Wikipedia:Domain awam

Daripada Wikipedia, ensiklopedia bebas.
Lompat ke: pandu arah, cari
Sila lihat juga rencana ensiklopedia mengenai domain awam.
Rencana ini merupakan sebahagian
daripada siri hak cipta Wikipedia.

Bagi Wikipedia, domain awam terdiri daripada kesemua karya bebas hak cipta: sesiapa pun boleh menggunakannya dalam mana-mana satu cara dan untuk mana-mana satu tujuan, asalkan nama pengarang atau sumber karya diberikan untuk mengelakkan sebarang penjiplakan.

Secara amnya, domain awam ditakrifkan (umpamanya, oleh Pejabat Hak Cipta Amerika Syarikat) sebagai keseluruh karya-karya yang tidak mempunyai hak cipta, ia itu:

  • karya yang tidak layak untuk dihakciptakan; atau
  • karya yang mempunyai hak cipta yang telah tamat tempohnya.

Bagaimanapun, tiadanya perkara seperti domain awam dalam Internet. Perjanjian antarabangsa, seperti Konvensyen Berne, tidak mengatasi ataupun menggantikan undang-undang tempatan. Sehingga hari ini, tidak adanya "Undang-undang Hak Cipta Antarabangsa" yang sah dan yang mengatasi undang-undang tempatan. Oleh sebab itu, negara-negara penandatangan Konvensyen Berne telah menyesuaikan undang-undang mereka untuk mematuhi piawai minimum yang ditentukan oleh perjanjian, seringnya dengan peruntukan-peruntukan yang lebih kuat daripada apa yang diperlukan. Sama ada sesuatu karya merupakan bebas hak cipta di sebahagian negara-negara tergantungnya kepada undang-undang negara-negara masing-masing.

Wikipedia dan perbadanannya yang sah, iaitu Yayasan WikiMedia, berasas di Florida, Amerika Syarikat. Walaupun undang-undang kekadangnya tidak begitu jelas mengenai mana satu undang-undang harus dipergunakan dalam Internet, undang-undang utama bagi Wikipedia ialah undang-undang Amerika Syarikat. Walau bagaimanapun khusus buat Wikipedia bahasa Melayu, undang-undang utama di sini adalah undang-undang Malaysia. Bagi pengguna-pengguna kandungan Wikipedia, mereka harus mematuhi undang-undang negara masing-masing.

Di dalam Amerika Syarikat, mana-mana satu karya yang diterbitkan sebelum 1 Januari 1923 di mana-mana sahaja di dalam dunia ini merupakan karya dalam domain awam. Bagaimanapun, negara-negara yang lain tidak harus diikati oleh tarikh 1923 ini. Kerumitan-kerumitan tertimbul sewaktu kes-kes yang khas dipertimbangkan, seperti sewaktu mencuba menentukan sama ada sebuah karya yang diterbitkan selepas tahun 1923 boleh dianggap sebagai karya dalam domain awam di Amerika Syarikat, ataupun sewaktu mengendalikan karya-karya yang tidak pernah diterbit. Sewaktu sebuah karya bukannya diterbitkan di Amerika Syarikat, tetapi di dalam negara yang lain, undang-undang hak cipta negara itu juga harus diambil kira. Pengguna-pengguna kandungan Wikipedia akan mendapati bahawa penjelasan di sini amat berguna.

Di Malaysia pula, kesemua karya yang layak mendapat hak cipta dilindungi secara automatik dari tarikh penghasilannya selama 50 tahun sebelum menjadi domain umum. Undang-undang ini termaktub dalam Akta Hakcipta 1987.

Dokumen penting[sunting | sunting sumber]

  • The Berne Convention 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 some of its paragraphs, 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 Wikipedia.

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 Wikipedia 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[sunting | sunting sumber]

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

Karya-karya yang tidak layak untuk perlindungan hak cipta[sunting | sunting sumber]

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

Karya-karya kerajaan[sunting | sunting sumber]

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 BlogTemplat:Mn. 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 most 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. (In fact, only the state of California routinely places most of its works into the public domain. See {{PD-CAGov}}.) 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.

