Commons talk:Cut-off date for PD-old files

This is a page for discussion of a proposed policy to introduce a default cut-off for {{PD-Old}} files where the death date of the author is unknown. Per previous consensus, we'll work to a default period of 120 years, though specific details have yet to be worked out. Please discuss specific issues and situations here, and we'll use the main page for the draft policy as it evolves. Once generally agreed, there should be a final !vote before the policy is brought into effect. MichaelMaggs (talk) 01:08, 3 March 2017 (UTC)

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I may not be able to contribute much until next week, but am happy to work on this with interested editors then. MichaelMaggs (talk) 00:59, 3 March 2017 (UTC)

Apologies, all. I have run out of time this week, and will be on holiday next week. I haven't forgotten this and will get back to it as soon as I can. In the meantime, if anyone else wants to jump in, please do. MichaelMaggs (talk) 19:14, 8 March 2017 (UTC)

I don't understand - 120 after the work was produced? Why? Do people produce artworks as soon as they are born, and then live for 120 years on? It seems extremely and unnecessarily excessive.-- Darwin ^Ahoy! 14:21, 8 December 2017 (UTC)

This is for countries where copyright lasts 70 years after the death of the author (this is the rule in many countries, see en:List of countries' copyright lengths. The underlying reasoning is that most of the time an author will die within 50 years after the creation of a work, so that if we don't know when the author died, we can safely assume a work to be out of copyright 120 years after creation. The reason to start the previous discussion, was that some admins used 130 years and others used 120 years, so that the result of DRs depended on who was closing it. Jcb (talk) 15:28, 8 December 2017 (UTC)

@Jcb: Thanks, I had not correctly understood the purpose of the tag. If there is a probability that the author will be known, then that 120 rule should apply, indeed.-- Darwin ^Ahoy! 15:51, 8 December 2017 (UTC)

This is generally about known authors with unknown death dates, though it also can apply to unknown authors that don't meet the legal qualifications for being anonymous. One reason for the 120 year term is that in the US, if the Copyright Office doesn't have a death date, then a work being 120 years old is a complete defense to a copyright claim, provided it wasn't first published in 1923-2002.--Prosfilaes (talk) 23:34, 8 December 2017 (UTC)

Organizations and companies

In many uploaded 19th and early 20th C. works (a GLAM speciality), we see portrait photographs, photographic calling cards, lithographs of photographs, and photographic tourist souvenirs such as postcards from photographs, using the name of a photographic studio or printer/publisher representing many unnamed photographers and contract photographers. The common practice of these group publishers or studios was to not name the photographer, their brand was the company.

This template should never be used in these cases of unknown photographers. The standard rule of 70 years after publication[1] applies as companies and organizations have no lifetime to calculate on. Many cases of early use of this template have been for these cases where the photographer is unknown, and per the precautionary principle use of the word, there is no "significant doubt" that the photographer will remain unknown through reasonable enquiry. Under copyright law, the fact that volunteers have Googled the image and tried to find out more about the photographers, is sufficient to be considered "reasonable".

It should remain common practice to require a strong case is presented to justify "significant doubt" exists when a photographer is unknown. The default should remain the correct application of PD-unknown templates like {{PD-EU-anonymous}} or {{PD-HU-unknown}}.[2]

Note 1. "Publication" should be read as per the United States Copyright Office definition of at least one copy has been made available without restriction. Consequently a postcard or calling card can be considered published, and any photograph that was ever made available to view in an open archive (like a city or University archive) should also be considered "published".

Note 2. As has been explored in several past undeletion discussions, in the copyright acts of some countries, the definition of "anonymous" is legally identical to "unknown". Where a distinction is drawn, this has to be supported by the definitions of specific copyright acts. Should the word "anonymous" not be used, the default of "unknown" has to apply.

--Fæ (talk) 13:53, 14 February 2018 (UTC)

!Voting

•  Support making this policy and adjusting {{PD-old-assumed}} to refer to it. Per 17 USC 302(e), we can safely assume that any anonymous work created or published at least 120 years ago does not enjoy the protection of US copyright law, and is therefore in the Public Domain in the US.   — Jeff G. ツ _{please ping or talk to me} 14:08, 5 March 2018 (UTC)

This does not make any sense as a rationale. We do not all live in the USA and policies should never encourage volunteers to ignore the law of their country of residence. The risk to volunteers is a real one, especially if they have made no effort to determine copyright, and instead slap on this template. --Fæ (talk) 09:26, 6 March 2018 (UTC)

•  Support as per Jeff. Yann (talk) 04:32, 6 March 2018 (UTC)
•  Oppose The PD-old-assumed template is being actively misused right now, even though it has only been applied on a trivial number of files. Until misunderstandings, such as how it should never be used on an old photograph without a named photographer, or it should not be used as a lazy option when the image is public domain and a public domain license can apply. As in practise the template is being used to ignore copyright requirements of non-US countries, the template should have clear warnings for reusers and far better specific guidelines and policy amended, before this can be used in a way that is not misleading or encourages users/reusers to break the law of the source country. At the end of the day, the use of this template must remain a last option after research has failed and is on record, not a default option instead of any reasonable effort to determine copyright status correctly. --Fæ (talk) 09:23, 6 March 2018 (UTC)

@Fæ: Perhaps a second parameter which indicates what research was performed would alleviate your concern?   — Jeff G. ツ _{please ping or talk to me} 16:36, 6 March 2018 (UTC)

