GLAM/GLAMs and the Public Domain
This is an endeavor to collect major legal, socio-legal, and ethical issues surrounding GLAMs and the Public Domain. It has been inspired by two initiatives:
- a proposal from a member of the Digitale Allmend , the Swiss chapter of CreativeCommons, to join forces with the Federal Institute of Intellectual Property in order to create a "Public Domain FAQ" for the use of "free/open" culture advocates involved in GLAM outreach in Switzerland and Swiss GLAMs themselves.
- a request by a law student from Geneva, planning to do her PhD in the area of free culture, asking the community to point her to some "hot" legal issues in this area.
Please help us complete the list by adding more questions or reference material! (There is no need to focus on Switzerland exclusively.)
Which works are in the public domain?
References / Comments
The precise legal definition of the extent of the public domain is legally complex. An excellent overview of the international situation can be found in Mapping the Public Domain by Paula Samuelson.
As opposed to the US, where the "Public Domain" was a legally defined concept, in Europe the expression simply serves as a container for all content that is not protected by copyright legislation any more. In the US it is possible to renounce one's copyright and explicitly put a work into the public domain. In many European countries this is not an option that is supported by law. According to a Swiss copyright law commentary (Barrelet/Egloff, Das neue Urheberrecht, 3rd ed. 2008, p. 113), in Switzerland it's possible to renounce copyright which terminates any copyright on the work in question. Lately the Creative Commons License CC Zero has been designed to achieve a similar effect.
In addition to such individual bequests in many countries, including Switzerland, the following content is often in the public domain 
- Ideas, facts and news,
- Legislation and related government publications,
- Content that does not constitute a cultural work for lack of creativity involved,
- Content where the author died more than seventy years ago.
But the national legislation may vary and is quite complex. Some countries suspended the expiration during the second World War. Some countries did not increase the 50 year protection demanded by international treaties to 70 years. * Angelopoulos, C. (2012). The Myth of European Term Harmonisation: 27 Public Domains for the 27 Member States. International Review of Intellectual Property and Competition Law (2012) Vol, 43, 567-594.
The relevant legislation is the place of the alleged breach of copyright protection. Although Internet content is available everywhere, the relevant legislation is either determined by the physical location of the server or by the physical location of the uploader at the time of the upload. 
- Public Domain (English Wikipedia)
- OutOfCopyright.eu: Public Domain Calculation for Europe, by Europeana; and Durationator.com: Copyright term calculation, by Tulane Law School, U.S. (how reliable are existing Public Domain calculators?)
- Contact user:Martsniez on Wikimedia Commons, he was the software/information architect behind outofcopyright.eu
Can digitization (scanning, photographing) of a public domain work create a new copyright entitlement?
- The position of the Wikimedia Foundation as stated by Erik Möller is that "faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain". For details, see Commons:When to use the PD-Art tag. - This is, however, a debated point, and in some jurisdictions, arguments have been presented that faithful reproduction photographs are entitled to local copyright protection. For that reason, it may be safest if the uploader owns and explicitly releases any additional rights on reproductions which might apply.
Does the application of a watermark or similar mark on a public domain work create a new copyright entitlement?
- Is there a legal basis for the owner of a public domain work to enforce that a watermark or similar mark applied to a public domain work that is freely accessible on the Internet not be removed by third parties?
- Are third parties entitled to make free use of the public domain work carrying the watermark in the same way they would be if the work didn’t carry the watermark?
Is there a possibility to freely use “orphan works”?
To what extent is metadata copyrightable?
- Is a particular act on behalf of the institution that has created the metadata necessary to release the data into the public domain (at a national level / at an international level)?
- Would it be reasonable to publish such metadata under a CC-license? (assuming that the metadata is actually subject to copyright protection)
Copyright issues in international projects such as Wikimedia Commons
- Is a work that is in the Public Domain in my country automatically in the Public Domain in other countries? Which rules apply?
- Short answer: No. Regrettably, a lot of complex and confusing rules might apply. Many countries apply the Rule of the shorter term, but some do not, for example the United States. Particularly the copyright status in the U.S. often differs vastly from that in European and other countries, as copyright in the U.S. evolved quite differently. For example, in Switzerland, Germany and most other European countries, one can rely in most cases on works being in the public domain if the author died more than 70 years ago - that said, in most cases only, too. If an old work is published for the first time (editio princeps), publication right might apply in many countries, e.g. Germany. The publisher of a previously unpublished manuscript, even if it's hundreds of year old, is granted a protection term of 25 years in the EU. There is no such protection in Switzerland. Well, but for previously published works, "70 years after the author's death" is applicable. Though not in the United States. If a work was first published in 1923 or later and was still protected in its country of origin on January 1, 1996 (in most cases), it's probably still protected in the U.S. even if the author is now dead for more than 70 years - see Commons:URAA-restored copyrights for more information on this complex matter. This is a matter of utmost importance for all Wikimedia projects, as Wikimedia can only accept material that is in the public domain (or freely licensed) in the United States, too. On the other hand, everything first published prior to 1923 is in the public domain in the U.S. - even if the author died much less than 70 years ago. Commons, however, accepts only material that is free in the country of origin as well as in the U.S.
