Congress may re-copyright Public Domain

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Norton
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Post by Norton » January 22nd, 2012, 3:28 am

Sorry if this is a repost, but I haven't seen any mention of it here.

Here's the article:
http://www.wired.com/threatlevel/2012/01/scotus-re-copyright-decision/
Wired wrote:re-copyrighting public works would breach the speech rights of those who are now using those works without needing a license...
Buuuuuut?
Wired wrote:...to re-copyright the works to comport with an international treaty was more important.
I'm not a lawyer, and I'm not sure what this means for Librivox if something currently in the Archive is re-copyrighted, but I'm holding out hope that the answer is "congress sends everyone cookies."
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Post by Carolin » January 22nd, 2012, 8:23 am

im not american so i dont know if this is possible over there after all, but where i come from this would be against legal certainty and therefore it should be impossible to pass a bill like that (discussing it would probably catapult you to the constitutional court).
i would like to think it would be the same over there but i wouldnt be too surprized if it is not.

CK

Norton
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Post by Norton » January 22nd, 2012, 3:30 pm

Carolin wrote:im not american so i dont know if this is possible over there after all, but where i come from this would be against legal certainty and therefore it should be impossible to pass a bill like that (discussing it would probably catapult you to the constitutional court).
i would like to think it would be the same over there but i wouldnt be too surprized if it is not.

CK
I'm not an American either, and I'm not sure what's to be done about it at this point. The Supreme Court is, I think, the highest court in the country. I was also under the impression that anything that enters the Public Domain stays there forever, but if that idea was an axiom of American copyright law, this ruling nonetheless upends it— and possibly with still worse consequences to come.
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Post by DanH » January 22nd, 2012, 4:35 pm

I read the article and a portion of the Supreme Court response. It appears to only have an effect on those items which would "normally" be viewed as in the public domain under the laws of the US (if the item had been created in the US) but which are still in the private domain under laws of foreign countries.

As I see it, this might be an example....

In the US a certain written item in this country would be granted copyright protection for a term ending 70 years after the death of the author at which point it falls into the public domain.
If a book were written, say, in Germany, and their copyright laws state 120 years after the death of the author, then those items which have been by default under US law, been placed in public domain, would/could be returned to private domain until such time that the laws of the foreign soverignty allow it to go into public domain.

This COULD have some effect on some of the works within Librivox, as I read the rulling, but it would be on an individual basis on the work in question. The point of the law, I believe, is to protect the rights of the correct owners (family/heirs) of the creators.
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Post by RuthieG » January 22nd, 2012, 5:33 pm

I'm not an American either, but if we are talking about works that are still under copyright in Europe under the death +70 years rule, but in the Public Domain in the USA because they were published pre-1923, it would affect LibriVox enormously.

I offer you P. G. Wodehouse, Somerset Maugham, Max Beerbohm, George Bernard Shaw, A. A. Milne, Hilaire Belloc as examples.

This was the sentence that sent a shiver down my spine:
In a 6-2 ruling, the court said that, just because material enters the public domain, it is not “territory that works may never exit.” (.pdf)
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Post by Piotrek81 » January 23rd, 2012, 1:42 am

As to bringing the works back under the copyright, wasn't that already done in the past in other countries, after the Berne Convention was ratified, or when the copyright periods throughout the EU were harmonised? Perhaps in not in US, but it's hardly a world-scale precedent, if I understand correctly.

Perhaps some US-based Librivoxer has a friend in the legal profession specialising in copyright law, that could explain to us in detail what rammifications that ruling can have for LV?
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Post by TriciaG » January 23rd, 2012, 8:42 am

Perhaps some US-based Librivoxer has a friend in the legal profession specialising in copyright law, that could explain to us in detail what rammifications that ruling can have for LV?
I don't need to be a lawyer to know that it would seriously cut back on our recordings - Ruthie listed just a few of the many authors we have in our catalog that this would affect.
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Post by Carolin » January 23rd, 2012, 12:13 pm

i wouldnt be too scared now - nothing actually happend yet. i would be more than surprized if works that were previously released into the public domain would be copyrighted again. remember when the term of protection was extended - there it didnt happen (as far as i know, am i correct?) - which is the reason why nothing is being released into the public domain at the moment and we are basically stuck in 1922, which is regrettable, but we werent warped back into the previous century either, which would be worse.

