Template talk:PD-Germany

From Wikipedia, the free encyclopedia

Some comments:

• The copyright expires at at the end of the year (§69).
• The period of 50 years applies only to photographs. Other works are protected for longer.
• As of January 1, 2005, any German photograph first published prior to January 1, 1955 would be in the public domain. So would any photograph taken prior to January 1, 1955 that was hitherto unpublished.
• The combination of the rules in some cases can extend the copyright period to 100 years. Consider a photograph taken on January 1, 1905, but first published in 1955: it is still copyrighted until December 31, 2005.

To tag an image as PD-Germany, one therefore needs to make a very good case that the image was indeed first published more than 50 years ago. As a corollary, any German photograph taken more than 100 years ago certainly is in the public domain. Lupo 10:13, 23 Dec 2004 (UTC) (Disclaimer: IANAL.)

This is a great resource on German copyright law. Note that the copyright on any photographic "work", regardless of it's merit, expires after 50 years (of creation or publication). The copyright for non-photographic works expire 70 years after the death of the creator. – Quadell ^{(talk) (help)} 04:06, Dec 28, 2004 (UTC)

As Guenny quite correctly remarked: German copyright law distinguishes between Lichtbild and Lichtbildwerk. This complicates the whole issue tremendously. Both are photographs. A Lichtbildwerk is a photograph that is considered a "work", i.e. has some artistic merit, or has individual characteristics, or shows some creativity on the part of the photographer. Most German photographs fall in the category of Lichtbildwerk, for the individual characteristic can be minuscule: choice of viewpoint, lighting, etc. A Lichtbildwerk has the same copyright protection as any other work, i.e. the copyright expires 70 years after the death of the photographer. The aforementioned period of 50 years applies only to simple Lichtbilder (passport photos are examples of simple Lichtbilder). Simple reproductive photographs (no element of creativity) cannot be copyrighted. (Analogous to other copies: if you xerox a page from a book, you can't claim copyright on that copy. Attention: this applies only to two-dimensional originals: a photograph of some three-dimensional object is always a Lichtbildwerk, for it invariable includes elements of creativity.) Some resources (mostly in German, though): Overview, German mailing list for lawyers (has many threads on questions of copyright regarding photos), JuraWiki, a mostly German-language Wiki on law (interestingly they have not yet solved the issue of licensing contributions! Oh, these experts!). A very good overview is [1] on Fotorecht.de. Lupo 10:04, 17 Jan 2005 (UTC)

Lupo is right. Regarding all that, I think the template is either completely wrong or at least very very misleading. I'd suggest deleting it for good, since hardly any photograph suitable for an encyclopedia could be considered a simple "Lichtbild", as opposed to a "Lichtbildwerk". Every so often, this wrong or at least misleading template provokes the uploading of thus marked German photographs to de.wikipedia (and maybe commons as well, I guess). This could be prevented by deleting this wrong piece of information altogether. --AndreasPraefcke 17:47, 4 May 2005 (UTC)

German copyright law for photographs, like many continental copyright laws for photographs is too complicated in this respect I think. Determining whether something shows artistic merit or creativity is a subjective process. In law subjectivity should be reduced as much as possible. Given it is a subjective process unfortunately we have to assume that all photographs are protected for life of the author plus 70 years, as opposed to 50 years. Besides, this discussion doesn't take into account other EU countries. The term of copyright protection in the EU was retrospectively extended in 1995. The rule for extension is that if a work was under copyright in any of the countries of the EU at the time of the extension its copyright was extended. So it's not just German copyright law we have to worry about in this case, it's the copyright laws of all the other countries of the EU. British law in this respect comes into the situation for example. Under the 1988 Copyright Designs and Patents Act copyright for photographs was set at life of the author plus 50 years, as for all other artistic works. That meant that a lot of German photographs had their copyright term extended regardless.

In order to make a definitive pronouncement about this matter the copyright law of each of the 15 EU members at the time would need to be investigated. It is far from a simple task. David Newton 12:25, 18 Jun 2005 (UTC)

Contents 1 Question 2 Personal WikiProject 3 TFD 4 Bundesarchiv ? 5 Seized photos 6 German government PD template needed 7 Found applicable german law for use of stasi records

[edit] Question

How long would an illustration (i.e. a printed drawing) produced by the Nazi state remain under copyright from the date it was published? I'm not completely clear on this from the discussion above (it is an illustration but the "copyright holder" seems to be a government agency, not an artist, so they will not ever "die" in a biological sense). --Fastfission 16:31, 23 May 2005 (UTC)

