Re: [Fwd: Re: Concerns about works created by the US government]
On 4/11/05, Dave Hornford [EMAIL PROTECTED] wrote: A work authored by the American Government, and therefore in the public domain in the United States is in effect in the public domain in Italy, or equivalent of copyright expired. The work does not qualify for an Italian copyright, it was not created in Italy or by an Italian citizen abroad (I don't know if Italian law provides Italian copyright for works authored by Italians abroad, but some countries do); and it has no American copyright protection available to be extended to Italian jurisdiction through the various copyright conventions. A work of the US government is not public domain, as cited by Florian from the House report. Berne Convention 2.4 permits member countries to deny some such works protection: It shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts. But other works of the US Government (such as software) may not be excluded from copyright protection by Italian law just because 17 USC 105 denies the US Government copyright protection under this title domestically. However, note from Article 5.4(a): the country of origin is, in the case of works first published in a country of the Union, that country; in the case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection. It's possible that Article 7.8 therefore permits Italian law to deny copyright protection to anything denied copyright protection in its country of origin. That may depend on whether the Italian implementation is written to limit protection on a foreign work to the term of its protection in its country of origin or the term of protection, in its country of origin, of works of its type. Case law, anyone? (And, if it comes up before you get into detailed arguments on proving this point ask your Italian court to rule the proper venue is the author's home jurisdiction, the United States, where there is no copyright protection for the work) I think (IANAL) that you are less likely to succeed with forum non conveniens than with an insistence on the court's applying your preferred choice of governing law (assuming the facts fit). Even that doesn't always work, especially across the common law / civil code divide (see Heritiers Huston v. Turner), and may backfire if the legislative record demonstrates (as it does) that the US government intended to retain copyright in foreign jurisdictions. The extended copyright protection afforded through the various conventions enable the US-based author to go to court to protect rights they have in the US that also exist in Italy. Before the last part is used as a jumping off point let me give an example: the US grants life+70 or 75 copyright to photographs to the photographer, while Canada grants 50 years from then end of the year the photograph was taken to the owner of the negative. As a holder of Canadian photograph copyrights I cannot enforce copyright protection of my photographs in the US after they expire in Canada. Nor can an American copyright holder enforce photographic copyrights in Canada 51 years after a US copyrighted photograph was taken (and if the American photographer didn't own the negative they may not have standing in Canada). In the first case there are no Canadian rights available for protection under US copyright law through a convention, in the latter case there are no rights available for protection in Canada. Your conclusions are, I think, correct, but the reasoning isn't quite. The handling of different terms in venue and country of origin isn't a matter of logic, it's simply specified by treaty (and national implementations). As regards the term of protections, see Berne Convention Articles 5 and 7. The critical provision is Article 7.8: In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work. Incidentally, the treaty minimum for photographs is 25 years from creation, but many countries grant longer periods. I'm surprised by your claim that an American photographer would have to own the negative in order to obtain standing in a Canadian court. I would have thought that in Canada copyrights are logically separable from, and not automatically conveyed along with, negatives and master tapes, just as in the US (cf. Harris v. Emus, Ninth Circuit 1984). For further research into international copyright the most relevant treaties are administered by the World Intellectual Property Organization (WIPO) - Berne UCC if memory serves, the World Trade Organization (WTO) - TRIPS from the Uruguay round of
Re: [Fwd: Re: Concerns about works created by the US government]
posted mailed Dave Hornford wrote: A work authored by the American Government, and therefore in the public domain in the United States is in effect in the public domain in Italy, or equivalent of copyright expired. The work does not qualify for an Italian copyright, it was not created in Italy or by an Italian citizen abroad (I don't know if Italian law provides Italian copyright for works authored by Italians abroad, but some countries do); and it has no American copyright protection available to be extended to Italian jurisdiction through the various copyright conventions. (And, if it comes up before you get into detailed arguments on proving this point ask your Italian court to rule the proper venue is the author's home jurisdiction, the United States, where there is no copyright protection for the work) The extended copyright protection afforded through the various conventions enable the US-based author to go to court to protect rights they have in the US that also exist in Italy. Before the last part is used as a jumping off point let me give an example: the US grants life+70 or 75 copyright to photographs to the photographer, while Canada grants 50 years from then end of the year the photograph was taken to the owner of the negative. As a holder of Canadian photograph copyrights I cannot enforce copyright protection of my photographs in the US after they expire in Canada. Nor can an American copyright holder enforce photographic copyrights in Canada 51 years after a US copyrighted photograph was taken (and if the American photographer didn't own the negative they may not have standing in Canada). In the first case there are no Canadian rights available for protection under US copyright law through a convention, in the latter case there are no rights available for protection in Canada. This is *very* useful information. I have a book here by a British author who died in 1925, putting the work in the public domain in Britain. However, the book was published in 1925, and US copyright lasts (this week) 95 years, so normally such a US copyright would not expire until 2020. Does this indicate that the authors' heirs have no rights in the US under any copyright convention or treaty? That seems to be your implication. My previous reading of Berne gave the opposite conclusion, that the author had exactly the same rights as a native US author. What did I miss? Do they have rights if the copyright was separately and independently registered in the US? Under US law foreign authors could do this upon first US publication. I'd guess yes? regards Dave -- This space intentionally left blank. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Concerns about works created by the US government
