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[Fwd: Re: Concerns about works created by the US government]



Francesco Poli wrote:
On Fri, 08 Apr 2005 03:00:00 +0100 Henning Makholm wrote:

  
On the other hand, I think it is common for countries only to award
copyright protection to works produced in foreign countries only to
the extent that copyright exists in the country of origin. But I may
be wrong.
    

Well, this is an issue that I would really love to understand!

If I understand correctly, in Italy (and other similar jurisdictions)
authors are not allowed to place their works in the public domain: works
fall in the PD only when author's economic rights expire (that is 70
years after the author's death and similar rules).

On the other hand, US authors can explicitly place their works in the
PD.

Suppose a work is created in the USA by a US author and placed in the
PD.
Then the work is downloaded by an Italian citizen.
Is that work in the PD in Italy as well?

Or is it copyrighted?
If it is, in lack of a proper license, it's "All Rights Reserved"
proprietary!
That would result in the opposite of the original author's goal!


I have tried to find an answer to this question by asking several
Italian lawyers, but no one seems to know the answer (or even care to
reply, in most cases...).    :-(
So far, no luck.

Does anyone know the answer?
  
A work authored by the American Government, and therefore in the public domain in the United States is in effect in the public domain in Italy, or equivalent of copyright expired. The work does not qualify for an Italian copyright, it was not created in Italy or by an Italian citizen abroad (I don't know if Italian law provides Italian copyright for works authored by Italians abroad, but some countries do); and it has no American copyright protection available to be extended to Italian jurisdiction through the various copyright conventions. (And, if it comes up before you get into detailed arguments on proving this point ask your Italian court to rule the proper venue is the author's home jurisdiction, the United States, where there is no copyright protection for the work) The extended copyright protection afforded through the various conventions enable the US-based author to go to court to protect rights they have in the US that also exist in Italy. Before the last part is used as a jumping off point let me give an example: the US grants life+70 or 75 copyright to photographs to the photographer, while Canada grants 50 years from then end of the year the photograph was taken to the owner of the negative. As a holder of Canadian photograph copyrights I cannot enforce copyright protection of my photographs in the US after they expire in Canada. Nor can an American copyright holder enforce photographic copyrights in Canada 51 years after a US copyrighted photograph was taken (and if the American photographer didn't own the negative they may not have standing in Canada). In the first case there are no Canadian rights available for protection under US copyright law through a convention, in the latter case there are no rights available for protection in Canada.

For further research into international copyright the most relevant treaties are administered by the World Intellectual Property Organization (WIPO) - Berne & UCC if memory serves, the World Trade Organization (WTO) - TRIPS from the Uruguay round of GATT if memory serves. Then for Canada, the US, Chile, Israel, Mexico & I believe Australia NAFTA & associates FTA's tend to have some importance. In a complex commercial case expect to see claims filed under NAFTA & GATT, and claims filed with their dispute resolution/quasi judicial bodies. These NAFTA & GATT bodies can issue rulings under NAFTA and GATT, where Berne simply affords national reciprocity. To clarify, Berne grants rights under the effective national law (& specifies minimum protections and common definitions), where NAFTA & GATT can grant rights under these agreements. Rights beyond or in conflict with national law. To mess with this further there isn't one Berne and different countries can subscribe to different Berne's (although most are subscribing to '71). The Berne was revised in Berlin in 1908, Rome in 1928, Brussels in 1948, Stockholm in 1967, and Paris in 1971. If memory serves Canada signed Berne '71 in '96 with reservations for translation to French, similar to the developing world sections that limited copyright protection when a work was being translated into a local language.

regards Dave

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