Belated answer: According to German law, the copyright (Urheberrecht, author's rights) always belongs to an individual. Roughly speaking, it expires 70 years after his death. Until then, his heirs possess the rights. The government can sometimes act as an heir. Very famous example: The rights for Hitler's book "Mein Kampf" belong to the State of Bavaria which occasionally sues people who print it. They will remain with the Bavarian government until 2015 (I think the due date is actually 31 December of that year, but I'm no lawyer), then the book will be in the public domain, or "gemeinfrei" (free for everyone). --SKopp 01:30, 11 Jun 2005 (UTC)

The copyright period is 70 years post mortem auctoris so SKopp's reply is accurate. This applies to official images as well, although there is a "Panorama" permission for use of these images during the copyright period given by UrhG § 5(2). Opinion is divided as to whether this is copatible with the GFDL. The Federal Republic of Germany is the successor state to the Third Reich, and administers these questions as regards to official images (the case of "Mein Kampf" is slightly different, as the State of Bavaria administers Hitler's private copyright). Physchim62 11:47, 12 Jun 2005 (UTC)

The "Panoramafreiheit" (§ 59 UrhG) is a different beast (see de:Panoramafreiheit). But, Physchim62 is right, certain official works published for official purposes are not copyrighted or only under very loose terms (which may or may not clash with GFDL). But I'm sure you cannot apply this to any work printed by "the government." If the Health Ministry publishes a leaflet on dental hygiene, that's not "amtlich." The same would apply, I think, to a brochure promoting euthanasia that was published by the Nazi government, to go back to the example that probably prompted Fastfission to ask the question. --SKopp 04:40, 13 Jun 2005 (UTC)

Addendum: The image in question is here. It was not deleted after all. Another interesting legal question could be derived from this: The drawing was published in "Das Volk," a party magazine. Was the party an official government agency following the Law to Secure the Unity of Party and State from 1 December 1933 in the sense of § 5 (2) UrhG? Questions, questions ... --SKopp 11:23, 13 Jun 2005 (UTC)

[edit] Personal WikiProject

I am trying to resolve this issue at the moment. A discussion of German copyright law and a list of images is available at User:Physchim62/German images. Please feel free to comment. Physchim62 11:50, 12 Jun 2005 (UTC)

[edit] TFD

This template was nominated for deletion, in part because it was incorrectly worded. It has since been reworded to reflect actual German copyright law. For details, see Wikipedia:Templates_for_deletion/Log/Not_deleted/June_2005. Radiant_>|< 11:33, Jun 20, 2005 (UTC)

[edit] Bundesarchiv ?

Does anyone know what the status of Bundesarchiv images are - see http://www.bundesarchiv.de. I've seen at least one person assert that they are PD (credit required) - anyone care to comment ?

There are a large number of images related to WWII that are held by the Bundesarchiv - which I believe they assert "ownership" after 30 years. see http://www.bundesarchiv.de/benutzung/rechtsgrundlagen/bundesarchivgesetz/index.html?lang=en .

Does anyone know what the actual wiki situation is ?

The pictures are not PD but protected 70 years pma --Historiograf 15:44, 1 May 2006 (UTC)

[edit] Seized photos

I apologize for the cross post, but the other is an archive and I don't know if it is being read by anyone.

The National Archives claims that they have rights to a very large body of Nazi photographs and documents. Their reasoning seems to be that ownership of copyright passed to the US since they seized them by force. Perhaps German law supercedes this in Germany, or by some strange EU machination in all of the EU, but as for the US, these seized materials are property of the US government and PD. Or am I mistaken? Similarly, wouldn't documents seized by the Soviet Union become property of the state and copies of them subject therefore to the 1971 copyright free rule? -Mak Thorpe 02:42, 3 April 2006 (UTC)

It would appear you are mistaken - if you read the copyright note on the page:

Copyright Note: Some of the materials in this record group may have been of private origin. The fact that such materials were seized is not believed to have divested their original owners of any literary property rights in them. Anyone who publishes such materials in whole or in part without the permission of the original owners or their heirs may be held liable for infringement of property rights.

Megapixie 03:10, 3 April 2006 (UTC)

On seized property: we already had a long discussion about that on the (now unfortunately deleted) talk page of a mistaken template (Template talk:GermanGov). Here's the breakdown:

• The UK had the "Enemy Property Act" which "extinguished all German interests, both copyright and ownership, in all material belonging to former German enemies (whether individuals or businesses) which was brought into the UK between 3 September 1939 and 9 July 1951." [2] This act was repealed in 1976. [3]. For more info, see http://www.enemyproperty.gov.uk/ and the reports available for download there. It does not seem to be applicable.
• For the U.S. the equivalent office was the Alien Property Custodian. See Wikipedia talk:Public domain: "alien property" regulations also does not seem to be easily applicable. Even the U.S. Copyright Office doesn't know what to do with them. Some background:

