Wikipedia:Non-U.S. copyrights

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This page in a nutshell: Copyright status of a work in its home country is often important in evaluating its copyright status in the United States. Nevertheless, a work which is in the public domain in its home country can sometimes be under copyright in the United States and so can not be used on Wikipedia.

The servers which host Wikipedia are located in Florida, and so we are bound to comply with United States copyright law. However, it is an international project, and large numbers of our users and contributors, perhaps the majority (we don't count), are outside the United States. We aim to produce and maintain a free encyclopedia, which can be used in any way which doesn't reduce that freedom. Most of our material is original, licensed by the author under the Creative Commons Attribution-Sharealike (CC-BY-SA) and GNU Free Documentation (GFDL) licenses; some of our material, especially images, comes from third-party sources, and some of those third-party sources are outside the United States.

While Wikipedia prefers content which is free anywhere in the world it accepts content which is free in the United States even if it may be under copyright in some other countries. For example works of the US federal government are in the public domain in the United States and widely used on Wikipedia but they are not in the public domain outside the United States.

It is not always simple to determine the copyright status of a work first published outside of the United States. To determine the copyright status of a work in its country of origin (and there are at least 192 different national copyright régimes) it is typically necessary to know the date of death of the author, while to determine the copyright status in the United States it is typically necessary to know its publication history and its copyright status in the country of origin not on the date of uploading but on January 1, 1996.

What follows is by necessity a summary, our interpretation of U.S. copyright law as it affects "works" (images, texts, sound recordings, etc.) which were produced outside of the United States. Wikipedia does not offer legal advice on U.S. copyright law, let alone copyright laws in the other 190 sovereign states in the world, and it is the responsibility of reusers to ensure that their use of Wikipedia material is legal in the country in which they use it. It is also the responsibility of contributors to supply as much copyright information as possible so that users can judge for themselves whether they can reuse our material outside the United States.

This page does not apply to works first published in the United States.

Contents 1 General 2 Restored copyrights 2.1 Four-point test 2.2 Source country 2.3 Date of restoration 2.4 Copyright protection in the source country 2.5 Wartime copyrights 2.5.1 Germany 2.5.2 Japan 2.6 Duration of restored copyright 2.7 Works first published after the date of restoration 3 Non-restored copyrights 3.1 Three-point test 4 Subsisting copyrights 4.1 Three-point test 4.2 Countries with copyright relations with the United States on January 1, 1923 4.3 Relevant copyright relations concluded after 1923 4.4 Chinese copyrights 5 Unpublished works 6 Dates of restoration and terms of protection 6.1 Table notes and references 7 Notes and References 8 See also 9 External links 9.1 United States copyright law 9.2 Other national copyright laws 9.3 International copyright treaties

[edit] General

A work can be in the public domain in the United States but still under copyright protection in its "source country": this is the case, for example, for Einstein's paper describing the theory of special relativity, first published in Germany in 1905. Any work published before 1923 is in the public domain in the United States, regardless of its source country, but German copyright protection lasts for seventy years after the death of the author (post mortem auctoris or "pma"), until December 31, 2025 in this case.^[1]

A work can equally be in the public domain in its source country but still under copyright in the United States: any non-posthumous work published after 1922 by a British, French, or German author who died between January 1, 1926 and December 31, 1937 falls into this category. The copyright term of 70 years pma (which applies to all European Union countries) has expired, but its U.S. copyright was restored on January 1, 1996 by Act of Congress and will run until at least December 31, 2018 (95 years after publication, rounded to the end of the year).

Works first published outside the United States may be protected under U.S. copyright either through restoration of the copyright or through a copyright which subsists from the time of publication. The case of restored copyrights will be examined first, as it also determines the copyright status of most contemporary works.

