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We took this action to comply with the US Digital Millennium Copyright Act (DMCA), as we believe the diary is still under US copyright protection under the law as it is currently written. Nevertheless, our removal serves as an excellent example of why the law should be changed to prevent repeated extensions of copyright terms, an issue that has plagued our communities for years.
What prompted us to remove the diary?
The deletion was required because the Foundation is under the jurisdiction of US law and is therefore subject to the DMCA, specifically title 17, ch. 5, s. 512 of the United States Code. As we noted in 2013, “The location of the servers, incorporation, and headquarters are just three of many factors that establish US jurisdiction ... if infringing content is linked to or embedded in Wikimedia projects, then the Foundation may still be subject to liability for such use—either as a direct or contributory infringer.
Based on email discussions sent to the WMF at legal[at]wikimedia.org, we determined that the Foundation had either “actual knowledge” (in the statute quoted below) or what is commonly called “red flag knowledge” (in the statute quoted below) that the Anne Frank text was hosted on Wikisource and is under copyright. In the statute, a service provider is protected by the DMCA only when it:
(i) has no actual knowledge that the material or an activity using the material on the system or network is infringing; or
(ii) in the absence of such actual knowledge, is unaware of facts or circumstances from which infringing activity is apparent.
Further conditions can apply when a proper DMCA takedown notice is served.
Of particular concern, the US 9th Circuit Court of Appeals stated in UMG Recordings, Inc. v. Shelter Capital Partners LLC that in circumstances where a hosting provider (such as the WMF) is informed by a third party (such as an unrelated user) about infringing copyrighted content, that would likely constitute either actual or red-flag knowledge under the DMCA.
We believe, based on the detail and specificity contained in the emails we received, that we had actual knowledge sufficient for the DMCA to require us to perform a takedown even in the absence of a demand letter.
How is the diary still copyrighted?
You may wonder why or how the Anne Frank text is copyrighted at all, as Anne Frank died in February 1945. With 70 years having passed since her death, the text may have passed into public domain in the Netherlands on January 1, 2016, where it was first published, although there is still some dispute about this.
However, in the US, the Anne Frank original text will be under copyright until 2042. This is the result of several factors coming together, and the English Wikipedia has actually covered this issue with a multi-part test on its non-US copyrights content guideline.
In short, three major laws together make the diary still copyrighted:
In general, the US copyright for works published before 1978 is 95 years from date of publication. This came about because copyrights in the US were originally for 28 years, with the ability to then extend that for a second 28 years (making a total of 56). Starting with the 1976 Copyright Act and extending to several more acts, the renewal became automatic and was extended. Today, the total term of works published before 1978 is 95 years from date of publication.
Foreign works of countries that are treaty partners to the US are covered as if they were US works.
Even if a country was not a treaty partner under copyright law at the time of a publication, the 1994 Uruguay Round Agreements Act (URAA) restored copyright to works that:
had been published in a foreign country
were still under copyright in that country in 1996
and would have had US copyright but for the fact they were published abroad.
Court challenges to the URAA have all failed, with the most notable (Golan v. Holder) resulting in a Supreme Court ruling that upheld the URAA.
What that means for Anne Frank's diary is regrettably simple: no matter how it wound up in the US and regardless of what formal copyright notices they used, the US grants it copyright until the year 2042, or 95 years after its original publication in 1947.
Under current copyright law, this remains true regardless of its copyright status anywhere else in the world and regardless of whether it may have been in the public domain in the US.
Jacob Rogers is a Legal Counsel at the Wikimedia Foundation; he thanks Anisha Mangalick, Legal Fellow, for her assistance in this matter.
This seems to be an issue for a number of works and authors from around 1920 and onwards. One should think that it would be possible to set up a Wikisource look-a-like outside the formal control of the Wikimedia Foundation but in the Wikipedia spirit by Wikimedia chapters on, e.g., European soil. I myself has been keen on entering works of Carl Nielsen who did in 1931, and not at all thinking there could be copyright issues. I am now wondering whether, e.g., from 1920/1921, falls within the rule. — fnielsen (talk) 17:22, 15 February 2016 (UTC)[reply]
da:Min pige er så lys som rav was composed in 1921. If it was published before 1923, then the copyright expired in the United States at the latest 75 years after publication, per {{PD-1923}}. On the other hand, if the song remained unpublished for some time and wasn't published until 1923 or later, then the copyright expires 95 years after publication in the United States.
The copyright term in the United States is very different to the copyright term in other countries, so the copyright will typically expire at one point of time in the source country and at a completely different point of time in the source country. The United States copyright term can be either longer or shorter than the European copyright term, but will usually be different. The Little Mermaid (statue) is an example of a situation where USA provides shorter copyright protection than the source country. The statue is in the public domain in the United States because it was published (put on display) in 1913 (more than 95 years ago), but it remains copyrighted in the source country because the sculptor hasn't been dead for 70 years.
Thanks for the information. I believe the song (at least the text) was published in 1920, so for this particular song there should not be a problem if the cutoff is 1923. But I wonder about the year 1923: It does not make sense with 2015 minus 95 years. Which act or convention does that year come from? — fnielsen (talk) 19:06, 15 February 2016 (UTC)[reply]
No doubt that, since Judge Scalia died just this week, the US Supreme Court would reach an other conclusion now that the originalist can no longer explain that a work not written by a US citizen and not written or first published in the US and not owned by a US organisation or person can be copyright-protected worldwide because, as the founding fathers had envisioned, the internet servers could be in Florida. -DePiep (talk) 17:55, 16 February 2016 (UTC)[reply]
Lessig's case did come before the Supreme Court - and they ruled (I think it was 6-3 or 7-2) that copyright is regulated by Congress, not the Supreme Court. - kosboot (talk) 18:27, 16 February 2016 (UTC)[reply]
Numerous American media companies are responsible for lobbying Congress that passed the Copyright Term Extension Act, resulting in the current default term of 95 years. Who was fighting against all these media companies? Aside from Lawrence Lessig, almost no one.
The Wikimedia Foundation has long been identified primarily as the host for the various Wiki- projects. It is only on rare occasions that the Foundation takes a stand on other issues. As the preservation (not the shrinking of) the public domain is an issue that is central to all the Wiki- project, it is my hope that the Wikimedia Foundation—preferably in conjunction with other interested organizations such as the Internet Foundation, the Electronic Frontier Foundation and the Center for the Study of the Public Domain (at Duke University)—would band together and start regularly promoting the necessity of preserving the public domain. There has to be a counterbalance to media companies's lobbying, otherwise we'll see copyright terms continually increase, with the erosion of exceptions (such as fair use). -- kosboot (talk) 21:26, 15 February 2016 (UTC)[reply]
Thanks Ed Erhart (WMF) - yes I've been following these small but significant steps. But there's always a need for more message and of a louder frequency. Perhaps for each Public Domain Day, all of these organizations can issue a joint statement, or joint blog or some joint message. The vast majority of people don't know about these issues until they come up against the law for unwarranted duplication, or other things. Really, when January 1, 2019 comes around, the Internet Archive and Wikisource should have significant amounts of new material that will have just become public domain, and a strong message indicating why it is important for the public domain to be continually replenished (in part because it fuels the economic engine of the economy). - kosboot (talk) 04:32, 16 February 2016 (UTC)[reply]
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