Template talk:PD-ItalyGov

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Discussions of this issue have been pulled together into one place. Let's discuss it all here. -Mak 18:05, 22 August 2006 (UTC)

Moved discussions from other talk pages[edit]

The following was sections were consolidated here from disparate pages where the PD-ItalyGov issue was discussed. -Mak 17:57, 22 August 2006 (UTC)

Moved from Commons talk:Licensing#PD-ItalyGov[edit]

According to According to Law of 22 April 1941 n. 633, revised by the law of 22 May 2004, n. 128: Article 11 State ownership of copyrights

  • Italiano: "Alle amministrazioni dello stato, [al partito nazionale fascista], alle provincie ed ai comuni spetta il diritto di autore sulle opere create e pubblicate sotto il loro nome ed a loro conto e spese." [1]
  • English: "Copyright in works created and published under the name and at the expense of the State, the Provinces or the Communes shall belong to them."
(Source: Unesco translation of 2003 version of the statute)

Article 29 concerning duration of copyright for 1) Italian state, province or commune, 2) National Fascist Party, 3) Public Cultural and non profit companies:

  • Italiano: "La durata dei diritti esclusivi di utilizzazione economica spettanti, a termini dell'art. 11, alle amministrazioni dello stato, al partito nazionale fascista, alle provincie, ai comuni, alle accademie, agli enti pubblici culturali nonché agli enti privati che non perseguano scopi di lucro, è di vent'anni a partire dalla prima pubblicazione, qualunque sia la forma nella quale la pubblicazione è stata effettuata. [2]"
  • English: The duration of the exploitation rights belonging, under art. 11, to the State, the provinces, the communes, the academies or public cultural organizations, or to private legal entities of a non-profit making character, shall be twenty years from first publication, whatever the form in which publication was effected."
(Source: Unesco translation of 2003 version. Note however that the 2004 version now also includes "al partito nazionale fascista"- the National Fascist party.)

Regardless of the contract with the photographer, so long as a work was created under the name, and at the expense of the State, the copyright is property of the Italian Government, not the photographer. Persuant to Article 29, the duration of that copyright is 20 years.

Since the PD-Italy template covers non art images, it is not correct for government images that are over 20 years old. For this reason I have created Template:PD-ItalyGov. Non profits might be included, but the ownership is not as clear in Article 88 as it is in article 11. This means in the case of non profits and the somewhat vague set of academies and public cultural organizations, an anally robust defence would require documentation that the artist had not retained some rights in their for hire contract. For this reason, I only mention the Italian Government. If there are no objections, I shall add suitable language to the Italian Copyright section of the Commons:Licensing page.

--Mak 05:51, 1 August 2006 (UTC)

Read on: Article 32-bis extends the general 20 year period for works in general to 70 years p. m. a. for photos specifically.
  • Italiano: "I diritti di utilizzazione economica dell'opera fotografica durano sino al settantesimo anno dopo la morte dell'autore."
  • English: "The exploitation rights in photographic work shall lapse at the end of the 70th year following the author’s death."
I don't see how these images could have evaded the EU copyright harmonisation. They are not PD and the tag should be deleted again.
--Wikipeder 11:04, 1 August 2006 (UTC)

To drag in my favorite subject :-), would that mean that postage stamps from more than 20 years ago are all PD? They are government works of art, not photographs, although as fiscal instruments, laws sometimes handle them specially. Stan Shebs 14:21, 1 August 2006 (UTC)
Yeah Stan- it looks like according to Wikipeder, EU harmonization has to do only with photographs.
Wikipeder- Seriously though- your trump card is nothing of the kind. You would have to explain all the other cases where a 20 year limit is in place- for example the one currently allowed in PD-Italy for simple photographs.
The fact of the matter is that there is wide variance from country to country as noted in the Licensing page. The logic (if there is any) of EU political machinations doesn't matter. What matters is the law on the books in the countries. The law says the author has no exploitation rights in article 11. Author has no standing, no rights to extend from 20 to 70 years.
Additionally, Article 22 emphasizes that "The rights referred to in the preceding Articles shall be inalienable." Article 11 establishes that the State has the copyright. A duration statement in Article 32 cannot be interpretted in taking that copyright away from the state.
Show me where I have erred. -Mak 16:25, 1 August 2006 (UTC)

Mak is writing nonsense. Ask Lupo he is the best expert in this field. All authors in the EU have the right that their works are protected 70 years p.m.a. That's the only fact of relevance for us concerning works in the EU countries --Historiograf 19:15, 1 August 2006 (UTC)

Ahhh- the old Appeal to authority fallacy. Hey- arguments are unnecessary, we don't have to think or read! Let's just abdicate to self appointed "authorities". Historiograf, I encourage you to educate yourself on this logical fallacy. If you are swayed by fuzzy thinking rather than logic and consideration of law, I observe that Lupo has been debating PD-Soviet for something like a year now. Still it stands as a template. Hmmm.
Nonetheless, you will notice on Lupo's talk page that I invited him to comment on this template about 2 minutes after I created it. I respect him and his input. Respect is a good thing, and you know something? A person cannot run out of it by being generous with it.
Have a nice day. -Mak 19:59, 1 August 2006 (UTC)

Mak, you asked me to explain the 20-year limit, suggesting it conflicted with the EU directive:

It's simple photographies that are protected for 20 years in Italy. The EU directive and the Berne Convention only regulate photographic works. There are only a few countries that even make the difference (e. g. not the US, not 20 of the 29 EEA states), in all the others Italian simple photografies are fully copyrighted (70 years p. m. a. in the EEA). Of the few countries that know simple photographies, the threshold is of very different height. In Germany e. g. probably none of the tagged images would even qualify as a simple photography. The 20-year period is an exclusively Italian thing for simple photos, any other, normal, photos are photographic works and are governed by the EU directive and Berne.

The vast majority of images tagged PD-Italy, however, are not even at all documentary images lacking any creativity or other input of the author, which would be required by Italian law to qualify as simple images. They are wrongly tagged. The ones that indeed are simple photographs according to Italian interpretation will still be copyright protected outside of Italy and thus need to be removed from the Commons because they could only be used on the Italian WP. See also here.

You seem to mix up these two fields of legislation when you claim that copyright of the Italian state, non-profit organisations etc. were not regulated by the EU harmonisation. This is not so: It's simple photographies that are not. Normal photographic works—about which this template is—are copyright protected until 70 years after the author's death, no matter who holds the copyright, be it the author, the state or whoever. That's what Art. 32 is saying, but we don't even need that thanks to the EU directive. --Wikipeder 09:01, 2 August 2006 (UTC)

Who holds the exploitation rights on Italian state created works after 20 years? Show me where in article 32 the Italian law transferred those rights from the state to the author. I am afraid your position is nonsensical. You are stating there exists exploitation rights that no one- not the state, the author or the public is entitled to exercise. Show me where I have erred.
That would be 8 lines above, your understanding of the second last sentence of my post. --Wikipeder 19:42, 2 August 2006 (UTC)
The EU directive magic wand: Think about what your are saying. You believe your EU directive magic wand means that the laws of countries don't matter. You like Lupo can make the case that Italian law is wrong. Hey, that's pretty bold. More power to you. Write a letter to the Italians and straighten them out. While you are at it, tell them all the other places they are doing things that are not in keeping with UN charter and resolutions. When you are done with that, you can write the various state and provincial legislatures and tell them what laws you feel are unconstutional. That nonsense has no standing here. Here, we go by laws and caselaw. This EU thing is not a law, but the Italian statute on copyright is Law, Italy has jusidiction, and Italian authority, not EU authority is appealed to on Commons Templates. I am unaware of a single PD template on commons that refer to rulings of EU bureacrats overriding local law. Good luck trying.
We are endeavoring to understand which of us is confused. Repetitious points about simple photographs simply adds noise. We are discussing PD-ItalyGov, not PD-Italy. Article 11 gives rights to all works by the state to the government. Article 29 says their copyright expires after 20 years. All this noise about simple photographs has not changed those facts.
-Mak 17:26, 2 August 2006 (UTC)
Mak, I'm afraid we're not getting anywhere like that. EU legislation is binding on the member states, however hard you find this to grasp. And, yes, your magic wand metaphor is quite accurate. This actually is what many people in the EEA and candidate states find irritating about the Acquis Communautaire, too. Come on, you can read that in any one-page introduction to the EU. --Wikipeder 19:42, 2 August 2006 (UTC)
Under the laws of Italy, what I have stated is correct. Do you agree with that? I ask because you had no response concerning the absurdity of your assertion regarding the Italian statute. I am perfectly happy to add some additional text saying that the validity of the law of Italy is disputed- even noting that it is you and Historiograf disputing it if you prefer. Would that be satisfactory?
EU directives have no legal force until they are implemented by the member countries, or until the European Court of Justice makes a ruling. Due to the highly controversial nature of this directive, it is anyone's guess what the court will rule. But the notion that a directive has any legal force is a recent and is itself highly controversial. Even with a ratified constitution the outcome of such a case is highly speculative. This controversy on legal force of directives is noted in the article on w:European Union directive.
At the base of it, you are making the argument that the law of a sovereign state is not valid, and that your argument would prevail in the European Court of Justice. You are stating that Italy has not correctly implemented the EUCD. That may or may not be. Two wikipedia articles state that Italy has implemented the EUCD (Copyright law of the European Union, and EU Copyright Directive. Why don't you take your arguments there? Until then, the only document with legal force is that of Italy's government. Sorry, but your magic wand is just that and it is pointless trying to wave it in people's faces. If you want to change the law, write Italy or sue Italy or take it to the Court of Justice. Change the wikipedia articles. Raise heck. But there's no telling what defence Italy would muster should such a case challenging the state's right to hold and release copyright after 20 years or who would prevail. Maybe you are right. Maybe you are wrong. Who knows. Maybe all gun control laws will one day be ruled unconstitutional. It is all guesswork until we see some caselaw.
Until then, what we have is the Italian copyright laws and they say state works are PD after 20 years.
Period. -Mak
A Google search will find you the Italian law implementing the EU directive in two seconds:
Decreto Legislativo 9 Aprile 2003, n. 68: Attuazione della direttiva 2001/29/CE sull'armonizzazione di taluni aspetti del diritto d'autore e dei diritti connessi nella societa' dell'informazione. (GU n. 87 del 14-4-2003 - Suppl. Ordinario n.61), [Legislative Decree of April 9th, 2003, no. 68: Implementation of the Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society]. Download the original and an English version here.
--Wikipeder 23:06, 2 August 2006 (UTC)
Exactly. They have implemented the EUCD. We have been discussing the Italian law that implements the EU directive. That is the Italian copyright statute quoted in PD-Italy and PD-ItalyGov. Note the date of the revised statute we have been discussing. 2004. As far as the Italians are concerned, article 11 and 29 are in line with the EUCD. Those two articles make State works PD after 20 years. I am quite happy to have you support my argument, but I don't think that is what you intended.
  • I ask you again, do you or do you not agree to my proposed compromise stating that Italian law is possibly invalid according to EUCD? -Mak 23:37, 2 August 2006 (UTC)