[edit] Restored copyrights

A large number of non-U.S. works were given copyright protection in the United States by the Uruguay Round Agreements Act of 1994 (URAA)^[2] as a result of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).^[3][4] These copyrights are known as "restored copyrights", even though some of the works had never previously been protected in the United States. The countries concerned by this measure are (in practice) either:

• members of the World Trade Organization (WTO); or
• signatories of the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention); or both.^[5]

Restored copyrights are governed solely by U.S. copyright law: the United States does not require reciprocality over and above what is required by the relevant treaties. Restoration is automatic and does not usually require registration.^[6]

[edit] Four-point test

1. Is the source country a WTO member or a Berne Convention signatory? (see table)
   • NO: see "Non-restored copyrights".
2. Is the work copyrightable in the United States?
   • NO: Are you sure?! The main exception is architectural works (i.e. buildings) constructed before December 1, 1990.^[7]
3. Had the copyright expired in the source country on the date of restoration? (see table)
   • YES: The work is probably in the public domain in the United States, but see "Subsisting copyrights".
4. Was the work published before January 1, 1923?
   • YES: The work is in the public domain in the United States, but may still be under copyright in the source country and in other countries.
   • NO: The work is under copyright in the United States, and will remain so until at least 2019. See "Wartime copyrights" for a limited exception.

[edit] Source country

The source country of a work is the country in which it was first published. If the work was published simultaneously in more than one country, it is the "country which has the most significant contacts with the work".^[8]

[edit] Date of restoration

The date of restoration is January 1, 1996 if the source country was a member of the WTO or a signatory of the Berne Convention on that date. Otherwise, it is the earliest date on which a country becomes eligible for the restoration of copyrights.^[9]

[edit] Copyright protection in the source country

If the work is in the public domain in the source country "through expiration of term of protection" the U.S. copyright is not restored.^[10] However it appears that copyright may be restored if the work was never under copyright in the source country, for example if it belongs to a class of works which was protected in the United States but not in the source country at the time of publication. It is unclear how far this protection extends: are German laws (exempt from copyright in Germany by §5(1) UrhG) protected by U.S. copyright by virtue of 17 U.S.C. §104A? We are not aware of any case law which has tested this type of protection: in the example cited, it seems inconceivable that the German government would try to enforce a copyright in the United States which it could not enforce in Germany.

[edit] Wartime copyrights

Any copyrights which were "ever owned or administered by the Alien Property Custodian" were not restored if the restored copyright would be held by "a government or an instrumentality thereof".^[11] Hence the U.S. copyright in Mein Kampf was not restored, as it would have been held by the government of Bavaria. However there are several important limitations to this exception.

[edit] Germany

A number of German cases indicate that the copyright in images or graphic works remains with the author, even if the works were produced for official use.^[12] All of these German copyrights were extended in period to 70 years pma before the date of restoration,^[13] and so the U.S. copyrights have been restored.^[14]

[edit] Japan

The presidential proclamation instituting copyright relations between the United States and Japan, effective May 10, 1906, is considered to have been abrogated.^[15] However, the two countries maintained copyright relations throughout the war and aftermath, so government-owned works which were administered by the Alien Property Custodian should not have been restored. The abrogation occurred on April 28, 1952 per the Treaty of Peace with Japan, but same peace treaty included a four-year interim copyright agreement where the U.S. and Japan gave each other's works national treatment, and which also applied retroactively. Japan timed their ratification of the Universal Copyright Convention so it would enter into effect on the date that the interim agreement expired, April 28, 1956, meaning there was no lapse in copyright relations between the two countries. Works previously protected were thereafter protected under the terms of the UCC, not the terms of the earlier treaties.^[16]

[edit] Duration of restored copyright

The duration of the restored copyright is "the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain":^[17] 95 years from the date of publication for works published between 1923 and 1977, and 70 years from the death of the author for works published in 1978 or later.^[18]

[edit] Works first published after the date of restoration

These works are automatically granted U.S. copyright protection for the lifetime of the author plus seventy years.

[edit] Non-restored copyrights

For countries which are not yet eligible for copyright restoration, the main criterion used by Wikipedia is the copyright status in the source country. These countries fall into three groups:

• Laos and Turkmenistan, which are signatories of the Universal Copyright Convention (UCC);
• Countries which have never had copyright relations with the United States;
• Countries whose status is "unclear" even to the U.S. Copyright Office (all of them former colonies).