• 17 USC 104A is the result of the Uruguay Rounds Agreement Act (URAA), effective January 1, 1996. It has the effect of retroactively restoring copyright on foreign works whose copyright had lapsed in the U.S., e.g. due to non-compliance with technical aspects such as proper registration with the Copyright Office. Any foreign work that was still copyrighted in its country of origin on January 1, 1996 is also copyrighted in the U.S. (where, of course, the U.S. copyright terms apply).
• 17 USC 104A(a)(2) makes an exception to this for works where the copyright was ever held by the Alien Property Custodian, if the restored copyright would be held by a foreign government.
• Quote from Federal Register Vol. 63, No. 74 / Friday, April 17, 1998, pp. 19289-19290 by the Copyright Office of the U.S. Library of Congress: "A work is excluded from restoration under the exception only when both elements of the exception are met. Determining whether a particular work falls within the exception may be complicated. As to the first element of the exception, the vesting orders described above would indicate which works had been held or administered by the Alien Property Custodian. There is no one source where these vesting orders may be found. [... they then give a list of known documentation about these "vesting orders", which can all be searched by visiting the James Madison Building of the Library of Congress, 101 Independence Avenue, S.E., Washington, D.C.] In addressing the second element, ownership of a restored copyright is determined by the law of the source country of the work. 17 U.S.C. 104A(b). It appears that some Axis countries nationalized certain producers of creative works during World War II, and ownership of their works may therefore have vested with the then-current government. In cases where this occurred, if the government or its instrumentality still owned the copyright as of January 1, 1996, the URAA would not have restored copyright protection in the United States for that work."
• Quote from ibid. pp. 19289: "The legislative history of the URAA is silent on the application and scope of this exception."
• Quote from op. cit.: "In 1962, Congress returned most of the remaining seized copyrights to the copyright owners in their countries of origin, although the United States retained the right "to reproduce, for its own use, or exhibit any divested copyrighted motion picture films." Pub. L. No. 87–846 (1962)."
• As I understand Records of the Office of Alien Property, the Alien Property Custodian only managed foreign property in the U.S, it had no say whatsoever over foreign property or works elsewhere.

In short, I do not think we can apply 17 USC 104A(a)(2).

Finally, please note that the "1971 copyright free rule" for Soviet works is (a) the "1973 rule" and (b) wrong. See Template talk:PD-USSR. Lupo 08:06, 3 April 2006 (UTC)

I agree with Lupo. May I add that in all EU countries according to a directive from 1993 the 70 years pma rule is valid. There is no known general NAZI exception in German copyright law (except of a very few confiscations regarding Hitler and a very few other people - the reason that Bayern claims the Mein Kampf copyright). Is there any reason why it should be impossible or quite difficult to sue the foundation at a German court? Some people seem to think that the STUPID & SILLY our-servers-are-in-Florida argument is something like legibus solutus --Historiograf 20:07, 5 April 2006 (UTC)

Megapixie, you are absolutely correct. Very sloppy reading on my part. I can't for the life of me understand how I missed this. Thanks to all the other responders for the very well presented information on this issue as well as the controversy on the so called 1973 rule for Soviet works. -Mak Thorpe 02:40, 6 April 2006 (UTC)

A bit belated, but Megapixie actually reads the disclaimer incorrectly. The NARA is saying that for the very small proportion of works originating from private individuals (i.e. not the Nazi government), the copyright interest might still exist even if the physical photograph was seized. However, for works by the Nazi government, seizure also implies seizure of copyright. Even in some cases of private individuals this has been held; for example, all of Heinrich Hoffmann's photographs in the archive now held by NARA are public-domain in the United States, as confirmed by Price v United States (1995); see the article on Hoffmann for a journal reference discussing that case. --Delirium 10:54, 14 March 2007 (UTC)

You do realize, though, that this litigation about the Hofffmann photographs in the U.S. did not end with that case (69 F.3d 46 for those with Lexis access)? See e.g. Civil Action 98-857 at the United States District Court for the District of Columbia, Judge Henry H. Kennedy, available here (archived). I won't pretend to understand exactly what this case is about and what the court's reasoning is, but it is clear that the plaintiffs are Hoffmann's heirs and that the case is about Hoffmann's photographs. It appears to me that not all Hoffmann photographs are PD in the U.S. I do not know whether there are even more recent cases about these photos. BTW, the journal article you mentioned is available here. You might consider adding the link in the Hoffmann article. Lupo 12:13, 14 March 2007 (UTC)

Apparently the matter was still unsettled in 2001: William H. Honan: Court Considers Ownership Of Seized 'Hitler' Paintings, New York Times, March 8, 2001. Lupo 12:30, 14 March 2007 (UTC)

