SpottingWorld:Public domain

This page is an official policy on Spotting World. It has wide acceptance among editors and is considered a standard that all users should follow. When editing this page, please ensure that your revision reflects consensus. When in doubt, discuss first on the talk page.

For all practical purposes on Spotting World, the public domain comprises copyright-free works: anyone can use them in any way and for whatever purpose. Proper attribution to the author or source of a work, even if it is in the public domain, is still required to avoid plagiarism.

The public domain is generally defined (e.g. by the U.S. Copyright Office) as the sum of works that are not copyrighted, i.e.

• that were not eligible for copyright in the first place, or
• whose copyright has expired.

However, there is no such thing as the public domain on the Internet. International treaties, like the Berne Convention, are not self-executing and do not supersede local law. There is no globally valid "International Copyright Law" that would take precedence over local laws. Instead, signatory countries of the Berne Convention have adapted their laws to comply with the minimum standards set forth by the treaty, often with stronger provisions than required. Whether or not something is copyright-free in some country depends on the laws of individual countries.

Spotting World is based in England, and its servers are worldwide. Although legislation is sometimes unclear about which laws are to apply on the Internet, the primary law relevant for Spotting World is that of the England. For re-users of Spotting World content, it is the laws of their respective countries.

In the U.S., any work published before January 1, 1923 anywhere in the world is in the public domain. Other countries are not bound to that 1923 date, though. Complications arise when special cases are considered, such as trying to determine whether a work published later might be in the public domain in the U.S., or when dealing with unpublished works. When a work has not been published in the U.S. but in some other country, that other country's copyright laws also must be taken into account. Re-users of Spotting World content also might find the explanations here useful.

Important documents

• The Berne Convention for the Protection of Literary and Artistic Works is the primary legislative document governing international copyright. Signatory states agree to amend their legislations to meet the minimum requirements of this convention, but the convention itself is not law. Signatory countries have the right to "opt out" from a few of its paragraphs (most are mandatory and non-negotiable, though), and how any particular country implements the Berne Convention is a question of local legislation. The full text of the Berne Convention is available at the WIPO web site.

• The U.S. Copyright Law is Title 17 of the United States Code (17 USC), chapters 1 through 8 and 10 through 12. Chapters 9 and 13 contain design protection laws on semiconductor chips and ship hulls that are of no interest or relevance for Spotting World.

• The EU Directive on harmonising the term of copyright protection is a binding directive for all member countries of the European Union, harmonizing the term of copyright. It became effective on July 1, 1995. Individual countries have amended their laws to comply with this directive. The EU legislation web site has the full text (1993), plus a 2001 amendment modifying §3(2). See [[#Retroactive changes in copyright legislation|Retroactive changes in copyright legislation below for some discussion.

The U.S. Copyright Law explicitly makes clear that the Berne Convention is just a treaty, not some "super-law" that would take precedence over U.S. Law: 17 USC 104(c) states that

"No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto...."

When discussing copyright issues informally (and all such discussions on Spotting World are informal), one may nevertheless argue in terms of the Berne Convention: writing "according to §y of the Berne Convention..." is then just a short-hand for writing "according to §x of country's copyright law, which implements §y of the Berne Convention, ..." However, one should bear in mind that some paragraphs of the Berne Convention are optional, and that any country may go beyond the minimum standards specified by the Berne Convention for the most part.

Other documents

There are some other documents related to copyright issues that one occasionally comes across, but they generally are less important for Spotting World's purposes.

• The Universal Copyright Convention (1952 Geneva text, 1971 Paris text) was an alternate international copyright treaty. It prescribed less stringent protections than the Berne Convention. Since the UCC explicitly said that if a signatory of the UCC was also a signatory of the Berne Convention, the latter should prevail, and most countries have since joined the Berne Convention, the UCC is largely irrelevant today. However, the adherence dates of some states to the UCC may still be of interest.
• The Rome Convention (International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations) from 1961 is a treaty augmenting the Berne Convention by copyright on performances and recordings thereof.
• The Geneva Phonograms Convention (Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms) is an additional international treaty extending copyright to [[#Sound recordings|sound recordings.
• The WIPO Copyright Treaty (WCT) from 1996, effective 2002, is an extension of the Berne Convention, bringing computer programs and databases under the auspices of copyright. In the U.S., it is implemented by the Digital Millennium Copyright Act.
• The WIPO Performances and Phonograms Treaty (WPPT) from 1996 entered in force in 2002. It is an update of the Rome Convention. In the U.S., it was implemented as part of the DMCA.

Works ineligible for copyright protection

In short: U.S. Federal Government works, or no creative content

U.S. government works

For the U.S., federal government works are not eligible for copyright protection (17 USC 105). It stands to reason that this applies world-wide, for it is not evident how the U.S. government could assert copyright in some other country over a work that cannot be copyrighted by its own laws in the originating country (the U.S.). Still, there are differing opinions, see the CENDI Copyright FAQ list, 3.1.7 and a discussion on that at the LibraryLaw Blog. For all practical purposes, however, we can assume works produced by the U.S. government or its employees in the course of their duties to be copyright-free and in the public domain world-wide.

In practice, this means that much material on *.gov and *.mil, as well as material on some *.us web sites (such as the sites of the U.S. Forest Service), are in the public domain. Please note that not all such material is in the public domain, though:

• U.S. governmental web sites may use copyrighted works, too; either by having licensed them or under a "fair use" provision. In general, such copyrighted works on web sites of the U.S. federal government and its agencies are indicated by appropriate bylines. An example are "visitor image galleries" on U.S. National Park Service websites: unless these have some indication that the photographs are placed in the public domain by publishing them on that NPS web site, these images are copyrighted by their photographers, who are visitors of national parks, not employees of the NPS.
• Some U.S. state governments also have web sites in the *.gov domain. State and local governments usually do retain a copyright on their works. 17 USC §105 only places federal documents in the public domain.
• Works produced under a commission from the U.S. government by a contractor are most likely copyrighted. This typically includes any documents from research labs. The Oak Ridge National Laboratory, for instance, is operated by a contractor for the U.S. Department of Energy, but that doesn't mean the works it produces are "works of the federal government". ORNL works are copyrighted, and the U.S. government is granted a non-exclusive license to use, publish, and allow republication of such works. The precise terms vary from one lab to the next, but in general, commercial re-use of their works is prohibited.
• Even the U.S. federal government may hold copyrights, if the original copyright holder assigns or transfers the copyright to the U.S. government.

