:39, 27 December 2023 (UTC)

I haven't thoroughly read the whole thing, but what I noticed is that this is apparently a case about something that happened in 1991/92. If I understand it correctly, a ceramic tile from 1937 was reproduced on phone book covers in 1991, and the producer of the tile demanded money for this from the phone company. So the decision would have to be about the legal situation in 1991, not in 1998. --Rosenzweig τ 02:59, 27 December 2023 (UTC)

@Rosenzweig Thank you very much for digging up the full sentence. From what is stated there: While the phone book was initially published in 1991, the case is in the present time (1998). The sentence mentions that the plaintiff has (present time) in its power about 5 and half million escudos of merchandising which they claim had lost its value due to the distribution of the phone book - This was the initial amount demanded by them. Since these phone books could remain in circulation for many years after publication, if the court recognized any copyright in that work by 1998, they would have followed the usual procedure, demanding the recovery of the remaining copies, both distributed and in stock, even if asserting that the 1991 publication was not illegal, since it was in the public domain. But that's not what it's there, they only say the work entered in the public domain by 1 January 1988, following what was disposed in the 1985 Portuguese copyright law. Darwin ^Ahoy! 16:16, 27 December 2023 (UTC)

Yes, it did enter the public domain in 1988. So it was in the public domain in 1991, when the phone company used it, and there was no copyright infringement in 1991. But that does not mean that the copyright was not restored at the end of 1997. The court had to decide if the work was copyrighted when it was used, in 1991. That use remained legal even after the revival of the copyright. Article 5 (2) here says that, "sem prejuízo dos actos de exploração já praticados e dos direitos adquiridos por terceiros", "without prejudice to acts of exploitation already carried out and rights acquired by third parties". --Rosenzweig τ 16:40, 27 December 2023 (UTC)

@Rosenzweig The "was" bit is on you, the sentence never says anything like that. The claimed issue with the publication is that it's broad distribution devalued the copies of the azulejo panel they sold, which allegedly blocks the plaintiff from continuing selling them. So they ask for monetary compensation, first covering what they have in stock, then extending it to 15 million escudos. If there still was any copyright involved on this, the obvious action the court would demand, following other similar situations, would be to order immediate removal of the copies, which were distributed as part of the phone line contract and have been by then replaced a number of times, and stop further distribution or use, allowing the plaintiff to exercise the copyright they (according to your interpretation) would allegedly have and finally sell their azulejo panels. But not only they do not say - even vaguely - nothing of the sort, but they actually say that those rights expire ("caduca"), not expired, 50 years after publication, also stating very clearly the copyright was extinguished by 1 January 1988, without any caveat or consideration. It's not something reported to 1991, it's present day 1998. Darwin ^Ahoy! 17:01, 27 December 2023 (UTC)

They didn't order any removal of copies etc. because the phone company's use of the work had begun in 1991 and was therefore still legal (because of Article 5 (2), see above) in 1998, or even today (since collective works are now protected for 70 years pma of the last surviving author, and if I read that right one of them died in 1979, the other in 1992, which would mean the tile is still protected for decades). That specific use by the phone company is privileged because it began in 1991, at a time when the work was in the public domain. Any use of the work begun after the law was changed in November 1997 is not privileged like this though. --Rosenzweig τ 17:26, 27 December 2023 (UTC)

@Rosenzweig No, the tiles are not protected, since they are a collective work, and the death dates of the individual workers are irrelevant to the case - it's only the publication date that counts, 1937. That's what is written there. And even applying the 1997 law, that would still be the case, since it has not changed in that particular aspect. In any case, your interpretation about an allegued revival of copyright in 1997 directly contradicts what is written in that Portuguese Supreme Court sentence, as explained above. What is written there is that the rights of works in that situation expire 50 years after publication (present), not that they expired at the time of the publication or anything even near that. Darwin ^Ahoy! 17:36, 27 December 2023 (UTC)

@DarwIn: Okay, I've confused it with collaborative works in this case. There is a distinction between a collaborative and a collective work in Portugal, per article 32 (1) and 32 (2) of the copyright law. The former being protected for 70 years pma of the last surviving author as I described above, the latter being protected for 70 years after first publication. As the court decided this is a collective work, its copyright expired after 70 years even accd. to the 1997 law. That would have been the end of 2007. But a revived copyright would mean it was still protected in 1998. --Rosenzweig τ 18:14, 27 December 2023 (UTC)