For other countries, it may also be assumed that works that originate there and cannot be copyrighted by the respective local laws of the originating country are in the public domain world-wide. Works ineligible for copyright protection in the country of origin cannot miraculously become copyright protected in some other country. Note that other countries' governments may hold copyrights; in fact, most do so and their works are thus copyright protected.

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.

Templat:Mnb2 In that discussion it is mentioned that Germany didn't follow the rule of the shorter term. It does, though, for non-EU countries.

Karya-karya yang tidak berdaya cipta[sunting | sunting sumber]

A second category of works that in general cannot be copyright protected are those that have no (or no significant) creative content. 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 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.

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. Furthermore, the exemption for reproductive photos is not universally recognized by other countries.

Bilakah hak cipta tamat tempohnya?[sunting | sunting sumber]

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 autoris; 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. 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.

Peraturan tempoh lebih singkat[sunting | sunting sumber]

In brief: 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 and Japan have done so.

While the 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. The European Union does, however, adopt such a rule via-a-vis non-EU members (see §7(1) of the EU Copyright Directive). 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. Japan also honors the rule of the shorter term, see §58 of the Japanese Copyright Law.

Works first published in the U.S. and no longer copyrighted there are also in the public domain in countries that do follow the rule of the shorter term. In particular, this concerns works published before 1923 in the U.S., as well as works published before 1964 in the U.S. whose copyright was not renewed, and works published up to 1977 in the U.S. without a copyright notice. These works are in the public domain in all countries that do honor the rule of the shorter term, which includes the European Union and Japan.

Peraturan-peraturan negara yang tertentu[sunting | sunting sumber]

See also Commons:Licensing.
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 Wikipedia 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 Wikipedia 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. (There is the template {{PD-Australia}} for tagging such images.) See also copyright expiration in Australia.
  • 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 [3] at the bottom). Wikipedia has the template {{PD-Canada}} for tagging such images.

For an exhaustive list of the current situation in many countries, see Wikipedia:Copyright situations by country. This may help dealing with such cases. UNESCO also maintains a collection of copyright laws from many countries around the world. For works (photographs and others alike, but excepting sound recordings made prior to February 15, 1972) not published in the U.S., the following rule applies:

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. 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).

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?

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 [4] and "Circular 38a" in the "external links" section below). Country-specific public domain tags must therefore be used with the utmost care only.

Hak cipta Kerajaan United Kingdom[sunting | sunting sumber]

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 Wikipedia 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.

There is the template {{PD-BritishGov}} to tag images which are claimed to be in the public domain under these rules.

Karya-karya terterbit berbanding karya-karya yang tidak diterbit[sunting | sunting sumber]

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

So far, we have only considered published works. What does published mean? A work is published when it is made accessible in some non-ephemeral form to the public at large with the consent of its author. 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.

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. Hanging a painting on one's bedroom wall does not constitute publication. It is unclear how to interpret the Berne Convention's phrasing on art exhibitions and building construction. How else could one "publish" such works if not by exhibiting or building them?)

Why is this important at all for Wikipedians? 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. 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 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.

Pengumuman hak cipta[sunting | sunting sumber]

Pendek kata: tidak diperlukan lagi.

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.

Perakaman bunyi[sunting | sunting sumber]

In brief: 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 seperately 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. They are, however, subject to U.S. state common or statutory laws until February 15, 2067.Templat:Mn 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 U.S. Court of Appeals, 2nd Circuit 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.

Templat:Mnb2 That date originally was February 15, 2047 (75 years after 1972), but was extended by 20 years in 1998 by the CTEA.

Foto-foto bangunan[sunting | sunting sumber]

Briefly: 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". 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 illuminated Eiffel Tower may only be published with the consent of the company running it.)

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).

Karya-karya perolehan dan pemulihan karya-karya dalam domain awam[sunting | sunting sumber]

Briefly: 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 Jimmy 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.

Contoh-contoh[sunting | sunting sumber]

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

Imej Perang Dunia II[sunting | sunting sumber]

In brief: are copyrighted.

The issue of 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 Copyright Directive from 1993, which became effective in Germany on July 1, 1995, 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.

In general, such 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).