Under U.S. law, laws themselves and legal rulings also form a special class. All current or formerly binding laws, codes, and regulations produced by government at any level and the public record of any court case are in the public domain. [1] This applies even to the laws enacted in states and municipalities that ordinarily claim copyright over their work. The US Copyright Office has interpreted this as applying to all "edicts of government" both domestic and foreign.

Note that other countries' governments may hold copyrights; in fact, most do so and their works are thus copyright protected. At the same time, many countries declare their edicts such as laws and court decisions to be exempt from copyright. Such exemptions are typically narrowly defined and cannot be construed to mean "any publication by a government office".

The U.S. Copyright Office has clarified that works of the U.S. Postal Service, of the government of the District of Columbia, or of the government of Puerto Rico are not "works of the U.S. government" and thus are subject to copyright. Furthermore, works of the United Nations or its agencies or of the Organization of American States are subject to copyright. On the UN, see [[#Works of the United Nations|Works of the United Nations for some important exceptions: some UN documents are in the public domain.

Non-creative works

In short: Bare facts are in the public domain. Works must show sufficient human creativity to be eligible to copyright at all.

A second category of works that in general cannot be copyright protected are those that have no (or no significant) creative content: they do not pass the threshold of originality. In the U.S., the classic example is a telephone directory. The names and numbers therein are, in the doctrine of case law (e.g. Feist v. Rural), "facts that were discovered", rather than the result of a creative expression or judgment. The U.S. has explicitly rejected the position that the amount of effort involved in the discovery of a fact can justify its protection. As a result of this doctrine, addresses, phone numbers, most scientific data, sports scores, the results of polls, and similar facts are exempt from copyright.

While the facts themselves are exempt, other creative elements in a compilation of facts may warrant copyright protection. For example, Eckes v. Card Prices Update established that the specific selection of which facts to include in a list, when done as the result of a creative act, merits protection even when the individual elements do not. (See also 17 USC 103(b).) The WIPO Copyright Treaty is an international treaty that follows this concept; it has been adopted also by the European Union (EU) in its EU Database Directive, a sui generis protection that prohibits any significant "extraction" or "re-utilization" of information from a database created by significant effort. In all these cases, the copyright is on the database as a whole, i.e. the selection of the collection. The individual items in such databases still have their own copyright, which may have expired.

Similarly, though scientific data are usually exempt from copyright, the specific figures and styles of presentation used to present that data will in most cases merit copyright protection. Also, in some cases facts that are exempt from copyright may still be protected as a result of patent law.

Another class of uncreative works which are unable to claim copyright protection in the U.S. are those resulting from mechanical reproduction. Following Bridgeman Art Library v. Corel Corp., a simple reproductive photograph of a two-dimensional artwork does not give rise to a new copyright on the photograph. Many other countries (but not all!) recognize a similar ineligibility for copyright for reproductive photographs of two-dimensional public domain works.

Common to all these cases is that only works created by a human are eligible to copyright. Works created by animals (such as a painting produced by a chimpanzee) or machines are not copyrightable, although in the case of drawings produced by a computer program, the program itself of course may be copyrighted. In certain cases, even graphics produced by computer programs may be copyrightable; see e.g. Stern Electronics, Inc. v. Kaufman.

Descriptions (including diagrams) in patent applications in the U.S. are "published into the public domain" by the U.S. Patent and Trademark Office [2]. Portions may contain the non-obligatory notice of copyright © or mask work Ⓜ protection, but the patent applicant must state in the text of the description that the owner of the rights in the protected part agrees to allow anyone to make facsimile reproductions of those portions of the description, but otherwise reserves all rights 37 CFR § 1.71(e).

Photographic reproductions, as a form of derivative work, may inherit the copyright of the original work. If that artwork is in the public domain, then so is the photograph. If, however, the depicted work is copyright protected, then, although there is no independent copyright on the photo itself, it cannot be considered to be in the public domain as the original rights holder still has the authority to control how reproductions of his work, including photographs, are made and distributed. The same applies to digitized images.

It should also be noted that the exemption of reproduction photographs extends only to two-dimensional artwork in the U.S. A photograph of a three dimensional statue may acquire copyright protection even if the statue itself belongs to the public domain. Such rights derive from the creativity involved in the positioning of camera, lighting, and other variables.

In the U.S., the Compendium of Office Practices II of the U.S. Copyright Office gives some concrete examples and hints at under what conditions a work is sufficiently original to be eligible for copyright.

Fonts

In short: Scalable fonts as such are copyrighted as computer programs; typefaces as such may be protected by design patents, and, in a few countries, by copyright; actual use of the typeface is not restricted, even if the font used was based illegally on a protected typeface.

Under U.S. law, typefaces and the characters they contain are considered to be utilitarian objects whose utility outweighs any merit that may exist in protecting their creative elements. As such, typefaces are exempt from copyright protection in the United States (Code of Federal Regulations, Ch 37, Sec. 202.1(e); Eltra Corp. vs. Ringer). However, this finding was limited in Adobe vs. Southern Software, Inc., wherein it was held that scalable computer fonts, ie., the instructions necessary to render a typeface, constitute a "computer program" for the purposes of copyright law and hence are subject to protection. Hence the computer file(s) associated with a scalable font will generally be protected even though the specific design of the characters is not. Furthermore, a rasterized representation (e.g. bitmap) of the characters in a scalable font is not protected by copyright in the United States. According to section 503.02(a) of the Compendium II, typography and calligraphy are not copyrightable in themselves in the U.S. This treatment of fonts is not very unusual with respect to international law, and most other jurisdictions do not consider fonts subject to copyright either (with the notable exception of the UK, which however also only covers typefaces as such, as they are for example employed in fonts, and not their actual use.[3]). However, typefaces as such may be protected by design patents in many countries (either automatically, or by registration, or by some combination thereof). A prominent example is the European Union,[4] where the automatic protection (without registration) expires after three years and can be extended (by registration) up to 25 years.[5]

International aspects

In short: The threshold of originality varies between countries.