@Rosenzweig Yes, exactly. However, the wording of the sentence is explicit about the copyright in that situation expiring (in the present) 50 years after publishing. Darwin ^Ahoy! 19:35, 27 December 2023 (UTC)

I have not read the full text, as I'd have to pass it through Google Translate. But in general, acts of exploitation before restoration are fine -- they can't make a legal act illegal. So for something made in 1991, when the underlying work was in the public domain, should be fine. Reviving copyright typically comes with a number of questions -- who owns the extended copyright (the copyright owner of the original, if the copyright had been transferred, or does it revert to the author/heirs), what to do with existing contracts, what do with existing exploitations, etc. Those questions seemed to be up to each country -- many gave a grace period after 1995, maybe some years, after which those exploitations had to cease. The UK's complicated transitional rules are here. France's law is here; the transitional section says they cannot sue over exploitations from before the revival of rights, and give a grace period of one year for continued new exploitations. Portugal's mention is here, Article 5(2), which gives very few details -- just seems to say "without prejudice" to existing exploitations. So maybe there was no limit or a grace period; if you created a derivative when something when it was legal, you can continue to use that derivative, I guess. Was the ceramic tile used on new phone books created in 1998? That may be a problem, but there could easily be no right to ever claw back existing exploitations in Portugal, such that 1991 copies remain fine. The problem for Wikimedia is that a new upload is a new exploitation, so we really can't ever be helped by such clauses. Carl Lindberg (talk) 17:41, 27 December 2023 (UTC)

@Clindberg In the sentence, the wording is that the copyright for works on the situation of that azulejo panel expire 50 years after publication, not that they "used to expire back then" or anything of the sort. There is not also even a hint that it can't continue being exploited as it was back in 1991, only the information that it entered public domain 1 January 1988, following the applicable 1985 law. The court never mentions anything even close to "acts of exploitation before restoration of copyright", and actually contradicts on its wording the very notion that any restoration of copyright existed at all. Darwin ^Ahoy! 17:50, 27 December 2023 (UTC)

By the wording of the law, I can't see how a 1991 use could be infringing ever. Despite the fact the underlying work became protected again, that would not seem to affect any earlier use of it in Portugal. Creating a new exploitation in 1998 should not be OK. If the ruling was solely about works created before 1995, then the restoration would be irrelevant and the case would entirely be decided based on previous law, since nothing in the newer laws claim to affect it (only newly-created exploitations). The 2006 EU directive (which was more explicit about a work being protected in any EU country) was still in the future, as well. Carl Lindberg (talk) 18:51, 27 December 2023 (UTC)

@Clindberg The sentence was about the azulejo panels that still existed in 1998 which the plaintiff was still claiming he was unable to sell due to the phone book cover circulation, it's not something that stayed in the past. The ruling, as it is, is about the present (1998), stating that any collective work created in 1937 is - not was - in the public domain, according to the 1985 copyright law. Darwin ^Ahoy! 19:41, 27 December 2023 (UTC)

If it was created in 1991, it should still be possible to sell in 1998 without any interference of the copyright restorations, by my understanding of the Portuguese implementation. It was created legally, and therefore is not prejudiced by the newer law. That was a previously-existing exploitation. If the case was about a newly-created 1998 edition of the phone book, or even new 1998 printings of the old work, that would seem to be a problem. Which was it? A 1937 work still "is" public domain in relation to a 1991 exploitation, I think, but not a 1998 exploitation. Carl Lindberg (talk) 23:57, 27 December 2023 (UTC)

@Clindberg However, in Italy, in the Butterfly v. Briciole de Baci (C-60/98), if I've red it correctly, the seller was ordered to stop selling and remove the copies from the market on a deadline defined by law (3 months or so), even if it was produced legally. I seem to recall other cases, concerning copyright in Portugal, where this happened as well. As for the azulejo panel, in the sentence it is said that it is public domain per the 1985 law. It doesn't make any consideration or caveat concerning the 1991 publication or anything else. Darwin ^Ahoy! 15:21, 28 December 2023 (UTC)

Reading the Butterfly decision more, yes. Individual countries were allowed to decide how to treat that particular situation (copies produced legally, but would be illegal after restoration). Italy had a very short grace period for sound recordings, three months, which was ruled legal (Butterfly was arguing it was too short to qualify under the Directive). I do not see any such limitation in Portugal's transitional stuff, though there may be regulations that I'm missing where they had a similar (though likely longer) grace period. From the base law, the grace period is infinite -- they allow you to continue selling such existing copies forever (just not create any more copies). In such a situation, the later law changes in Portugal were irrelevant to that azulejo panel and perhaps simply ignored. I'm having a hard time getting the raw text of that decision, so can't really say. I don't see anything in the new law which would apply. If the plaintiff or defendant did not raise that question, then it wouldn't be addressed by the court either. No idea when the court case started, but it's usually about events well before then. But if Portugal decided such copies were forever OK, which I think the directive allowed, then no problem. If there were other cases which did prevent such copying, please bring them up -- but they would only show that rights were restored (or they are about works which never lost copyright, or where new copies were being made). Carl Lindberg (talk) 17:49, 28 December 2023 (UTC)

