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Old 03-09-2011, 04:21 PM   #1
jgaiser
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Retroactive Copyright?

Does Congress have the right to restore copyright protection to foreign works that have fallen into the public domain?

http://www.metafilter.com/101359/Retroactive-Copyright

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Old 03-09-2011, 04:33 PM   #2
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Of course they do. In all fairness, all copyrights should be a minimum of the copyright covering the book where it was first published.
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Old 03-09-2011, 08:16 PM   #3
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H'm, looks like it should be a good case.

However, they won't work on it until at least October. All they did today was agree to hear the case in the next term.

I for one believe that once something goes into the public domain, it should remain in the public domain; but also that international copyrights should be expected. E.g. if a composition by Prokofiev is PD in the US, but still under copyright in the UK, a US-based library should take reasonable steps to ensure that it is not distributing its PD copies to the UK.

Unfortunately the current SCOTUS is likely to merely state that Congress has the authority to re-institute a copyright, as long as it meets the "limited duration" test. But, we'll see what actually happens. In a year or so.
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Old 03-09-2011, 10:39 PM   #4
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Quote:
Originally Posted by Kali Yuga View Post
E.g. if a composition by Prokofiev is PD in the US, but still under copyright in the UK, a US-based library should take reasonable steps to ensure that it is not distributing its PD copies to the UK.
Is this sufficient?

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Copyright Warning

Under Australian copyright laws, copyright in literary works of authors, who died before 1955, has expired. These works are now within the ‘public domain’ in Australia and this is why the University is able to reproduce such works on this site. HOWEVER, works may remain copyrighted in other countries. If copyright in the work still subsists in the country from which you are accessing this website, it will be illegal for you to download the work. It is your responsibility to check the applicable copyright laws in your country.

In particular, the works of George Orwell are still under copyright in the United States and the European Union, and therefore users in those countries should not download these works.
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Old 03-10-2011, 12:21 AM   #5
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No.

Disclaimers like that are a thin fig leaf that doesn't really absolve the site of its responsibilities. The site is distributing the title to an area where it is not yet in the public domain, thus it's infringing. From a purely practical perspective, few copyright holders actually want to do anything more involved than send a nasty letter and lots of works are PD in most of the world at the same time. That does not prove that the disclaimer is legally sufficient -- only that so far, no one is actually angry enough to launch an expensive lawsuit.

I don't believe PD hosting sites need to go crazy or pull titles, but it would not be difficult to filter based on geographic IP data.


This lawsuit isn't really about all that, though. In this case, Congress passed a law in 1994 that agreed to harmonize some US copyright laws with the Berne Convention, and this had the effect of pulling some works that were previously PD back under copyright protection.

Of course, if Congress can do this once, then it potentially sets the precedent that it can be done again and for other reasons. This could be highly problematic for anyone who works with public domain works, since in theory they would not know when a given work might lose its PD status.

So, I'm against it, but offhand I'm not aware of what legal grounds they can use to dispute the 1994 action. US copyright law does not outline any specific rights relating to public domain, and the SCOTUS has recently stated in opinions that it's up to Congress, not the Courts, to determine the appropriate duration periods for copyright.

Then again, I'm not a lawyer arguing before the Supreme Court, so they may well turn up valid legal reasons in the case.
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Old 03-10-2011, 12:45 AM   #6
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Quote:
Originally Posted by Kali Yuga View Post
No.

Disclaimers like that are a thin fig leaf that doesn't really absolve the site of its responsibilities. The site is distributing the title to an area where it is not yet in the public domain, thus it's infringing.
I disagree. Whatever happened to personal responsibility?

I take it that you think that any website that provides the tools to strip the DRM from books, should be held responsible for copyright violation when someone uses those tools to illegally strip the DRM off of a copyrighted work?

BTW, is it fair for Australia to declare the works of George Orwell public domain, while they are still under copyright in the country where they were first published?
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Old 03-10-2011, 03:39 AM   #7
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Quote:
Originally Posted by jgaiser View Post
Does Congress have the right to restore copyright protection to foreign works that have fallen into the public domain?

http://www.metafilter.com/101359/Retroactive-Copyright

Comments?
They not only have a right to, but a duty to, under the Berne Convention to which the US is a signatory.
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Old 03-10-2011, 03:41 AM   #8
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Quote:
Originally Posted by tubemonkey View Post
BTW, is it fair for Australia to declare the works of George Orwell public domain, while they are still under copyright in the country where they were first published?
Just as fair as US law, which makes Agatha Christie's and P.D. Wodehouse's early works public domain in the US, while they remain under copyright in the UK .
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Old 03-10-2011, 05:33 AM   #9
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Originally Posted by HarryT View Post
Just as fair as US law, which makes Agatha Christie's and P.D. Wodehouse's early works public domain in the US, while they remain under copyright in the UK .
Yes, their copyright expired before Congress extended the term. They had the option of adding copyright protection to them within the new law but chose not to do so.

The article mentioned Maxim Gorky. Since he died in 1936 all his material is in PD everywhere except the US. This is another example of US paying royalties but no one else. Unless Mr Gorky didn't apply for US copyright but it's meaningless now.