No. If you examine the files which currently use the template, hardly any have evidence of research. The template appears to an excuse to not bother doing any. If you want to make evidence of "reasonable research" a requirement, the best policy would be to always start a DR, then point to that if it gets closed as a "keep" against Commons policies. The first step would be to prepare a RFC and write a detailed policy that explains exactly how the template is to be used and to avoid a repeat of all the ways it has already been misused, the circumstances where it should not. --Fæ (talk) 16:48, 6 March 2018 (UTC)

•  Support - per community consensus of last year - as for legal concerns, this template is far safer than randomly calling anything 'anonymous' if the author cannot be found with Google - Jcb (talk) 16:04, 6 March 2018 (UTC)

"Anonymous" works are not mentioned either in this document, or the template you keep misleadingly stating has a consensus. If you want it to address anonymous works, then rewrite the text and start a RFC rather than a haphazard vote against a draft document and a draft template that very clearly has nothing to do with anonymous works. --Fæ (talk) 16:48, 6 March 2018 (UTC)

No, it's just that you keep confusing 'author is unknown to us' with 'anonymous work'. Jcb (talk) 17:15, 6 March 2018 (UTC)

Don't do that. If you are going to make ad hominem claims like this, you must supply links and evidence, not just you saying it as a throw away tangent to make your "opposition" look bad because you want to create a personal argument rather than stick to facts. You can provide diffs on my talk page if you want, however I assert your statement is false and misleading.

Nobody mentioned anonymous works here until you made it part of this section. My statement about the document stands as correct and factual. Thanks --Fæ (talk) 17:38, 6 March 2018 (UTC)

•  Oppose Unclear proposal; unclear consequences. Vysotsky (talk) 16:53, 6 March 2018 (UTC)

Comments

Invalid vote - as Vysotsky highlights, the votes above are against a document and a template which are incomplete, and barely draft due to a lack of case studies or coherent discussion about copyright issues this creates when comparing to the requirements of non-US copyright acts.

As per the official closure of Jcb's original proposal, a RFC and a well written policy is required before a consensus can be credibly established. Having a vote before that will just leave questions unanswered and be a pain in the backside for future administrators and the public who will be repeatedly caught out in misunderstandings and breaches of copyright law when publishing images in books, papers and educational material. Wikimedia Commons volunteers, and implicitly the WMF, have a duty of care to respect copyright law and avoid misleading our readers and reusers. --Fæ (talk) 16:55, 6 March 2018 (UTC)

We decided, in order to close the DR all in the same way, to consider a file old enough when created 120 years ago. So, if we don't want to use this template, we can use {{PD-old}}. I see no contraddiction. --Ruthven (msg) 23:02, 6 March 2018 (UTC)

Could you provide a link to where this was decided? Thanks --Fæ (talk) 23:11, 6 March 2018 (UTC)

Fæ I take it as a rhetorical question. Which template do you suggest to use for 120 yo files with unknown author? --Ruthven (msg) 07:46, 7 March 2018 (UTC)

Legally, you don't need 120 years, so {{PD-old-100-1923}} can apply. The 70 year or 95 year rule runs from date of publication/public exhibition depending on country for unknown authors.

No, I did not ask a rhetorical question. The claim you made was that PD-old can be used for any file created 120 years ago, and there was a claim that "we decided" to close all DRs the same way, using the drafted template. Please supply a link to the evidence that "we decided". Thanks --Fæ (talk) 11:29, 7 March 2018 (UTC)

I let you notice that you suggested all PD-old templates. So, the discussion about PD-old-assumed implies that, if we don't have to use this particular template, we have to use a different one belonging to the "PD-old series". --Ruthven (msg) 16:50, 7 March 2018 (UTC)

The discussion you linked to states:

The next stage, now, should be to open a wide-ranging discussion and RFC of a more detailed policy, based on the preferred 120 year default. Once that discussion has concluded, and rules or guidelines have been agreed for the various specific situations that might arise, there should be a final binding discussion and !vote to bring the new policy into force.

This has yet to happen. That discussion is not a change to COM:L or other policies or guidelines. Neither was it a credible consensus to allow the use of PD-old templates in a way that was not previously acceptable.

In particular it does not give anyone a mandate to freely use a 120 year rule before there are any policies or guidelines that explain exactly how that works or before there is an associated template supported by actual consensus which is sufficiently well written that reusers, such as an author wanting to put a photograph on the cover of their next book, are not misled into thinking this is an irrevocable license, or statement supported by legally meaningful "reasonable" research, that the image is public domain both in the USA and country that they wish to publish in, without risk of later claims of damages or copyright fee claims. --Fæ (talk) 17:06, 7 March 2018 (UTC)

Reusers should not be misled into thinking that any statement of a Commons license frees them of risk of later claims of damages or copyright free claims. Commons actively ignores any rules about works being public domain in the USA, and there are many, many countries in the world without the rule of the shorter term that Commons doesn't care about, even in theory. In practice, stuff gets PD-Old slapped on it because it's old as often as any precise measure of when the author died. Even when we do our best, we can run into misattributions and incorrect death dates, and you're hardly going to get most Commons editors to take the stand and testify they did legally meaningful "reasonable" research.

That said, a PD-assumed template is pretty good protection to reusers. The works of the likes of Picasso, Thomas Mann and H.G. Wells may get lawsuits for 120 years after they published their first works, but trivial research will exclude those types, and the remainder of still copyrighted works are the legal property of people who, even if they know what they own, won't notice or care.