[edit] Three-point test

1. Is the work still under copyright in the source country?
   • YES: The work can only be used on Wikipedia under the doctrine of fair use.
2. Was the work first published in Laos on or after January 1, 1964, or in Turkmenistan on or after May 27, 1973?
   • YES: The work is under copyright in the United States, and will remain so until at least 2060. This is true regardless of registration or the presence or absence of a copyright notice.
3. Was the work first published in Laos between September 16, 1955 and December 31, 1963?
   • YES: The work is under copyright in the United States provided that its copyright was renewed at the end of the first 28-year term. Wikipedia assumes that copyrights were renewed unless we have evidence to the contrary.
   • NO: The work is in the public domain.

[edit] Subsisting copyrights

In a small number of cases, the application of the test for restored copyright will indicate that the work is in the public domain in the United States when in fact there is a subsisting U.S. copyright which dates from the time of its publication. This situation can arise when

1. the other country has long-standing copyright relations with the United States; and
2. the minimum copyright term in the other country is shorter than the period between 1923 and the date of restoration (in practice 72 years or less, as of August 2006).

Example: The photographs of a Canadian photographer who died in 1943 entered the public domain in Canada fifty years after their publication. As they were in the public domain through expiration of their copyright term on January 1, 1996, their copyrights were not restored by the Uruguay Round Agreements Act of 1994. However, the photographs could have been registered for U.S. copyright under a Presidential Declaration effective January 1, 1924 if they were first published on or after this date: if their U.S. copyrights had been renewed at the appropriate time, they will still be under U.S. copyright until 95 years after their first publication (January 1, 2020 at the earliest). This is believed to be the case for some photographs by Yousuf Karsh (died 2002).

The relevant U.S. law is Section 9(b) of the Copyright Act of 1909,^[19] which authorizes the U.S. President to grant by proclamation the right for non-U.S. citizens to have U.S. copyright for their works under the same conditions as U.S. citizens. The section explicitly provides for "works first produced or published abroad". It also implicitly provides for a retroactive effect of the presidential proclamation, though there is no indication from the U.S. Copyright Office^[20] that any of the proclamations actually had any such retroactive effect which is relevant to Wikipedia.

[edit] Three-point test

Check for restored copyrights before applying this test.

1. Do you have evidence (e.g. a letter from the agents for the author's estate) that the work is not protected by U.S. copyright?
   • YES: The work is in the public domain in the United States. Please provide the evidence, if necessary by following the procedure at Wikipedia:Permissions
2. Did the source country have copyright relations with the United States on January 1, 1923?
   • YES: The work should be assumed to be protected by U.S. copyright. It should only be used on Wikipedia if it falls within the fair use policy.
3. Was the work published after January 1, 1923 but before the effective date of copyright relations between the source country and the United States?
   • YES: The work is in the public domain in the United States.
   • NO: The work should be assumed to be protected by U.S. copyright. It should only be used on Wikipedia if it falls within the fair use policy.

[edit] Countries with copyright relations with the United States on January 1, 1923

Australia, Austria, Belgium, Bolivia*, Brazil*, Chile, China (including Taiwan), Costa Rica, Cuba, Denmark, the Dominican Republic*, Ecuador*, El Salvador, France, Germany, Guatemala*, Haiti*, Honduras*, Hungary, Italy, Japan, Luxembourg, Mexico, the Netherlands, New Zealand, Nicaragua*, Norway, Panama*, Paraguay*, Peru*, Portugal, Spain, Sweden, Switzerland, Thailand, the United Kingdom and Uruguay*.

Countries marked with an asterisk (*) had copyright relations as signatories of the Buenos Aires Convention. El Salvador had copyright relations as a signatory of the Mexico City Convention. For Japan, see "Wartime copyrights", for China and Taiwan, see "Chinese copyrights" below. Mexico and Guatemala had copyright relations with the United States on January 1, 1923 but these are not relevant here as their minimum copyright terms are 100 and 75 years respectively and so all copyrights were restored for the appropriate U.S. term on January 1, 1996 by the URAA. Despite the name, Argentina did not join the Buenos Aires Convention until April 19, 1950.

[edit] Relevant copyright relations concluded after 1923

• Canada, effective January 1, 1924
• South Africa, effective July 1, 1924
• Laos, effective September 16, 1955 by virtue of the Universal Copyright Convention: Laotian copyrights are not yet eligible for restoration (as of August 2006).