Mak, you are discussing a single law. Worse, you are discussing isolated paragraphs of a single—and by the way, outdated—version of a single law. There is far more to it.
Art. 11 and 29 are in line with the EU directive because these articles mean something else than you think. The term of copyright protection in Italy is 70 years p. m. a. Within that period and under certain conditions, certain institutions have the right to exclusively exert certain rights of the author for 20 years: the economic rights, but apparently not the moral rights (for the difference etc see e. g. it:Diritto d'autore).
Suggesting that this is not so but that instead Italy is breaking EU law, unnoticed so far except by you, is exotic but not too convincing. The latest volté in your argumentation—that the EU directive actually said something very different than is commonly understood—isn't either, ground-breaking that it, admittedly, is.
In any case, you seem to keep falling for the same old misunderstanding. It is not Italy's implementation of the EU directive that matters to us on the Commons but the rest of the world's. The directive's terms are valid in all EEA states and e. g. the US via the Uruguay Round Agreements Act. Now there are two scenarios:
  1. Italian laws are in line with the directive. Then copyright expires 70 years p. m. a., the tag is nonsense.
  2. Should for some inconceivable reason Italian law in fact be incompatible with the directive as you suggest, the tag and all images tagged with it would need to be deleted since these images could only possibly be used in the Italian WP and thus had no place on the Commons.
--Wikipeder 12:59, 3 August 2006 (UTC)
Wikipeder, this is not a rebuttal. I have cited the passages in the italian law that prove you are wrong. You offer nothing in return except to repeat your personal interpretation of something that is not a law. Copyright for Italian works expire in 20 years according to article 29.
  • I have pointed out the absurdity of your assertion, concerning article 32, you decline to respond.
  • You continue to assert that passages 11 and 29 mean something different to you, but have not explained where the law states what you assert it states. Sorry, but unsupported assertions are not convincing.
  • You point out a further revision to the code after 2006, have cited the former 2004 version in your argument. If there is something in the 2006 revisions that support what you say, then let's hear them. Further, the PD-Italy template also points to the 2004 version, and when you modded the template, you did not update the link to the latest version, so it must not have been too important to you either. You have shown nothing in the 2006 revisions to support your claims.
  • You refer to the Italian copyright statute as a single law, as if it is overriden by something else, yet you have pointed to no laws or caselaw that overrides the Italian copyright statute. Again you only stamp your feet about the directive which has no legal force.
Since you have offered no substantive argument to support your claims, I am removing the warning not to use this template. The statements in it are correct. YOu are making a very speculative argument that the Italian law is written incorrectly. Fine. If the courts agree with you, we can deal with that then. Personally I doubt they will. Further, it is my intention to ammend the closing statement of PD-Italy since it is false concerning the 70 year limit. The statute very clearly states that this is not the case for State works as well as certain other works by non profit and Fascist party organizations. I will agree to the insertion of "Dispute text" for either of these templates depending on the choice of wording. -Mak 16:54, 3 August 2006 (UTC)
Let me first say that I appreciate your non-offensive style of debate. This is not so common.
I'm sorry you could not be convinced. Frankly, I am pretty astonished how you can get such a different interpretation. You did not manage to get any substance to your claim how on earth your reading should be compatible with the EU directive. And, well, after all, Lupo and Historiograph do quite know what they are talking about.
I don't see a basis for further debate as long as you absurdly deny the relevance of the EU directive as implemented in any EEA state's and the US' law.
About the tags, though, beyond the question what Italian law might be: We can't have them on the Commons, and not any images that fulfil their criteria either. Please reconsider: There is no place on the Commons for images that can exclusively be used in a single country, here the Italian WP, but are copyrighted anywhere else. The tag needs to be deleted.
PD-Italy is a completely different thing. Images there are not normal photographic works but inferior, uncreative images. Whatever you feel Italian law might say about images taken for the state or non-profit organisations, it has nothing to do with this obscure class of images. Do not add this irrelevant sentence there.
If we cannot agree on the facts of European copyright law, you should at least adhere to Commons policy.
--Wikipeder 18:10, 3 August 2006 (UTC)
Specifics Wikipeder. You need to rest your argument on specifics in Law and caselaw. You rely only on generalities, and your magic wand. The assertion that the Italian government only owns copyright for their works in Italy is absurd. Were we to believe this, we would believe that the US may release release US military images into the public domain in the US, but that PD status in invalid outside the US. It's silly. If any entity legitimately owns the copyright to a photo, they may release it into the public domain, and this release is valid in Europe as well as the EU. But you assert that the Italian government somehow does not own the copyright on their works. Article 11 asserts they do. Should we just take your word for it that they don't? Then you state the Italian law cited on both the Italian templates is wrong or somehow that there is some other "legislation" that is pertinent. That overrides what the Italian copyright statute states.
Without going into any specifics whatever, you point vaguely to "other legislation" and a website containing this "other" legislation. This is further evidence of the lack of substance to your assertions Look at the legislation number and date. Legislative Decree No. 68, of April 9, 2003. Look at the header for the Unesco translation we have been refering to. Sound familiar? It should, because it is the legislation as ammended by Legislative Decree No. 68, of April 9, 2003. So you are just going around in circles and return to the Copyright statute that we have been discussing all along. Only problem is, you didn't bother to check your facts so you didn't even know you were going in circles.
You refuse to point to Law to back up a legal assertion you are making. Well, all I can say is good luck, but I can't see how you can expect anyone to take your controversial assertions seriously if you don't rest your arguments on law. You do not contest my assertion that EU directives do not have legal force because they don't. The assertion that they do is highly controversial as noted in The wiki articles I cited on the subject. You have no response. So this endless chatter about the EU directive is irrelevant. What is relevant is how they are expressed in law.

So my question over and over to you has been- where is the law to back up your assertion? You refuse to point to anything other than article 32. But to believe you, we would have to believe that no one owns exploitation rights for 50 years. No answer from you.
Feel free to nominate the template for deletion. All you have convinced me of is that there is a lot of fuzzy and tribal thinking going on in consideration of copyvios. -Mak 21:09, 3 August 2006 (UTC)
Look, I'm not going to expand this increasingly pointless debate into a referenced lecture on the workings of EU, US and international copyright. It's no shame to not know much about this, but I find it rather tedious that you don't seem prepared to read e. g. en:Wikipedia:Public domain or other texts experts wrote, let alone trust their judgement (as you pointed out above).
In very short words: A state can only release works into the public domain on his own territory. In each country the national copyright laws apply. The EU directive has been implemented in the national law in all EEA countries and the US. As a result, in all these countries the copyright protection of photographic works, those of Italian origin included, expires 70 years p. m. a.
The situation with images that specifically the US government releases into the public domain is different to that of EEA countries, because the EU accepted the Berne Convention's Rule of the shorter term, which the US did not. Within the EEA, however, the Rule of the shorter term doesn't apply either, but the EU directive instead.
As a result, if US law makes images PD earlier than EEA law, the images will automatically be PD in the EEA as well. If the Italian government, however, released photographic works to the PD earlier than other EEA countries, they would thus still be copyright protected everywhere in the EEA and US. Additionally, this would be an Italian violation of the EU directive.
In the end, we don't even have to bother with what Italian law exactly says and if it might violate the EU directive, as your reading implicitly assumes but what hasn't ever been claimed elsewhere. Whatever the situation in Italy, these photographic works are copyright protected 70 years p. m. a. virtually anywhere else, which doesn't make them free, so we can't have them on the Commons.
--Wikipeder 09:24, 4 August 2006 (UTC)
Pardon me? Only what the law and caselaw says matters. Please try to understand. EU directives are not regulations- they are not self executing and have no legal force until they are expressed in law. I am not requesting you to expand your wild speculations, I'm just asking you to stop being evasive and support them. I made my specific citations of Italian law when I began this thread. Endless words from you later, you have yet to cite some law or caselaw that overrides what it says. The only thing pointless is your stubbornly refusal to support your statements. So we are left with what? That we should take your word for what you claim is the omnipetence of the EUCD? Come now. The EUCD is not law, and has no legal force until it is implemented in the local countries. The Wiki article on EU directives explains this very clearly and you do not dispute it.

