Template talk:PD-Austria-1932

What is the basis for this template?

I'm sure it is true that the 1953 law was not retroactive, but the 1996 law surely was. Article VIII at the end talks about "revived" copyrights, as that was the law which implemented the EU directive, which should have retroactively restored such works to 70pma. It has the EU directive language which only restored works which were protected in at least one EU country on July 1, 1995, but I don't think we've identified any work less than 70pma which that was true for. The 1953 non-retroactivity probably does come into play for URAA restorations though -- since they were not restored until April 1996, that means that the 1932 line should was still valid on January 1, 1996, i.e. Austrian photographs from before then should not have been restored by the URAA. Any anonymous photo would be beyond 70 years from publication by now as well, so it would just be photos with a known photographer who died less than 70 years ago which would be issues if we have them hosted. If this template was changed to mention anonymous photos before 1932, and 70pma for others, it may have some use. Carl Lindberg (talk) 00:56, 1 October 2017 (UTC)

You may or may not be right. Article VIII section 2 of the law you mention reads (my translation):

To the extent that this federal law lengthens the period of protection, it applies to works created, speeches and performances held, photos taken and broadcasts sent before 1996-04-01:

• for which on 1995-07-01 the period of protection, according to the laws that applied until now, has not yet expired or
• which are protected in a member state of the European Economic Area and for which the period of protection in that member state has not yet expired on 1995-07-01

The way I read this, one of these bullet points has to be true for the law to apply at all. But the period of protection for Austrian works had already expired in Austria by 1953, so it had certainly expired in 1995. So now it depends on whether an Austrian work was restored by the second bullet point on the basis that, yes, it was still protected in other EEA countries, at least those that didn't apply the rule of the shorter term for Austrian works (did any exist back then?). But it is also possible that "which are protected in a member state of the EEA" refers to the country of origin.

You might also be referring to section 4 of that same article. That reads:

To the extent that the protection of works for which the period of protection had already expired is revived by section 2, duplication of such works commenced before 1995-07-01 may also be finished after 1996-03-31 and such copies, as well as copies that already existed before 1995-07-01, may also be distributed after 1996-03-31. This also applies to readings, performances of literary and musical works, for photographs and for broadcasts.

But this, first of all, only applies to things that section 2 already applied to, and actually limits the impact of section 2 (not in a way relevant to us, though). darkweasel94 09:18, 1 October 2017 (UTC)

Correct. The second bullet point implements Article 10(2) of the original EU directive, The terms of protection provided for in this Directive shall apply to all works and subject matter which are protected in at least one Member State, on [1 July 1995]. It basically says that for any work protected in any EU country on 1 July 1995, copyright was restored to the full 70pma term (or 70 years from publication if anonymous). I think we have always basically assumed that there was at least one EU country which protected works for the 70pma term (or longer); at the very least we have not found a type of work which was not protected in at least one country. For example, Spain was effectively 80pma and I do not think had a shorter term for all photographs (and did not use the rule of the shorter term). (They had a shorter term for "simple photographs" but identifying those is extremely messy, and outside of a couple countries we have not tried). Some EU countries simply restored all works without qualification, but many countries had the exact same language in their implementation laws, but I do not think we have ever identified any within the 70pma term which were not restored across the EU.

The second part is basically the same as "reliance parties" for the URAA in the U.S.; i.e. if you were already exploiting something that was public domain but which was restored, you could continue to distribute copies already made (or were making) but could not make any new copies. You don't want to criminalize something instantly that people had legally been relying on; that was a transitional provision. Article 10(3) of the EU directive said This Directive shall be without prejudice to any acts of exploitation performed before [1 July 1995]; this is basically Spain's implementation of that clause. That does not help us though, since uploading a work is making a new copy and would be a new exploitation. Carl Lindberg (talk) 15:08, 1 October 2017 (UTC)

There is an excellent analysis posted at Commons:Village_pump/Copyright/Archive/2012/11#Analysis_of_Austrian_copyright_law which you should read before considerung any action here. -- 79.251.135.90 08:49, 7 October 2017 (UTC)

Thank you for that link. If it's true that it wasn't the 1996 law that extended copyright for most works we're concerned with, then it's indeed irrelevant that it may have been retroactive. Looks like the 1972 law certainly wasn't. darkweasel94 11:48, 7 October 2017 (UTC)

Thank you for that link -- that does supply the rationale, in that the wording of the EU harmonization law in Austria accidentally may have avoided restoring most works that were out of copyright, due to the wording that works were restored only "In the case that this federal law prolongs the copyright term", and Austria's terms were for the most part already at the EU targets (albeit non-retroactive up to then). I would be happier if there was some outside legal analysis confirming that opinion, and I do wonder about the simple photograph distinction -- in Germany the dividing line between simple photos and works changed dramatically with the EU harmonization, with most photographs moving from "simple" or "documenting current events" (a distinction added in 1985) to being "works", and if the same happened in Austria you wonder if that may qualify as "prolonging" their term. But, it's at least a very good argument. Carl Lindberg (talk) 15:59, 7 October 2017 (UTC)