@Clindberg Even after exhaustive searchings on the Portuguese court case sentences from the 2nd instance and supreme courts of Portugal, I couldn't find any case where restoration of copyrights was accepted. I've found a 2018 sentence about photos taken during the 1st World War by Arnaldo Garcez (1885-1964), of which the heirs claimed a copyright following a 2007 publication of the photos, which was initially recognized by a 1st instance court, which ordered the removal of the produced exemplars from the marked and a stop to the distribution. It was subsequently nullified because the 2nd instance and supreme courts decided that the plaintiffs never had any copyright on the photos to start with, as it efectively passed to the Portuguese Army in 1916 (work for hire), though recognizing them as legitimate heirs of the moral rights of the author of the photos (which is interesting and probably something new, but unrelated to this situation). Darwin ^Ahoy! 01:40, 31 December 2023 (UTC)

I think the more important question is if there are any rulings where a restored copyright was denied, on grounds it was never restored. The plain language of the law, like the rest of the EU, would say they were restored (if protected in any EU state at the time, which virtually all were). Reading the case you found, I think all levels of court ruled the same thing albeit with slightly different reasoning -- the economic right had been transferred to the government per the rules of their 1867 law (so there is no direct ruling on any copyright restorations). The moral rights remained though, and do not get transferred along with the economic right -- and those do not expire, even in older Portuguese law. Moral rights may haven only been created by laws after 1916, anyways, but the heirs still got them. I guess there were violations of moral rights, which is what the judgement was about. But I don't see anything directly pertinent to copyright restorations since those moral rights would have been the same (and still existing) before the EU directive. I guess any mention of still-existing economic rights would probably be a tacit indication that the copyrights were restored (since they should have expired under the old law) but I really don't think that question was examined or was part of the ruling. Carl Lindberg (talk) 04:53, 31 December 2023 (UTC)

@Clindberg You are correct, it was not appreciated. Unfortunately that court case does not seem to get into the revival of copyrights, since the plaintiffs never had any copyright to start with, though they take that interesting decision on transmission of moral rights.

The 1998 Supreme Court ruling on the azulejo panel prints denied the copyright to the company who was claiming it, and who would have it if it was seen as restored by the 1997 law. Although it never mentions revival of copyright, the wording of the sentence leaves clear that in 1998, after the new law, the copyright law applicable to collective works published in 1937 would still be the 1985 amended law, and that those remained in the public domain - even in the present day, 1998 - which voided the case for the manufacturers. Darwin ^Ahoy! 14:17, 31 December 2023 (UTC)

PD if "published without the authors' name"?

I have reverted this change to the template by DarwIn from last week. With the edit, a statement was added saying that photographic works are in the public domain if they have been "published without the authors' name". This raises eyebrows as such a provision, if it existed, would quite clearly conflict with all sorts of international and EU law, including art 1(3) of the Term Directive, which ordains that "[i]n the case of anonymous or pseudonymous works, the term of protection shall run for 70 years after the work is lawfully made available to the public." The plain text of the provision in the Portugese Copyright Act that was cited—art 167—doesn't seem to support the change either. In a WIPO translation of the law, art 167(2) reads as follows:

"Only the unlawful reproduction of photographs bearing the above-mentioned indications may be punished. In the absence of such indications, the author may not claim the compensation provided for in the present Code, unless the photographer can show evidence of bad faith on the part of the person making the reproduction."

Which, as I understand it, merely means that the absence of attribution limits the infringer's criminal liability and the author's ability to demand damages. (This corresponds to the German-language explanation of the provision in A Dietz, "Portugal" in Quellen des Urheberrechts, vol 5 (R 29, Dec. 1992), p 5.) But it doesn't say anything about other civil remedies such as injunctive relief. It escapes me how that provision could be construed as implying that a failure to write your name next to your photographic work turns the photograph into public domain material.

