Copyright and Jurisdiction

by John Holbo on May 2, 2010

Every six months or so I pose an amateur copyright puzzle, so here goes. Is there settled law, or substantial precedent, for dealing with the fact that copyright terms differ in different jurisdictions, as a result of which many works are in copyright in the US but public domain elsewhere, and vice versa? Project Gutenberg, for example, passes the legal burden onto its users. Many of its offerings bear notices to the effect: “Not copyrighted in the United States. If you live elsewhere check the laws of your country before downloading this ebook.” I take it this works, otherwise they would have been sued into the ground. But what if you want to publish a new paper edition of – oh, say, Russell’s The Problems of Philosophy. It’s in the public domain in the US, so if you are a US publisher, go to. But Russell was a tough old bird and only passed on in 1970, so it will be decades before it’s in the clear in the UK – or Singapore (which has UK-style copyright). But if you sell your book on Amazon, someone might order it from the UK, or Singapore. And even if you only sell your book in the US – hell, it might be printed in Singapore. What about selling ebooks, as opposed to giving them away, Gutenberg-style? Is there any case of a non-US rights holder bringing successful suit against a US publisher for overstepping the geographical bounds of the US public domain (or, vice versa, for a US rights holder)? It seems as though, in this webbed-together world, there would have to be a settled way of dealing with such cases. But maybe there isn’t.



Robin Green 05.02.10 at 2:31 pm

I think large corporate copyright holders in practice are completely swamped (well, not swamped, but given far more work than they actually want to deal with) with more blatant and clear-cut examples of online copyright infringement, and would probably ignore this. Depends how much of a money-spinner works like these are, I suppose.

Of course some authors retained their own copyrights, which would have passed to their estates, which changes the calculation.


Tim Worstall 05.02.10 at 4:22 pm

“substantial precedent”…arguing by analogy I would say yes (as much Common Law can indeed be made by judges arguing by analogy this isn’t quite as odd as it may sound).

Imagine a new work. Published in the UK. Buyers in the US can purchase this from Amazon. Hurrah.

Imagine that the US rights to this book are then sold to a US publisher. In the time that it takes for the book to be actually published by said US rights holder you might want the book still to be available to US buyers. In which case do nothing. Or you might, as world rights holder, part of which you’ve sold to said US publisher, want to prevent people from buying before that specific edition is ready. At which point you tell Amazon that those rights have been sold and could they please stop shipping to US based customers.

And they do.

So it’s certainly true that rights being divisible and being owned by different people in different territories is already acknowledged by these global distribution systems. I seem to remember a discussion here some time ago about Australian rights to a book, how the Oz rights had been sold meaning that those in Oz could not purchase a US published book but had to wait until the Oz version came to market.

So I would argue (not particularly strongly mind) that the UK rights holder to Russell’s work could tell Amazon not to ship to the UK US public domain versions of his works. And they probably would…..


Scott Martens 05.02.10 at 4:45 pm

I suspect that Robin is mostly right. Consider that a work that has entered into the public domain in some distant jurisdiction is almost certainly an old work. Few such works are major money-makers and international litigation is incredibly expensive. It’s probably simply not worth the trouble in most cases.

The one case I can think of is litigation over the works of Claude Monet. Dead in 1926, his works passed into public domain under the Berne Convention in 1997, but France automatically extended copyright nine years for all works under copyright in 1939, making his works public domain everywhere except France until 2006, except for some works published after 1920 which will fall into public domain in 2012. Art is not like books – the works of long dead famous painters fetch more money, not less, as time goes by. I’m not sure it’s a very good example though. Sifting through the documentation, it looks to me like a fight over the interpretation of various French laws and European directives written into French law, and not so much about international divergence in copyright terms. If they had tried to sue a German publisher of Monet reproductions, then it would fit.


jim 05.02.10 at 6:12 pm

There was a website that hosted music scores for free download. Scores were crowd-sourced. The site was hosted in Canada. Canada’s copyright laws have scores passing into the public domain 50 years after the composer’s death. But the owner of the site lived in Austria. In Austria scores remain in copyright for longer. A music publisher which had an Austrian subsidiary sued the site-owner in Austria (I’m not sure there was even a suit; there may have only been the threat of a suit). The site was taken down.