Many artworks are based on other artworks, for example all photographs of sculptures, should be aware of copyrights of the photographer and the sculptor. Sometimes also copyrights of person doing photograph enhancement or artists the sculpture was based on. For example, this image is a photograph of a sculpture by Henri-Charles Maniglier, which is based on sculpture by Glykon, which is based on sculpture by Lysippos. This image is a photograph of a modern copy of Fabergé egg by Peter Fabergé. Both of those photographs might need to track copyrights for at least three authors, possibly from different countries. Some authors, like photographer, might use multiple licenses. What is the best way to track and present copyright information related to such works?
- Froitzhuber, Kilian (2013) "Wikimedia Commons: 70 Jahre tot ist nicht genug", iRights info, 16. Januar 2013
- Angelopoulos, C. (2012). The Myth of European Term Harmonisation: 27 Public Domains for the 27 Member States. International Review of Intellectual Property and Competition Law (2012) Vol, 43, 567-594.
- Wikimedia Commons: Explanation of the copyright situation of the works of Paul Klee
- Wikimedia Commons: Explanation of the various copyright tags in use on Wikimedia Commons, including the legal background
- An example for how coutry-specific pecularities in copyright law and jurisprudence are dealt with on Wikimedia Commons
- Wikimedia Commons: Decision tree for uploading pictures to Commons
Other legal issues
What are other laws and regulations that prevent GLAMs from freely releasing public domain material?
- Example: The Swiss Federal Law on Archiving stipulates that commercial use of archival material be subject to prior authorization:
- Art. 19 Gewerbliche Nutzung des Archivguts
- 1 Die Nutzung des Archivguts zu gewerblichen Zwecken bedarf einer Bewilligung.
- 2 Die Bewilligung kann von einer vertraglichen Regelung des Nutzungsumfanges und der allfälligen Gewinnbeteiligung des Bundes abhängig gemacht werden.
- 3 Der Bundesrat regelt Voraussetzungen, Verfahren und Zuständigkeiten für Bewilligung und Vertragsschliessung zur gewerblichen Nutzung des Archivguts.
- Source: SR 152.1 Bundesgesetz über die Archivierung, Art. 19 Gewerbliche Nutzung des Archivguts
- Artikel 19 Gewerbliche Nutzung des Archivguts Die gewerbliche Nutzung von Archivgut soll bewilligungspflichtig sein. Der Bund soll dabei finanziell entschädigt werden für die teilweise erheblichen finanziellen Vorleistungen bei der Pflege und sachgerechten Aufbewahrung des Archivguts.
- Note: If I get this correctly, this law applies only to the federal archives, not to any archive in Switzerland. See Art. 1 Zweck und Geltungsbereich. Gestumblindi (talk) 20:38, 4 April 2013 (UTC) Yes, correct. We would have to research whether similar regulations exist for other archives. Beat Estermann (talk) 11:40, 9 April 2013 (UTC)
What role do sui generis rights (e.g. database rights) play?
- E.g with regard to metadata? See: Data base right
Why do many GLAMs release their public domain works under non-commercial licenses?
What fraction of works from various periods cannot be used due to the “orphan works”-issue?
What strategies do GLAMs apply to deal with the “orphan works” issue?
In the context of orphan works: What role does the usurpation of copyright ownership play?
What is the impact of the loopholes in the harmonization of the term of protection for works of copyright in the EU?
- The economic impact in terms of increased transaction costs?
- The cultural and economic impact in terms of works withheld from the Public Domain?
What are the reasons for and the impact of copyright overreaching among GLAMs?
- What varieties of copyright overreaching can be observed among GLAMs?
- What is the socio-economic impact of their copyright overreaching?
- What are the motives for their copyright overreaching?
- Crews, Kenneth D. (2012) Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching (July 1, 2012). Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 22, p. 795, 2012. Available at SSRN: http://ssrn.com/abstract=2120210
What are ethical issues that may be used to argue against openness?
- How about pictures of human remains (skeletons, skulls, etc.)
- How about pictures from collections which are made up of "secret" objects, which in their culture of origin were meant to be viewed only by few people?
- How about providing content contextualized (without contextual information), e.g. in the case of colonial photography and documents?
- How about protecting people's right to privacy eg people in images
- How about releasing information of locations of delicate sites that would be damaged by people going there.