Like the [[#When does copyright expire?|duration of copyright, eligiblility to copyright in the first place is governed by national laws. The Berne Convention, §5(2) explicitly states that

The enjoyment and the exercise of these rights [i.e., copyrights] shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of [copyright] protection in the country of origin of the work.

In other words: a work that is not copyrightable in one country (even if that country is its country of origin) can still be copyrighted in other countries, if the work is copyrightable there.

Mere ideas, procedures, methods of operation or mathematical concepts as such are not copyrightable as per article 2 of the WIPO Copyright Treaty.

Publication

In short: A work is published when tangible copies of it are made available to the public at large.

In the following, we will frequently refer to the "publication" of a work. A work is published when copies of the work are made accessible in some non-ephemeral form to the public at large with the consent of its author or copyright holder. Ephemeral forms of making the work accessible do not constitute publication. To quote the Berne Convention, §3.3:

The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication.

The U.S. Copyright law defines "publication" in 17 USC 101 in basically the same way using different words:

"Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

"Public display" includes broadcasts and other transmissions. The U.S. Copyright Office states in its Circular 40:

A work of art that exists in only one copy, such as a painting or statue, is not regarded as published when the single existing copy is sold or offered for sale in the traditional way, for example, through an art dealer, gallery, or auction house. A statue erected in a public place is not necessarily published.

When the work is reproduced in multiple copies, such as reproductions of a painting or castings of a statue, the work is published when the reproductions are publicly distributed or offered to a group for further distribution or public display.

Thus, a work is unpublished unless copies (which may be print publications, photos, postcards, lithographs, but also non-print publications such as replicas of a statuette) of it are published. It is of course implied that such a distribution of copies occurred legally, in particular with the consent of the copyright holder. An illegal distribution of copies (for instance one that itself would be a copyright violation) does not constitute a publication of a work. The right to publish a work is an exclusive right of the copyright owner (United States Code/Title 17/Chapter 1/Sections 105 and 106|17 USC 106), and violating this right (e.g. by disseminating copies of the work without the copyright owner's consent) is a copyright infringement (United States Code/Title 17/Chapter 5/Section 501|17 USC 501(a)), and the copyright owner can demand (by suing in court) that e.g. copies distributed against his will be confiscated and destroyed (United States Code/Title 17/Chapter 5/Sections 502 and 503|17 USC 502, 17 USC 503).

Notwithstanding the quoted paragraph from the Berne Convention, broadcast and public performance of literary or dramatic works may constitute publication in other countries, e.g. in Australia (see Infosheet G-23: Duration of Copyright).

We will get back to this issue in the section "Published vs. unpublished works" below.

When does copyright expire?

In short: It depends, but always at the end of a year.

The Berne Convention was designed to ensure that works protected in the country of origin were also protected in all other signatory countries without the rights holder having to register claims in each and every of these countries. Thus the laws of the originating country of a work determine whether something is copyright protected at all, and if so, the Berne Convention ensures that it is automatically copyright protected in all other signatory countries, too, under their respective laws (§5(1) of the Berne Convention).

(The originating country or country of origin is that country where the work was initially published, or in the case of unpublished works, defined by the author's nationality or "habitual domicile". See §3 of the Berne Convention. If a work is published within 30 days in several countries, it can have multiple "countries of origin".)

Copyright protection is granted only for a certain period of time—barring pathological cases where some work is placed under a perpetual copyright protection. Different countries have different copyright terms: in some countries, copyright expires 50 years after the author's death (also called "50 years p.m.a.", post mortem auctoris; this is the minimum standard required by the Berne Convention), others have a 70-year period (70y p.m.a.), Mexico even 100y p.m.a. Many countries also have special rules, depending on when a work was first published, whether it was first published in that country or not, whether the author is known or not, and other things. For instance, a work published with a © notice in the U.S. between 1963 and 1977 (inclusive) is copyright protected in the U.S. until 95 years after the date of the initial publication. Peter Hirtle has compiled a very useful chart showing when and under what conditions the copyright of a work expires in the U.S. The default rule in the U.S. for works published since 1978 or for unpublished works is 70 years p.m.a. If a work is a "work made for hire", it has corporate authorship and is protected to the shorter of 95 years from publication or 120 years from creation. Many countries also know or at least knew different copyright terms for text and photographic works.

Basically all countries in the world specify that when a copyright expires, it does so at the end of the year. Thus, works of an author who died on June 27, 1935 will not become copyright-free on June 28, 2005 but only on January 1, 2006 under a "70 years p.m.a." rule.

The rule of the shorter term

In short: The "rule of the shorter term" says that copyright protection in any signatory country of the Berne Convention ends when the copyright expires in the originating country. This rule is not binding. The U.S. has not adopted it, the European Union, Japan, Macao, and Taiwan have done so.

While the Berne Convention for the Protection of Literary and Artistic Works|Berne Convention does harmonize bringing works under copyright protection in the first place, it does not similarly harmonize the expiration of copyright. The Berne Convention prescribes a minimum standard for copyright terms any signatory country must adhere to (50y p.m.a.), but any signatory is free to prescribe longer durations in its laws. To be fair, §7(8) of the Berne Convention does specify a "rule of the shorter term", which says that the copyright term can in no case exceed the copyright term in the originating country of a work. However, signatory countries have the right to "opt out" from this rule, and it depends on individual countries' implementation acts whether they do follow this rule. The copyright on a work may thus expire in one country and enter the public domain there, but the same work may still be copyrighted in other signatory countries.