Ekhym 05.02.10 at 8:18 pm

I am often bemused by the seeming coincidence/concurrence of thoughts and ideas. I just started reading Michael Sneldon’s book Mark Twain: Man in White. It is a biography of the last few years of Twain’s life and opens with Twain’s debut of his iconic white suit at the December 2006 meeting of the Joint Congressional Committee on Patents regarding copyright reform.

I think Twain would argue for vigorous and vigilant protection of the rights of copyright holders, especially by the creators, heirs, and/or estates of the original creator.


Ben Alpers 05.02.10 at 9:17 pm

@ jim: That’s only half the story.

After a lot of work to get the site clearly within the bounds of the law, it went back online well over a year ago and is going strong. You’ll find it here.


Dan Ryan 05.02.10 at 9:29 pm

Wasn’t the Amazon Kindle/George Orwell kerfuffle about this? Amazon sold ebooks from a publisher who took advantage of Orwell being in the public domain elsewhere, then ‘retrieved’ the books after the US rights holder objected?


jim 05.02.10 at 11:54 pm

@ Ben Alpers,

Yes. But its name has changed. There was no Petrucci there before. The “work to get the site clearly within the bounds of the law” was to ensure that it would be seen as wholly Canadian: that precisely the sort of cross-jurisdictional copyright issues that John was raising would no longer apply.


Remfin 05.03.10 at 12:09 am

I don’t have a cite but I remember a number of cases like this. Even before the Berne Convention the courts gladly retroactively extended copyrights if countries we had treaties with claimed it was still covered by copyright, and since the Berne Convention they basically HAVE to.


Ben Alpers 05.03.10 at 1:38 am

@ jim

Actually, the name hasn’t entirely changed. The URL is still (for International Music Score Library Project) and the name is now IMSLP/Petrucci Music Library rather than just IMSLP.

The biggest change was actually (quoting Wikipedia) “using a strict copyright policy, where uploaded files are only made accessible for download after the copyright status for three most frequent copyright regimes has been reviewed by staff members.”

This policy was developed in consultation with the Canadian wing of Project Gutenberg.

In fact, prior to downloading any file, users are now told the copyright status of it in the US, Canada, and the EU. This is a significant change from the old IMSLP.

And the site has not made itself entirely Canadian. It is based in Canada, but the physical address of Project Petrucci LLC is in the United States.

Here, incidentally, is the open letter from June 2008 announcing the reopening of IMSLP and explaining, in part, how that came about.


John Holbo 05.03.10 at 5:55 am

Thanks. Useful comments. I didn’t know about this stuff.


John Holbo 05.03.10 at 6:05 am

“Even before the Berne Convention the courts gladly retroactively extended copyrights if countries we had treaties with claimed it was still covered by copyright, and since the Berne Convention they basically HAVE to.”

Actually, this is something I am still confused about. I’ve seen this said before, but if it were right, a lot of Project Gutenberg stuff would be in US copyright – the aforementioned Bertrand Russell material, for example, which Project Gutenberg clearly doesn’t think is in US copyright. In the US anything published before 1923 is public domain. Per this page:

That is, I would have thought that the only possible puzzle would be ‘what does it mean, in practice, for something to be public domain in the US but not elsewhere’, not whether there is some automatic treaty ratchet to the longest possible term favored by any party to the treaty.


Remfin 05.03.10 at 6:50 am

Sounds like a case of Schroedinger’s Copyright; it’s both copyrighted and public domain until someone opens court proceedings!

The whole situation where something can be public domain and leave court as copyrighted even when the court agrees it was rightly public domain to begin with seems like a weird version of specific performance with “the public” as one side to me if that helps.


Scott Martens 05.03.10 at 9:37 am

Actually, trying to follow up on what happened to the Monet paintings copyright, it looks like the French courts ruled in 2007 that the extension of French copyright to life+70 did not further extend the up to 14 years of France’s war-related copyright extensions. However… I think I found what you’re looking for, John.

France gave 30 year copyright extensions for the works of authors “mort pour la patrie”. The most famous of these properties is Le Petit Prince, which as popular a children’s book with lots of potential ancillary rights – cartoons, movie adaptations, translations, spoken word versions – makes it look like a good candidate for litigation.