Yet we now are surprized to learn from you that the EUCD has been implented in the US as well. Heavens to betsy- that's some magic wand you have there. Show me where US law recognizes 70 year pma over works that were pd in the country of origin on January 1, 1996. In 1996, under articles 11 and 29 of Italian law, all works of the Italian government that were more than 20 years old were public domain. There was no other law on the books in italy that overides that law then, and there isn't now. Under US law, all works that were public domain in their country of origin on January 1, 1996 were public domain in the US. And that is very clearly stated in the en:Wikipedia:Public domain article. So this locality nonsense is just that.

Of course, I can imagine all sorts of disingenous responses, such as that the EUCD was binding on Italy in 1995. Clever wording, no? Binding, yes, but isn't that interesting: with no legal force. Read the labels. The bottle at the store said Cherry drink. Ooops wait- they didn't say juice. How long does it take to read the label? "High fructoce corn syrup and water, with cherry flavouring." Similarly, all these splashy claims about what the EUCD says don't matter. Nothing else matters in court except facts, the law, and caselaw. This is a question of law, so we ask: were those works legally public domain in Italy on January 1, 1996? You might speculate all sorts of things- that someone might have been able in 1996 to use the principle of en:Direct effect to enforce a copyright they had in Spain for a work that was PD in Italy, but so what. No one did. So, as of January 1, 1996, in the absence of any Law or ECJ ruling to the contrary, we must conclude the answer is yes- those works of the Italian government were PD in Italy.

You make a lot of noise about that only being true for Italy, but nowhere else. Really? Take a look at the Uruguay Round Agreements Act changes reflected in US copyright Law- Title17, 104A h6b.[3] Since they were PD in the country of origin (Italy), copyright is not restored to EUCD levels in the US. No magic wand. This is true for any other works which were PD in any other EU country of origin that had not yet implemented the EUCD on January 1, 1996- which was just about everyone. Specifically, in the case of Italian government works published 20 years or more ago, this means the Wikipedia foundation is entitled to keep them on their servers in the US. Certainly I can see that some European making commercial use of such an image might get sued by a publisher from France attempting to claim exploitation rights over public domain Italian government works. No telling how the ECJ would rule though. There are EUCD articles supporting the other side of the argument as well.

So yeah, you can stomp your feet that the Italian law is wrong but at the end of the day we realize that Luxembourg is not the US, and these wild EUCD directive arguments won't wash in a US court. The US courts will look at what the Italian law said at the time, because that is what US Copyright Law (104A h6b) tells them to look at. Nowhere is mentioned the EUCD. Have fun speculating on what future EU court cases might rule in the future, and how the highly controversial question of legal force of EU directives might evolve in regards to copyright law interpretation. But that is just empty speculation and has no bearing on the legal status of the Italian government works in 1996. Instead of speculation, we have to go with what the law and caselaw says, not what we guess caselaw will say in the future.

If you do not care to support your assertions with facts and reference to specifics in the law, I do not see how you can expect me to be convinced of the truth of your assertions. If you are correct, you have not given me the opportunity to be convinced.

Since you have declined to provide any supported argument that the PD-ItalyGov template is invalid, I shall use the template and promote its use. I am not an advocate of breaking or bending copyright law- I have nominated images for deletion in the past and will continue to do so. I am interested in protecting the rights of the author and the public, whatever the law says those rights are. I am interested in following what the law says, not wild and unsupported speculations about what the EUCD might mean in some future court cases. -Mak 07:52, 5 August 2006 (UTC)

You are some wild debater! I find the answers to all your questions in the text above and the links I supplied.
Meta-debate: If you come up with a suggestion and others raise some grave concerns about your plans, it is your job to dispel these. Dismissing respected experts as ignorant, flatly declaring the basis for reservations non-existent and refusing to read and acknowledge information that is not in line with your view does not really achieve this.
--Wikipeder 10:40, 5 August 2006 (UTC)
Now now. I have cited the specific passages supporting my argument. It is you who have declined to provide any legal support for your so called grave concerns. Show me where I called anyone ignorant. Notwithstanding your high opinion of particular advocates of particular points of view of law, you are making an appeal to authority- a fallacy of logic. You fall into this same trap as Histriograf so I should probably expand for you.

There are highly respected advocates of legal positions who sincerely believe their interpretation is the correct one. William Jennings Bryan was a highly respected and accomplished lawyer and served as Secretary of State under Woodrow Wilson. He made legal arguments in a court of law that Darwinism should not be taught in schools. The judge agreed, as the judges in the appealate courts did. They were not fools, and coherant legal argument based on law were made. The appealate court judges weren't fools either and knew law better than you or I do. Yet they did not strike down the Tennessee law that forbade the teaching of Darwinism. Not until 1968 did the courts rule correctly that these ignorant laws favored a particular religions point of view and was unconstitutional.

Were there such a law forbidding articles on Darwinism in the state of florida, notwithstanding our respect for our advocates (such as Clarence Darrow), and the rightness of our position, we would have to remove them from the Wiki servers, or move the servers elsewhere. We conform to what the law says, not what we think it should say, or how we speculate it will be overriden in the future by some higher court. That is precisely the argument being made here and in the WP public domain article. The fight for establishing uniform code among the quarrelsome nations of Europe is a laudable one, and one that will benefit her economically and socially. It is a laudable political goal you have there. There are also extremely motivated intellectual property rights holders that would like to see a drastic curtailing of the growth of free information found in the Wiki's. At the end of the day, it doesn't really matter what people's hidden agendas, reputation or the rightness of their social goals are.

What matters is what the law says.

We are discussing the law today, as it is written today. In response to my specific citations, you have done nothing more than hand me references to entire documents and say your answer for me is there. Well sorry, but even an elementary school teacher would not accept such a reference in an essay. When you get it more sorted out where the support for your argument is, please provide the specific passages of law that support your statements. -Mak 18:56, 5 August 2006 (UTC)

End of moved discussion as of this date -Mak 17:57, 22 August 2006 (UTC)

Moved from Template talk:PD-Italy#Closing statement is false.[edit]

This statement is false:Photographic works enter in the public domain after 70 years since author's death.

The above cited law states in articles 11 and article 88 that the author has no control over copyrights if it is a contracted or if it is a work of the State and various other organizations. I propose that those qualifications be introduced. I propose:

"Many photographic works enter in the public domain 70 years after author's death. Exceptions are works created in the name of the Italian national or local government and various other public organizations and for works which are contracted and the photographer has not legally retained copyright. "-Mak 21:23, 1 August 2006 (UTC)

The statement you are suggesting would be wrong: The duration of copyright in photographic works is not pinned to the copyright holder, but to the author. The copyright the state or another organisation is holding will expire 70 years after the author's death (see Art. 32). --Wikipeder 09:15, 2 August 2006 (UTC)

Absurd. Article 11 says the state has the rights, not the author. Article 29 says the state's exploitation rights expire after 20 years. Article 32 does not give those rights to the author so if your reading is correct, there are exploitation rights for an additional 50 years that no one- not the state, not the author, not the public can exercise. It is a nonsensical position you are taking. Yet you refuse to explain yourself, and the reason for this is quite simple. You are wrong. -Mak 23:58, 2 August 2006 (UTC)
A suggestion: Read the law with the knowledge that it can't contradict the EU directive on copyright harmonisation, i. e. that copyright expires 70 years p. m. a. or, with anonymous works, 70 years after publication. Pay attention to the meaning of "spettare" and the fact that the Italian concept of copyright differs considerably from the US'.--Wikipeder 10:44, 4 August 2006 (UTC)
I'd be very pleased to understand how the law can be read the way. Please cite the passages in the Italian law that support what you are saying. So far you have come up with a single passage (article 32), that if we are to believe your reading, there will be works with exploitation rights that no one can exercise- not the state, public or photographer- for 50 years. A nonsensical position.
It is my intention to change the template to reflect this dispute. I have proposed text above. If you care to propose an alternative, please do. It's more sensible to come to a compromise rather than wearisome edit conflicts that are a huge burden on the server because this is a template affecting many pages.-Mak 16:01, 4 August 2006 (UTC)
I don't want any edit war either. Let's leave the debate on the EU directive aside for the specific issue of amending the template text.
PD-Italy now is a tag for simple photographs. Copyright of these class of images is ruled by a completely different set of laws and following a very different rationale than of photographic works described in Art. 11. They should be kept apart.
Secondly, the closing statement is intended as a warning not to rashly tag each and any Italian image with this template. As a matter of fact, the vast majority of photos created in Italy certainly do not qualify as simple photographs or works as mentioned in Art. 11.
--Wikipeder 10:40, 5 August 2006 (UTC)
That intention is sensible and I completely agree we need a strong statement, since by the title it is very easy to misuse and misunderstand this tag as you point out. However the statement as it stands is disputed. If we note the dispute as done on PD-Soviet, there is no longer a strong statement, and that would be very bad. Other strong statements could be made without such qualification. Do you have any suggestions? -Mak