We use an old enough rule on a frequent basis. I can't imagine Commons deleting a work from 1850 just because we won't know when the author died. The only real questions here are where the line is, and whether we're going to use a special template to mark it, or just slap PD-old on it.--Prosfilaes (talk) 21:51, 8 March 2018 (UTC)

@Fæ: If this discussion is not "a wide-ranging discussion and RFC of a more detailed policy, based on the preferred 120 year default", what would be? How would it differ from this discussion? What would be the best way to construct and advertise it? Are there previous such discussions, RFCs, and detailed policies that we could use as models or precedents?   — Jeff G. ツ _{please ping or talk to me} 00:36, 9 March 2018 (UTC)

This seems a weird question for a non-admin to explain to an admin. Have a look at the proposals section for Commons and how past RFC have been done. RFCs are "advertized" by being transcluded in different places and normally run for at least 30 days.

As for what else needs to be done, go see the original proposal linked above and take time to read and think about what has yet to happen. As an example, there has yet to be a credible analysis of the implications of setting a single date, and in specific cases such as Spain, the fact that copyright terms works differently to other well-known countries in terms of copyright (such as Germany or the UK), a detailed discussion may make this template unusable or include custom terms for work with those as sources. --Fæ (talk) 13:30, 11 March 2018 (UTC)

@Fæ: I am not an Admin here (yet). I have not studied the non-user RFC process here. What language would you use to exclude Spain and countries similarly situated, and why?   — Jeff G. ツ _{please ping or talk to me} 01:34, 12 March 2018 (UTC)

The proposal being voted on here is "we can safely assume that any anonymous work created or published at least 120 years ago does not enjoy the protection of US copyright law, and is therefore in the Public Domain in the US." This statement is a Brexit-like side of a bus assertion which does not materially or logically justify the template. The existing template is not supported by multinational copyright acts, it is shamefully Americanocentric, no legal research has been done, we do not even have a Wikimedia Commons case book or half way credible Wikimedia Commons drafted policy.

Jeff, if you want to fix all that, and start discussing actual implementation issues case by case, then please work on the guidelines and plan on establishing a consensus with a proper and well advertised RFC.

I see no point in spending my volunteer time trying, and ultimately failing, to turn this obscure talk page discussion into a weak substitute for doing it right. --Fæ (talk) 08:28, 12 March 2018 (UTC)

Fæ, so far, the only thing you have done is trying to derail the vote. If you doesn't want to positively help conclude this discussion which has received a wide consensus, you better do something else... Yann (talk) 09:49, 12 March 2018 (UTC)

My concern is that this project has guidelines and policies that make sense and are based on facts. This template has no foundations, nor does it have a "wide concensus" even if the idea of having an easy to understand time limit does. Even this vote is against a trivially obvious statement about US images, which does nothing to address non-US country legal requirements. --Fæ (talk) 10:00, 12 March 2018 (UTC)

This template is based on common sense. It is a way to provide an explanation for cases where some information is missing and the legal risk is very very low. It is a useful tool for contributors, and a better solution for reusers than other templates. It is not a perfect solution, but a step in the right direction. I am willing to discuss the wording (add a warning, etc.), to make that perfectly clear for reusers.

More generally, copyright is a domain with a lot of uncertain cases. They are not all black or white. We need to find practical solutions for these cases. Refusing to adopt one solution because some information is missing doesn't help the project. Regards, Yann (talk) 10:43, 12 March 2018 (UTC)

Your words do not relate to the vote above. This vote is about US copyright law and whether a work is PD in the US. For any relevant case of a work where only US copyright law applies, it must have been published in the US. The joke here is that as the date being discussed is 120 years ago, all such works should use the PD-1923 template which actually is legally meaningful and unambiguous. If you want to vote on the 120 year template properly, then create a proper RFC and engage the wider community, rather than pretending that a vote against a misunderstood proposal on an obscure talk page will be a credible consensus. --Fæ (talk) 11:29, 12 March 2018 (UTC)

So you'd rather we have a 'guideline' that's not written down anywhere and is interpreted in varied ways on DRs? It does have foundations; it's based on the idea that someone living for 50 years after their last known work is rare enough that we can ignore it, and that we should have a bright line instead of arguing about the specific details on every DR. I don't know what you mean by "this vote is against a trivially obvious statement about US images"; that's not what it says above.--Prosfilaes (talk) 18:02, 12 March 2018 (UTC)

I quoted what is being voted against. Here it is again: "we can safely assume that any anonymous work created or published at least 120 years ago does not enjoy the protection of US copyright law, and is therefore in the Public Domain in the US". The assumption being that Wikimedia Commons need now only respect US copyright law.

I suggest you examine how the template has been used, especially where it has since been removed. It is being used extremely badly and far better guidelines are needed before newbies are encouraged to start applying it. The same guidelines as were required for a RFC.