[edit] Chinese copyrights

What could be a complicated situation with regard to copyights originating in mainland China and in Taiwan is much simplified by the regime of copyright restoration. Both the Peoples' Republic of China and Chinese Taipei are eligible for the restoration of copyrights: the dates of restoration are January 1, 1996 and January 2002 respectively. Previously, the United States had copyright relations with China dating from a bilateral treaty effective from January 13, 1904. The People's Republic of China does not consider this treaty to be binding, but the Republic of China (Taiwan) considers it still to be in force. Older works, which were ineligible for restoration because their Chinese copyright had expired before the date of restoration, may be covered by a U.S. copyright granted at the time of publication under the provisions of this treaty.

[edit] Unpublished works

All unpublished works are protected by U.S. copyright, regardless of the source country, for seventy years after the death of the author.^[21]

[edit] Dates of restoration and terms of protection

[edit] Table notes and references

Dates of restoration were taken from information in U.S. Copyright Office Circular No. 38a, correct as of January 2005, cross-checked and updated by reference to the Membership of the WTO, correct as of December 11, 2005, and to the [list of signatories of the Berne Convention], correct as of May 30, 2006 (quoted date, in fact the document records Samoa's accession on July 21, 2006). For convenience, dates of restoration for the predecessor countries have been quoted for countries which have become independent since copyright restoration (Montenegro, Timor Leste). Terms of protection were taken from a variety of sources, including WIPO, UNESCO and the University of Pennsylvania (see External links). Where no more specific information is available for a country, an indication of its probable minimum copyright term can be gained from its status as:

• a signatory of the Berne Convention ("Berne"); minimum term of 50 pma, except for photographs.
• a member of the WTO ("TRIPS"); minimum term of 50 pma.
• a candidate for membership of the European Union ("EU"); term must be 70 pma before accession.

pma = post mortem auctoris, (years) after the death of the author
pd = post divulgationem, (years) after publication

* Countries with a possibility of subsisting U.S. copyrights.

† WTO observer countries, which are required to start membership negotiations within five years of becoming observers. These countries will be eligible for copyright restoration once they join the WTO, or earlier if they choose to sign the Berne Convention or the WTO Copyright Treaty beforehand.

^(a) Bilateral copyright relations between the United States and each of Belgium, France, Switzerland and the United Kingdom were established by Presidential Proclamation No. 3 of July 1, 1891 (27 Stat. 981) under the authority of The Chase Act of 1891.

^(b) Bilateral copyright relations between the United States and Canada were effective from January 1, 1924.

^(c) Bilateral copyright relations between the United States and China were established by treaty effective from January 13, 1904. The People's Republic of China does not consider this treaty to be binding, but the Republic of China (Taiwan) considers it still to be in force. Copyright relations were established between the United States and the People's Republic of China by a Presidential Declaration of March 17, 1992 under the authority of 17 104(b)(5) as modified by the Berne Convention Implementation Act of 1988 (Pub. L. No. 100-568, 102 Stat. 2853). See "Chinese copyrights" above.

^(d) The Federal Republic of Germany is the successor state to the German Democratic Republic and to the German Empire.

^(e) The Special Administrative Regions of Hong Kong and Macau have their own status, distinct from that of the rest of China, under international copyright and trade law.

^(f) The bilateral copyright relations between the United States and Japan which were established on May 10, 1906 are considered by the U.S. Copyright Office to have been abrogated, and superseded by the adherence of Japan to the Geneva Act of the UCC on April 28, 1956.^[15] The abrogation occurred when the U.S. did not include the copyright proclamation in the list of treaties which were to continue in effect, per Article 7(a) of the Treaty of Peace with Japan which went into effect on April 28, 1952. Article 12 of the same peace treaty included a four-year interim copyright agreement, made explicit by a separate protocol letter, where the U.S. and Japan gave each other's works national treatment. This agreement applied retroactively to works previously covered under older bilateral copyright treaty. Japan timed their ratification of the Universal Copyright Convention so it would enter into effect on the date that the interim agreement expired, April 28, 1956, so that there was never a lapse in copyright relations between the two countries. Works previously protected were thereafter protected under the terms of the UCC, not the terms of the earlier treaties.^[16] Some World War II government-owned works may not have had their U.S. copyright restored; see #Wartime copyrights.