It appears the plaintiffs even petitioned the U.S. Supreme Court to consider the matter (see Opinion of the U.S. Solicitor General), but that the court declined to do so: the writ of certiorari was denied in 2004 (See Journal of the U.S. Supreme Court, October 2004, p. 298). Lupo 15:23, 14 March 2007 (UTC)

[edit] German government PD template needed

One is needed to cover this instance: "Public domain: See http://commons.wikimedia.org/wiki/Commons:Licensing#official_works By German law, documents are in the public domain (gemeinfrei) if they have been published as part of a law or offical decree or edict, or if they have been released as an official announcement or for public information. The relevant law is section 5 of the UrhG. The first and most important sentence states: "Gesetze, Verordnungen, amtliche Erlasse und Bekanntmachungen sowie Entscheidungen und amtlich verfaßte Leitsätze zu Entscheidungen genießen keinen urheberrechtlichen Schutz." --Fahrenheit451 06:14, 30 April 2006 (UTC)

I don't think we need a tag for that, as such publications (laws, decrees, official edicts and announcements, court decisions and official interpretations of such decisions) basically never contain images. Lupo 18:38, 30 April 2006 (UTC)

Well, yes we do. Not having one has already caused problems for me as an editor on wikipedia. All images require tags. If they do not have a tag, they get deleted.--Fahrenheit451 02:12, 1 May 2006 (UTC)

Images get deleted if they don't have source and licensing info, or have wrong such info. But what images are you talking about? Which images on Wikipedia should use a tag for this case? Do you have examples? Lupo 06:21, 1 May 2006 (UTC)

Oh, I see it now: Image:MWolf.jpg, Image:Mielke hon ulb.jpg, Image:Stasi 004 540px.jpg, and possibly others. Well, forget it. These are not "laws, decrees, official edicts and announcements, court decisions and official interpretations of such decisions" (in German: "Gesetze, Verordnungen, amtliche Erlasse und Bekanntmachungen sowie Entscheidungen und amtlich verfaßte Leitsätze zu Entscheidungen genießen keinen urheberrechtlichen Schutz.") German law interpretes §5 of the German Urheberrechtsgesetz very narrowly. It does not apply to any of these images. You can use them under "fair use", but they are not in the public domain. Please note that the BStU even says "Anfragen wegen Nutzung und Rechte, bitte an die BStU-Pressestelle." [4], i.e. "Contact the press office for information about uses and rights." Lupo 06:28, 1 May 2006 (UTC)

I agree with Lupo. It is clearly a myth that a photograph has been considered as official work from the German jurisdiction or legal literature. There is only one known case not relevant here (Karte eines Meeresstrands zur Vermeidung von Badegefahren, amtl. Begründung des UrhG) --Historiograf 15:40, 1 May 2006 (UTC)

Thanks for the info on narrow interpretation of german copyright law. O.K. So I need to make a fair use case for them. I need to get busy then. --Fahrenheit451 15:34, 2 May 2006 (UTC) I think that is possible

[edit] Found applicable german law for use of stasi records

This is the StUG, Part 3, chapter 3, section 34 (1):"Section 32 and 33 shall be applicable mutatis mutandis to the use of records by the press, film, or broadcasting sectors or by their auxillary enterprises or by their journalistic-editorial personnel." These images are Not personal data so the limiting criteria of section 32 does not apply. Specifically section 32, (1) 1. Therefore these images are at least fair use. I invite your comments. --Fahrenheit451 22:27, 2 May 2006 (UTC)

Die englische Übersetzung is hier Image:Stug englisch pdf.pdf.--Fahrenheit451 22:45, 2 May 2006 (UTC)

First, nobody ever said these images could not be used under "fair use". Of course they can; you don't even need any German law for that. However, they are not in the public domain.

Secondly, the StUG has nothing whatsoever to do with copyright. It's a FOIA-like law granting concerned persons or organizations the right to access the Stasi documents the Behörde der Bundesbeauftragten für die Unterlagen des Staatssicherheitsdienstes der ehemaligen DDR (BStU) holds in its archives. However, such documents that contain "personenbezogene Daten", i.e. personal data, may be published only if the person mentioned in the document has given its consent to such a publication (see §§32, 32a, 33, and 34). Regarding §34: we are not the press, so it doesn't apply. See the German original of the StUG. The StUG describes procedures for gaining access to these documents, it doesn't say anything about their copyright status.

Thirdly, even if these images are published on the web site of the BStU, that doesn't mean that they come from the Stasi-Akten about which the StUG is. AFAIK most of these documents are written reports. Why don't you just contact their press office and ask them about the provenance of these images and their copyright status? (But again, if you want to use those images under fair use, you don't need to do so.) Lupo 19:23, 3 May 2006 (UTC)

Agree with Lupo --Historiograf 22:27, 3 May 2006 (UTC)