User talk:Josve05a

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URAA for French authors

Hi, Please take into accounts that copyright length was 58 years, not 70, and copyright was not renewed if it expired before 1997. So all works by French artists who died before 1937 are in the public domain in France and in USA. Thanks, Yann (talk) 14:49, 12 May 2025 (UTC)

Hmm… I (now) see that on COM:France it states as you write: Note that before 1996/7 the duration was 50 years after the author's death, with wartime extensions of eight years for any work published before 1948. Therefore the calculation of the copyright term before the URAA date must consider these works protected for 58 years p.m.a., meaning that works by authors who died in 1937 or before were in the public domain at the URAA date.

I do want to argue that even though France didn’t formally enact the law increasing the term to life + 70 until March 1997 (Act No. 97-283), it was explicitly made retroactive to July 1, 1995, six months before the URAA restoration date of January 1, 1996. That retroactivity should mean that, as of the URAA date, French works by authors who died in (for example) 1935 were already governed by the new life + 70 term, not the old life + 50 (+ wartime extension) term. Consequently, they would still have been under copyright in France on January 1, 1996, and thus eligible for copyright restoration in the U.S. However, I can’t find a single independent source outside of that page (and the associated talk page and DR it was caused by) that confirms this interpretation. So, for now, I defer to that judgment. --Jonatan Svensson Glad (talk) 15:19, 12 May 2025 (UTC)

The copyright was extended when it has not expired. But expired copyrights were not retroactively renewed. Carl can confirm this. Yann (talk) 15:24, 12 May 2025 (UTC)

Thanks, yes that’s the standard interpretation (for URAA). But I still think there's a reasonable case to be made that URAA restoration should apply to certain French works, even by authors who died before 1937.

Here’s why: while France didn’t formally pass the life + 70 law until 1997, the law (Act No. 97-283) explicitly states it applies retroactively from July 1, 1995, six months before the URAA restoration date of January 1, 1996. That retroactivity included the restoration of copyright under Article 10(2) of the 1993 EU Copyright Duration Directive, which required France to restore protection for works still under copyright in another EU country (e.g. Germany).

So, even if a given work had technically fallen into the public domain in France before 1995, the French government retroactively reinstated protection starting mid-1995 to comply with the EU directive. That means that as of January 1, 1996, those works were again protected under French law (even if via retroactive legislative effect).

And the URAA’s wording doesn’t require the work to have been under copyright continuously up to January 1, 1996, only that it was “subject to copyright protection” in its source country on that date. Since French law (retroactively) recognized protection on that date, it arguably meets the URAA criterion.

Of course, I agree this is a legally murky area and, absent a clear court precedent, there’s room for doubt. But I think there’s a real argument that URAA restoration should apply here. I always value Clindberg's input and resonable arguments, even if I disagree on e.g. Ets-Hokin v. Skyy Spirits, Inc... (However, I have already withdrawn my opened DR's given that I can't find any sources to back up my interpretation or thoughts on this matter). --Jonatan Svensson Glad (talk) 15:34, 12 May 2025 (UTC)

@Yann: And regarding "expired copyrights were not retroactively renewed", actually, they were, pursuant to Article 10(2) of the 1993 EU Copyright Duration Directive, as implemented in France by Act No. 97-283. That provision explicitly required the re-establishment of copyright protection for works still protected in at least one other EU member state. The key question for URAA purposes is whether this retroactive restoration, though enacted after January 1, 1996, is sufficient to count as being “subject to copyright” on the URAA date. --Jonatan Svensson Glad (talk) 15:46, 12 May 2025 (UTC)

Hmm. There are many reasons URAA could not apply, including a possible publication in USA at the time. I think we already give too much weight to URAA, so I hate to see more files deleted for that reason. For artists who died in the 1930s or 1940s, the default should be to keep files, unless we are really sure URAA applies. Yann (talk) 19:00, 12 May 2025 (UTC)

Just as Wikipedia does not have a deadline, neither does Commons. Deletion now only means undeletion in a few years. We should really err on the side of caution per COM:PRP which is an official policy, and only care about actual COM:EVIDENCE (another official policy) rather than on feeling. --Jonatan Svensson Glad (talk) 20:37, 12 May 2025 (UTC)

