Soft Machine³ - Arts Tech and Other

DISCLAIMER: I am not a lawyer, and I do not wish I were a laywer. So sue me!

UPDATE: “Fair use” clarification, and appeal for reform

“Fair use” is an assertion that can be challenged in court and subject the person defending the assertion to massive legal fees. Hence, I consider it a vastly inferior tool generally. Persons who qualify for a Wikipedia entry should be strongly encouraged to provide a public domain photo of themselves, and in the case of deceased persons, their descendents and friends and colleagues should be strongly encouraged to find and secure a public domain photo. If such is not done, the image of the person will not be a matter of record, and will likely be permanently lost to future generations.

The Polish law that allowed success here was reasonable, but no longer applies. I do not consider current law reasonable in the slightest, since anyone taking a snapshot of anything (for example) has an implied right that extends 70 years past their death. Who will keep every deceased person’s belongings for 70 years so that they can be examined for hidden treasures? The answer is no-one.

Rights should terminate at death unless specifically asserted by an heir, at which point it should be recorded that they are now holding a deceased persons copyright. That fact should be discoverable and traceable so that any person can determine when a valuable item becomes public, giving them a good shot at saving it before it is lost, even when greedily coveted by an heir of the deceased. Even with all of that, there is no law that prevents the heir from destroying the item at any time, even if it is a surviving manuscript of a forgotten Mozart concerto.

Bear with me while I illustrate the consequences of these laws as vividly as I can.

In the case of an heir of an author for example, it will be common for the heir to take possession and assert rights over all works in progress, which is esentially a one-liner stating that so-and-so now “owns” the dead author’s unfinished and unpublished works. In some cases this may be entirely against the author wishes. Death can be unexpected. Depending on the author, that heir may become a person of particular interest, especially when the heir uses their right to deprive the world of the author’s works. In such a case, it is reasonable to expect that heir to be closely watched, and regarded as an enemy of the author’s admirers. The right of the general public to honor and celebrate the author’s memory by publishing the work can be easily defeated by any heir holding a grudge. In fact, it is not entirely impossible that the heir expedited the death in some way, and is truly an enemy of the deceased. Imagine if you will the ne’er-do-well offspring of the famous author (and careless parent.) I believe there is actually a motive here for the heir to do wrong, expedite the death, and either profit from or supress the author’s work.

One remedy for the (newly) successful author is to indentify persons to execute the will of the author, beyond what a normal executor would agree to. Such persons might agree to take possession and publish or destroy items, according to instructions. What to do with the rights (and profit) should be easily and clearly described: “All rights and profits from works go to my children, equally.” Or: “All rights and profits go to my dear publisher, wthout whom there would be no rights or profits at all.” Because of the outrageous copyright term, it is hard to predict the total value of any right, as any work may become “popular” and be extremely valuable during the last 50 years of the term. The reason 70 years is outrageous is this: If an author creates and profits from a brilliant work and dies 5 years later, he will have enjoyed 5 years and other persons will get the remaining 70 Only a ten-year-old brilliant author who dies at 80 will enjoy the same actual term as his heirs.

One thing I have not mentioned is that “heirs” can be replaced by “creditors” and “trusts” and other non-human abstract entities such as “media conglomerates” and “holding companies.” That is the fact that predicts this state of affairs. Heirs don’t make laws; politicians prodded by corporate interests do, however. Now imagine “heir” is a mob boss to whom the author owes money, and has assigned rights to in lieu of cash payment. That is all perfectly legal, except the mob boss and loan part. The number of years “after death” is extremely sinister in my view, as it tends to guarantee that the heirs profit much more than the author, and by heir I really mean “creditor” and by “creditor” I mean “vulture” who made sure the death of the author racked up uncovered medical expenses in the hundreds of thousands of dollars. Such debts always get collected well before a penny goes to the poor little 5-year-old orphan. Do you see the thrust of my argument now?

I hope I have made myself clear as to why current law is so wrong, and why it matters so much.

That last one can now be removed as the Petri biography now shows this photograph:

Let me say first that my irritation with this process is aimed mainly at the legal disaster we call “copyright” or “intellectual property” law. “Death of the author plus seventy years” is enough time for everyone to forget who the subject is and why they should care! This generous (since amended) Polish copyright law allowed common sense to prevail here. The future looks dimmer.

The rest of my irritation is at the way Wikipedia has addressed this. For example, there is no guideline that tells me to take the action I did. I suppose that’s to be expected, but still, I’m pleased that I was able to make a “public domain” argument successfully, given what little I had.

None of this would have been possible without the reply from Stefan Kutrzeba where he told me he didn’t know anything about the photo, but had scanned it in from the magazine, and that he thought these things were in the public domain.

I knew at the outset it was necessary to “go on the offensive.” I’m sure the editors spend a lot of time answering the same questions. I’m not sure  how many public domain arguments are made, or how successfully.

See how Hammersoft gives me the standard line about why permission isn’t enough, that I need to obtain clearance, etc. etc. he obviously doesn’t realize I’m making a public domain argument here!

DreamGuy, may have read up on Polish copyright law, or perhaps he conferred with others in a chat room. I suspect something went on in the period  between DraeamGuy’s question, and the final green light, but I don’t really know. In that time I did check the Polish to English translation again, making sure it said “Phot. Archive.”