Since there has been no alternative wordings for two weeks, I shall substitute the wording I proposed in two days. Please, to avoid multiple edits to this template affecting many pages, let's make sure we have reached the best compromise before the change is made. -Mak 16:20, 17 August 2006 (UTC)

Hello Mak, I thought you are away for a wedding or something ...
To keep the issues apart and to keep the text as a warning not to wildly tag any Italian image, I'd suggest to use this sentence:
Most photographies enter the public domain 70 years after author's death.
I'll wait for two days, let me know what you think. --Wikipeder 19:31, 20 August 2006 (UTC)
Needs a lot of work. It would have been helpful if we could have hashed this out prior to me changing the template. Issues:
  • I thought we wanted a strong statement. If you are not specific, the person is allowed weasel room. By wording it "Most", the person can allow themselves to think- well- I am sure this must be one of those that are in the other-than-Most category. If you mention the restrictions of those outside of the "Most" category, then you disallow them that sort of magical thinking. Certainly, conciseness dictates you can't go into great length, so I decided on making a link to the other Italy template. What is the harm in doing that?
  • This template has been tranformed into the "non artistic Italian photographs" template. Clearly the title PD-Italy leads the user to believe that this very narrow case is the only set of PD works that are permissible when in fact there is a huge body of works non limitted to photographs created in the public sector whose copyrights expired after just 20 years. So either we rename this template to PD-Italy-nonArtistic-Photos or we make a reference to PD-ItalyGov.
Your thoughts? -Mak 23:39, 20 August 2006 (UTC)
Renaming PD-Italy is a good idea. What about PD-Italy-simple in analogy to "simple photograph" as opposed to "photographic work"?
The closing statement: The trouble is that the tag cannot be specific to begin with. The line is terribly fuzzy between simple photographs and photographic works. I think the tag should be removed, because classification will be arbitrary, so we will end up with stealth non-free content. Outside Italy these images will be copyright protected anyway.
But pragmatically, as long as the tag is around: The task of the closing statement cannot really be more than an appeal to the user to think twice: If he's looking for weasel room, he'll find heaps of it in the artistic or non-artistic nature of the image anyway. So Most photos enter the public domain 70 years after the author's death seems quite okay as a warning to think twice. What other exceptions to the 70 year pma rule there might be doesn't really matter in this situation.
Generally, I think tags should not link or refer to each other. Tags are for visitors, who do not need the link. Uploaders and editors should do their tagging job properly and choose the appropriate licence from the start, not begin with one and then click on a link on the tag to switch to the proper version.
--Wikipeder 08:41, 21 August 2006 (UTC)

My take on all this:

  1. Do not confuse the EU Copyright Directive (EUCD) of 2001 with the EU Directive on harmonising the term of copyright protection of 1993. The EUCD was more concerned with computer programs and the so-called "neighbouring rights" (sometimes also called "related rights"), i.e. the copyright-like protections for performers, broadcasters, and in particular producers of phonograms. The copyright restoration that appears to be so controversial was the effect of the 1993 directive on harmonizing copyright terms throughout the EU. That restoration became effective on July 1, 1995 in all EU members, as they all had incorporated this binding EU directive into their local laws.
  2. The U.S. URAA became effective on January 1, 1996, i.e. half a year later. That's rather unfortunate for us, because it means that any copyrights restored in the EU under that 1993 directive also became restored in the U.S. under the URAA. Tough luck, but we cannot change that.
  3. The copyright restorations of the 1993 EU directive apply to "photographic works" only. Some EU member countries know a second class of photographs for which shorter copyright terms apply. The rules which kinds of photographs are considered "works" and which are "simple" vary from one country to another, see the survey at User:Lupo/Simple Photographs. In most countries, the distinction is made by applying the threshold of originality, a rather subjective criterion, IMO, as the rules for determining that threshold again vary from country to country. In general, I don't like PD claims based on the argument something wasn't original enough (lacking Schöpfungshöhe, to use the German term), because it opens far and wide the door to abuse and endless discussions. (Yes, I don't like the "lack of Schöpfungshöhe" argument for logos; but logos are a different case anyway. Let's stick to photographs here, OK?) In countries where the threshold of originality is used for distinguishing between works and simple photographs, only works are copyrighted; simple photographs are by default not copyrightable unless the law explicitly specifies a term. I.e. a country that uses the threshold of originality and says "simple photographs are protected for X years since creation" has stronger rules than a country that does not mention simple photographs at all in its law, which is equivalent to using the threshold of originality and not setting an explicit copyright term for photographs failing it.
  4. So, we already have arrived at the undisputed claim: Italian photographic works are copyrighted to 70 years p.m.a. throughout the EU, including Italy itself. If copyrighted on 1996-01-01 in Italy or anywhere in the EU, Italian photographic works are copyrighted also in the U.S. (Photos from 1996 or later are copyrighted anyway.)
  5. Now, we have two disputed categories of Italian photographs: Italian simple photographs {{PD-Italy}}, and Italian government-owned photographs {{PD-ItalyGov}}. Let's consider them separately.
  6. For simple photographs, Italian law is quite generous: any image of persons, elements, facts, or aspects, of daily life is a "simple photograph". Excluded are images of maps, documents, technical designs, etc. (§87) I presume these latter images would thus be "works"? For the others, the photographer (or his employer in the case of works for hire, §88) gets a copyright of 20 years since creation of the photograph (§92), if the photograph bears a copyright notice (§90). That's the rules that apply within Italy.
  7. What's the situation in other countries of such photos that are considered "simple" in Italy? Copyright law works by national treatment, i.e., whether something is copyrighted in a particular country, one has to look at the laws of that country. Let's look at two cases: Germany and the U.S.
    1. Germany applies the threshold of originality, photos failing it are Lichtbilder (simple photographs, as opposed to Lichtbildwerke). A simple photograph is protected for 50 years since publication or creation. The crux is that the threshold of originality is so low in Germany that basically all photographs are works and thus copyrighted until 70 years p.m.a. The categories enumerated in Italian law do not apply in Germany. As a result, an Italian simple photograph created more than 20 years ago is out of copyright in Italy (as a non-work, it isn't subject to the restoration due to the 1993 EU directive), but is still copyrighted in Germany until 70 years after the death of the photographer!
    2. The U.S. does not know the concept of "simple photographs". Either something passes the threshold of originality and is a work and is fully copyrighted, or it doesn't and thus is not copyrightable at all. However, the threshold of originality again is rather low, such that in general, all photographs are copyrightable works. However, foreign works from before the URAA were copyrighted in the U.S. only if registered, and if not, became copyrighted only if still copyrighted in their country of origin. Assuming that Italian simple photographs were not registered in the U.S. (seems likely), my conclusion is that Italian simple photographs created before 1976-01-01 did not fall under the URAA (even if the U.S. might consider them "works") because their "simple photograph" copyright had expired in Italy before the URAA effective date of 1996-01-01 and such Italian simple photographs were not subject to the restoration by virtue of the 1993 EU directive. (As that directive applied only to "works", I don't think it made expired simple photographs copyrighted again in Italy, although it may have made them copyrighted again in other EU countries where they would be "works".)
  8. Government-owned photographs are a slightly different case. Like simple photographs, they may still be copyrighted in other countries, even if their Italian copyright had expired after 20 years. That's also the case with other countries' governments' copyrights. Consider UK Crown Copyright: even when the Crown Copyright expires on a UK government work, it may still be copyrighted elsewhere. However, Wikipedia got a highly official statement from the UK body administering Crown Copyright that they effectively consider Crown Copyright expiry to apply worldwide, notwithstanding the formalities and complexities of international copyright. See {{PD-BritishGov}}. If we could have a similar highly official statement from the Italian Ministry of Justice or whomever is responsible, we could also consider the Italian expiry to apply world-wide. Absent such an official statement, we again must play the same game as above, but with the added complexity that we don't know whether such Italian government photos would be "works" or "simple photographs". Does a photo of a fighting jet qualify as "everyday life"? Might be questionable, IMO. "Works" might, as usual, fall under the 1993 EU directive and thus have their copyright restored. We (at least I) don't know whether such a copyright restoration under the EU directive would top in Italy the "20 years for governmental works" paragraph. That's a question we should ask a real lawyer. Maybe one of you could ask Soufron. If the EU restoration does top the Italian 20-year-rule even in Italy, see point 4 above (copyrighted 70 years p.m.a. in the EU, and also copyrighted in the U.S. in copyrighted in the EU on 1996-01-01). If not, such Italian government photos might be copyrighted in other EU countries, and those created on or after 1976-01-01 would also be copyrighted in the U.S., and within Italy, they'd be out of copyright if created more than 20 years ago.

In conclusion, I think the commons should not apply the "simple photograph" exception from Italian law. It may apply in Italy and (if my analysis is correct) for pre-1976 Italian simple photographs also in the U.S., but in many other countries, such photos would be "works" and thus copyrighted. I also think we should not yet apply the Italian "government-owned" photo exceptions, as we still don't know enough about it. The best would be to get an official statement that the Italian state considers this 20-year copyright expiration to apply world-wide, like the British did. As always, IANAL etc. pp. Thoughts? Lupo 10:29, 21 August 2006 (UTC)

-Is it your contention is that in Italy, on January 1, 1996, it was not legal for an Italian citizen to use an italian government image that was public domain in 1980s and earlier? Under which law would this be illegal? Not directive. Which law?