The United States does not recognize this "shorter term" rule. For example, United_States_Code/Title_17/Chapter_1/Section_104A|17 U.S.C. 104A(a)(1)(B) may restore copyright on a work published outside the USA for the remaining American copyright term even if its copyright may expire sooner in its source country. The European Union does, however, adopt such a rule via-a-vis non-EU members (see §7(1) of the Directive on harmonising the term of copyright protection [EU directive 93/98/EEC]). Within the EU itself, however, the contrary is true: §10(1) states that longer terms already running remained in effect, and §10(2) states that the 70 year p.m.a. applied to all works protected in at least one member country. As a result, there is a transitory phase in which works that already were out of copyright in one EU country suddenly became copyright protected again in that country on July 1, 1995 because they were still protected in some other EU country. See "World-War II images" below.

In East Asia, Japan, Macao, and Taiwan also honor the rule of the shorter term. See §58 of the Japanese Copyright Law, Article 51 of Decree-Law_n.o_43/99/M|Decree-Law_n.o_43/99/M of Macao, and Article 106bis of the Copyright Act (Republic of China, 2006)|Copyright Act in effect in Taiwan administered by the Republic of China.

However, some countries make exceptions to this rule. A notorious case is Germany, which has had a bilateral treaty with the U.S. governing copyright since January 15, 1892. That treaty, which is still in effect, defined that a U.S. work was copyrighted in Germany according to German law irrespective of the work's copyright status in the U.S, and it did not contain a "rule of the shorter term". In one case, a German court therefore decided that a U.S. work that had fallen into the public domain in the U.S. was still copyrighted in Germany in 2003 in spite of §7(1) of the EU directive.

See also OpenFlix for a useful list of countries and areas that do or do not honor the rule of the shorter term.

Country-specific rules

In short: First publication is important, but difficult to ascertain.

Because copyright expiry is governed by local laws, some special noteworthy cases exist, in particular for photographs. These cases are interesting for Spotting World if a work was not published in the U.S., because then, the law of the originating country must be examined. There is a whole slew of country-specific image copyright tags for precisely that purpose; see the list of image copyright tags. However, being in the public domain in its home country does not automatically mean that the work was also in the public domain in the U.S. Wherever these country-specific tags are used, they should be accompanied by a rationale explaining why the image is thought to be in the public domain in the U.S., too. (Remember that Spotting World is primarily subject to U.S. law!)

Some examples of such country-specific rules are:

• In Australia, the copyright on published photographs taken before May 1, 1969 expired 50 years after the creation. (For photographs taken later, it expired 50 years after the first publication.) As a result of the Australia-U.S. Free Trade Agreement (AUSFTA), new legislation became effective on January 1, 2005, extending the copyright term (also on photographs) generally to 70 years p.m.a, but explicitly ruling out a revival of copyright on works whose copyright had already expired. Any published photographs created before January 1, 1955 are thus in the public domain in Australia. The same also holds true for other works, which were protected 50 years p.m.a. prior to January 1, 2005: any work of an author who died before January 1, 1955 is in the public domain in Australia. See Infosheet G-23: Duration of Copyright by the Australian Copyright Council. These rules even apply for works where the government holds the copyright, i.e. that are under Crown copyright.
• In Canada, any photograph created (not published!) before January 1, 1949 and not covered by Crown copyright is in the public domain. This is a consequence of the Canadian Bill C-32: An Act to Amend the Copyright Act, which replaced the old rule for photographs ("copyright expires 50 years after creation of the work") by 50 years p.m.a., but not retroactively applying the new rule to works that were already in the public domain by the effective date of the bill, January 1, 1999 (see [6] at the bottom).

If the work was in the public domain in the country of origin as of January 1, 1996, it is in the public domain in the U.S. (Even if it was published after 1923, but only if no copyright had been registered with the U.S. Copyright Office.)

January 1, 1996 is the date the U.S. Uruguay Round Agreements Act (URAA) became effective. The URAA implemented TRIPS, part of the Uruguay Round of the GATT negotiations, in U.S. law. The URAA essentially is codified in U.S. law in 17 USC 104A. It had the effect of automatically restoring copyrights of works that were still copyrighted in their country of origin but whose copyright had lapsed in the U.S. due to non-compliance with technical formalities such as proper registration of the copyright with the U.S. Copyright Office or that were not protected in the U.S. due to a lack of international or bilateral agreements with the country of origin. Since works that have entered the public domain in their country of origin prior to January 1, 1996 are not eligible to this copyright restoration, such works remain in the public domain in the U.S. This, however, is valid only in cases where the U.S. federal copyright law (17 USC) applies. There are some specialized cases that are subject to state law, where other rules may apply (see the section on sound recordings below). If the country of origin became a member of the Berne Convention or the two WIPO treaties or the World Trade Organization only after January 1, 1996, the URAA still applies and that country's earliest adherence date to any of these treaties or organizations must be taken as the URAA copyright restoration date instead of January 1, 1996.

For the above cases, this means:

• Australian photographs taken before January 1, 1946, not published in the U.S., and where no copyright was registered in the U.S., are in the public domain in Australia and the U.S.
• Other works first published in Australia whose author has died before January 1, 1946 and where no copyright was registered in the U.S. are also in the public domain in Australia and the U.S.
• Canadian photographs taken before January 1, 1946, not subject to Crown copyright, not published in the U.S., and where no copyright was registered in the U.S. are in the public domain in Canada and the U.S.

Additionally, because of the rule of the shorter term, such photographs are likely to be also in the public domain in Europe and in Japan, unless published there. (For the EU, one may probably even apply the 1955 and 1949 cut-off dates.)