A case in point is Commons:Deletion requests/File:Daveys engine 1885.jpg where the 'assumed' template has been incorrectly used as a reason to ignore the absence of a source, the absence of a verifiable publication date, or that there is no known author to have a death date to be concerned about. In the case of Commons:Deletion requests/File:London-slum-1880s.jpg the 'assumed' template is used as a rationale to avoid including any information apart from the original request to find a source; bizarre. --Fæ (talk) 11:26, 14 March 2018 (UTC)

Summary

Workflow to help decide when PD-old-assumed applies

Based on repairing about 50 or more of the misuses of this template and raising a couple for deletion, I have started to create a workflow for my own decisions that might help newbies make sense of where a '120 year assumed dead' rule of thumb could apply or should not apply. The problem with a copyright workflow is keeping it simple enough to follow and focused on where this template fits into the wider issues of multinational copyright. A flowchart is shared here and a SVG version linked to the right. Preparing the flowchart makes it clearer to me that this template is highly likely to be misused in the future, should it pass a RFC. It may even be worth thinking of a new name to make its intent unambiguous. --Fæ (talk) 19:50, 14 March 2018 (UTC)

Thanks, that's useful. Regards, Yann (talk) 05:18, 15 March 2018 (UTC)

You are still misrepresenting {{PD-old-assumed}}. It is also to be used for unknown (not anonymous) authors (as a last resort) as was pointed out in this discussion and the discussion introducing it. Sebari – aka Srittau (talk) 06:30, 15 March 2018 (UTC)

Can you give an example of correct use please? Every time I examine one, I find that PD-old-100-1923 or a local template like PD-EU-no author disclosure are more appropriate. If the author truly is unknown, i.e. any research has been done, then we can use the normal reading of the copyright act for unknown authors. --Fæ (talk) 09:31, 15 March 2018 (UTC)

Whenever we have a name but not the date of death. These include cases when we don't know if the name is a person, a company, or a pseudonym. This happens often on old postcards. Regards, Yann (talk) 10:14, 15 March 2018 (UTC)

That's the opposite case of Sebari's statement. Just to reiterate, the flowchart shows the decisions I have been applying in practice, rather than a hypothetical summary of copyright templates. It avoids a lot of debate if we stick to example cases we can point to. --Fæ (talk) 10:18, 15 March 2018 (UTC)

There are thousands of images attributed to Nadar, but it can be Nadar, or Paul Nadar, or an anonymous collaborator (the copyright was owned by the company in this case). Regards, Yann (talk) 10:35, 15 March 2018 (UTC)

Yes, but you missed the point. Sebari was talking about cases where there is no author name rather than a missing date of death. The missing death date is covered by the flowchart. The flowchart does not directly address pseudonyms or studio names, it probably does not have to. --Fæ (talk) 10:36, 15 March 2018 (UTC)

One example is an "orphaned" image (i.e. one for which the authorship has been lost) from 1895 first published in Germany. I can not see any legal basis to apply {{PD-EU-no author disclosure}} here, since the author might have been known at some point. The German Wikipedia actually points out the difference between an anonymous work and an orphaned work. (I actually question the legality of that template, since, as far as I know, there is no EU-wide copyright law.) Sebari – aka Srittau (talk) 11:14, 15 March 2018 (UTC)

In the spirit of avoiding hypothetical discussion, could you give a link so I can examine the case please? Thanks --Fæ (talk) 11:29, 15 March 2018 (UTC)

Sebari's point is valid for old images with unknown authors, when we have some evidence of the date (I understand that's what you contest in your DRs). There is no point to do extensive research to find a hypothetical author if the result is clearly the same. Regards, Yann (talk) 11:46, 15 March 2018 (UTC)

There are a lot of points but no cases here. Please provide a link to a relevant case(s) that uses the template. Without that I see no reason to reconsider how the flowchart works, regardless of whether Sebari believes something and someone else happens to believe it too.

Again, the flowchart has been created based on experience, not theory.

It would make a great deal of commonsense if any guidelines or changes to policy to allow this new "weakly assumed PD by age" template were underpinned by a case book of good examples that any newbie can relate to, rather than reading copyright acts in several languages and grappling with legal definitions of individual words, often contradicting what many contributors presume they mean from an understanding of plain English. --Fæ (talk) 12:29, 15 March 2018 (UTC)

We just need to agree on a few simple rules. It doesn't need to be complicated. See e.g. portraits from Category:People of the Paris Commune. These fit into your chart. Most use PD-old-70. So the issue is whether we use a precise template, but which may be wrong, or a less precise one, but which describes the situation more accurately. Regards, Yann (talk) 16:39, 15 March 2018 (UTC)

Another example from UK, a bit more recent: File:Churchill, uniform.jpg. Yann (talk) 16:47, 15 March 2018 (UTC)

Sorry, searching the examples, I have yet to find any use of PD-old-assumed and other templates are covered by the workflow in its current version. Please link to a case. If nobody can, then I don't think there is a real issue here, or it's so rare that there is no point including the scenario in the flowchart. --Fæ (talk) 16:51, 15 March 2018 (UTC)

Fæ: These files do not use PD-old-assumed, but IMO, they should. That's my point. Regards, Yann (talk) 17:08, 15 March 2018 (UTC)

On that we have to disagree. PD-old-70 is accurate for unknown authors where the national law (non-US) allows for the calculation to be based on original date of publication, or in some cases creation. The caveat on templates such as {{PD-Polish}} is also fine, as the requirement for evidence should never be less if someone wishes to apply PD-old-assumed. The main reason that PD-old-70 is better than PD-old-assumed, is because PD-old-70 makes no assumptions and instead simply complies with copyright law. For these reasons reusers have credible assurance that the images are low risk to reuse, while considering how PD-old-assumed has been so badly used to date, no reuser can have confidence that the image will not be deleted from Wikimedia Commons due to copyright issues once someone takes a better look at it than the uploader did, naturally leaving the reuser hanging in the wind. --Fæ (talk) 17:18, 15 March 2018 (UTC)