France was life+50 until the European harmonization in 1996. Saint-Exupéry died in combat in 1944 and the book was first published in 1943. So, the work appears to have entered the public domain in Canada at some point in the last decade. In December 2009, it was made available from Canada over the Internet (here). Life+70 expires in 2014, but if France’s additional 30 holds up, it runs presumably to 2024, since the courts appear to have ruled that the war extensions and the harmonization extension are not cumulative. This is a recent judgment, and the French press does not seem to be aware of it since they are talking about 115-year copyright terms, which the Cour de Casssation seems to have ruled against.

This has gotten some attention in France in the last few months. It’s a big enough property to be worth suing over and it’s just recently been made available through an ordinary legally operated web server. The copyright owner is Editions Gallimard, which certainly has the money, clout and lawyers to make itself heard. It has already forced Wikisource to remove some French works covered by French copyright but in the public domain in the US. (see here) It has not stopped Project Gutenberg though, and it seems it is not trying to litigate against French publishers over some of these same works. With Wikisource they took the position that since the French wikis are “primarily intended for a French audience” they are subject to French law. There’s some discussion at this blog.

I would think, given Gallimard’s track record on this, that if they think they can take action to prevent Internet publication of as valuable a property as Le Petit Prince, they will.


John Holbo 05.03.10 at 10:26 am

Wow, that’s interesting, Scott. I guess there could be further complications if it turned out, after all, that Saint-Exupery intentionally crashed his plane into the water (if memory serves there was some concern that he might have been a suicide rather than a victim of German guns – don’t remember the details). That might nullify the ‘mort pour la patrie’ bonus, no!

Copyright sure is simple and straightforward, when you think about it.

Here we have an article suggesting it was, indeed, suicide:


Davis 05.03.10 at 11:45 am

Even before the Berne Convention the courts gladly retroactively extended copyrights if countries we had treaties with claimed it was still covered by copyright, and since the Berne Convention they basically HAVE to.

Hmm, that doesn’t sound quite correct to me — we certainly didn’t encounter any cases suggesting that in my copyright class this semester. First, the US was already in compliance with Berne’s duration terms as of the 1976 Copyright Act (life of the author + 50); Berne does not require applying the home country’s duration rules to a foreign work. Copyrightable works published prior to the effect date of the 1976 act were still under the old renewal system, but I know of no cases retroactively applying the new system to a work published under the old one.

Second, the Berne convention itself was not a self-executing treaty. It was the Berne Convention Implementation Act that supposedly put the US into compliance, and the only major change enacted in the BCIA was to eliminate the formalities required for copyright protection (primarily the inclusion of copyright notice upon publication).

There is 17 USC § 104A, which restored copyright in foreign works that had prematurely lost coverage in the US due to failure to comply with formalities (or for lack of a copyright agreement with the author’s home country). But 104A took certain foreign works out of the public domain and provided them with the full copyright term they never received, rather than extending the term. (My favorite related case: Dam Things From Denmark v. Russ Berrie, covering those weird Trolls.)


Sandstein 05.04.10 at 10:35 am

The Wikimedia Commons project, which is the image repository for all Wikipedia language editions and hosts 6,5 million mostly public domain media files, deals with this problem by requiring that all public domain content be in the public domain both in the US (where the servers are) and in the country of the work’s first publication.

Wikimedia Commons does, however, apply the U.S.’s Bridgeman v. Corel rule, according to which faithful photographic reproductions of PD works are themselves PD, to non-US works. This has led to a Wikimedia volunteer who uploaded photographs of old PD paintings from a UK museum website to be threatened with a lawsuit by the museum, since apparently in the UK the “sweat of the brow” argument for conferring independent copyright on faithful reproductions is still being advanced.


Ken 05.04.10 at 12:59 pm

The vast majority of works that fall under copyright make all the money they will ever produce in the first few years after publication. Only a tiny percentage will still be earning anything at all – or even in publication – after a decade. From that, I would argue that the sane thing would be to grant copyright for a fixed period – perhaps ten years, perhaps the lifetime of the originator. After that period, the copyright could be extended by the holder, but only by paying an annual fee. This would let Disney protect The Mouse forever (which seems to be the logic of current US copyright extensions), while allowing the bulk of material to slip gracefully into the public domain, where Project Gutenberg and its kin could archive it for those few souls who have an interest.


ajay 05.04.10 at 1:47 pm

. This would let Disney protect The Mouse forever (which seems to be the logic of current US copyright extensions)

Never quite understood this. Disney doesn’t make Mickey Mouse cartoons any more (does it?) so surely the Mouse’s main value to them is as a trademark – which would be protected by entirely separate law. There’s nothing to stop you trademarking a public-domain image, is there?