^(g) Laos is a signatory of the Geneva Act of the UCC, effective September 16, 1955.

^(h) Montenegro is assumed to have succeeded to the copyright obligations of Serbia and Montenegro (see note (j)).

^(i) Including the Netherlands Antilles and Aruba: although Dutch adhesion to the Berne convention only applies to the Kingdom in Europe, membership of the WTO includes the overseas territories.

^(j) Serbia is deemed to be a successor state of Serbia and Montenegro, which itself was a successor state to Yugoslavia for international copyright treaties, notably the Berne Convention, effective June 17, 1930.

^(k) Bilateral copyright relations between the United States and South Africa were effective from July 1, 1924.

^(l) Timor Leste is assumed to retain the copyright status it held as a part of Indonesia, a signatory of the Berne convention.

^(m) Turkmenistan has confirmed its status as a successor to the obligations of the USSR under the Geneva Act of the UCC, effective from May 27, 1973, in a bilateral agreement with the United States on October 25, 1993.

^(n) The United Kingdom's adhesion to the Berne Convention extends to the Isle of Man, effective March 18, 1996.

^(o) Restoration of Vietnamese copyrights occurred through Presidential Proclamation No. 7161 of December 23, 1998 [63 Fed. Reg. 71571 (1998)], prior to Vietnam's signature of the Berne Convention on October 26, 2004.

^(p) Spain had a copyright term of 80 years p.m.a. from 1879 until 1987 (see the Spanish copyright law from 1879). The law of 1987 reduced the term to 60 years, but already running longer terms remained valid. The 1996 law, which implemented EU directive 93/98/EEC, increased the term again to 70 years, but again, already running longer terms remained valid.

^(q) Switzerland had a copyright term of 50 years p.m.a. until 1993, and the extension to 70 years p.m.a. made in 1993 did not restore already expired copyrights, meaning that the copyright of works by Swiss creators who died before 1943 didn't get restored in the U.S., as the copyright of those works was already expired at the date of restoration.

^(r) Romania extended its copyright term from 50 years p.m.a. to 70 years on June 25, 1996.[22] This means that on the URAA date of January 1, 1996, the shorter term of 50 years was still valid. However, some of these works then became re-copyrighted on June 25, 1996 within Romania as the term extension explicitly also applied to works on which the copyright had already expired (article 149(3)).

^(s) South Korea introduced a 30-years-p.m.a. term in its copyright law of 1957, which was extended in 1987 to 50 years. See Yunjeong Choi, Development of Copyright Protection in Korea: its History, Inherent Limits, and Suggested Solutions, Brook. J. Int'l L. 28 (2003), pp. 643-673. The transitional provisions laid out in the addendum of the 1986 law (for the entry in force on July 1, 1987) clarified that the new law (and thus its longer term) did not apply to works whose copyright term under the earlier law had already expired.

^(t) India extended its general term from 50 to 60 years in Act 13 of 1992, effective from December 31, 1991. The change was made in part to further protect the works of Rabindranath Tagore, who died in 1941. Works which had expired prior to December 31, 1991 remained in the public domain. See Significance, History and Development of Copyright Law, Dr. Bharat B. Das, p 352 (PDF link[23]), and The life and death of a copyright, N.A.K. Sarma. Therefore, works which expired before December 31, 1991 (effectively, before January 1, 1991) were in the public domain in India on the URAA date of January 1, 1996. For original literary, dramatic, musical and artistic works, this is where the author died before January 1, 1941, and for cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organisations, this would mean works published before January 1, 1941.

^(u) Hungary extended its copyright term from 50 to 70 years p.m.a. on July 1, 1994, but did not restore any copyrights which had already expired.(article 56(1)) This means that on the URAA date of January 1, 1996, works where the author died before 1944 were still in the public domain in Hungary, and such copyrights were not restored in the U.S. However, Hungary later restored these copyrights to the full 70 p.m.a. term prior to joining the EU, as the 1999 copyright law explicitly applied the newer term to works on which the copyright had already expired (article 108(1)).