It is not bad to make assumptions, when the assumption is reasonable. And it is certainly better to explain these cases in details than to provide a wrong template. In these cases, PD-old-70 is wrong, as no author is mentioned. {{Anonymous-EU}} or {{PD-EU-no author disclosure}} may be better, but is the author really unknown or anonymous? We don't know. For reusers as well as for contributors, {{PD-old-assumed}} is much more suitable. It doesn't provide any wrong information, but it explains the case. Regards, Yann (talk) 17:38, 15 March 2018 (UTC)

It is bad to claim assumptions when there is none. The example you gave of the circa 1895 photo of Churchill is PD-old-70 (or 100 could apply) as the photographer is declared as unknown in the reference archives. In UK copyright law the calculation is 70 years after publication for unknown authors. In this case the "assumption" template would be misleading and potentially put off reusers. In the case of an academic wanting a copyright free photo for a book, I would strongly advise against risking the use of a "PD-old-assumed" photo dating from the 1890s without doing more research or finding a version with a legally meaningful PD statement. --Fæ (talk) 17:50, 15 March 2018 (UTC)

At Commons:Deletion requests/File:London-slum-1880s.jpg, you say "this is a case study of how {{PD-old-assumed}} is being used as a substitute for an attempt to make a reasonable effort to assess copyright status." As you can see from the original upload, this has been on Wikimedia servers for seven years under a PD-Old license. So I would strongly advise against risking the use of a "PD-old" photo in the exact same way.--Prosfilaes (talk) 22:16, 19 March 2018 (UTC)

Newspapers

La Patrie (1899-02-19). Some of the articles have bylines, and some of the pictures are signed. The authors of other contributions are not identified here but may have claimed authorship elsewhere.

What are the chances that an 1890s newspaper page holds non-free work?

PetScan counts of .en wikipedia articles in category:photographer and category:1949 deaths thru category:1955 deaths are:

Query	Died	Total	Born pre-1867	Name	Born	Age
[1]	1949	13	4	Benedicte Wrensted	1859	89
				Johann Victor Krämer	1861	87
				Anders Beer Wilse	1865	83
				Marie Høeg	1866	82
[2]	1950	11	1	Arlington Nelson Lindenmuth	1856	94
[3]	1951	12	3	Sebastian Finsterwalder	1862	89
				Jean-Baptiste Tournassoud	1866	84
				Alfred John Tattersall	1866	85
[4]	1952	9	0
[5]	1953	17	2	Frederick Lawson Whitlock	1860	93
				Barnett McFee Clinedinst	1862	90
[6]	1954	10	4	Friedrich C. Krichauff	1861	92
				Auguste Lumière	1862	91
				Oscar Grossheim	1862	92
				Rosaline Margaret Frank	1864	89
[7]	1955	18	2	Hugh Exton	1864	91
				Henry K. Landis	1865	90
Totals		90	16 (18%)

About a fifth of photographers who lived just long enough for their work to still be under copyright in 2018 were aged over 30 in 1898. The reverse may also be true: about a fifth of photographers who were in their twenties in the 1890s were still alive in 1949. To test that theory, I ran a scan on photographers born in 1862, who would have been about 36 by 1898:

Name	Died
Auguste Lumière	1954
en:Herbert Guthrie-Smith	1940
en:Alfred Darling	1931
en:Karl Emil Ståhlberg	1919
en:Burr McIntosh	1942
en:Victorin-Hippolyte Jasset	1913
en:Eugène Lefèvre-Pontalis	1923
en:Christina Broom	1939
en:François-Rupert Carabin	1932
en:François-Edmond Fortier	1928
en:Oscar Grossheim	1954
en:Graystone Bird	1943
en:Adolf Miethe	1927
en:Helen Messinger Murdoch	1956
en:Sebastian Finsterwalder	1951
en:Henry Walter Barnett	1934
en:Ella E. McBride	1965
en:Barnett McFee Clinedinst	1953
en:Adeline Boutain	1946

Out of 19 results, six (32%) died after 1948. Notable photographers seem to live a long time. Maybe it is something to do with the chemicals they use! It is quite possible that a pre-1898 newspaper is still non-free in countries where contributors to newspapers retain copyright in their work and copyright lasts until 70 years after death.

When we have a single newspaper page image that shows the work of several authors, the risk that one of them is non-free is considerably higher than the risk with an individual work. If there is a 2% risk that a given contribution is non-free, and there are 15 contributions, the risk of at least one non-free work is 1 - .98¹⁵, or about 27%, I think.

See the recently-started essay at Commons:Collective work. This discusses publications like newspapers, magazines and encyclopedias that contain contributions from several authors. The essay says there is community consensus that any collective work older than 120 years may safely be considered public domain. Is this a reasonable assertion? Aymatth2 (talk) 02:48, 13 October 2018 (UTC)

In most cases this will be true. This would only not apply if an individual author can be identified for a specific part and we know that the work of that author is still copyrighted, e.g. the author is from a PMA+70 country and we know that they died less than 70 years ago. In all other cases we can at least use {{PD-old-assumed}}. Jcb (talk) 11:12, 13 October 2018 (UTC)

In the example shown of La Patrie (1899-02-19), published in a PMA+70 country, two of the writers have bylines and the others are not identified. Four of the pictures have semi-legible bylines and the others have none. Google searches find Lucien Millevoye (1850–1918) but none of the other bylines. Of course, any of the contributions may have been reprinted elsewhere with the author identified and dated, so may turn out to be non-free. I have tagged this image as {{Collective work}}, warning users to be careful about pulling out and using individual articles or images unless they are sure they are public domain.