You make the unsupported assertion "That restoration became effective on July 1, 1995 in all EU members, as they all had incorporated this binding EU directive into their local laws." Ok. Prove it. Where is the passage in the Italian law that incorporated this?-Mak 17:06, 21 August 2006 (UTC)

Oh well. Your first point (or question): I didn't say or imply that at all. If you read carefully, I wrote that we didn't know whether the 1993 EU directive tops the Italian §29 for government photos that would be "works". I suggested asking a real lawyer on that one. In any case, I can assure you that other countries are not bound by Italian laws, so even if in Italy copyright on certain works (or rather, the exclusive economic exploitation rights part of copyrights) might expire after 20 years, such works may remain copyrighted in other countries. It's the same with the 50-year UK Crown Copyright.
On your second point, proving that Italy did enact the EU directive 1993/98/EEC (or 1993/98/CE, to use the Italian abbreviation), see [4] and [5], two commentaries on Italian copyright law, both in Italian, confirming this. I would also recommend the book by Marchetti, Piergaetano; Ubertazzi, Luigi Carlo (eds.): Commentario breve al diritto della concorrenza, 3rd ed., Cedam, Padova, 2004, ISBN 8-813-19857-4. The second link is particularly interesting, as they quote that commentary, which apparently states that according to the commenters' opinion, the Italian state did not consider the interactions between the EU directive 93/98/CE and the law fully, and that §29 conflicts actually with the directive. Also see the footnote on §25.1.a in that commentary for confirmation that Italy did implement the directive. (Before the directive, Italy had a general copyright term of 50 years, plus some WWII-wartime extensions, IIRC.) In other words, the fact that §25 provides for a general copyright term of 70 years p.m.a. is another confirmation that Italy did implement the EU directive 93/98/CE. It would be interesting to know what the Marchetti/Ubertazzi commentary says on simple photographs. Lupo 19:11, 21 August 2006 (UTC)
Addendum: there's a whole set of professional publications on copyright law in Italy at http://www.gsavvocati.it/pubblicazioni.php Looks very good. When I have more time, I'll check what exactly they say on photographs, and on photographic works vs. simple photographs. Lupo 19:27, 21 August 2006 (UTC)

Law. Not commentary. Surprisingly the very commentary you cite points out that the works of the state are an exception to the 70 year rule and expire after 20 years. Thanks for the assistance on destroying your own argument"

"In particolare, l’art. 25 prevede la regola generale secondo la quale i diritti di utilizzazione economica dell’opera durano tutta la vita dell’autore e sino al termine del settantesimo anno dopo la morte. Tale regola ricomprende anche categorie di creazioni- quali le opere cinematografiche e fotografiche – che in passato godevano di una protezione più breve.
Una deroga del termine di protezione è prevista solo per alcune, e specifiche, fattispecie (si tratta di opere con soggettività speciale, quali opere anonime o pseudonime e opere collettive, ecc per le quali la deroga alla durata della protezione non riguarda il termine bensì il momento dal quale tale protezione decorre; opere create e pubblicate sotto il nome ed a conto e spese delle Amministrazioni e degli enti territoriali dello Stato, per le quali la deroga concerne la durata, prevista in 20 anni;"

Ok, you can hand wave that the Italians didn't understand the EU directive. You hand wave that other countries might have copyrighted the works. It doesn't matter. What matters is the law on the books in the country of origin on January 1, 1996, since that is what US code says to look at. No one including you has pointed to any Italian law that says these Government works are not PD. I have cited the passages that clearly show they are. On January 1, 1996, these images were PD in their country of origin, so under US copyright Law- Title17, 104A h6b, they are PD in the US.

Your position is untenable unless you can show the Italian law on the books on January 1,1996 that these governmental works were not PD.

I have cited law. You have declined to. Worse, you yourself have attempted to support your argument with documents that crush your position. If I am incorrect as you seem to think, you have not been helpful in explaining why we should believe the way you do. -Mak 21:32, 21 August 2006 (UTC)

Mak, what you strangely think has been crushed by the commentary quoted has not been claimed by Lupo.
The argument against PD-Italy is that these images will be copyright protected at least outside Italy, so we can't really use them.
The argument against PD-ItalyGov is that we do not know enough about state/academy/NP0-commissioned images yet and that state-created images and particularly images merely paid by NPOs etc. will be copyrighted outside Italy all the same, so we can't use them either.
--Wikipeder 23:14, 21 August 2006 (UTC)
Lupo quoted the commentary as supporting the proof I requested that these works were not PD under italian law as of January 1, 1996. It clearly showed the opposite.
Actually, Lupo didn't claim that but said we all don't really know. He pointed to the commentary as a reference that the EU directive has been implemented in Italy.
Once again Wikipeder, since they were PD in the country of origin, they were PD in the US. Under US law (US copyright Law- Title17, 104A h6b), these are PD in the US too. And that's were the Wiki servers are. Commons:Licensing affirms the same statement. OK. Maybe other countries have copyrighted the images. US law recognizes the status in the country of origin. You are right that in other countries the works may not be PD. It doesn't matter. If you wish, I would be happy to add the template text that the work is PD "in the US and possibly elsewhere". Is this satisfactory, or do you have a problem with PD-US because such works are not PD in all countries?
Admittedly, I would not be happy with images on the Commons that could only be used in Italy or the US, but that's not the problem here. I'm just absolutely far away from being convinced that the 20 years rule as you understand it applies in Italy, let alone in the US.
I am not sure what you think is to be gained by continually being evasive about addressing this chain of logic. It is also baffling why you think introducing a discussion of non governmental entities is germaine. Last I checked, the PD-ItalyGov Template was about government works. It doesn't matter what knots you want to tie about non governmental entities. They are irrelevant to this discussion. -Mak 00:29, 22 August 2006 (UTC)
That seems to be a misunderstanding. For one thing, I thought you intended to apply all photo exceptions of Art. 11, of the state as well as of academies and private non-profit and cultural organisations. You don't?
On the other hand, to me the inclusion into the law of works simply financed by these non-state entities is a strong clue that these images do not enter the public domain 20 years after publication but that simply the exploitation rights return to the author, as is the case with letters.
See, there are lots of references that the state's (etc.) exclusive rights last for 20 years. However, except in your interpretation and a single informal email exchange, I've found no trace that these works would then enter the public domain. It would contradict the EU directive, which nobody would have noticed. The Italian WP does not mention it, neiter does dirittoautore.it. The state-created LUCE image over which the debate started is copyrighted to Corbis, who charge up to several tenthousand Dollars for a commercial licence of the photo. For an image that has been PD for half a century?
I think this is more than enough to not be convinced of PD-ItalyGov. It might be just a great misunderstanding—at way too high risks for the project and the users.
--Wikipeder 02:32, 22 August 2006 (UTC)
Well this is progress I suppose, though I cannot understand how you came to the conclusion I was discussing non governmental entities. The template is named ItalyGov, I have only been talking about government rights. Again you evade discussion of law and base your conclusion on anecdotal evidence and fuzzy inferences. Our templates make reference to law, not how many other sites also state an image is PD. It would be the height of irresponsibility for Commons to conclude that they are legitimate PD items that way, but hey if you want to be convinced that way, fine. It is nothing to base on argument on. But if you are struggling for some reason to take this seriously, I presume you take CreativeCommons seriously. Take a look at the frequently asked questions on the creativecommons.it:
"Quanto durano i diritti di utilizzazione economica?
  • ...
  • Amministrazioni dello Stato: 20 anni dalla prima pubblicazione." [6]
Ok, so you and Lupo think the Italian lawmakers are mistaken, and Creative commons is mistaken. Fine- very bold of you. Write a letter to them. Be sure to to cite law though, and not how many websites seem to support your version of reality versus theirs.
You state the Italian WP does not mention this fact. Please, don't make stuff up. Did you even bother to look at the article on copyright? Ok. Here's the link: it:Diritto_d'autore#Diritti_di_utilizzazione_economica. "Delle opere pubblicate da amministrazioni dello Stato, fra le quali sono comprese accademie, ed enti pubblici culturali, ed alle quali sono assimilati gli enti privati senza fini di lucro, va notato che il diritto decade dopo venti anni." If you don't understand enough Italian, have someone translate for you. Works of the state. Twenty years, and they expire. I don't know why you couldn't find this. I told you and Histrograf on your talk page that these facts were in the Italian WP, and gave you the italian search expressions so you could verify for yourself.
So even your patchwork of inferential thinking is perposterous.
When you have some law to back up your argument, I will eagerly read your post. -Mak
Mak, please assume good faith. Maybe you could take a look again at my points 7.2 and 8 above. All I did was pointing out that according to [7], the Marchetti/Ubertazzi commentary points out that §29 is a gray area in Italian law as it conflicts with the EU directive 93/98/CE. (For government photos that are "works", that is.) They write "È peraltro opinione diffusa che il legislatore italiano non abbia ancora adempiuto a tutti gli obblighi imposti dalla direttiva e che segnatamente gli artt. 26 co. 2, 28 e 29 l.a. presentino ancora diversi profili di contrasto con la legislazione comunitaria. Sul punto v. pià diffusamente il commento alle rispettive norme." (Rough quick'n'dirty translation: "There is, however, the opinion that the Italian legislator did not fully consider the obligations implied by the directive [93/98/CE] and that in particular articles 26(2), 28, and 29 still have conflict potential with the community [EU] legislation. On this point, see the commentary on the respective articles.") But anyway; this is a fine point that would have an effect within Italy (and, for pre-1976 government works, also on the copyright in the U.S.) Works, whether governmental or not, are covered by the EU directive 93/98/CE, and are copyrighted in the other EU countries. I repeat my suggestion: ask a real lawyer about the interactions of 93/98/CE and §29, especially for governmental photos that are "works". Let's clear this up properly before using yet another template based on guesswork and personal interpretation.
For "simple photographs", the distinction from "photographic works" is the threshold of originality according to [8]. Traditionally, this threshold is rather high in Italy, but the criteria are subjective and unclear, IMO. Perspective and framing contribute to the necessary creativity, but alone are not sufficient. Choice of lighting and shadows are a factor. They write: "È controverso quale sia il livello minimo di creatività richiesto perché le fotografie possano accedere alla tutela d’autore. E così mentre parte della dottrina e della giurisprudenza optano per un gradiente particolarmente elevato, un diverso orientamento suggerisce di adottare la soluzione opposta, in quanto più coerente con la tendenza generale che vede i requisiti di tutela delle opere dell’ingegno attestarsi progressivamente verso livelli sempre più bassi." ("The minimum level of creativity required to make a photograph copyrightable as a work is controversial. While the legal practice has so far used a particularly high level, various guidelines suggest the opposite, in accordance with the general tendency of continually lowering the requirements for copyrightability.") The technical quality of a photograph or the presence of errors are not relevant. The subject itself isn't either, only the way it is reproduced by the photograph. Therefore, even photographs of objects of everday life may be copyrightable! As already said, the Italian legislative practice uses a high level, but—as always with threshold of originality arguments—there are no clear guidelines. Examples of factors that may make a photo a copyrightable photographic work are: choice of lighting; the play of light and shadow; choices of framing or perspective to show e.g. a building in a breathtaking way or in fact any object in a way that transcends the plain reality; artistic composition; in a portrait for instance the choice of particularly emphasizing the eyes by a choice of framing (in the concrete case, only showing part of the face), or if the work evokes emotions in the viewer beyond that of a "normal" portrait, transfiguring those of the photographer, etc.
Frankly said, I find these examples rather esoteric and open to very subjective interpretation, which is precisely why I don't like PD arguments based on "fails the threshold of originality". Heck, if I were to upload an image based on such an argument, I wouldn't trust myself that I wasn't just deluding myself or that my reasoning would prevail if challenged. I do think that the threshold of originality is too blurry a concept: I don't believe it can be applied sensibly on the commons. In any case, other countries have different thresholds of originality, and since there is no rule of the shorter term within the EU, Italian simple photographs are copyrighted as works in other EU countries where they would be considered works.
Therefore my recommendation: don't use "simple photograph" exceptions; the rules are just too blurry, and get more information of this "Italian governmental photos" (§29) stuff. Lupo 08:20, 22 August 2006 (UTC)
P.S.: On "simple photographs", also see [9]: "In pratica però è difficile stabilire quando una fotografia presenti un carattere creativo sufficiente per essere tutelata come opera dell'ingegno." ("But in practice, it is difficult to determine whether a given photograph is sufficiently original (or: shows sufficient creativity [of the photographer]) to be copyrightable as a work.") Lupo 08:24, 22 August 2006 (UTC)
Assuming good faith is beside the point. The agenda of people who question the validity of every single PD template on commons could be for very good or very bad reasons. Some people may assume that my assertions are dangerous because they fear that the foundation will be open to lawsuits that would bring about its destruction. The only thing that matters is whether we have convincing arguments based on law.