Henning Makholm [EMAIL PROTECTED] writes: Hm, do we have anything in Debian with a this is U.S. government work, so copyright does not apply to it license status? I seem to remember that -legal once concluded that it was as good as public domain, but I cannot find it in the archives. The ncbi-tools6 package I maintain falls into this category; its source files generally state up front *PUBLIC DOMAIN NOTICE * National Center for Biotechnology Information * * This software/database is a United States Government Work under the * terms of the United States Copyright Act. It was written as part of * the author's official duties as a United States Government employee and * thus cannot be copyrighted. This software/database is freely available * to the public for use. The National Library of Medicine and the U.S. * Government have not placed any restriction on its use or reproduction. * * Although all reasonable efforts have been taken to ensure the accuracy * and reliability of the software and data, the NLM and the U.S. * Government do not and cannot warrant the performance or results that * may be obtained by using this software or data. The NLM and the U.S. * Government disclaim all warranties, express or implied, including * warranties of performance, merchantability or fitness for any particular * purpose. * * Please cite the author in any work or product based on this material. BTW, please Cc: me on replies -- I don't generally read -legal, and just happened to stumble across this thread when looking for something else. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Concerns about works created by the US government
On Apr 8, 2005, at 05:00, Henning Makholm wrote: Hm, do we have anything in Debian with a this is U.S. government work, so copyright does not apply to it license status? IIRC, the Hershey fonts with Ghostscript. -- Henri Sivonen [EMAIL PROTECTED] http://hsivonen.iki.fi/ -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Concerns about works created by the US government
On Fri, 08 Apr 2005 03:00:00 +0100 Henning Makholm wrote: On the other hand, I think it is common for countries only to award copyright protection to works produced in foreign countries only to the extent that copyright exists in the country of origin. But I may be wrong. Well, this is an issue that I would really love to understand! If I understand correctly, in Italy (and other similar jurisdictions) authors are not allowed to place their works in the public domain: works fall in the PD only when author's economic rights expire (that is 70 years after the author's death and similar rules). On the other hand, US authors can explicitly place their works in the PD. Suppose a work is created in the USA by a US author and placed in the PD. Then the work is downloaded by an Italian citizen. Is that work in the PD in Italy as well? Or is it copyrighted? If it is, in lack of a proper license, it's All Rights Reserved proprietary! That would result in the opposite of the original author's goal! I have tried to find an answer to this question by asking several Italian lawyers, but no one seems to know the answer (or even care to reply, in most cases...).:-( So far, no luck. Does anyone know the answer? -- :-( This Universe is buggy! Where's the Creator's BTS? ;-) .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpaNfJznOs4o.pgp Description: PGP signature
Re: Concerns about works created by the US government
Scripsit Florian Weimer [EMAIL PROTECTED] * Sami Liedes: This certainly seems to make the works effectively PD in the US; however it almost seems as if that was carefully worded to _not_ place works in the PD, only to make the US government unable to enforce their copyright under the US law. AFAIK, this is indeed the standard interpretation: Hm, do we have anything in Debian with a this is U.S. government work, so copyright does not apply to it license status? I seem to remember that -legal once concluded that it was as good as public domain, but I cannot find it in the archives. In any case, it is a bit troublesome that copyrightable *parts* of such works might have found their way into other pieces of software which do, as wholes, have reasonable licenses. On the other hand, I think it is common for countries only to award copyright protection to works produced in foreign countries only to the extent that copyright exists in the country of origin. But I may be wrong. -- Henning Makholm *Tak* for de ord. *Nu* vinker nobelprisen forude. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Concerns about works created by the US government
Henning Makholm writes: Scripsit Florian Weimer [EMAIL PROTECTED] * Sami Liedes: This certainly seems to make the works effectively PD in the US; however it almost seems as if that was carefully worded to _not_ place works in the PD, only to make the US government unable to enforce their copyright under the US law. AFAIK, this is indeed the standard interpretation: Hm, do we have anything in Debian with a this is U.S. government work, so copyright does not apply to it license status? I seem to remember that -legal once concluded that it was as good as public domain, but I cannot find it in the archives. You may be thinking of libtnt-dev. NIST's disclaimer[0] for downloading it is pretty clear that it is in the public domain: This software was developed at the National Institute of Standards and Technology (NIST) by employees of the Federal Government in the course of their official duties. Pursuant to title 17 Section 105 of the United States Code this software is not subject to copyright protection and is in the public domain. The US Copyright Office's Circular 1[1] is less expansive, merely repeating the comment earlier that US Government works are not eligible for US copyright protection. On the other hand, the Patent and Trademark Office[2] says that they are in the public domain but with limitations as detailed in 17 USC 403 (where attribution by the copyright holder is required to prosecute infringement of works consistent predominantly of works created by the US Government). Last December, based on the relevant portion of the Copyright Act, a Florida Court of Appeals held[3] that a government official simply may not claim copyright in a work created for government use. [0]- from http://math.nist.gov/tnt/download.html [1]- http://www.copyright.gov/circs/circ1.html [2]- http://www.uspto.gov/main/ccpubguide.htm [3]- http://www.rcfp.org/news/2004/1209microd.html Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Concerns about works created by the US government