The problem with {{PD-old-assumed}} on a page with multiple authors is that a low probability that any given part is non-free does not necessarily mean a low probability that all the parts are non-free. My crude calculation above shows there is a 1 in 4 chance the example page has non-free content. Aymatth2 (talk) 12:36, 13 October 2018 (UTC)

Acceptable probability of error

@MichaelMaggs, Jcb, Fæ, DarwIn, and Prosfilaes: ,@Vysotsky, Jeff G., Ruthven, Srittau, and Yann: Have we ever discussed what probability of a copyright violation we would consider acceptable when reasonable attempts to track down an author and/or their age fail? 1%? 5%? If we could agree on that number, it may be possible to use the raw data in Commons to roughly estimate the post-publication duration needed to achieve that level in death+70 jurisdictions for individual works and for 5/10/20-author collective work pages. Aymatth2 (talk) 21:32, 14 October 2018 (UTC)

We had a comprehensive community discussion, which ended in a vote, in which the community decided to use 120 years as a safe line for PMA+70 countries if the date of death of the author is unknown. The chances that a single author was still alive in 1948 for a 20-author work is the same as the changes that a single author was still alive in 1948 for a random set of 20 pictures. The community concensus is that the risk after 120 years is low enough to accept it. Jcb (talk) 22:00, 14 October 2018 (UTC)

I could back-track from 120 years get an acceptable probability of error for single-author works. Based on the tables in the previous section, a very small sample with a lot of unknowns, my guess is that is around 5–10%. To get the same probability of error for 20-author images we would obviously have to use a longer duration than for single-author images, while allowing for the fact that 20-author newspaper pages may contain a lot of short articles or 1-column images that are less likely to have an identifiable author than portrait photos.

To illustrate the problem, imagine throwing a dice. A six is bad and anything else is good. On a single throw, you have a 1/6 chance of a bad result. But suppose you throw the dice twenty times, once for every author on a twenty-author page. The chance that at least one of those throws will give a six, a bad result, is about 39/40. An acceptable 5% error rate for individual authors would translate into an unacceptable 65% error rate for pages with 20 authors. But if we require longer durations for multi-author pages, we can push the error rate back down to 5%, or whatever rate is acceptable. Aymatth2 (talk) 02:56, 15 October 2018 (UTC)

IP is a legal question, rather than probability. The analysis that would be presented in a court, is what reasonable searches were done to identify copyright holders and status. For very old works, a simple archive search or quoting a curator's record would be evidence sufficient to protect both uploader and Commons. A negative search is evidence. --Fæ (talk) 09:33, 15 October 2018 (UTC)

The wording of {{PD-old-assumed}} is:

The copyright situation of this work is theoretically uncertain, because in the country of origin copyright lasts 70 years after the death of the author, and the date of the author's death is unknown. However, the date of creation of the work was over 120 years ago, and it is thus a reasonable assumption that the copyright has expired (see here for the community discussion).

There is no mention of searches, reasonable or not. As an uploader, I would take this to mean that if the work is more than 120 years old and I do not know when the author died, I can assume the copyright has expired due to its age. The chance it is still protected is small enough to be acceptable. I like the simplicity of a cut-off date, and am looking for the right wording for {{PD-newspaper}} and the essay Commons:Collective work. Given the higher risk of error on multi-author pages, maybe they should give a 130 year period and say a reasonable search must be done. Aymatth2 (talk) 11:49, 15 October 2018 (UTC)

@Aymatth2: That is is a good compromise, but I'd like to see reasonable searches defined, with links to best practices and resources for accomplishing them.   — Jeff G. ツ _{please ping or talk to me} 12:13, 15 October 2018 (UTC)

@Jeff G.: I dug around a bit, and find that most jurisdictions are distinctly vague about what constitutes a reasonably diligent search for the copyright owner of an orphaned work. E.g. [8] and [9]. The US copyright office, not directly relevant here, makes the good point that, "... a user seeking to locate a photographer or illustrator of an image that has no identifying information on the work itself faces a daunting challenge. ...even if a photographer has registered his works with the Copyright Office, it may be the case that a user will not be able locate that owner.[10]. Canada is a bit more helpful:

The Copyright Board advises the potential user ... to contact different collective management societies and publishing houses, universities and museums, provincial departments of Education, registration systems of copyright offices, to investigate inheritance records, to consult indexes of national libraries, and simply to search the internet. The Board is flexible on what constitutes a reasonable search depending on the nature of the work being used.[11]

The problem may not be nearly as tough for collective works, where the title, date and publisher are generally known. A reasonably diligent search would at minimum involve

1. Where authors are named, search sources such as those defined by Canada to try to get their date of death,
2. Attempt to track down the collective work publisher or their successor,
3. Ask them for information on authors of a particular issue.