The obvious difficulty here is to show that any particular work was indeed not published in the U.S, especially when considering works by Canadians. Even worse, one has to show that the work was indeed first published in Australia or Canada, respectively. If it was published in the U.S., the whole deliberation about copyright expiry in other countries doesn't come to play at all—the work is copyrighted in the U.S. (unless it was published before 1923, or in a few very specific, difficult to verify cases, see "copyright notices" below). If the work was published first in some third country—such as the United Kingdom—that third country is the country of origin, and consequently, one has to apply that country's copyright regulations to determine whether the work's copyright had expired by January 1, 1996. There are some other problems, too:

• If a work has multiple countries of origin because it was published in several countries within 30 days, it is unclear what rules would apply. Most probably, the copyright on the work would have to be expired in all of them by January 1, 1996 for the work to be in the public domain in the U.S.
• It is entirely unclear how retroactive legislation would affect this rule. What if a work had been in the public domain in its country of origin on January 1, 1996, but that country subsequently modified its copyright laws such that the work's copyright was reactivated?

In summary, the rules in the U.S. for works published abroad are as follows:

• If the work was published before 1923, it is in the public domain in the U.S. (With a caveat for works published without copyright notice, see the footnote.)
• If the work was published 1923 to 1995 (inclusive) and not copyrighted in its countries of origin in 1996, it is in the public domain in the U.S.
• Otherwise, if the work was published before 1978, it is copyrighted in the U.S. for 95 years since the original publication (i.e. at least until 1923 + 95 = 2018), and if it was published 1978 or later, the work is copyrighted until 70 years after the (last surviving) author's death.

While the author of a photograph can often be determined quite easily, it may be rather difficult to ascertain where and when a particular image was first published. And strictly speaking one would also have to verify that a non-U.S. work was not covered by copyright in the U.S. by virtue of some bilateral agreement of the U.S. and the foreign country (see [7] and "Circular 38a" in the "external links" section below). Country-specific public domain tags must therefore be used with the utmost care only.

Crown copyrights

In short: UK Crown copyright expires world-wide.

Crown copyright is a special form of copyright on governmental works (including works made by employees of government agencies in the course of their duties) that exists in the United Kingdom and a number of other Commonwealth realms. Crown copyright for published works generally lasts for 50 years since the first publication (this is true not only for the UK but also e.g. for Canada or Australia). When Crown copyright expires on a work in its country of origin, the work enters the public domain in that country, but it may still be copyrighted in other signatory countries of the Berne Convention because these other countries apply their own laws, which may have longer copyright terms and not even know the concept of a "Crown copyright". (See e.g. Sterling 1995 towards the end, section titled "Protection of Crown copyright in other countries".)

An exception to this is UK Crown copyright. Although UK works on which the Crown copyright has expired also could still be copyrighted elsewhere, the British Office of Public Sector Information (OPSI), which manages all Crown copyrights on behalf of the coypright holder (the Crown), has explicitly stated in an e-mail to Spotting World that they consider UK Crown copyright expiry to apply world-wide.

There is a flowchart explaining the precise rules for UK Crown copyright expiry. For photographs the rules are as follows:

• For photographs taken before June 1, 1957, Crown copyright expires 50 years after the creation of the image.
• For photographs taken after that date and published before August 1, 1989, Crown copyright expires 50 years after the first publication. For photographs created between these two dates, but published only on or after the 1989 date, Crown copyright expires on December 31, 2039.
• For photographs created on or after August 1, 1989, Crown copyright expires 125 years after the creation or 50 years after the first publication of the image, whatever is earlier.

Works of the United Nations

In short: parliamentary documentation (official records, such as resolutions) and documents not offered for sale are in the public domain; other UN documents are copyrighted.

Works of the United Nations or one of its bodies are generally copyrighted. In the interest of facilitating dissemination, the UN explicitly excludes some categories of its works from this general copyright and places them into the public domain: UN parliamentary documentation as well as public information material published under the UN document symbol and not offered for sale. Such documents are in the public domain. UN parliamentary documentation comprises a broad set of official reports prepared by the UN secretariat and the UN official records. UN official records are

"publications relating to proceedings of organs or conferences of the United Nations. They include verbatim or summary records, documents and check-lists of documents, issued in the form of annexes to those records, including periodic supplements, such as the quarterly ones of the Security Council; and the reports of those organs of subordinate or affiliated bodies, compilations of resolutions, certain reports of the Secretary-General, and other selected publications"

UN resolutions are therefore in the public domain world-wide. Concerning images one should bear in mind that the UN may include in their publications (in print, on the Internet, or otherwise) images from third parties for which the UN has obtained an appropriate license. Such third-party images retain their copyright, even if published in an otherwise public domain UN document as mentioned above. Only UN images appearing in such documents may be assumed to be in the public domain.

Published vs. unpublished works

In short: the 1923 date does not apply to unpublished works.

So far, we have only considered published works. To re-iterate from the Berne Convention, §3.3:

The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication.

As long as a work is not published, it is unpublished. (Also note that by publication, the work must be made accessible to the general public, not only some closed audience. Furthermore, the publication must have had the consent of the author/creator or copyright holder of the work.)

Why is this important at all for Spotting Worldns? How could you come across an unpublished work?

One possibility is a photograph that was never published while it would have been copyright protected, turns up later in some collection, and then is published. Such a work might be a private letter or also a family photograph. Of course, it ceases to be an unpublished work at that moment. The rules of the U.S. copyright law are as follows:

• If the author and his death year are known, the copyright expires 70 years after his death, unless the eventual publication occurred between 1978 and 2002 (inclusive). In that case, the work is copyright protected at least until December 31, 2047.
• In all other cases (anonymous works, works made for hire, unknown author or death date unknown), the work is considered copyright protected until 120 years after its creation.

The University of Wyoming has a three-page primer on the issues involved with unpublished works. Archives often do not hold the copyright to the items in their holdings. Only if the copyright had been assigned in writing to an archive, the archive itself is the copyright holder. In practice, many archive holdings may be so-called orphaned works, i.e. works where the current copyright holder, if any, is unknown. For such orphaned works, the U.S. Copyright Office seems to push for a change in U.S. Copyright law (see [8] for a brief summary) and a bill for the Orphan Works Act of 2006 has been introduced in the United States House of Representatives on May 22, 2006, but no law has been passed yet.