[Please Cc: me when replying] Hello, Generally for free software (and most other purposes) it seems that works created by the US government are usually considered (sometimes effectively) to be in the public domain. I however have some concerns about this. The relevant US law says (title 17, chapter 1, § 105): Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. This certainly seems to make the works effectively PD in the US; however it almost seems as if that was carefully worded to _not_ place works in the PD, only to make the US government unable to enforce their copyright under the US law. What I think it does NOT do is forbid the US government from enforcing their copyright in any foreign jurisdiction. I think this is just about the only imaginable reason why the title does not say Any work of the US government is public domain instead. I think that for an international project this might be a problem, at least in theory. I agree that the Debian project possibly cannot take into account all laws in all countries; however I think this is potentially a major issue since it probably would affect any other country under the Berne convention. I'd be happy to be proven wrong, though, and that's why I'm writing here :) Sami signature.asc Description: Digital signature
Re: Concerns about works created by the US government
On Wednesday 06 April 2005 07:55 am, Sami Liedes wrote: The relevant US law says (title 17, chapter 1, § 105): Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. This certainly seems to make the works effectively PD in the US; however it almost seems as if that was carefully worded to _not_ place works in the PD, only to make the US government unable to enforce their copyright under the US law. The language regarding the US holding a transferred copyright is only applicable when the copyright is created by a non-governmental actor and then transferred to the United States government. Under those conditions the US holds a valid, enforceable copyright that it can do whatever it wants with. Probably useful for when the government takes over the assets of a company that has defaulted on its taxes (there is a great case where the U.S. Government ran a brothel in Las Vegas when it failed to pay its taxes). What I think it does NOT do is forbid the US government from enforcing their copyright in any foreign jurisdiction. I think this is just about the only imaginable reason why the title does not say Any work of the US government is public domain instead. Well, now that's a very interesting argument. It is those foreign jurisdictions that are granting the copyright and unless those jurisdictions say that national governments cannot claim a copyright, the U.S. certain has one in those countries. The law, as you rightly point out, only denies protection under the particular Title... not all copyright statutes. A U.S. law saying that the executive is not to enforce a right granted by another country would be sort of strange, separation of powers wise... but conceivably the only way to ensure the U.S. doesn't enforce those rights. All that being said, you are quite corrent that the purpose of the prohibition is to ensure that U.S. Citizens have free access to government works. Free foreign access to those works is entirely coincidental and probably not part of the policy argument for the statute. On a related note... I keep hearing the public domain as this positive state where people put their works. This is not the case under U.S. law, and I would venture to guess it is the same elsewhere. Public Domain is a negative state that only exists where there is an absence of a positive copyright. One does not put their rights in the public domain, one waves their copyright. You're not going to find language that says, authors doing X put their works in the public domain... rather, its going to be phrase, you only have a copyright if you do X, or you will lose your copyright if you fail to do Y. Its an important semantic difference that is useful when you are trying to decipher the law. I think that for an international project this might be a problem, at least in theory. I agree that the Debian project possibly cannot take into account all laws in all countries; however I think this is potentially a major issue since it probably would affect any other country under the Berne convention. Yeah, I agree. If you don't have a license from the U.S. Government saying you can use this work in a foreign country, I would stay away from it if you want to keep legit... this goes for both close and open source projects. But as a practical matter, I don't believe the U.S. Government really create all that much copyrightable work these days. Its far more common that it gives cash to a group with the right to a license to that work. But that's just my impression and I have no facts to back up the claim :) -Sean -- Sean Kellogg 2nd Year - University of Washington School of Law GPSS Senator - Student Bar Association Editor-at-Large - National ACS Blog [http://www.acsblog.org] So, let go ...Jump in ...Oh well, what you waiting for? ...it's all right ...'Cause there's beauty in the breakdown
Re: Concerns about works created by the US government
* Sami Liedes: This certainly seems to make the works effectively PD in the US; however it almost seems as if that was carefully worded to _not_ place works in the PD, only to make the US government unable to enforce their copyright under the US law. AFAIK, this is indeed the standard interpretation: | The prohibition on copyright protection for United States Government | works is not intended to have any effect on protection of these works | abroad. Works of the governments of most other countries are | copyrighted. There are no valid policy reasons for denying such | protection to United States Government works in foreign countries, or | for precluding the Government from making licenses for the use of its | works abroad. http://www.title17.com/contentLegMat/houseReport/chpt01/sec105.html -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Concerns about works created by the US government
Sean Kellogg [EMAIL PROTECTED] writes: But as a practical matter, I don't believe the U.S. Government really create all that much copyrightable work these days. I find the CIA World Factbook and much of the data (including images) released by NASA quite valuable. Martin -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