^(v) Many former dependent territories of the United Kingdom continued to use the UK copyright legislation, usually the Copyright Act 1956, as the basis of their copyright law after independence. Some have since drafted replacement legislation, but others still use the older UK laws.[24]

[edit] Notes and References

1. ^ The term of copyright protection in most countries runs until December 31 in a given year: see, for example, Article 7(5) of the Berne Convention. The relevant provision of U.S. law is "Duration of copyright: Terminal date", 17 U.S.C. §305.
2. ^ Pub. L. No. 103-465, 108 Stat. 4809.
3. ^ "Approval and entry into force of Uruguay Round Agreements", 19 U.S.C. §3511
4. ^ The régime of restored copyrights was introduced by the North American Free Trade Agreement Implementation Act of 1993: Pub. L. No. 103-465, 108 Stat. 4809.
5. ^ "Copyright in Restored Works", 17 U.S.C. §104A(h)(3).
6. ^ The U.S. Copyright Office warns that registration should be assumed to be necessary to enforce copyrights originating in countries which are members of the WTO but not signatories of the Berne Convention: "Highlights of Copyright Amendments Contained in the URAA", U.S. Copyright Office Circular No. 38b, July 2006 (PDF file).
7. ^ Architectural Works Copyright Protection Act of 1990: Pub. L. No. 101-650, 104 Stat. 5089.
8. ^ 17 U.S.C. §104A(h)(8).
9. ^ 17 U.S.C. §104A(h)(2).
10. ^ 17 U.S.C. §104A(h)(6)(B).
11. ^ 17 U.S.C. §104A(a)(2).
12. ^ See, e.g., BGH GRUR 1988, 33 (PDF file, p. 16); OLG Köln AfP 2000, 583.
13. ^ §137f UrhG. See OLG Hamburg 3.3.2004 5 U 159/03 U-Boot-Foto for the retroactive effect of copyright extension to works which had fallen into the public domain in Germany.
14. ^ The ownership of a restored copyright is determined by the law of the source country: 17 U.S.C. 104A(b).
15. ^ "International Copyright Relations of the United States", U.S. Copyright Office Circular No. 38a, August 2003.
16. ^ "Changes in Japanese society and the course of reform of the copyright system: Centennial of the Copyright Law in Japan"
17. ^ 17 U.S.C. §104A(a)(1)(B).
18. ^ "Duration of copyright: Works created on or after January 1, 1978", 17 U.S.C. §302 and "[Duration of copyright: Subsisting copyrights", 17 U.S.C. §304, as amended by the Sonny Bono Copyright Term Extension Act of 1988 (Pub. L. No. 105-298, 112 Stat. 2827). See also "Duration of Copyright: Provisions of the Law Dealing with the Length of Copyright Protection", U.S. Copyright Office Circular No. 15a, January 2004; and "Highlights of Copyright Amendments Contained in the URAA", U.S. Copyright Office Circular No. 38b, July 2006 (PDF file).
19. ^ "Authors or proprietors, entitled; aliens"
20. ^ "International Copyright Relations of the United States", U.S. Copyright Office Circular No. 38a, August 2003.
21. ^ "Subject matter of copyright: National origin", 17 U.S.C. §§104(a) and "Duration of copyright: Works created but not published or copyrighted before January 1, 1978", 17 U.S.C. §303.

[edit] See also

• Agreement on Trade-Related Aspects of Intellectual Property Rights
• List of countries' copyright length
• Wikipedia:Public domain
• WIPO (World Intellectual Property Organization)

[edit] External links

[edit] United States copyright law

• Copyright Act of 1909 from MegaLaw

[edit] Other national copyright laws

• Collection of laws for electronic access - National laws from WIPO
• Collection of national copyright laws from UNESCO
• Summary of copyright terms from the University of Pennsylvania, with links to national laws
• Pacific Islands Legal Information Institute; collection of laws of Pacific countries

[edit] International copyright treaties

• Collection of laws for electronic access - Copyright treaties^{[dead link]} from WIPO