All of these may fail, but at least the uploader tried. There should be a caution on a curator's opinion: the curator may correctly say that a collective work is in the public domain, but that should not be taken as meaning that the component works are in the public domain, which is what we need for Commons. I am inclined to add words like this, but leave a 130 year rule, basically saying "if it is less than 130 years old and there is any doubt, don't even think about it." Aymatth2 (talk) 14:37, 15 October 2018 (UTC)

The community has chosen 120 years, not 130 years as a save line. Several users (including myself) have voted 130 years, but the clear majority voted 120 years. So the community took a decision. You may have an opinion on this, maybe even an informed opinion, but the community decision stands. Jcb (talk) 14:55, 15 October 2018 (UTC)

@Jcb: The community has chosen 120 years for individual works, and I am not challenging that. This is for a collective work, where the risk is much higher due to the number of authors. {{PD-old-assumed}} says "the author", where here we are talking about "all the authors". Aymatth2 (talk) 15:13, 15 October 2018 (UTC)

The important point, made above by Fae, is that copyright is a legal question, rather than probability. One of the reason 120 years was chosen is that it is the duration given by US law for unpublished work to become public domain. If US legislators decided that 120 years is long enough (rather than 130 or 110 years), it is not randomly, but because any copyright claim has very little chance to success after that time (I don't know if I am clear enough). Regards, Yann (talk) 15:25, 15 October 2018 (UTC)

"Very little chance to success" is reasoning based on probability. Anyway, we are not discussing unpublished individual works in the US, with its very distinctive copyright laws, but published collective works in mainstream PMA+70 countries. Aymatth2 (talk) 15:38, 15 October 2018 (UTC)

Yes, but the idea is the same: that after some reasonable time, copyright should elapse. And it is not really a question of probability, but rather that the claim cannot be back up by proof. Regards, Yann (talk) 15:43, 15 October 2018 (UTC)

In PMA+70 countries, copyright expires 70 years after death, a reasonable time. There may well be a paper trail of works published in a newspaper, perhaps not for all the articles and pictures, but for some of them. These are not old snapshots found in Granny's kitchen drawer. It is likely that one or more of the many authors in an 1895 newspaper were still alive in 1949, less likely with an 1885 newspaper and very unlikely with an 1875 newspaper. Aymatth2 (talk) 16:12, 15 October 2018 (UTC)

@Fæ and Jeff G.: I have tweaked the wording of {{PD-newspaper}} to introduce the idea of a "reasonably diligent search", with a link to a section in Commons:Collective work. I am sure the wording could be improved. Any comments welcome. Aymatth2 (talk) 19:38, 15 October 2018 (UTC)

Random break

For newspapers, there are good reasons to consider that a carte blanche template for uploaders is a mistake. For example around 5 years ago the British Museum invested a small fortune in digitizing and releasing newspaper scans as public domain. They invested a significant amount of research in copyright investigations and set a cut off date of 1884 (I think, I'm going by memory). The PD-Assumed template is massively misused, by a factor of something like 50% of all usage so far has been either fairly obvious copyfraud, or arbitrarily marking much older and very obviously public domain images as "assumed".

Rather than creating more templates based on a discussion that was never closed as a proper consensus, as the policies/guideline to implement it was never created or agreed, the starting point here should be a correctly formal proposal.

P.S. As an example of blatant misuse, even though this template is barely being used, cases like File:Gazette litteraire de Montreal.jpg are unacceptably bad for an original document well over 200 years old. --Fæ (talk) 19:44, 15 October 2018 (UTC)

I see no problem with using {{PD-newspaper}} to tag any newspaper that is in the public domain, including very old ones. The PD-old family makes no sense for a collective work with multiple authors. {{PD-newspaper}} says everything is known to be public domain, or it is over 120 years old and the uploader has performed a reasonable search. Perhaps it should be reworded to say "if it is more recent than 18xx they did a search ...". Wording improvements can be discussed and agreed on the template talk page in the normal way for a wiki.

The real problem is that all the licensing templates are constantly abused. I have found newspapers tagged {{PD-old}}, which makes no sense on a 1945 newspaper front page, {{PD-anon-70}} when authors are clearly identified, {{PD-art}}, {{PD-self}}, {{Self}} and even {{PD-text}}. We need templates that cover standard situations. Equally urgently, we need better guidance and policing. Easy for me to say... Aymatth2 (talk) 20:16, 15 October 2018 (UTC)

I would rather see this template marked as draft and not in use, rather than encouraging another type of misuse. Other stuff being misused is not a reason to create more. No, marking 200 year old documents as some variant of "PD-Assumed" is not acceptable as they are public domain world wide. Marking them otherwise is misleading and discourages reusers, which defeats the point of this project existing. --Fæ (talk) 20:24, 15 October 2018 (UTC)

I know of no other template that is appropriate for PD newspaper pages. @Fæ: what is the latest year for which we can say "This newspaper page is in the public domain everywhere because it was published before 18xx"? Aymatth2 (talk) 20:50, 15 October 2018 (UTC)

Marking 200 year old documents as some variant of PD-old, same as screenshots and 10 year old newspapers discourage reusers, as well. There's no solution except for people going through all the license tags and making sure they're correct.--Prosfilaes (talk) 22:18, 15 October 2018 (UTC)

But there are no license tags that cover multi-author works. @Fæ: what is the latest year for which we can say "This newspaper page is in the public domain everywhere because it was published before 18xx"? Aymatth2 (talk) 23:04, 15 October 2018 (UTC)

Jeanne Calment (21 February 1875 – 4 August 1997) was a French supercentenarian who has the longest confirmed human lifespan of 122 years, 164 days. Newspapers are fond of writing about supercentenarians, and quoting directly from them their copyrighted secrets to long life, but only contemporaneously or within the last year of life (in the case of obituaries). However, let us say for argument's sake that she wrote something in her college newspaper or yearbook in France at age 16 in her final year there in 1891. Her copyright for that writing would last through 1997+70=2067, for a total of 176 years and change.   — Jeff G. ツ _{please ping or talk to me} 06:35, 16 October 2018 (UTC)

Based on real examples, and in the absence of any other information, like country of publication, 1860. --Fæ (talk) 10:48, 16 October 2018 (UTC)