Artworks

In short: Consider only those works whose author has died more than 70 years ago to be in the public domain.

Another important class of possible unpublished works are artworks, in particular paintings. Because an artwork is not published by being exhibited, and also neither by being created or sold, one needs to know when reproductions of the artwork (photos, postcards, lithographies, casts of statues, and so on) were first published. That then constitutes publication of the artwork, and from then on, the work is subject to all the rules for published works. If one cannot show that such copies of the artwork were published, the work must be considered unpublished.

For most artworks, a year is usually given, but this is normally the year the work was made, not the year it was published. Figuring out whether and if so when a particular painting was published can be difficult. One should consider only artworks whose author has died more than 70 years ago to be in the public domain. Even that rule can be wrong: if a work of an author who died more than 70 years ago was first published between 1978 and 2002 (inclusive), it will still be copyrighted in the U.S. until the end of 2047! However, such cases appear to be rare.

Works of authors who died less than 70 years ago are in general not in the public domain. Exceptions are U.S. artworks for which a publication prior to 1923 is proven. The proof is mandatory; uploaders making a "public domain" claim on (a reproduction of) an artwork where the author died less than 70 years ago are required to prove with verifiable details that the work is indeed a U.S. work and was first published before 1923 in the U.S. To show that a U.S. work was published, one could look for printed works that contained reproductions of the artwork: art prints, art books, a catalogue raisonné of the artist's works, exhibition catalogs, and so on. Reasonable effort should be made to find the earliest publication. If any is found from before 1923, that's good enough and the work is in the public domain, even if the author/creator died less than 70 years ago. Remember, though, that "publication" means "lawful publication", which implies the consent of the author of the original.

If only a publication after 1922 can be asserted, the U.S. work should not be considered to be in the public domain, even if one suspects that it was published before 1978 and had no copyright notice or it was published before 1964 and the copyright was not renewed because the necessary conditions are too hard to verify. For instance, to show that a painting did not have a copyright notice, one would basically need to have access to the original canvas and examine it closely; the notice might be on the back...

Country-specific rules for unpublished works

In short: These rules vary greatly.

The Berne Convention leaves it to any signatory country to make its own rules regarding unpublished anonymous works (see §15(4)). Unpublished works by a known author, however, are subject to the same minimum protection (50 years p.m.a) as published works. But this is only a minimum protection. Individual countries can and do make their own rules regarding unpublished works, and often go beyond this minimum. Some cases to illustrate the possible complexities are:

• In Australia, unpublished literary, dramatic and music works are subject to a perpetual copyright. Furthermore, broadcasting or publicly performing such a work does constitute publication in Australia. (See Infosheet G-23: Duration of Copyright.)
• In the countries of the European Union, a publisher who publishes a previously unpublished work is granted the publication right on the work for a period of 25 years beginning with the eventual publication. This publication right is basically a copyright minus the moral rights, which are always granted to the author only.

Such cases may be important when trying to determine whether a non-U.S. work was copyrighted on January 1 1996. See "country-specific rules" above. Note that the URAA affects only published works.

Copyright notices

In short: These are not needed anymore.

Under the Berne Convention, copyright is automatic: no registration is needed, and it isn't even necessary to display a copyright notice with the work for it to be copyright protected. Prior to the U.S. adopting the Berne Convention (by amending its copyright law through the Berne Convention Implementation Act, effective March 1, 1989), this was not the case in the U.S. A work was only copyrighted if published with a copyright notice, which could be as simple as a line saying "© year copyright holder". For U.S. works there are therefore some special cases that place even works published after 1923 in the public domain. However, the necessary conditions are hard to verify.

• Published in the U.S., without a copyright notice:
  • From 1923 to 1977: in the public domain
  • From 1978 to March 1, 1989: only in the public domain if not registered since, which may be hard to determine.
• Published in the U.S., with a copyright notice:
  • From 1923 to 1963: only in the public domain if copyright not renewed. This may be hard to determine, and if renewed, the protection runs until 95 years after the initial publication. See the external links below and Circular 22 of the U.S. Copyright Office for information on how to search the registry of the U.S. Copyright Office for coypright registrations and renewals.
  • From 1964 to 1977: not in the public domain for some time to come; copyright expires 95 years after the original publication.
  • From 1978 to March 1, 1989: current standard rules apply (see just below).

Works having seen their original U.S. publication after March 1, 1989 (with or without copyright notice or registration) are protected until 70 years after the author's death; works with a corporate authorship are protected until the shorter of 95 years since the first publication or 120 years since their creation.

Even if a work was published in the U.S. between 1923 and 1977 without a copyright notice, there would need to be proof to that effect. The proof must contain a valid resource justifying the claim in order for the U.S. copyright office to accept it.

For works not published in the U.S. but published first in some other country, see "country-specific rules" above.

Sound recordings

In short: The copyright situation in the U.S. depends on state law for records made prior to February 15, 1972.

"Sound recording" and "phonorecord" are the terms used in the U.S. federal copyright law for records of music and speech alone, i.e. not together with images: videos, for instance, do not fall in this category. A "phonorecord" is the physical medium (LP, tape, CD, or other) on which a sound recording is fixed. Sound recordings, including digital recordings, are a very complex special case in U.S. copyright law. (Note: although "sound recording" encompasses also non-musical sounds, the topic is discussed here in the context of music recordings without loss of generality.)