Now, there are those who have regarded your responses as some sort of proof that PD-ItalyGov is based on a mistaken understanding of copyright law. You dwell on the issue of simple photographs here, not the public domain status of governmental works. Nor do you show that they are linked. I understand you wish to make the argument that the PD-Italy template should be done away with entirely based on the fuzziness of the subjective distinction. It simply has nothing to do with the expiration of Italian government copyright after 20 years. The only reason my arguments concerning PD-ItalyGov are here rather than on Commons:Licensing or the talk page of PD-ItalyGov is that the closing statement of PD-Italy makes a blanket statement regarding 70 year pma which is incorrect if PD-ItalyGov is in fact valid.

I don't know if it was your intention to make any assertions about the validity of PD-ItalyGov because all you have done is make the lukewarm suggestion to "get more information of this "Italian governmental photos" (§29) stuff.", and to 'ask a real lawyer about the interactions of 93/98/CE and §29, especially for governmental photos that are "works"'.

Ok. There is nothing wrong with not having an opinion on the subject (it is a rarity on commons). My general suggestion regarding the tendency to dwelling on EU directives is to consider the fact that the directives are not laws. Folks on commons need to stop treating them as laws. Under the laws as written in Italy and the US, governmental works in Italy prior to 1976 are in the public domain. You are free to speculate how the EU courts might overturn Italian legislation. Maybe you and your favorite commentators are correct that the Italian government is wrong. What we base our judgement not on how law and caselaw might evolve in the future, but what is on the books today. If there is a new ruling on this, we have clearly organized which works are affected and can speedy delete them.
How does that sound to you? -Mak 15:49, 22 August 2006 (UTC)

We should first make sure we properly understand what we are doing and only then apply a new exception. If in doubt, we must assume an image is copyrighted, to protect the Wikimedia projects, the users and the holders of the rights.
What's wrong with clarifying the status of state-created works first, and not offer and use PD-ItalyGov for now?
I suppose your answer is that you do not have any doubts and that in your view everything is clarified already. Well, true, but this is a collective project. --Wikipeder 16:29, 22 August 2006 (UTC)
Kindly restore the discussion to the orginal form. Your addition of a section on "Lupo Analaysis" vs. Debate following his analysis, sets up Lupo as some kind of authority. Not withstanding our respect for his more methodical presentation of information and your favor of his point of view, he has no special authority here other than that which derives from the strength of his arguments.
The Italian government is certain on the point, Creative Commons is certain on the point, it:WP's article is certain on the point but you are uncertain. That is fine. PD-ItalyGov will undergo a review for deletion, and if DennisS had not submitted it, I would have because then we will have certainty on this issue for the time being. If it survives the deletion request, the 70 year pma text of this template will have to be softened one way or another. -Mak 17:49, 22 August 2006 (UTC)

End of moved discussion as of this date -Mak 17:57, 22 August 2006 (UTC)

Moved from Commons Talk:Licensing#Crown Copyright illegal?[edit]

There are those here who believe the EUCD invalidates the laws of countries which conflict with the their understand of the 70 year pma provision.

Under this argument, Crown copyright is illegal according to the EUCD, because works of the UK government fall into the public domain after 50 years, not 70 years after the death of the author of the work.

Is there an exception that applies to the UK? If so, what is it? -Mak 17:37, 6 August 2006 (UTC)

The crown is according to English law rights holder and will not sue users in other countries. Stop confusing things you have no knowledge of --Historiograf 14:48, 9 August 2006 (UTC)

What's the difference? According to Italian law, the Italian government is a rights holder. You assert that you know something about this subject as well you may. Yet you refuse to display your knowlege. It was a simple question. Show us why EUCD does not apply to UK, while it does to other countries. -Mak 17:32, 9 August 2006 (UTC)
IIRC, Crown Copyright is not allowed here, due to it not allowing for commercial use. User:Zscout370 (Return fire) 06:05, 10 August 2006 (UTC)
The issue was that the EUCD allows crown copyright which is shorter, while some here contend that EUCD rules mean it is 70 years after the death of the author in other countries. Just trying to clear up the contradiction. Whether or not crown copyright is usable on commons is a distinct (orthogonal) issue. -Mak 16:13, 17 August 2006 (UTC)
There is no contradiction. Copyright in government works has always been a separate issue to copyright in private works. Since the government itself is the rights holder it is quite open to them to pass legislation granting themselves a shorter, or indeed a far longer, term of protection than ordinary works. I would point out that copyright in works assigned to the Crown has the same duration as private copyrights and that international organisations like the UN and Organisation of American States have copyright protection of the same length as the British Government in UK law. Historiograf is correct to say to you to stop confusing things that you have no knowledge of. Things under Crown copyright are not allowed on Commons since, as Zachary mentions, the Crown copyright waivers have conditions which are incompatible with copyleft. However it is quite correct to use the PD-UKGov template on Commons as OPSI is the rights holder for Crown copyright and I have an email from one of their senior people saying that OPSI consider the expiry of Crown copyright in the UK to apply worldwide. David Newton 11:59, 18 August 2006 (UTC)
Hello Mak, the Italian law I believe you have in mind is not an analogy to the UK situation. The article in question (Art. 11) does not apply exclusively to works of the state, but also to those published in the name and at the expense of e. g. "private legal entities of a non-profit-making character", if there's no other agreement. That means that if somebody takes pictures of his boccia club's tournament, which are paid for and published in the club's newsletter (a non-profit organisation) without mentioning the author's name and with no special agreement, they will fall under the regulation of this law. The state is not even involved in these cases.
If a state decides to waive his rights and make his works enter the public domain earlier than their copyright expires abroad, one may well take his word for it that he is not going to sue anybody for copyright infringement, even though he possibly could abroad. The situation in the Italian law is very different in that it covers works of private persons not at all in the civil service, too.
--Wikipeder 13:45, 18 August 2006 (UTC)
David, I think you misunderstand my point. Folks on this forum have been waving the 70 year pma rule from the EU directive as some sort of blanket rule. According to article 11 of Italian copyright law, "Copyright in works created and published under the name and at the expense of the State, the Provinces or the Communes shall belong to them." [10] Wikipeder in fact is a party who believes that the Italian law is wrong. Read the Unesco translation of the passage and then read Wikipeder's statement above. Does the second paragraph treating the rights of non governmental entities somehow invalidate or make the copyright ownership of the Italian state different in kind from the copyright ownership of the UK government as Wikipeder suggests? How is it germaine at all to consideration of the rights of the Italian state?
Something allows the UK and Italian government to declare an exception from the 70 year pma rule. You have declared they are handled differently and I am inclined to believe you since both the UK and Italian laws have exceptions for government works. My question remains unanswered though. What in the EU harmonization directive allows this separate treatment of governmental versus personal works. If you know the specific passage that allows what you say, that would be most helpful.
It is a side issue, because as of January 1, 1996, under existing Italian law, the Italian government works that had been published 20 years prior were in the public domain. Since they were PD in the country of origin, they are PD in the US, under Title17, 104A h6b.-Mak 00:37, 22 August 2006 (UTC)
Wikipeder is mistaken. The Italian Government, as rights holder to the copyright, has the right to decide how long its copyright will last. As the law making authority it also has the power to give those decisions the force of law. The Italian Government has decided that works it holds the copyright in will have protection for 20 years only. Other EU governments have gone in separate directions. David Newton 23:30, 4 September 2006 (UTC)

