Hi Balasankar,
The question you raise is a very important one. The solution, however,
is not likely to be to host content in India (I don't speak for the
Wikimedia Foundation, but there are sound legal reasons why all
Wikimedia content is hosted in the US; mostly liability risk and freedom
of expression and this is unlikely to change).
The default across Commons and Wikisource, the two projects that host
the bulk of public domain content (images, videos, sounds, books) in
Wikimedia, is the US copyright term - it's the only yardstick that
matters for what qualifies as public domain by virtue of being out of
copyright. You are absolutely right, however, in that there's a big
difference btw US copyright terms and those of other countries, for
instance:
For photographs, while the binding limit (Berne/TRIPs) is 25 years from
the making of the work, India is life of photographer + 60 years after
death, and in the US it is life + 70.
For literary works, the binding limit (Berne/ TRIPs) is life + 50 years,
whereas in India it is life + 60, whereas in the US it is life + 70 or
120/95 if made on work for hire.
(The binding limit is the WTO mandated term that country members - US
and India and 150 others - have to follow. As you can see, typically,
most countries exceed the limit for reasons of their own, which they are
allowed to do, with the US exceeding in far greater amount than India.)
In short, there can be a difference of between 10 and 40 years between
the time a work goes into the public domain in a country with shorter
terms than the US (any number of countries in the non-Anglo-European
world) and the US. This seriously affects even 'Indian' works (where
India is the first country of publication) because of the copyright
protection granted to such works in the US, thus effectively placing
them under copyright for our purposes within Wikimedia long after
they've gone in to the public domain in their source country.
The case to consider here is Golan:
http://en.wikipedia.org/wiki/Golan_v._Holder
A summary of the US Supreme Court decision in this case is - US law
trumps international agreements, so the US copyright term holds within
US territory, and restores copyright protection to any works that have
gone into the public domain by virtue of a shorter copyright term in
another country. Because Wikimedia servers are based in the US, Golan
applies to us.
But your question is an extremely pertinent one, and if we were to find
unusual solutions to it, they would seem to lie in:
1) Whether hosting on US servers for a global audience makes any
difference, since we do not serve readers only bound by US law
(Wikimedia reader numbers bear this out, ie US readership = minority
percentage of whole) and whether we specifically have anything special
on the basis of which to mount some kind of strategic litigation on the
issue of allowing us to exploit the shortest possible route to public
domain anywhere in the world for all or some of our readers.
2) Whether hosting on US servers but using publicly audited geolocation
to switch off for readers from IP addresses where the material in
question is still under copyright is a legally and operationally
feasible workaround (connected to whether Wikimedia Tech thinks this is
both doable and worth our while to do)
3) Whether, if all fails and there is no getting around this in any way,
Commons and Wikisource (if there is sufficient interest in those
communities) should be interested in looking at a way of allowing
external links to chapter-managed local sites from the US-served base to
see the material in question; and if this is something, say, the India
chapter wants and is willing to do, whether this route poses any legal
risks.
In any case, I passed around your question to a few friends for comments
and suggestions - as well as to Geoff Brigham at the Wikimedia
Foundation, who is not too hopeful for a solution but is very receptive
to looking into it and getting back to us - and I'll tell you when I
know something.
Meanwhile, if you have other ways of looking into creative solutions
around this problem (not at all easy to crack, but the benefits are
significant) - or if anyone else on this list does - you should.
Cheers,
Achal
On Friday 10 May 2013 10:20 PM, Balasankar Chelamattath wrote:
Hi Srikanth,
I didnt quite understand what you meant by example.
An example for a work which is in public domain in India and not in US
- Works by Changampuzha Krishnapillai (
http://en.wikipedia.org/wiki/Changampuzha_Krishna_Pillai ).
He passed away in 1948, and hence it is 65 years after the author's
death. So the books are copyright-free in India as of now (in pubic
domain).
But they
1. were not published before 1923
2. were not in the public domain in India as of 1 January 1996 (
because criteria of "60 years after author's death" not satisfied
on 1996)
Hence they are not in public domain according to US Laws. So we cannot
store them in US servers.
The main problem is India considers copyright based on date of
author's death and US does it based on date of publication.
Regards,
Balasankar C
2013/5/10 Srikanth Ramakrishnan <srik.r...@wikimedia.in
<mailto:srik.r...@wikimedia.in>>
Hi Balasankar,
Can you point out specific instances and show when and where the
book or publication was first published? If the works are still
copyrighted in India, then they should be copyrighted in the US as
well, generally speaking. The term India awards to creators is
lesser than the one provided in the US under copyright laws.
Regards,
On Thu, May 9, 2013 at 10:31 PM, Balasankar Chelamattath
<c.balasan...@gmail.com <mailto:c.balasan...@gmail.com>> wrote:
Hi all,
As most of you know, the Indian copyright law says that a book
gets relieved of copyright after 60 years from the author's
death. But this is not the case with US Law. As given here
<https://upload.wikimedia.org/wikipedia/commons/9/9b/Copyrightterm.pdf>
, of all the works published outside US, only those published
before 1923 are directly in the public domain. The ones
published between 1923 and 1977 without compliance to the US
formalities will be in the public domain only if they are in
the public domain in their source country as of 1 January
1996. Almost all the other categories of published works will
not be in the public domain until 95 years after publishing.
This induces a confusion and when looked in a legal
perspective, most of the books in Indian Wikisources, are
still not in public domain and hence must be removed. This
makes a huge negative impact on the hard work done by
contributors. Their contributions are wasted which may cause
them to stop contributing. In short, this may be a negative
impact on Wikimedia's image in the society.
The only solution to this problem is to *host the servers of
Indian Wikimedia services in India*, so that the data we
upload is stored under Indian Laws. Can Wikimedia India
Chapter do anything on this? We can plan and conduct a
fundraiser in India to raise money for the hosting expenses.
Please consider this issue with maximum priority as it
involves legal procedures and related headaches.
Regards,
Balasankar C
https://ml.wikisource.org/wiki/User:Balasankarc
Regards,
Balasankar C
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Srikanth Ramakrishnan
Treasurer,
Wikimedia Chapter [India]
Donate to the Wikimedia India Chapter today
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