International Inconsistencies In Copyright: Why It's Hard To Know What's Really Available To The Public

from the messy-copyright dept

Today, Santa Clara University is hosting a gathering of tech platform companies to discuss how they actually handle content moderation questions. Many of the participants have written short essays about the questions that are being discussed at this event. We've published a bunch of essays this week from the conference, and will continue with more next week.

Have you ever wondered why it can be hard to find out what some old paintings look like? Why there seem to be so few pictures of artistic works available from many countries even though they're filled with public sculptures and murals? Or why prices for books and movies can be so wildly different in different countries? The answer is that copyright law is different all over the world, and these differences can make figuring out what to do with these works so difficult or risky that most websites are not willing to have them around at all. This essay talks about a few of these works and why they add a major challenge to content moderation online.

To begin, Wikipedia and the Wikimedia Foundation that hosts it have a mission to host freely available educational content, which means that one of the areas that comes up for us quite often when we receive content moderation requests is whether something is truly free or not. This can come up in a bunch of different ways, and I'd like to talk about a few of them, and why they make it quite difficult to figure out what's really available to the public and what's not.

The first one is old pictures and manuscripts. It's generally accepted that if a work was published before 1923, then it's old enough that the author's rights have expired and the ability to freely copy, share, and remix the work shouldn't be limited by the law anymore. But that raises a couple questions. First, how do you know when something was published, especially back then? There's a whole swath of old pictures and writings that were prepared before 1923, but may have never been published at all until later, which then requires figuring out a different timing scheme or figuring out when the work was published: a sometimes very difficult affair due to records lost during the World Wars and various upheaval in the world over the last century. For just one example, a dispute about an old passport photo recently came down to whether it was taken in Egypt or Syria during a time when those national borders were very fluid. If it had been in Egypt, it would have been given U.S. copyright and protected because it was after 1923, but if it had been in Syria at the time, it would not have been protected because that country wasn't extended recognition for copyrights at the time.

A second example is works from countries with broad moral rights. All the works on Wikimedia projects that were made recently are dedicated by their authors to the public domain or licensed under free culture licenses like Creative Commons. However, these sorts of promises only work in some countries. There are international copyright treaties that cover a certain agreed-upon set of protections for every country, but many countries add additional rights on top of the treaties such as what are called moral rights. Moral rights in many countries give the creator the power to rescind a license and they cannot give up that power no matter how hard they try. It ends up looking something like this: "I promise that you can use my work forever as long as you give me attribution, and anyone else can reuse it too, and I want this to be irrevocable so that the public can benefit without having to come back to me." And then a couple years later, it's "oh, sorry, I've decided that I changed my mind, just forget my earlier promise." In some places that works, and because of that possibility, people can't always be sure that the creative works being offered to them are reliable.

A third problem is pictures of artwork. This one applies, though a bit differently, to both new and old works. With new photos of old works, it's a question of creativity. Copyrights are designed to reward people for their original creativity: you don't get a new "life of the author plus 70 years" of protection for making a photocopy. But in some places, they again go past the international rights agreed upon in the copyright treaties and add extra protections. In this case, many countries offer a couple decades worth of protection for taking a straight on 2-D photograph of an old work of art. The Wikimedia Foundation is currently in a lawsuit about this with the Reiss Engelhorn Museum in Germany, where the museum argues that photographs on its website are copyrighted even though the only thing shown in the photo is a public domain painting such as a portrait of Richard Wagner.

The other variation of problems with photos of art is photographs of more recent works out in the public. Did you know that in many places if you're walking in a park and you take a snapshot with a statue in it, you're actually violating someone's copyright? This varies from country to country: some places allow you to photograph artistic buildings but not sculptures or mosaics, other places let you take photographs of anything out in public, and others prohibit photographs of anything artistic even if it's displayed in public. This issue, called freedom of panorama, is one that many Wikimedians are concerned over, and is currently being debated in the European Parliament, but in the meantime can lead to very confused expectations about what sorts of things can be photographed as the answer varies depending on where you are.

The difficulty around so many of these types of works is that they put the public at risk. The works on Wikipedia, and works in the public domain or that are freely licensed more generally are supposed to be free for everyone to use. Copyright is built on a balance that rewards authors and artists for their creativity by letting them have a monopoly on who uses their works and how they're used. But the system has become so strong that even when the monopoly has expired and the creator is long dead, or when the creator wants to give their work away for free, it's extremely difficult for the public to understand what is usable and to use it safely and freely as intended. The public always has to be worried that old records might not be quite accurate, or that creators in many places will simply change their minds no matter how many promises and assurances they provide that they want to make something available for the public good.