We also the principle that significant doubt is required. So for recent works (less than 70 years old), yes, sure, solid evidence of public domain or a free license is required. But we should not use the same standard for pre-WWII works. It doesn't make sense to me. User:Jmabel reported that WMF Legal thinks we have an absurd level of precaution about copyright, much stricter than any lawyer. We should take that into consideration. Yann (talk) 20:51, 12 May 2025 (UTC)

Yes, we may be "safe" when it comes to the legal side of things, but we should also be on the "right side" of policy in order to best serve our stated mission - providing free media in both the source county and the US (not our stated mission, but I'm sure you get the gist I'm making). My reasoning above about France and the Copyright Duration Directive seems to be in a minority however at the moment. --Jonatan Svensson Glad (talk) 21:02, 12 May 2025 (UTC)

There can be arguments, though France's 1997 law made it clear that there could be no infringement in France for public domain works, that expired before the 1995 date, for any usages up until the 1997 law became effective. Given that, the state of things on January 1, 1996 seems pretty clear that works that expired Jan 1, 1995 or earlier were still public domain in France on that day -- which means they would avoid the URAA. There is a legitimate question that works which were due to expire on January 1, 1996 itself may not have expired -- those were not allowed to be exploited up to the 1997 date. Only works that had expired before the directive date. I believe, in discussions long ago, that the EU directives are not supposed to have direct effect -- or at least that one did not. It requires a country to actually enact the law -- which they were supposed to do before 1995, but did not. In the end, it's the actual law which applies on the ground. There are many, many copyright details not specified by the EU directives, and it's up to each country to decide on the optional elements, and which parts of their existing law they can leave alone, how precisely to deal with restored works (grace periods), etc. The URAA was there to conform to the Berne Convention; the EU extensions were irrelevant for that as France's existing law qualified just fine. The URAA only applies to a work which is not in the public domain in its source country through expiration of term of protection; the works in question had clearly had their term of protection expire and had not yet been restored in France, since the details of restoration were only in that 1997 law. I think in general terms the EU directive was deemed to have been run from July 1995 -- but, However, only those violations of the said provisions that are committed following the date of publication of this Law may give rise to criminal proceedings. As are many things about copyright, it's all arguable. But France's law made clear there could be no infringement in that period, which seems reasonably clear. Carl Lindberg (talk) 00:10, 13 May 2025 (UTC)

Thanks, Clindberg, for the detailed explanation, that's very helpful and appreciated. I do understand your point that France's 1997 law made clear that no infringement could arise for use of works that had already fallen into the public domain prior to July 1, 1995, and that such protection only took formal effect once the law was enacted in 1997. However, I still think there is a meaningful legal distinction here worth examining in the URAA context.

The URAA does not require that a work be protected by enforceable copyright on January 1, 1996, it only requires that it was subject to copyright protection under the laws of the source country on that date. That phrasing arguably includes laws with retroactive effect. And French law, by Act No. 97-283, did retroactively re-establish copyright for certain works as of July 1, 1995. The enforcement grace period you mention (that no infringement could be prosecuted prior to the 1997 law's publication) seems to be a procedural safeguard, not a denial that protection existed retroactively.

In other words, retroactive legal protection was created by France's implementation of Article 10(2) of the EU Copyright Duration Directive, it just was not retroactively enforceable until the law was on the books. But for URAA purposes, what matters is whether the law recognized copyright status on January 1, 1996, not whether courts could impose penalties for violations before that date.

To use a U.S. analogy: if a law retroactively restores someone's citizenship effective July 1, 1995, we would not say they weren’t a citizen on January 1, 1996, simply because the law was passed in 1997. The same reasoning, I think, could reasonably apply to copyright status.

That said, I agree that this interpretation has not been tested in U.S. courts, and I recognize there is ambiguity here. But in line with the URAA’s stated intent to bring the U.S. into compliance with Berne principles, it seems plausible that retroactively applicable foreign copyright law should be taken into account, especially when that restoration was triggered by harmonization obligations under EU law.