Bulk deletion of affected files

See Commons:Deletion requests/Files in Category:PD Austria 1932 Andy Dingley (talk) 10:14, 23 July 2023 (UTC)

Simple photographs in Austria

Hi. I have noticed this page only now, after receiving a notification about a mass deletion of impacted files. The discussion above mentions "simple photographs", without making a decision about them. However, in Austria, they are copyrighted 50 years from taking. See Austrian Chamber of Commerce - https://www.wko.at/branchen/gewerbe-handwerk/berufsfotografie/urheberrecht-bei-fotos.html . The last bullet point contains: "Das Urheberrecht erlischt 70 Jahre nach dem Tod des Urhebers, bei einfachen Lichtbildern 50 Jahre nach ihrer Aufnahme." (The copyright expires 70 years after the death of the creator, for simple photographs 50 years after their recording.)

Should we create a new template for these cases - Simple photograph Austria? It would cover ordinary portraits and other photos (e.g. cropped from magazines), which are:

• Originally published in Austria more than 50 years ago AND
• (with creator known, who is still alive, his year of death is unknown or less than 70 years ago (else prefer {{PD-old}}) OR
• anonymous and published between 51 and 70 years ago (else prefer {{Anonymous-EU}}))?

Another question may be, what is "simple photograph" (e.g., also illustrations of news reports, e.g. from public gatherings, VIP parties or political meetings? Photos of landscapes and buildings in tourist guidebooks?), but as a concept, we should consider it before mass deleting photographs. What does the community think? Sapfan (talk) 11:02, 23 July 2023 (UTC)

Case law from Austria's highest court [1][2][3] says that photos, regardless if by professional or by amateur photographers, are photographic works (with 70 years pma) „wenn man sagen kann, ein anderer Fotograf hätte das Lichtbild möglicherweise anders gestaltet“ (“if you can say that another photographer might have possibly designed the photograph differently”). So basically every single image. No portrait is a "simple" photograph in Austria. Like in Germany, X-ray images, satellite imagery and such might be considered "simple" photographs. --Rosenzweig τ 11:47, 23 July 2023 (UTC)

Thanks, @Rosenzweig: . But are you sure it is as you write? When reading the three cases, I see mentions of the Copyright Act (Urheberrechtsgesetz, http://www.internet4jurists.at/gesetze/bg_urhg2a.htm , later updated as http://www.internet4jurists.at/gesetze/bg_urhg3a.htm ). Here, §3 describes photographic works ((2) Werke der Lichtbildkunst (Lichtbildwerke) sind durch ein photographisches oder durch ein der Photographie ähnliches Verfahren hergestellte Werke.) and §74 specifies the protection period of 50 years after taking, or if published within this period, then 50 years after publishing ((6) Das Schutzrecht an Lichtbildern erlischt fünfzig Jahre nach der Aufnahme, wenn aber das Lichtbild vor dem Ablauf dieser Frist veröffentlicht wird, fünfzig Jahre nach der Veröffentlichung. Die Fristen sind nach § 64 zu berechnen.) The three legal cases deal with a question, if a given work is a copyrightable photograph (threshold of creativity) - not how long the protection should last. All three cases end with an answer, that the works are copyrightable, but my assumption is that then the two §§ mentioned in this comment would apply and their wording indicates that the copyright would last 50 years. But I am not a lawyer - please check again and let me know what I missed. Thanks! --Sapfan (talk) 17:32, 23 July 2023 (UTC)

You missed § 3. (1) Zu den Werken der bildenden Künste im Sinne dieses Gesetzes gehören auch die Werke der Lichtbildkunst (Lichtbildwerke), der Baukunst und der angewandten Kunst (des Kunstgewerbes). – defining Lichtbildwerke (photographic works) as a subset of Werke der bildenden Künste (works of the fine arts / visual arts) – and § 60. (1) Das Urheberrecht an Werken der Literatur, der Tonkunst und der bildenden Künste, deren Urheber (§ 10 Abs. 1) auf eine Art bezeichnet worden ist, die nach § 12 die Vermutung der Urheberschaft begründet, endet siebzig Jahre nach dem Tode des Urhebers (§ 10 Abs. 1), bei einem von mehreren Urhebern gemeinsam geschaffenen Werke (§ 11) endet das Urheberrecht siebzig Jahre nach dem Tode des letztlebenden Miturhebers (§ 10 Abs. 1). – defining the term of protection for works of the fine arts / visual arts as 70 years post mortem auctoris. --Rosenzweig τ 17:49, 23 July 2023 (UTC)

I see. Thanks for the explanation. Then this back door is unfortunately closed. --Sapfan (talk) 18:29, 23 July 2023 (UTC)