Deletion Requests comments[edit]

This template is nonsense. There is NO consensus although Mak has recently changed Commons:Licensing. He is damaging our project because he does'nt accept arguments against his position. German reading people are invited to see also the discussion of User:Wikipeder --Historiograf 18:45, 21 August 2006 (UTC)

Lupo posted an analysis of the issue today. --Wikipeder 19:29, 21 August 2006 (UTC)

Symbol keep vote.svg KeepCreativeCommons doesn't seem to think it is nonsense. They declare on their italian site that works of the state expire after 20 years. Italian wikipedia article doesn't seem to think it is nonsense- their article on copyright makes the same statement. I have based my statements on citations of law. The opposing parties have declined to give any support in law for their position for the last month on this issue. What they cite is the EU directive on harmonization, making claims that Italian law is wrong.

The nutshell argument supporting this template is this. The two passages of law I cite in the template give the basis in Italian law for why the works of the government are public domain and expire 20 years after publication. These were the laws on the books as of January 1, 1996. Under US law (under Title17, 104A h6b), if a work is public domain in the country of origin on that date, it is PD in the US. As with the PD-US template, we can say that means it is PD in the US, and possible elsewhere.

A full elaboration of the arguments are found here:

This discussion has been going on since the first of the month. When reading the threads, there is a huge amount of noise about extraneous issues, so it is helpful keep in mind the question: "What is the basis in law for this person's assertion?" Note that EU directives have no legal force until they are implemented in law by the individual EU nations. -Mak 05:21, 22 August 2006 (UTC)

  • Symbol delete vote.svg Delete The argument against this tag and against applying this exception on the Commons is, in a nutshell, that we do not know enough on the legal situation yet to be sure. There are considerable clues that the situation is not as assumed by the tag. We are running a high risk of opening a gate for stealth non-free content.

Raising doubt is among other things that

  1. the very law can be read differently, namely that the state holds some of the rights for 20 years merely within the 70 years pma. period,
  2. Italian legal commentaries point out that there is a grey area in this respect,
  3. in the reading suggested by the tag, parts of §11 would contradict the 1993 EU Directive on Copyright Harmonisation, stripping some private photographers off their image rights, which nobody would have noticed for 13 years,
  4. there would be lots of 20+ year old PD photographic works around in Italy, but even the Italian WP fails to mention these (it only speaks of simple photographs as being PD after 20 years),
  5. the precedence LUCE image, made by a department of the Italian Propaganda Ministry in 1939, is not at all PD as claimed by Mak, but copyrighted to Corbis (No. U821165INP).

Beyond that, it is not and must not be the standard procedure to introduce an novelty unless it can be proved wrong. The opposite is appropriate when it comes to peoples’ rights: If we are not sure if we will be violating rights, we must not take a step. --Wikipeder 10:26, 22 August 2006 (UTC)

  • Symbol delete vote.svg Delete In contradiction to EU directive. --Rtc 16:30, 22 August 2006 (UTC)

EU directives are not law. They have no legal force until they are implemented in laws of the governments of the individual countries. Folks unclear on this may consult European Union directive for further information. We base our templates on law. The Italian government says these are PD, US Government code says these are PD, and the specific sections of law showing this to be the case has been presented. Opponents have declined to do so other than vague assertions that there are contradictions and alternate readings which in the discussions on the talk pages they have declined to show.

BTW- the full discussion of this has been consolidated at Template talk:PD-ItalyGov. On the Commons Licensing page, it has been recorded that this matter is disputed regarding the theory that the 70 year pma rule overides the rights of the Italian government to declare their works public domain after 20 years. Proponents of this theory need to muster an arguement with specific reference to law or caselaw to prove their theory.-Mak 18:40, 22 August 2006 (UTC)

Symbol keep vote.svg Keep Giving up or limiting the term of one's own copyright is not against any European Directive. -- 3247 23:25, 24 August 2006 (UTC)

comment: In the tag's understanding, however, the state was not giving up just his own copyright (he's doing that in §5), but also the copyright of third parties, i. e. of private photographers whose works are paid for and published by the state or even by academies, cultural and non-profit organisations, which would in fact contradict the directive and national law in all EU states.
The law plainly says that photographic works are copyright protected for 70 years pma. If the state, an academie, cultural or non-profit organisation commissions a shot, they have the copright for 20 years. This does not contradict the EU directive, but Mak's and the tag's interpretation that these works enter into the PD after these 20 years does. --Wikipeder 09:18, 25 August 2006 (UTC)

Modify. Reading the translations of the law at UNESCO things seem to be fairly unambiguous. It states in article 11 that, "Copyright in works created and published under the name and at the expense of the State, the Provinces or the Communes shall belong to them." It then further states in article 29 that, "The duration of the exploitation rights belonging, under art. 11, to the State, the provinces, the communes, the academies or public cultural organizations, or to private legal entities of a non-profit making character, shall be twenty years from first publication, whatever the form in which publication was effected." That does not really leave room for much confusion. The Italian text is the definitive version, and something might have been lost in translation, but I don't think a radical reinterpretation of it would be necessary.

The upshot of this is that copyright in works published under the name and at the expense of Italian governmental organisations is held by those governmental organisations. The duration of that copyright, in Italy, is 20 years from date of first publication. Outside Italy we run into the same problems as we had with UK Crown copyright before I got that FOIA reply from OPSI in 2005. The position is ambiguous. Judging by the US WTO copyright restoring rules since government works have a copyright term of 20 years in Italy it would appear that government works not properly registered for copyright in the US and previous public domain in the US under this rule would remain public domain unless they were published after 1975, when they still would have been in copyright in Italy.

Outside of Italy and the US we cannot say that the works are public domain. This is one of the most tangled areas of international copyright law and, given the resources that governments can throw at lawsuits, one where we should tread most carefully. Consequently the template should be modified to make it clear that we are only claiming the works as PD in Italy and the United States. A provision should also be put in stating that only works published before 1976, and not registered for copyright under US formalities, are public domain in the United States.

The final thing that should be done is to try and get a definitive statement out of the Italian agency(ies) that administer government copyright about what they consider the situation to be in countries outside Italy. David Newton 09:46, 25 August 2006 (UTC)

Comments on the Delete Requests Thread[edit]

David stated that there is some ambiguity for works that are PD in the country of origin that have been copyrighted elsewhere. I can easily imagine that this is the case, but also how it would not be the case (US code implies that when the copyright terms are normalized, the measure is what the term was in the country of origin on January 1, 1996.) Whatever the truth is, I would like to understand the specific reasons so that they may be recorded, and that others may have the opportunity to refine and or register objections to that reasoning. So, what is the support for this statement? Reference to specific passages of law or caselaw would be most excellent.-Mak 19:02, 29 August 2006 (UTC)

Modification to limit the PD claim to the US and Italy[edit]

Two modifications:

  • First, a minor change- the text of the template was made more concise (removing references to other Public entities other than the Italian government, and removing specific enumeration of subentities of the Italian government.
  • Secondly, David Newton on the Deletion Requests page (copied above) suggested a modification making it clear that the rule applies to Italy and the US. The text I added requires the editor to assert additionally that there are no known United States copyrights filed prior to 1996 for the work. January 1, 1996 is the date that the Trips agreement became active in US law.
    • It is not clear to me that this is necessary, because US law states that if the work is PD in the country of origin as of January 1, 1996, then it is PD in the US. It is not clear to me how an entity other than the Italian government can have any legal basis in the United States to claim ownership of copyright belonging to the Italian State. Nonetheless, if the editor asserts that there are no known US copyrights, this further removes ambiguities that particular readers may feel are there. Text follows:
Since this work was published before 1976, the work is also public domain in the United States except in certain cases where there was a US copyright for the work registered prior to 1996. No such US copyright is known of.