These kinds of difficulties are one of the reasons why the Wikimedia Foundation made the decision to defer to the volunteer editors. The Wikimedia movement consists of volunteers from all over the world, and they get to decide on the rules for each different language of Wikipedia. This often helps to avoid conflicts, such as many languages spoken primarily in Europe choosing not to host images that might be allowed under U.S. fair use law, whereas English language does allow fair use images. It's difficult for a small company to know all the rules in hundreds of different countries, but individual volunteers from different places can often catch issues and resolve them even where the legal requirements are murky. As just one example, this has actually led Wikimedia volunteers who deal with photographs to have one of the most detailed policies for photographs of people of any website (and better than many law textbooks). In turn, volunteers handling so many of the content issues means that the Foundation is able to dedicate time from our lawyers to help clarify situations that do present a conflict such as the Reiss Engelhorn case of freedom or panorama issues already mentioned.

That said, even with efforts from many dedicated people around the world, issues like these international conflicts leave some amount of confusion and conflict. These issues often don't receive as much attention because they're not as large as, say, problems with pirated movies, but they present a more pernicious threat. As companies shy away from dealing with works that might be difficult to research or uncertain as to how the law applies to them, the public domain slowly shrinks over time and we are all poorer for it.

Jacob Rogers is Legal Counsel for the Wikimedia Foundation.


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  1. icon
    Roger Strong (profile), 2 Feb 2018 @ 2:04pm

    Every year a whole lot of books, movies and other works go into the public domain here in Canada.

    But thanks to a lack of good references on the subject, it's the US rules that, er, rule. It's hard to find a definitive answer on whether a work has entered the public domain in Canada. It's much harder than in the US to find a definitive set of rules on the subject.

    If a Canadian wants to post say, off-copyright James Bond stories on their Canadian web site on their Canadian server, good luck confirming whether it's legally OK. And even if it's legally OK, that doesn't mean you won't be sued or have your site taken down by a US complaint regardless.

    Which is why US's Life+70+Extensions standard is not made irrelevant by works showing up on web servers in Life+50 countries. If that doesn't change, expect more 20-year extensions in the US.

    reply to this | link to this | view in thread ]

  2. identicon
    Christenson, 2 Feb 2018 @ 2:15pm

    Don't ignore worldwide internet

    Roger:
    A big problem with copyright is that "The greatest copying machine ever created" (the internet) doesn't necessarily even know if you are subject to Canadian law and I am subject to US law... so am I breaking the law when I view that Canadian-legal James Bond story?

    Copyright made some sense if copying is difficult...but it's kind of absurd when computers are proving really bad at keeping secrets and really great at copying and everyone has one.

    reply to this | link to this | view in thread ]

  3. icon
    Roger Strong (profile), 2 Feb 2018 @ 2:30pm

    Re: Don't ignore worldwide internet

    so am I breaking the law when I view that Canadian-legal James Bond story?

    In the US, if the US says so. It would be up to US law to stop you.

    It should be like the US attitude towards freedom of speech. If Iran doesn't like what an American posts on the internet, they don't have the right to censor that American in the US. "If you don't like it, block it in your own country."

    Likewise US shouldn't have the right to prevent post-copyright publishing in Life+50 countries. In reality they provide enough of a threat that they do.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 2 Feb 2018 @ 3:07pm

    For books, the Canadian websites Gutenberg.ca and FadedPage.com (and their associated crowdsourced-book-production site pgdpcanada.net) create and post any books that can be determined to be public-domain in Canada, including many books that are still in copyright somewhere else (including the U.S.[*]). And their take-down responses to anyone outside Canada start with the simple fact: "This website operates in Canada according to Canadian law." Yes, there are Copyright Mafioso in the U.S. who do not like it. So far they haven't bought enough Canadian legislators to matter.

    [*]Here's to You, Sunny Bono: Say, how useful are those copyrights down in the lakes of exothermically-oxidizing sulfur?

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 2 Feb 2018 @ 7:15pm

    Re:

    > Yes, there are Copyright Mafioso in the U.S. who do not like it

    Well, no surprise there. out_of_the_blue in particular sexually identifies as someone who doesn't believe that the public domain does, and should, exist.

    reply to this | link to this | view in thread ]

  6. icon
    ECA (profile), 2 Feb 2018 @ 9:39pm

    Found out..

    That the RIAA has BIG hands..
    They are in almost every country.. And in many they cant do much, there is no backing to press for controls..
    But of you use Music from any of those countries, IN THE USA...They will get you..