A sound recording is different from a musical work. A musical work would be a composition (notes and words). Publicly performing a musical work does not constitute "publication" in the sense of the copyright law. (Presumably, a musical work is published when the score sheets are published.) Making a sound recording of a performance of a musical work requires the permission of the performer. (17 USC 1101) Performing a musical work requires the authorization of the copyright holder of that musical work. (17 USC 106(4)) Distributing phonorecords made from a performance of a musical work also requires the authorization of the copyright holder of the work performed. (17 USC 106(3)). A sound recording is copyrighted separately from the musical work it records. Publicly distributing phonorecords of the sound recording constitutes publication of the sound recording. (17 USC 101)

Sound recordings made prior to February 15, 1972 are not covered by U.S. federal copyright law.[9] They are, however, subject to U.S. state common or statutory laws until February 15, 2067.^[†] On that date, federal copyright law will preempt state law, i.e., federal law will supersede any state laws in matters concerning the copyright of such sound recordings, and such sound recordings will then enter the public domain in the U.S., as federal law explicitly states that no such recordings "shall be subject to copyright under this title before, on, or after" that date. (17 USC 301(c)) Sound recordings made on or after February 15, 1972 are covered by 17 USC (that is, the federal copyright law), and state law is irrelevant for such later recordings.

On an international level, sound recordings are not covered by the Berne Convention. §2(1) of the Berne Convention only lists musical works, but not recordings of performances of such. Internationally, sound recordings are brought under the auspices of copyright protection by the Geneva Phonograms Convention (in full: "Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms"). The U.S. has ratified the Phonograms Convention in 1973, it entered in force on March 10, 1974.

An illustrative case in the U.S. showing some of the complexities of determining the copyright status of even old recordings is Capitol Records v. Naxos of America, decided by the New York Court of Appeals, the highest court of the state of New York, on April 5, 2005. Briefly, that decision about old recordings that were made in the United Kingdom in the 1930s and that had entered the public domain there in the 1980s (50 years after their creation) stated that these were still eligible for copyright protection under the common law of the state of New York, even though they were in the public domain in the UK prior to January 1, 1996 and thus not eligible to copyright restoration under the URAA. The reason given was precisely that records from the 1930s were not covered by federal law and the URAA and its cut-off date did not apply to state law.

†: That date originally was February 15, 2047 (75 years after 1972), but was extended by 20 years in 1998 by the CTEA.

Photographs of buildings

In short: Photographs of civilian buildings from public places are OK in many, but not all, countries.

Buildings are works subject to copyright in the U.S. according to 17 USC 102(a)(8) since the Architectural Works Copyright Protection Act was passed in 1990. It applies to all buildings that were completed (not begun) after December 1, 1990, or where the plans were published after that date. However, the U.S. federal copyright law explicitly exempts photographs of such copyrighted buildings from the copyright of the building in 17 USC 120(a). Anyone may take photographs of buildings from public places. The photographer holds the exclusive copyright to such an image (the architect or owner of the building has no say whatsoever), and may publish the image in any way. In German copyright law, this is called "Panoramafreiheit|Panoramafreiheit". Not all countries recognize this right; in France, for instance, the copyright holder of a building has the right to control the distribution of photographs of the building. (The famous example is the illumination of the Eiffel Tower, which is copyrighted. Nighttime photos of the Eiffel Tower#Image copyright|illuminated Eiffel Tower may only be published with the consent of the company running it. Daytime photos of the Eiffel Tower not showing the illumination are fine because the architect Gustave Eiffel died in 1923 and any copyright on the structure itself has thus expired at the end of 1993.)

17 USC 120 applies only to architectural works, not to other works of visual art, such as statues. In many countries, taking photographs of military installations is also illegal (but that prohibition is independent of copyright).

Derived works and restorations of works in the public domain

In short: These may give rise to new copyright on the new work, but not on the public domain original.

A work that is derived or adapted from a public domain work can itself be protected by copyright only to the extent that the derived work contains elements of originality contributed by the author of the derived work. For example, an abstract painting of a famous photograph would be protectible, as is the distinctive rendition of the Star Spangled Banner performed by Jimi Hendrix. The protection available to these works does not remove the underlying work from the public domain, and the author of the derivation has no cause of action against another person who makes a derivation of the same public domain work.

A work that is merely a "slavish copy", or even a restoration of an original public domain work is not subject to copyright protection. In the case of Hearn v. Meyer, 664 F. Supp 832 (S.D.N.Y. 1987), an illustrator attempted unsuccessfully to claim copyright on his painstakingly restored versions of original Wizard of Oz illustrations. The illustrations were in the public domain, and the court found that the act of rendering them with bolder and more vibrant colors was not an original contribution sufficient to remove the restored works from the public domain.

Public records

In short: being in the public record has no bearing on the copyright status of an item. Works in the public record may be copyrighted.

Public records are not necessarily in the public domain. Citizens generally have the right to access many items in the government's public records, but this right to access does not include a right to republish or redistribute the works so accessed. In general, copyright is neither lost nor waived when a work becomes part of the public record. Being in the public record and copyright are two orthogonal concepts. Uses of works from the public record must comply with copyright law.

Many items in the U.S. federal public records are in the public domain as [[#U.S. government works|works of the U.S. federal government, such as court decisions by federal courts, but the U.S. federal public records may also contain copyrighted works. This is even more so for public records of U.S. states. In the United Kingdom, many items in the public records are copyrighted. Official works in the UK are under Crown copyright, and this copyright subsists if the item was published before it was placed in a public record repository. Only for works that were placed in such repositories without having been published before, the Crown waives its copyright.

Retroactive changes in copyright legislation

In short: Works that were already out of copyright may sometimes become copyrighted again!

Common sense would suggest that once the copyright of a particular work has expired in a country and it had thus entered the public domain in that country, it would always remain in the public domain there. Unfortunately, this is not true. It is entirely possible that the copyright laws of a country are changed such that works already out of copyright under the old law become copyrighted again under the new law. Such retroactive copyright laws complicate considerably the matter of deciding whether a work is indeed in the public domain.

There are several examples of such retroactive copyright laws. In the EU, the Directive on harmonising the term of copyright protection, which is binding for all EU members and which became effective on July 1, 1995, makes any work that was copyrighted in at least one EU member on January 1, 1995 copyrighted in all EU members, even if that work's copyright had already expired there (see §10(2) of the directive). Because Spain has had a strict copyright law with a long copyright term of 70 years p.m.a. (or even 80 year for some time) and no rule of the shorter term since 1879, this effectively means that throughout the EU, one has to apply 70 years p.m.a., irrespective of shorter terms that may have existed in historic laws of a particular EU member. For an example of this, see the case of German World War II images below. In the U.S., the Uruguay Round Agreement Act (URAA) mentioned above is another such retroactive change to the U.S. copyright law. It suddenly makes works copyrighted in the U.S. that previously were in the public domain there. Examples of such retroactive changes also exist in other countries.