CBrinton 05.04.10 at 5:03 pm

Davis is correct, the US courts have never “gladly retroactively extended copyrights if countries we had treaties with claimed it was still covered by copyright.”

US law does now have provisions for foreign copyright owners who have lost their US copyrights to get them back, but this does _not_ include term expiration. Pre-1978 US copyright law had many bizarre technical provisions, and authors could easily lose a US copyright if their publishers failed to comply. One well-known example is the Tolkien estate–they were able to get back their US copyright for Lord of the Rings in 1993 (having lost it in the 1950s due to the publisher’s selling too many foreign-printed copies). As a result, Tolkien’s books sold in the USA no longer have the personal plea from the author to buy only authorized editions.

Even with the copyright treaties, copyright law is still overwhelming national, and copyright owners have to sue for damages (or, more rarely, seek criminal penalties) in national courts. Take the Project Gutenberg example. Project Gutenberg Australia has quite a bit of stuff that is still under copyright in most of the world–Australia (like Canada) has never gone beyond the original Berne Convention life + 50. Anyone from a life + 70 country who downloads (e.g.) _The Lost Horizon_ from Project Gutenberg Australia has probably violated the copyright, and the owner could, in theory, sue. In practice, it’s not worth the trouble, as pointed out by the first post.

Of course, the internet’s non-anonymity could eventually make enforcement of these sorts of claims more feasible.

Another area that’s probably going to be more contested in the future is the boundary of copyright and trademark. Trademarks can last forever if used, and some trademark owners have been quite successful in discouraging the use of unambiguously public-domain material by making or threatening trademark suits. The owners of the “Conan” trademark may be the best example. The vast majority of Robert E. Howard’s original Conan stories are in the public domain everywhere in the world, but in practice nobody makes a Conan movie or even audiobook without making a deal with Conan Properties Inc. There should be a pushback against this sort of thing at some point, but it hasn’t really started yet.


Cian 05.05.10 at 5:50 pm

Project Gutenberg Australia has quite a bit of stuff that is still under copyright in most of the world—Australia (like Canada) has never gone beyond the original Berne Convention life + 50.

Actually that’s not true anymore. The US pressured Australia to make it 70 years when they signed a free trade agreement. A lot of Australians are very bitter about this. So anything not in the public domain after 2002 (I think) will remain in copyright for an extra 20 years. Still it was worse in the UK. Stuff actually went into copyright, after passing out of copyright, after the EU forced 70+ rules on us. F***ers.


CBrinton 05.05.10 at 11:11 pm

“The US pressured Australia to make [copyright terms life plus] 70 years when they signed a free trade agreement.”

Sorry to hear that; I stand corrected. As far as I can tell, the Canadians are standing firm on life +50: the Canadian Intellectual Property Office website still lists this as the standard copyright term.

“Still it was worse in the UK. Stuff actually went into copyright, after passing out of copyright, after the EU forced 70+ rules on us.”
Can anyone point me to a source on how this worked administratively? I’d assume there was some kind of lapse date on which previously public domain works left, but I’d be interested in getting more details.


mike 05.05.10 at 11:22 pm

While you hear the phrase “international law” a lot, the fact is that there really is no such thing. There is no international, democratically selected legislature that is empowered to make any global rules, and there is also no internationally, democratically controlled judiciary empowered to enforce them. Laws made in one country simply do not apply in another, unless that country is powerful enough to use brute force to force compliance. But there’s no legal basis for it. The Berne Convention and other similar conventions were just created by groups of (white) elites who essentially appointed themselves and are really operating extra-judicially. What is needed is an international government, democratically selected, to regulate these matters, as well as a slew of others, particularly international business and finance, not to mention the internet. But we’re a long way from that, so in the meantime it’s really wide open. I think the first step towards solving the problem would be democratic elections to the UN, but don’t hold your breath.

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