    And since we dont have much of a Cultural exchange, Its very hard to know WHATS, WHAT..how old the music is and IF' it should be in the Public domain.. MOSt of those countries HAD no regulation until recent history..

    reply to this | link to this | view in thread ]

  7. icon
    That Anonymous Coward (profile), 3 Feb 2018 @ 12:13am

    It is a pity that the hysteria that is copyright has lead us to this point.
    We have global players who insist on trying to carve out a few more special rights where ever they can find them, even if it makes no sense. This book is in the public domain in 10 countries, but not in these 7 & we have some special extra moral rights in these 12 countries & we get paid a cut each time.

    We have artists dead for hundreds of years, but there is still someone making a dollar who will fight tooth and nail to keep that income stream. They don't pay to put flowers on the grave, they don't use an ouija board to allow the creations to continue, they exist to enrich themselves for as long as possible.
    There is no benefit to society as it is now impossible to figure out what rights apply if you happen to get a picture of the Mona Lisa, you will have rights groups claiming to own your picture & want to charge you for posting it.

    Perhaps it is time we admit the beast has grown much more monstrous, it doesn't benefit the artists, it doesn't benefit society, it benefits small cabals who threaten anyone who dares think that building upon culture is a right we are supposed to have.

    We need to admit creation is global & in a world where information travels in seconds we should clean up all of the patch works & unify it. Spend less time trying to figure out 200 different hoops per region. Require rights to be registered so the 'well we might own it but we dunno, but if you make something we'll sue you into the ground if we figure out we do have the rights.'

    Its been 150 years, the artist is long dead and there really can't be that much value to squeeze out left, but there is value to a new artist who wants to build upon the pieces that make up the bedrock of culture.

    reply to this | link to this | view in thread ]

  8. identicon
    Filter Air, 3 Feb 2018 @ 1:38am

    Re:

    yes, the Canadian websites Gutenberg.ca and FadedPage.com (and their associated crowdsourced-book-production site pgdpcanada.net) create and post any books that can be determined to be public-domain in Canada, including many books that are still in copyright somewhere else (including the U.S.[*]). And their take-down responses to anyone outside Canada start with the simple fact: "This website operates in Canada according to Canadian law." Yes, there are Copyright Mafioso in the U.S. who do not like it. So far they haven't bought enough Canadian legislators to matter.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 3 Feb 2018 @ 3:41am

    Re:

    When you look at the history of copyright, its purpose was never to benefit creators, but rather it was intended to regulate an industry where two publishers printing the same title could be ruinous for one or both, because they could end up with a lot of unsold books. Over the years it has been morphed by the publishers so as gatekeepers to an industry with limited production capabilities, they could maximize their own profits by imposing bad terms on the creators whose works they accepted, as it was accept their terms or languish in obscurity. The continuous lengthening of copyright terms is an anti-competition measure, as they do not want to compete with a vibrant public domain, but rather limit the market to fewer, more profitable for them, works.

    The DMCA, and stricter proposals like SOPA, are their attempt to regain control over what is published, so that they can make publication a rare privilege for creators.

    reply to this | link to this | view in thread ]

  10. identicon
    Christenson, 3 Feb 2018 @ 8:07am

    Re:

    use a ouija board to posthumously publish, lol...

    No value to squeeze out in republishing, oh, Shakespeare? lol... "Life is a tale, told by an idiot, full of sound and fury, signifying nothing!" (Tell that to Stratford, Ontario!)

    The situation is indeed insane, and the rights groups need controlling, perhaps via the Sherman act in the US and a forced breakup. And yes, any rights granted must be freely ascertainable, just like the law; that might be an excellent way to control the trolling and a way to win the battle in courts.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 5 Feb 2018 @ 3:27pm

    Re: Re: Don't ignore worldwide internet

    It is the classic "venue shopping"-problem of jurisdiction. As long as you can make a "fair" argument for why you do business from the desert of east Texas, you have got yourself a friendly local judge to "convince" rather than a damn liberal activist from New York.

    The internet has been mostly speech and as such a lightly regulated sector. Today the internet is too large an economy and the criminal networks are too powerful to ignore.

    With more regulation follows more jurisdictional disputes. If the market for immaterial rights legislation is based on attracting the shopping immaterial rightholders, no wonder there has been a competition on who can "liberate" most money for the immaterial rights companies! The lawyers used in those lawsuits are damn good jobs and they will never get obsolete as long as the immaterial rights are sufficiently complicated!

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 5 Feb 2018 @ 9:23pm

    Be careful what you wish for

    Hollywood has been playing the "harmonization" ratchet
    game between the U.S. and Europe. After EE extended
    their copyrights, the U.S. had to "harmonize" with the
    EU and extend the U.S. copyright terms.

    reply to this | link to this | view in thread ]


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