also, the us are already a member of the berne convention, which implements the 50 years pma minimum standard. i believe that the law in the us is a bit silly there, with some sort of a rule that it is either 70 years pma or 95 years after publication or 120 years after creation, and nobody really knows what applies -- but the law has been working more or less effectively since 1998(?) so i wouldnt know of a reason to change it in the way you fear (though i can think of a whole lot against it).

the whole reason why we have the public domain is that after 70 years after the death of the author (or 95 years after the pubication of the work if you will), the rights to a work have been inherited (and in common law countries sold) so many times, that the average person cannot be expected to find out whom to ask for permission to use the work anymore, so that there must be a time when anyone may use it, and once everyone has been using it, it shouldnt be changed back -- legal certainty is the word here, and i think it would be very difficult to argue for a rule which would upset such an important principle.

right?

CK

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Post by David Richardson » January 24th, 2012, 3:39 am

What a veritable minefield – certainly the USA is not unique in having complex copyright laws – the King James Bible of 1611 is still under copyright but not enforced outside Great Britain. France does not include the years of ‘occupation’ within it’s ‘death + 70’. America had its renewals, which resulted in many short stories losing their copyright. Some form of standardization would certainly help my befuddled mind. But having placed some literature in the PD it seems quite wrong to then re-copyright. If such legislation were to go through it would make criminals of many of us – are we to delete downloaded works? Will commercial audio-book publishers have to recall the CD’s they distributed? Some sort of “we’re changing the rules for simplicity and conformity but what is already PD stays PD” would seem to be a sensible way forward perhaps?
It’s interesting that this should be happening now in the year of Dickens 200th Anniversary. He used his first visit to America to deliver speeches calling for an International Copyright! It seems they didn’t go down too well…
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Post by Nullifidian » January 24th, 2012, 7:22 am

I'm discussing this with a legal eagle in another forum, and he's read the opinion in Golan v. Holder, which states in part that the 1994 Uruguay Round Agreement Act:
[E]xtended copyright to works that garnered protection in their countries of origin, but had no right to exclusivity in the United States for any of three reasons: lack of copyright relations between the country of origin and the United States at the time of publication; lack of subject-matter protection for sound recordings fixed before 1972; and failure to comply with U. S. statutory formalities (e.g., failure to provide notice of copyright status, or to register and renew a copyright).

Works that have fallen into the public domain after the expiration of a full copyright term—either in the United States or the country of origin—receive no further protection under §514. Copyrights “restored” under URAA §514 “subsist for the remainder of the term of copyright that the work would have otherwise been granted . . . if the work never entered the public domain.” (Citations and footnotes omitted.)
I've bolded the part that seems relevant here. It looks as if works that have been published prior to 1923 are still PD no matter what. Admittedly, I'm not a copyright lawyer, or any kind of lawyer, but that's how I read the decision. That would be somewhat good news for us, if true.

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Post by TriciaG » January 24th, 2012, 7:37 am

Yet the very next sentence seems to nullify that statement - i.e. if it WOULD have been still under copyright, it will go back under copyright. It's only works that would have expired EITHER WAY that will not go back under copyright. At least, that's how I read it.
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Post by Nullifidian » January 24th, 2012, 7:58 am

I disagree with your reading of the text. I see it as simply explicitly limiting the copyright terms to what they would have been if none of the three stated reasons had caused the works to go into the public domain, rather than allowing the would-be copyright holders to copyright the works starting from 2012. And none of those reasons include the simple lapsing of the full term of copyright protection in the U.S., which is what's happened to every work published before 1923 regardless of the circumstances of its publication.

So perhaps there's still reason to hope that this will only affect but a few works in the LV catalogue.

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