Because the edit (or its summary) contains no reference to any prior discussion of this issue, nor any source that would back up the claim, I have, for now, restored the previous version pending further discussion. I also don't quite understand why the two items at the bottom were removed. I suppose you could argue that they are covered by other templates but this template is used on 800 files—and these two points may describe the legal situation of some of these files, no? So it doesn't seem like such a good idea to just remove 2 out of 3 options when they've been there for years? — Pajz (talk) 13:18, 16 December 2023 (UTC)

I had wondered about that "PD if published without the author's name" thing too, because the text of the Portuguese law did not seem to support this interpretation. I had planned to bring it up here, but Pajz was faster. Thanks :-) --Rosenzweig τ 13:59, 16 December 2023 (UTC)

@Pajz The two items at the bottom were removed because they are not about photographs at all, they belong to the URAA template and AFAIk are already there. I've no idea why you reinstated them, but they shouldn't be there.

As for my change, I also had your doubts, initially, but it seems clear from the available sources that the situation of these works is without protection. I am indeed not sure if this is the same as saying they are in the public domain, though the Wikipedia article on Public domain ( all the creative work to which no exclusive intellectual property rights apply) seems to support it.

The Portuguese courts stated they are "unprotected works":

• III - A fotografia não poderá constituir obra protegida se não contiver o nome do autor / III - The photograph may not be considered a protected work if it does not contain the author's name. (4683/10.5TBGMR.G1 - Tribunal da Relação de Guimarães, 2012, confirmed the previous 1st instance court decision. My summary: Defendant reused some photos from a website built by plaintiff; plaintiff allegued these photos were copyrighted, and presented as evidence that they were available in their own website, published with proper authorship, etc.; court disconsidered this evidence, since there was not any proof that defendant reused the photos from the main plaintiff website; the photos were therefore deemed as "unprotected works".);
• On the inverse situation, copyright was recognized on photos published in Flickr under a nickname, after being allegued by the defendants that it was not a proper identification, thus voiding copyright (295/12.7YHLSB.L1-7 - Tribunal da Relação de Lisboa, 2017)

I couldn't find any evidence of photos published without point 2) of §167 being protected, opposing what is stated in the 2012 court decision. Do you know any? And, if not, why would this not be enough to conclude that since they are "unprotected works", they are not in the public domain?

Thanks, Darwin ^Ahoy! 16:51, 17 December 2023 (UTC)

It would seem, reading that, that if the author later puts their name on the photo, then any usage would be a violation. In other words, the copyright protection still exists. For inclusion here, the copyright must expire (i.e. be no way to get it back). I don't see anything in the Portuguese law which supports that conclusion. For one example in the U.S., if you don't register your work, any infringements are limited to actual damages being paid back. In the 1990s, the Baltimore Ravens had a logo contest, and chose one as the basis for their logo -- but did not get a copyright transfer (and claimed someone else created it). The artist later sued, of course saying that any sales of team gear with the logo were an infringement. The court ruled that infringement occurred, but people bought the merchandise because of the team, and not any particular artistic element of the logo, and so was awarded $0 in damages. The artist of course registered the work as part of the proceeding, and the Ravens switched to a new logo. The artist continued to sue for uses of historical film from the seasons which used the logo, losing most of them due to fair use.[1][2] None of that invalidated the copyright itself -- any further use of the logo would definitely be infringing, and subject to a minimum fine. It's not a direct analog to Portugal, but it seems like any work where infringement starts as soon as an author puts their name on it, would not be "free" in our needed sense. The current use may be OK, but that can be changed at any moment by the author being named. It's almost more that it is more akin to a revocable license -- lack of an author's name does not terminate copyright, just makes current uses OK. In that court case, the defendant stopped using the images once they were notified -- they had no right to continue to use them. The court case seems to say that the uses before they were notified were non-infringing however. That is not the same thing as free for everyone, from then on, permanently. Carl Lindberg (talk) 20:36, 17 December 2023 (UTC)

@Clindberg Again, thank you very much for this analysis, with which I very much agree. Despite the work not being originally protected, there is not indeed (at least for now) any proof that this status would be maintained after the author reclaimed the authorship, via VRTS, for instance. I would add as well, reflecting more carefully about this, that I can't see how the work is "not protected", as claimed by the court, when the current copyright law states that anonymous works gather 70 years of protection after legitimate publication, and this is supposed to include photos (§33). I was tricked by that court decision, but it's clearly very problematic to infer they are (perpetual) public domain based on that sentence. I also would like to thank @Pajz for the raised eyebrows and the consequent action. Darwin ^Ahoy! 00:32, 19 December 2023 (UTC)