Such retroactive changes typically are not ex post facto laws. (Briefly, an ex post facto law is one that retroactively criminalizes or punishes more severely acts done before the law was passed.) The EU directive explicitly says in §10(3) that the directive "shall be without prejudice to any acts of exploitation performed before the...[effective date, i.e. July 1, 1995]. Member States shall adopt the necessary provisions to protect in particular acquired rights of third parties." The URAA, to take the other example discussed above, only makes continued or new unlicensed uses of works whose copyright has been restored a copyright violation. Unlicensed earlier publications of the work (while it was still in the public domain in the U.S.) are not punished "after the fact", i.e. ex post facto. For continued uses, 17 USC 104A requires even that the holder of the restored copyright file a so-called "Notice of Intent to Enforce Restored Copyrights" (in short: NIE) with the U.S. Copyright Office for such continued uses to be considered copyright infringements (see 17 USC 104A(c)). For existing derivative works, 17 USC 104A(d)(3) stipulates that a "reasonable compensation" must be paid for continued use.

Because the URAA became effective only on January 1, 1996 (half a year after the EU directive), any copyrights restored in the EU by the directive also became restored in the U.S.

Countries without copyright treaties with the U.S.

In short: Use such works under a "public domain" claim only if the copyright in the country of origin has expired.

According to Circular 38a of the U.S. Copyright Office, Afghanistan, Bhutan, Ethiopia, Iran, Iraq, Nepal, San Marino, and possibly Yemen have no copyright relations whatsoever with the U.S. (Eritrea isn't mentioned at all.) Works originating in one of these countries thus are not copyrighted in the United States, irrespective of the local copyright laws of these countries.

On Spotting World, such works may be used under a "public domain" claim only if their copyright in the country of origin has expired, even though legally the work is in the public domain in the U.S.

Example cases

This section is intended to show the effect the aforementioned rules using a few example images.

World War II images

In short: All are copyrighted.

The issue of Germany|German photographs from World War II has created some confusion. Are they still copyrighted? What about governmental images (such as propaganda)?

Already the copyright situation in Germany concerning such images is confusing. Originally, these images were subject to the Kunsturhebergesetz (KUG) from 1907, which provided for a copyright term for photographs of 10 years since the publication, or 25 years p.m.a. for unpublished works. In 1940, the KUG was modified to provide a copyright term of 25 years since publication, applicable also to all works that were either still unpublished or still copyright protected (§26). In 1965, the first version of the German Urheberechtsgesetz (UrhG) became effective, again with a copyright term of 25 years since publication, or 25 years since creation, if the image was not published in that time (§68). As a result, photographs from the World-War-II era went out of copyright at the end of 1970.

However, with the EU Directive on harmonising the term of copyright protection from 1993, which became effective in Germany on July 1, 1995 and is implemented in German law in §137f, these works suddenly became copyright protected again, until 70 years p.m.a! This was caused by Spain's longer copyright term of 70 years p.m.a. (see the old Spanish copyright law Ley 22/1987, §27) suddenly superseding Germany's old "25 years"-rule that had been governing World-War-II-era images. As a result, a 1943 image that had been in the public domain since 1968 became copyright protected again in 1995 with the EU term of 70y p.m.a. See this German article for the details.

As a result, such images were copyright protected on January 1, 1996 (which is the critical date as far as U.S. copyright law is concerned), and therefore, they are copyrighted even in the U.S.

A plausible exception may perhaps be made for German World-War-II photographs found in U.S. governmental archives, where such images usually are considered as being in the public domain. The United States Holocaust Memorial Museum even tags some such images as "© USHMM", although it is entirely unclear on what grounds they do so! It is also unclear what the U.S. position on "official" images of the Nazi regime is. It should be noted that even the NARA acknowledges German copyrights from the war era on certain of its holdings.

Another example are German newsreels, a kind of weekly news shown in movie theatres before the advent of television. Most such Wochenschau films are still copyrighted; the rights are held by Transit Film GmbH in Germany. In the U.S. the copyright on these films from 1914 until the 1940s had expired due to non-compliance with U.S. formalities; the copyright was then restored in 1996 by the URAA. The Transit Film company then even filed so-called "notices of intent to enforce" (NIEs) with the U.S. Copyright Office and can now even enforce its copyrights against parties who used their films (rightfully!) before the URAA became effective. The same is also true for most Universum Film AG|UFA films; the rights holder in this case is the Friedrich Wilhelm Murnau Foundation [10]. The song Lili Marleen is another such case; the rights holder is Schott Music International [11].

In general, wartime German images cannot be tagged as being in the public domain. However, fair use cases can be made in many cases (historical images, no other way to obtain equivalent illustrations).

See also

• Copyrights

External links

• Copyright Term and the Public Domain in the United States by Peter Hirtle.
• Sound Recordings and Copyright in the UK. A guide for those engaged in the restoration of public domain sound recordings.
• Collection of National Copyright Laws by the UNESCO.
• Collection of Laws for Electronic Access (CLEA) from the WIPO.
• On-line database for copyright registrations and renewals in the U.S. since 1978
• TIFF scans of the registry of the U.S. Copyright Office 1950 - 1977, with a bias towards books.
• International Copyright Relations of the U.S. – Circular 38a of the U.S. Copyright Office.
• Copyright guidelines from the University of Chicago Press.
• The coypright status of the works of James Joyce. Illustrates some of the complications that may arise.
• Gorman, R.: Copyright Law, 2nd ed. U.S. Federal Judicial Center, June 19, 2006. URL last accessed 2006-10-27.