User:MichaelMaggs/sandbox

Background

This policy provides a mechanism for certain files that are public domain in their source country but potentially subject to copyright under the laws of the U.S. to be legally hosted on Commons. Such a situation may arise for a variety of reasons, in particular where U.S. domestic law does not follow principles of international copyright that are generally accepted elsewhere. The policy is believed to be compliant with this statement by the WMF legal team.

One of the most important issues arises from a U.S. national law called the Uruguay Round Agreements Act (URAA) that restored or in some cases brought into U.S. copyright protection for the first time certain non-U.S. works that were earlier public domain according to U.S. law. The law brought back into U.S. copyright certain non-U.S. works that were still copyrighted in the source country on the URAA date (1st January 1996 in most cases).

The courts in the U.S. are of course bound by local laws, and may accordingly provide legal relief to a plaintiff who attempts to rely on U.S. copyright protection even in respect of works that were and still are public domain or otherwise out of copyright according to the law of the source country.

This policy applies broadly, as indicated above, and is not limited solely to works whose U.S. copyright has been restored under the ARAA.

The problem the URAA creates for Commons

There is a longstanding policy on Commons that we accept only media

• that are explicitly freely licensed, or
• that are in the public domain in at least the United States and in the source country of the work.

Since the URAA does not take into account the copyright status of works outside U.S. territory, this creates a serious anomaly in which many works are public domain according to the law of almost all countries except in the U.S. This is particularly problematic for non-U.S. Government-created works that are public domain in the source country, but where that public domain status is ignored for the purposes of U.S. law. Since the Wikimedia Foundation servers are based in the U.S., Commons cannot set aside U.S. law, even when it is out of step with less restrictive laws elsewhere.

Global public domain declaration

Although U.S. law cannot be bypassed, it is perfectly acceptable for the potential owner of any U.S. national copyright to publicly disclaim that copyright and to make it clear that no attempt will be made in the U.S. courts to enforce any local rights that may subsist there. Under this policy, that is achieved by having the potential U.S. copyright holder declare that they consider the works in question to be within the public domain worldwide. Once such a declaration has been made by the U.S. copyright holder, the relevant works can be validly hosted here as they then are truly free for anyone to use both in the source country and in the U.S. Note that the term 'declaration' covers both an explicit release of rights to the global public domain and also a confirmation by the rights owner that the work's public domain status is considered by them to apply worldwide.

Requirements for a valid global public domain declaration

No specific legal wording is required for a global public domain declaration to be acceptable to the Commons community, but it should

• be issued by the owner of any potential U.S. copyright, for example any URAA-restored copyright, and
• have been made by an individual whom we can reasonably accept has authority to do so.

Normally the declaration will be issued by the previous owner of the now-expired local copyright in the source country. Where the rights-holder is a government or government department, the declaration would normally be issued by the copyright office, patent office, department of legal affairs or the like.

The declaration itself should

• Refer clearly to an identifiable potentially-copyrightable work or class of works,
• Indicate how that work or class of works has entered the public domain under the law of the source country (this may be by donation to the public domain or according by virtue of normal copyright expiry under local law), and
• Confirm that the issuer of the declaration either:
  • when releasing the work or class of works into the public domain intended that release to be effective worldwide, or
  • accepts that the work or class of works are now public domain under the law of the source country, and that that public domain status is considered by them to apply worldwide.

The statement must not

• Make comments which are clearly only conditional or temporary, nor
• Be a mere declaration of current intent.

A practical rather than a legalistic approach should be taken when assessing whether a declaration is acceptable to the Commons community. So, for example, provided the sense is clear there should be no requirement for U.S. law to be mentioned explicitly (national governments tend to avoid making statements about the consequences of laws of other countries). There is also no need for an explicit confirmation that the declaration will never be changed or retracted in the future (governments are not normally willing to bind themselves for the future). Of course, anything stated to be temporary or conditional would not be good enough.

Recording the global public domain declaration

Where the declaration covers a specific work, a copy should be held on OTRS, and the work should be tagged on Commons with an OTRS tag. Where the declaration relates to a class of works (either an existing class or a defined prospective class) it must be made in public or for public release and must be noted below. To ensure such declarations remain publicly available, a copy of any relevant text should be held on a public Wikimedia site along with a link to the original source.

Any work on Commons to which this policy applies should be tagged {{Globally released}}.

Examples of acceptable global public domain declarations

• "We hereby release this photograph into the global public domain".
• "All Government-copyrighted works become public domain worldwide when their copyright expires".
• "So far as we are concerned, all copyright in this photograph has expired, and we would not attempt to assert copyright in another country, even if allowed by that country's court".

Examples of non-acceptable global public domain declarations

• "All Government-copyrighted works become public domain when their copyright expires". [It is not made clear whether this 'public domain' is local only, or worldwide]
• "We confirm that all Government-generated works are public domain". [It is not made clear whether this 'public domain' is local only, or worldwide]
• "We would not expect to assert copyright on this photograph anywhere in the world". [A mere declaration of current intent. Does not act to disclaim any U.S. national copyright]
• "English law does not recognize the U.S. URAA". [But no commitment is being made not to file a claim before the U.S. courts]

When to use the {{Globally released}} tag

An individual work may be tagged with the {{Globally released}} tag to indicate that it has been released into the global public domain by its previous copyright owner, or that all copyrights have expired under the law of the source country and that the previous copyright holder has declared as required by this policy that the work now has global public domain status. Such a tag is not a PD tag in itself, and a separate public-domain tag is always needed as well to indicate how the work has become public domain in the source country.

Global public domain declarations (by country)

Country	Scope of declaration	Relevant part of text	Link to Wikimedia-held copy	External link	Notes
Canada	Expired Canadian Crown copyright	"we would like to confirm that our understanding of the term/period of Crown copyright is that expiry of Crown copyright is applicable worldwide regardless of other copyright expiry rules that are in force in other countries. Unlike the United States, Crown copyright that is now in the public domain has not been renewed, and Canada has no intention of renewing expired Crown copyright"	To be supplied, with details of person releasing the declaration		In progress. See Commons:Deletion_requests/File:Burlington_Skyway_1958.png for an initial precedent.
Israel					In progress
United Kingdom	Expired UK Crown copyright	"any Crown copyright material published before <1954>, would now be out of copyright, and may be freely reproduced throughout the world"	http://lists.wikimedia.org/pipermail/wikipedia-l/2005-May/022055.html		Crown copyright expires fifty years from the end of the year in which the material was first published, and the stated 1954 cutoff was relevant as at the declaration date of 2005.
Notes

See also

• Wikipedia:Non-U.S. copyrights.
• m:Wikilegal/Use of Foreign Works Restored under the URAA on Commons