I think the SC case concerns mostly orchestral performances
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Old 03-10-2011, 05:57 AM   #10
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Quote:
Originally Posted by Kali Yuga View Post

Disclaimers like that are a thin fig leaf that doesn't really absolve the site of its responsibilities.
And, not juridically correct. Regardless whether or not a work still falls under copyright, in many West-European countries downloading is permitted under fair use.

Quote:
I don't believe PD hosting sites need to go crazy or pull titles, but it would not be difficult to filter based on geographic IP data.
Hmm, requiring these sites to block content that I would actually be legally allowed to download? Does not sound balanced to me, rather focused on pleasing the copyright holders.
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Old 03-10-2011, 06:08 AM   #11
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Quote:
Originally Posted by HarryT View Post
Just as fair as US law, which makes Agatha Christie's and P.D. Wodehouse's early works public domain in the US, while they remain under copyright in the UK .
That's not fair either.
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Old 03-10-2011, 08:44 AM   #12
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Quote:
Originally Posted by HarryT View Post
They not only have a right to, but a duty to, under the Berne Convention to which the US is a signatory.
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They not only have a right to, but a duty to, under the Berne Convention to which the US is a signatory.
Well at least here in America the government often feels free to ignore international law when it suits them I suspect that since this favors corporate interests, and given the current makeup of the SCOTUS, that the court will defer to Congress on the issue.

It is disturbing that this sort of retroactive change basically throws the copyright status of works into a sort of continued uncertainty. Methinks it is an attack on the very idea of public domain works.

The issue of what the responsibility of sites that host downloads of titles that are in public domain in one country and not in another to prevent downloads by people in the second country is complicated. Is just a disclaimer to the effect of “It's up to you [the downloader] to respect the copyright laws of your country” sufficient if the download site has good reason to suspect that such people are downloading such titles anyway?
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Old 03-10-2011, 09:59 AM   #13
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Originally Posted by Soldim View Post
And, not juridically correct. Regardless whether or not a work still falls under copyright, in many West-European countries downloading is permitted under fair use.
If this is the case, then what good is a disclaimer? Should the site include "wink wink, nudge nudge" at the end, perhaps?

I'm not familiar with EU law, e.g. whether it is only the distributor who is legally responsible, or both parties.

I don't think it's an issue of fair use, though; it's an issue of who is legally responsible for the distribution. It is entirely plausible that in some regions, both the sharer and recipient would be considered as engaged in the act of duplication, but it is more useful and/or more politically palatable to take action against the sharer. (E.g. arresting the prostitute, but not the john, does not mean solicitation itself is legal.)

The disclaimer approach, by the way, exclusively places responsibility on the downloader -- and explicitly acknowledges that the content in question may not be in the public domain in the country where the downloader resides. It doesn't make sense for the distributor to say "we're not responsible, the downloader assume full responsibility" and for the downloader to say "I'm not responsible, this falls under fair use."

FYI there is a case currently under review in the UK which includes these issues: http://www.guardian.co.uk/law/2011/m...wars-copyright



Quote:
Originally Posted by Soldim
Hmm, requiring these sites to block content that I would actually be legally allowed to download? Does not sound balanced to me, rather focused on pleasing the copyright holders.
Again: The disclaimer approach explicitly acknowledges that if the book is not PD in your country, you are not legally allowed to download it -- even if no one is actively going after you for this action.

The ideal situation would allow the PD distributor the maximum ability to distribute works within the confines of their responsibilities. Pulling PD content completely out of circulation is, in my opinion, not an acceptable option. However, targeted blocking is viable. E.g. "Joe's Free Ebook Hut" based in the US receives a cease-and-desist letter from a lawyer in the UK; Joe verifies that the copyright claim is valid; and in response puts up a geo-IP block to screen out UK downloaders. So if Book X is PD in France, a French citizen can still legally download it.

Again, from a purely practical perspective, it's unlikely that Joe will receive anything more substantial than a nasty letter; it's too expensive to sue and the laws and precedents are, to put it mildly, diverse. That does not grant Joe the right to thumb his nose at copyright law.
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Old 03-10-2011, 10:08 AM   #14
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Quote:
Originally Posted by Hamlet53 View Post
Well at least here in America the government often feels free to ignore international law when it suits them...
I don't think this is just an American trait.


Quote:
Originally Posted by Hamlet53
It is disturbing that this sort of retroactive change basically throws the copyright status of works into a sort of continued uncertainty. Methinks it is an attack on the very idea of public domain works.
It is disturbing, hence the court challenges. The problem is that especially now, the SCOTUS does not believe its job is to determine whether a law detracts from a public good. Rather, they believe their job is to determine whether or not a law is Constitutional.

As to whether it's an attack on PD, I don't think that's really the case. It's a question of determining the extent of the powers of Congress to set copyright terms, and whether PD status can be rescinded.
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Old 03-10-2011, 12:47 PM   #15
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Quote:
Originally Posted by Kali Yuga View Post
Disclaimers like that are a thin fig leaf that doesn't really absolve the site of its responsibilities. The site is distributing the title to an area where it is not yet in the public domain, thus it's infringing.
Are they distributing (an active act), or are they making available for download (a passive one)? The act of distributing (downloading) is triggered solely by a deliberate act of the end user, unlike P2P where background transfers can happen automatically.
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