Comments? -Mak 08:53, 28 August 2006 (UTC)

Regarding the TRIPS situation, as I understand it, works that were in copyright in their country of origin in 1996 were restored to copyright in the US with the term being the same as any other US copyright work of equivalent age. There is no rule of shortest term in US copyright law. A German work originally published in 1950 which did not have a copyright registration and was restored to copyright by the 1996 law would have a term of protection of 95 years from first publication, ie up until the end 2045. David Newton 23:38, 4 September 2006 (UTC)
That would matter if the image were copyrighted in the US prior to 1996, no? Hypothetical- given an Italy gov image which was published in 1960 in some obscure government publication and not used anywhere else in the world. By the time 1996 rolls around, the image is PD in the US because it was PD at that time in the country of origin. I do not need any rule of shortest term to know that the image is PD in the US. If as you say there is no rule of shortest term in trips harmonization, then we do need to know that the image was not copyrighted in the US prior to 1996, and so the template says no such US copyright is known. Have I erred David? If so, can you give me a clue where, and I will read up on it? No need to waste time constructing a clean proof on my account- if it is well documented somewhere, I can probably manage convincing myself. -Mak 06:35, 20 September 2006 (UTC)

This template is on very shaky grounds[edit]

See this damaged PDF file (got the text from the Google cache), there's this footnote from the Marchetti/Ubertazzi commentary on §29:

II. Effetti della scadenza dei termini previsti dalla norma. [referring to §29]
Una parte della dottrina ritiene che alla scadenza del termine ventennale di tutela, le opere pubblicate in nome, conto e a spese delle amministrazioni dello stato, delle province e dagli altri enti menzionati dall'art. 11 cadano in pubblico dominio (Di Franco, Proprietà letteraria e artistica, Giuffrè, 1936, 66; Piola Caselli, Diritto d'autore, ND, XVI, 1938, 1000; V. de Sanctis,GCCM, VIII, 193ss.; Id., IDA 1939, 205ss.; Messina, GI 1939, I, 242ss.; De Martini, GCC 1944, 112ss.; Piola Caselli, Codice del diritto d'autore, 233; De Cupis, I diritti della personalità, 211, 280; Ascarelli,740; Greco-Vercellone, II, 211; Ammendola, in Ubertazzi e Ammendola, 211) A giustificazione di questa disciplina particolare è stata talvolta addotta l'esigenza di favorire la circolazione di certe opere (Piola Caselli, Arienzo e Bile, Diritti d'autore, cit., 680; Greco-Vercellone, II, 233), altre volte sono stati invece richiamati i lavori preparatori della l. 41/633 da cui emerge che la formulazione dell'art. 29 è il risultato di un compromesso tra due posizioni contrapposte rispettivamente favorevoli e contrarie all'inserimento dell'art. 11 nella l.a. (Piola Caselli, Codice del diritto d'autore, 311; Ammendola, op.cit., 12). Questa prima ricostruzione non sembra tuttavia proponibile ulteriormente, e ciò alla luce dell'art. 1 co. 4 dir. 93/83CE secondo cui i diritti d'autore spettanti ex lege alle persone giuridiche devono durare fino al 70emo anno dalla pubblicazione dell'opera se il nome dell'autore non è identificato, e fino al 70emo anno pma nel caso contrario (Chimienti, R. dir. ind. 97, II, 126 nt. 6; Auteri, Diritto d'autore, 390; Ricolfi, Diritto d'autore, 211; Bocca, AIDA 02, 90). Un diverso e più diffuso orientamento ritiene invece che allo scadere dei venti anni di tutela, i diritti acquistati dagli enti di cui all'art. 11 l.a. non si estinguano ma tornino in capo all'autore - persona fisica o gruppo di persone fisiche - per il loro periodo residuale di tutela (Santini, I diritti della personalità, 55; Loi, IDA 74, 291ss.;Algardi, La tutela dell'opera dell'ingegno e il plagio, 120; Fabiani, Autore (diritto di) I, Enc. giur., 8; Chimienti, op. loc. citt.; Auteri, Diritto d'autore, 89; Ricolfi, Diritto d'autore, 211; Bocca, op. loc. cit.; in giurisprudenza App. Milano, 5-8-1955, R. d. ind. 55, II, 271). Per le comunicazioni e le memorie pubblicate dalle accademie e dagli altri enti pubblici culturali ex art. 11 l.a. la durata di protezione spettante agli enti pubblici o non profit menzionati nell'art. 11 l.a. è ridotta a due anni "trascorsi i quali, l'autore riprende integralmente la libera disponibilità dei suoi scritti" (Bocca, op. cit., 356).
(Underlining added by Lupo.)

As I understand this, there are two schools of thought: the first says that after the expiration of the 20y-term provided by §29, the works covered by it fall into the public domain. Sources given are mainly old ones. The Marchetti/Ubertazzi commentary considers this untenable in view of EU directive 93/98/EEC, and points to the second school of thought, which appears to be more widespread, claiming that after the expiration of the 20y copyright term granted by §29, the copyrights on the work revert to the author(s) of the work for the remainder of the general 70y term! (Backed by newer citations. Marchetti/Ubertazzi is a leading Italian commentary on the Italian copyright law.) Note that §11 also covers e.g. academic publications published by state-run institutions; for such publications, there is no doubt that the state holds the copyright for 2 years, after which the rights fall back to the author for the remaining duration of the copyright term. (Last sentence of the quote.)

In view of this, I think this template should really be removed. Lupo 08:43, 8 June 2007 (UTC)

P.S.: It appears that there are exactly four images using this tag... Lupo 15:25, 19 June 2007 (UTC)

Lupo you are definitely wrong and additionally not convincing at all as well. The template is definitely NOT on very shaky grounds. On very shaky grounds is just your void argumentation conferming that you completely misunderstood the character of law commentaries and also confirming that you have absolutely no clue of Italian law and law in general. I also would like to point out for the fellow contributors that you are one of the first under those customs trying to promote a destructive campaign against Italian pictures and templates since very long now but fortunately with very meager success. So please stop to playing a superexpert in copyright laws here as you are completely incompetent. As I am German myself like you I have really to say that your behavior is a shame for every German here and therefore it is really time to stop to try to impose your way of thinking here to the Commons. This is NOT the German Wikipedia. You have taken this damaged pdf file from a page for legal solicitors but it is neither a citation of binding law nor a citation of a binding verdict. So it is a second or even third class source for finding the right legal situation if you are not really aware of how to handle juridical literature. As I have studied law I tell you that you have definitely not understood that a law commentary exists in order to give an idea what the opinions in the world of juridical science are and do not imply that everything that can be found there can be taken as binding law. It can not be taken to try to overthrow ruling opinions (in German: Herrschende Meinung) by minor opinions (in German: Mindermeinung). If you read the passage carefully then you will note that the opinion you are trying to sell here as the first one is just a small opposite opinion of a minority under lawyers. Every law scientist or law professor has the right to his or her own opinion, it it just a matter of question if this is followed or not, depending mostly if it is convincing or not, so what you are representing here is NOT the ruling opinion! In this case you can clearly read that it is another opinion and mentioned further below than the major opinion. If your way of thinking would be followed - what surely will not happen - then valid national laws would be demoted insignificance leading to a completely wrong application of copyright laws and if this would be done on a state level then you could put legal systems of states in question as I will explain you now. I tell you, staying with law commentaries, that in few German ones of them you can find opinions in favor of capital punishment in general for the whole country, but this was abolished in Germany in 1949, but still favored by some lawyers mainly from Hesse - http://en.wikipedia.org/wiki/Hesse - (in German: Hessen), where capital punishment is still present in the constitution of the Region but overruled by the federal law of Germany abolishing it in 1949. If we would follow your completely wrong argumentation, we would have to allow capital punishment in Germany again for the sake of a minority wanting it - but this can NOT be the right thing to do and would contradict to valid national law as also to othe international commitments. And please remember that EU directives are NOT law and can by no means overrule national laws, the United Kingdom does still have left hand traffic despite EU directives and national copyright laws remain valid as long as the country in question does not ratify the EU directive for that accepting it legally. The latter case had been discussed here already many and many times over and over and I think you should finally accept that you are fighting a long lost war. Same would happen, taking example of capital punishment again, if the EU would recommend introduction of it again for all member states (will most hopefully never take place as it is also impractical and anachronistic), the EU member states can NOT be forced to follow this way by ratifying and therefore implementing the directive. And please remember that such minor opinions are not followed just by fun but for obvious reasons that speak against them. I will provide a verdict of the highest Italian court about copyright laws in the next time here what has real legally binding character and NOT this ridiculous passage of a a single minor opinion from a law commentary! I will prove that the template is on very solid grounds instead hoping to end this kind of discussion for good. And by the way Lupo, there are indeed not only four images using this template but far many more and surely more to come as well. So therefore the template should be kept by all means and the annoying discussions of Italian copyrights should be brought to a final end as long as legal situation does not change fundamentally - what is in fact most less likely for years to come. So please KEEP the template and keep to the valid laws! Reptil () 10:08, 1 Jan 2009 (UTC)

I know how to work with legal commentaries, thank you. I also know how to stucture my writings such that they are readable. I also don't go around making possibly mistaken assumptions about the nationality of other contributors (it doesn't matter anyway).
If you produce a ruling by the Italian Supreme Court, make sure that (a) it is about copyright, not decapitation, and (b) that is from after the date EU directive 93/98/EEC entered in force, and (c) that it takes into account the effects of that directive. Lupo 23:15, 2 January 2009 (UTC)