“Fot. Archiwum” “Archeewoom.” “Arkevum.” Don’t people realise w is really v and vice versa? And ch and k same thing? Sheesh. Onward:

Note that I never ever responded to questions about who took the photo, and when, and what the copyright was. These are all typical, but my argument  trumps the questions. I could have said “don’t kow, doesn’t matter, please listen” but I think it is better to realize they think I’m an idiot who doesn’t know what “copyright” means in the slightest.  I knew I was right before I started, so I just waited to get their attention, ignored their questions, and stated my case. I think 40 minutes is quite reasonable for confirmation, and it is encouraging that no other back-and-forth occurred. I suppose that makes the title of this post link-bait. So, sue me again!

from Wikipedia’s “Media Copyright Questions” archive 

I’m extremely irritated with this process. Please help.

I do not wish to navigate your image contribution waters ever again. I am attempting to contribute an old photograph of an important person who did not like to be photographed. He is long dead.

I have a source, another rather important person, who I bothered (he’s preparing master classes right now) in order to contribute this photo. He was kind enough to answer promptly regarding the photo.

Now, if a Wikipedia editor would do me the courtesy of providing assistance, I could go on to other more productive work.

The photo in question is of Egon Petri. My source is the Polish pianist, author and lecturer Stefan Kutrzeba. You can see the photo here.

I can explain why this is all O.K. if an editor deigns to help. Like I said, I’m extremely irritated with this process. The photo has been requested; here it is; here am I. Reechard (talk) 20:17, 9 April 2009 (UTC)

• I can not read the language of that source page you noted, but we’d need to know the age of the photograph before making any judgments about its status under public domain. If it is not under public domain, then the rights to the image must be released under a free license by the rights holder in order for the image to be used here under any free license. See Wikipedia:Requesting copyright permission. It is not enough to get permission to use the image on Wikipedia. If a release can not be obtained, the image must be used under terms of fair use. See WP:NFCC. In that case, permission from the rights holder is not required. Since the subject of the image is dead, the use of fair use imagery to depict the person is permissible. Hope this helps? —Hammersoft (talk) 20:56, 9 April 2009 (UTC)
• Yeah, we can upload right away as fair use… but if we knew the copyright status that’d be better. Is “Fot. Archiwum” the credit line? Do we know who that is? When the photo was taken (which would be good for the caption anyway)? DreamGuy (talk) 21:06, 9 April 2009 (UTC)
  • thank you! Egon Petri was born in 1881 and died in 1962. In 1927 he had made his home at Zakopane in Poland, but in 1938 he moved to America. Please refer to Polish copyright law and understand that my source scannned this photo from this Polish magazine, and it had no copyright notice attached. “According to the Art.3 of copyright law of March 29, 1926 (valid until 1952) and Art. 2 of copyright law of July 10, 1952 of the People’s Republic of Poland, all photographs by Polish photographers (or published for the first time in Poland or simultaneously in Poland and abroad) printed without a clear copyright notice before the law was changed on May 23, 1994 are public domain.” That makes it pretty clear-cut, don’t you think? The photo is eighty some-odd years old, taken in Poland, printed in this magazine, and is one of the only known photos in existence of Mr. Petri. Reprinted in the same magazine in 2006, in an article by my source, about Petri. The photo caption says “Photo archive” meaning it had no photographer credit, no copyright. Reechard (talk) 21:52, 9 April 2009 (UTC)
  • I’m planning to establish more facts about Egon Petri, I mention that on my User Page, thank you for helping me clear this important hurdle first. I have two sources to draw from which you can see here if you like.Reechard (talk) 22:05, 9 April 2009 (UTC)
  • Sigh - where did you guys go? Here is the rather poor Google translation from the Polish, which shows clearly the caption says “Phot. Archive”. Should I upload this? I’d prefer it if you did, frankly. Pretty please! I’ll check back later. The Petri talk pages specifically requests a photo, by the way. Reechard (talk) 22:39, 9 April 2009 (UTC)

OK, got it…. when you go to Special:Upload to upload the photo, don’t choose one of the default licenses, just put a {{PD-Poland}} tag in the summary field (along with the rest of the summary, and then fill the rest of the page out. You should just be able to do it right away, but if you have problems post back here for help. DreamGuy (talk) 22:34, 9 April 2009 (UTC)

• thank you x 100 will do it now. Reechard (talk) 22:43, 9 April 2009 (UTC)
• I think it worked, it has that re-assessment warning though, I’m assuming that comes with {{PD-Poland}} Anyway, good enough, I’ll put it to use now. Thanks again DreamGuy! - Reechard (talk) 23:05, 9 April 2009 (UTC)

Needless to say, it’s not quite the entire story. This thread between myself and two editors was preceded by more frustrating navigation around Wikipedia, in an attempt to clear legal hurdles.

This legal clearance bar is set so high that most people will give up and walk away. I certainly don’t plan on doing much more of this sort of thing, unless I can streamline a process, and contribute lost items from a certain Polish magazine that fall within a timeframe, for example.

Update on 20090410 at 19:00 by richardwalker

Carefully reading DreamGuy’s question:

“Yeah, we can upload right away as fair use… but if we knew the copyright status that’d be better. Is “Fot. Archiwum” the credit line? Do we know who that is?”

leaves me wondering whether I may be qualified for editor-hood because of my knowledge of more than one language in addition to whatever knowledge I have about law, music and technology.