Imej Kanada: Yousuf Karsh[sunting | sunting sumber]

In short: pre-1949 Karsh images are in the public domain only in Canada. Later Karsh images are copyrighted anyway anywhere.

Many photographs by Yousuf Karsh (19082002) can be found at the web site of the Library and Archives Canada (LAC), who state that the copyright was expired and there were no restrictions on the use and reproduction of these images. In fact, many such images have been uploaded to Wikipedia by several users and tagged as "public domain" based on these claims by the LAC. However, this applies only in Canada. The history of each and every of these images must be closely examined to determine whether they just might be in the public domain elsewhere. As it turns out, this is not the case for most of them. Some examples:

  • Image:Albert Einstein by Yousuf Karsh.jpg, from [5]. This image has generated a lot of discussion at the Commons, with an anon claiming it was copyrighted, and, more recently, another (German) user trying to get the image deleted (again) as a copyvio. The pertinent discussion is in chronological order at first deletion discussion, asking the LAC for confirmation, a second deletion discussion, and then at a third discussion. Finally, on November 16, 2005, the image was tagged both as {{PD-Canada}} and {{imagevio}} here on the English Wikipedia.
    The image was definitely published in Karsh, Y.: Portraits of Greatness, University of Toronto Press, Toronto 1959, and Thomas Nelson & Sons, London, 1959, p. 68. (See [6].) Whether that is the first publication of the image is unknown. Following Peter Hirtle's chart, and even assuming the first publishing occurred in Canada, the image was still copyrighted in Canada on January 1, 1996 (its copyright in Canada expired on December 31, 1998) and thus is still copyrighted in the U.S. The simultaneous publishing of the book also in the UK makes it copyrighted there, and by extension through the EU Copyright Directive all over the European Union. Unless the EU would also consider it a Canadian work, in which case the "rule of the shorter term", which the EU does apply to non-EU countries, might make it copyright-free there—but that's a stretch and would depend on whether the Canadian and UK publishing occurred within 30 days (and hence be "simultaneous") or not. CameraPress in London does claim copyright on this image. If this image was even published (or should that be "first published"?) in the U.S., it would definitely be copyrighted in the U.S. While one would have to check whether its copyright was renewed to be absolutely sure, it's a fairly safe bet that the Karsh Estate did do so.
  • Image:Winston Churchill 1941 photo by Yousuf Karsh.jpg (on the Commons), from [7]. It turns out that this was first published on the cover of Life, a U.S. magazine, in 1941 or 1942. (See e.g. [8].) There, too, a check whether the copyright was renewed would be needed, but it would be a surprise if it wasn't. That image is most probably also still copyrighted. However, since that image is so important in Karsh's career and is discussed in detail at Yousuf Karsh, it could be salvaged by re-uploading it to the English Wikipedia and making a fair use claim for its use in the Karsh article.
  • Image:VerePonsonby.jpg from [9]. According to [10], this was (first) published in newspapers across Canada and Britain. Its Canadian copyright expired on December 31, 1983, and it is thus likely to be in the public domain in the U.S., too. (Not copyrighted anymore on January 1, 1996.) However, if there is a UK copyright on it, or if it was (simultaneously, first?) published in the U.S., it might nevertheless be copyrighted in the U.S.
    Note that the book Karsh, Y.: Karsh Canadians, Univ. of Toronto Press, Toronto 1978, ISBN 0-8020-2317-7, is copyrighted in the U.S. (copyright registered December 6, 1978; registration number TX-385-199).
  • Image:PaulRobesonByYousufKarsh.jpg, from [11]. Image from 1938, published in Karsh, Y.: Faces of Destiny, Ziff-Davies Publishing, New York 1946, and George G. Harrap, London, 1946. Original copyright registered with the U.S. Copyright Office on December 16, 1946 (Registration Number A9354), renewed December 3, 1974 (Registration Number R592433). See [12]. Therefore, copyright on this work (and all the images included therein, assuming that was their original publication) expires in the U.S. only on December 31, 2041.

The whole issue of Karsh images is complicated even more because Yousuf Karsh for years maintained two offices: one in Ottawa, Canada, and another one in New York City.

Lihat juga[sunting | sunting sumber]

Pautan luar[sunting | sunting sumber]