But, I seem to be in minority in this opinion, and therefore I'll let status quo stand. Thanks for your detailed comment still! --Jonatan Svensson Glad (talk) 00:27, 13 May 2025 (UTC)

Here’s the key statutory language from the URAA that underpins the concept:

"Restored copyright subsists in a restored work if … (B) the work is a work that, on January 1, 1996, is not in the public domain in its country of origin through expiration of the term of protection." — 17 U.S.C. § 104A(a)(1)(B)

In other words, for a work to have its U.S. copyright restored under the URAA, it simply needed to still be under term-based protection in its source country on 1 January 1996, regardless of whether that protection was later enacted retroactively. If France (the source country) treated those works as still under copyright on that date (even by virtue of a law made retroactive to July 1, 1995) then they fall squarely within the URAA's restoration provision. --Jonatan Svensson Glad (talk) 00:31, 13 May 2025 (UTC)

The specific phrase in the U.S. law is is not in the public domain in its source country through expiration of term of protection, not quite what you post (er, the first time -- the above is correct). The U.S. restorations happened on January 1, 1996, or not. Subsequent law changes in the source country should not matter. It was the state of the law as it existed on that day that mattered. If a country lowers or raises protection later, that can not also have retroactive effect in the U.S. The U.S. restorations are a one-time thing. Carl Lindberg (talk) 00:35, 13 May 2025 (UTC)

While I personally still do not agree (due to me being stubborn mostly), I'll take this to be "the rule of the land" and act accordingly. --Jonatan Svensson Glad (talk) 00:43, 13 May 2025 (UTC)

I should also mention, that the U.S. tried to find every way they could to avoid restoring the works -- they used just about every facet of the Berne Convention they could to avoid it, so only restored the bare minimum they had to. Using the state of law on the date of restoration is effectively using the rule of the shorter term part of Berne, even though the U.S. does not normally use that (as it would be difficult given many old copyright treaties to the contrary are still in effect). It was however used for the restorations, as of that one particular date. If France was not protecting those works in their own country on that date, they should have no expectation of them being protected elsewhere. All these countries were already at Berne minimums -- if such countries extend their law to make terms higher, that is not part of the U.S. obligations under Berne. Those were met as of 1996 (or later, if a country only joined Berne at a later date). There is basically no way the U.S. would open itself up to arbitrary future changes in foreign law changing the state of copyright in the U.S. -- you are saying that France could today, pass a law stating that all old works were considered under copyright between 1995 and 1998, and thus alter the U.S. protection? I pretty much reject that out of hand unless a U.S. court actually rules that. Carl Lindberg (talk) 00:49, 13 May 2025 (UTC)

Given your reference to US courts, I should mention that in Golan v. Holder, the Supreme Court upheld the constitutionality, affirming that Congress can restore copyright to works previously in the public domain, as long as the work would have remained under copyright under the source country's laws. While the case primarily addressed First Amendment concerns, it reinforces that what matters is the copyright term the work would have enjoyed, not continuous enforcement prior to the URAA date. The phrase through expiration of the term of protection indicates a focus on the legal status of the work at that specific point, rather than uninterrupted enforceability. --Jonatan Svensson Glad (talk) 01:14, 13 May 2025 (UTC)

That case basically upheld the constitutionality of the URAA law, under questions of the copyright clause itself, plus a first amendment argument. The work would have enjoyed is just from a summary of the law -- once restored, a work gets the full U.S. term regardless of what happens in the source country thereafter. But if not restored, by the same token, then it stays public domain regardless of what happens in the source country thereafter. The expiration of the term of protection part is there so that works in the public domain through lack of protection at all in the source country (below the threshold of originality, but above the US level, for example) were still restored. Carl Lindberg (talk) 12:59, 13 May 2025 (UTC)

I sent a general inquiry to the USCO regarding this, but I don't believe they will answer.

The email/question sent to the USCO

Under Section 104A of Title 17 (the URAA), must a foreign work have been continuously enforceable on January 1, 1996, or is it enough that its source country’s law—albeit enacted later—retroactively “recognized” the work as still under term‐based protection as of that date? Specifically: France’s Act No. 97-283 (effective March 1997) declares that, by operation of Article 10(2) of the 1993 EU Duration Directive, certain works that had lapsed into the public domain were nonetheless “restored” as of July 1, 1995. Does such retroactive legal recognition satisfy the URAA requirement that, on January 1, 1996, a work “was not in the public domain in its country of origin through expiration of the term of protection,” and thus qualify for restoration in the United States?

--Jonatan Svensson Glad (talk) 00:52, 13 May 2025 (UTC)