I fixed File:Gazette litteraire de Montreal.jpg. One badly used example doesn't make the whole template an issue. Regards, Yann (talk) 08:55, 16 October 2018 (UTC)

You miss the key point. This was the only use case and it was a bad one. We do not need this template. --Fæ (talk) 10:48, 16 October 2018 (UTC)

We need a template or templates to cover collective works such as newspapers where there is more than one author. Templates like {{PD-old}} that refer to "the author" obviously do not work. I think the present {{PD-newspaper}} is o.k., but would be comfortable with adding duration-based tags, e.g. PD-newspaper-160 with a simple statement that it is in the public domain because over 160 years have passed since publication, or country-based tags, e.g. PD-newspaper-US, saying why it fits the rules for that country. If a template obviously fits the kind of image being uploaded, the uploader is more likely to use the right template - or to realize their image is non-free. Aymatth2 (talk) 13:01, 16 October 2018 (UTC)

Frankly, no we do not need a generic template that will be endlessly misused. If we can name the newspaper, then that gives us the publication country, consequently the relevant copyright law. You then go to COM:CRT to check how that works and apply a template that is relevant, credible and precise rather than creating another PD-Assumed mess that damages the foundations of this project.

If this were really needed, you would be able to produce a relevant case book. You have not, and should you try, it will probably show how much the template would be a bad idea. --Fæ (talk) 13:10, 16 October 2018 (UTC)

The country-specific templates tend to have specialized uses, e.g.

Slovakia	{{PD-SlovakGov}} – for public domain Slovak official works, public documents, etc.
Slovenia	{{PD-Slovenia}} – for works whose author died before 1945 or published before 1945 if anonymous (public domain prior to introduction of the new law in 1995)
	{{PD-Slovenia-exempt}} – for non-protected creations in Slovenia (ideas, principles, discoveries; official legislative, administrative and judicial texts; folk literary and artistic creations.)
South Africa	{{PD-South-Africa}} – for photographs from South Africa 50 years after publication.
	{{PD-South-Africa-exempt}} – for (images of or from) South African official texts of a legislative, administrative or legal nature.
Spain	{{PD-SpanishGov}} – for works by the Spanish government
	{{PD-SpanishGov-money}} - for images of the former Spanish pesetas currency
	{{PD-La Moncloa}} – for content from www.lamoncloa.gob.es which was selected or coordinated by the Secretary of State for Communications (only valid for images uploaded before 26 November 2012)
Sudan	{{PD-Sudan}} – photos and films 25 years after publication, starting from the publication date.

Until now, there have been no templates that cover newspapers. Aymatth2 (talk) 13:20, 16 October 2018 (UTC)

I have no idea why you produced that table. It appears to be deliberately misleading as to the scope of the templates. PD-Slovenia applies to newspapers, European law applies in Spain including newspapers, PD-Sudan applies to newspapers. All these cases show is that we have perfectly usable current templates and going to a generic fudge of a PD-Assumed variant, without a credible proposal or consensus, would promote misuse and cause confusion when the law in these countries is at least navigable and legally applicable. --Fæ (talk) 13:28, 16 October 2018 (UTC)

The table is extracted from Commons:Copyright tags#Country/Region specific tags Aymatth2 (talk) 20:28, 16 October 2018 (UTC)

@Fæ: You may want to skim through The Myth of European Term Harmonisation: 27 Public Domains for the 27 Member States. How would you tag a Spanish newspaper from 1895 where you have not been able to find evidence of any of the authors living past 1948? Aymatth2 (talk) 13:46, 16 October 2018 (UTC)

In Spain the rule is life + 80, so I would not upload the image. As for someone's position paper, no I'm not going to read that thanks. Produce a significant completed legal case or legal ruling and that may change our understanding of the law. Thanks --Fæ (talk) 15:46, 16 October 2018 (UTC)

It is worth noting that with newspapers we are concerned with two separate requirements: the newspaper as a whole must be public domain, and the individual contributions must also be public domain. In Slovenia, for example, copyright on a collective work normally expires 70 years after publication, and the author by default assigns all rights to the publisher. However, the author's contract may let them retain their rights, and we must assume this is the case.

@Fæ: How would you tag a Spanish newspaper from 1885 where you have not been able to find evidence of any of the authors living past 1948? Aymatth2 (talk) 16:04, 16 October 2018 (UTC)

In Spain the rule is life + 80, so I would not upload the image. I think this discussion has bottomed out. There is no clear case for this template to be used compared to the current use of more precise templates and copyright statements. --Fæ (talk) 16:12, 16 October 2018 (UTC)

@Fæ: How would you tag a Spanish newspaper from 1865 where you have not been able to find evidence of any of the authors living past 1948? Aymatth2 (talk) 16:26, 16 October 2018 (UTC)

When a collective work goes out of copyright it may be reproduced as a whole, but the images or articles it contains may still be under copyright. These should not be reproduced stand-alone. On the other hand, in some countries copyright in a collective work such as a newspaper may last much longer than copyright in some of its articles and pictures. In these cases, a public domain contribution may be extracted and reproduced separately, but not reproduced in the context of the collective work. {{PD-newspaper}} tries to cover both these situations, while the other license tags do not, since they only cover individual works.

This is straying a long way from the question of what the post-publication duration should be for newspapers, given the much higher risk of copyright violations than for individual works. I would prefer 130 years, but the addition of the reasonably diligent search requirement should at least in theory prevent problems. Aymatth2 (talk) 18:46, 16 October 2018 (UTC)