Mondriaan need not apply

9 januari 2015

After cleaning up fireworks, stale beer and wine glasses, everyone should celebrate the first day of a new year with public domain day. On this day we celebrate the life works of great authors, painters, poems, musicians, etc. who have died over 70 years ago. When authors have been dead for more than 70 years++Term of protectionIn some countries this is 80 years, in others 50 and in some even 100., their creative works are no longer protected by copyright law, so they can be used without permission from the authors or their heirs.

This is great news for the further spread of our cultural heritage. High quality websites like the Rijksmuseum’s rely heavily on those parts of their collections that are in the public domain. Those digital reproductions can be presented online in full detail without legal and administrative trouble++Determining statusHowever, determining the public domain status of a work is in itself already an enormous challenge..

This holds even more for volunteer-based projectWikipedia. Wikipedia aims to compile the sum of all human knowledge, including all our cultural history. To properly communicate knowledge you need to enrich this experience with as much media as possible. Unfortunately you can’t, because Wikipedia is a US-based organisation.

In the US works created by authors who died more than 70 years ago only enter the public domain when they are published outside the US after January 1st 1978. This does not include most of the corpus of Mondriaan. This confusing rule is due to copyright term extension in the US, enacted in 1998 which effectively closed the public domain from new entries until 2019.+

+Read moreOn the website of Duke University centre for the study of the public domain.

To make it even more complicated: there is an exception. Part of Mondriaan’s work was already in the public domain in the US, but not in most other jurisdictions. This deals with all his works created outside the US after 1923. The US-based Mondrian Trust claims that roughly 45% of all works created by Mondriaan are still protected by copyright in the US. This means that the works that were already public domain were allowed to be used on Wikipedia but not reused in most jurisdictions++Although people can usually assume that works found on Wikipedia can be reused, this example proofs that is not always the case. Until 2015 Europe could not reuse Mondriaan’s work although it was available on Wikipedia..

WikipediaPublic Domain Day should be a great day for Wikipedia, it isn’t. hosts (part of) its media repository – Wikimedia Commons – on servers in the US, they therefore have to abide by the laws of that country:

“When uploading material from a country outside the U.S., the copyright laws of that country and the U.S. normally apply.”

Composition London
Composition London

‘Composition London’ is not allowed on Wikipedia until 2019. I, however, am allowed to put it in a blogpost here.

Maker: Piet Mondriaan

Rechten:

Original

Download
‘Composition London’ is not allowed on Wikipedia until 2019. I, however, am allowed to put it in a blogpost here.

This location of the servers provides a great loss of experience to the greats of the past. For example, this year alone works by Edvard Munch, Piet Mondriaan, Glenn Miller and many more great artists have entered the public domain in many countries. None of their works can be shared on the largest knowledge-sharing platform in the world: Wikipedia.

The Internet removes borders, which means that we can benefit from US-based projects like Wikipedia. A (sometimes negative) side effect of this is that local laws get de facto exported to the rest of the world. Choosing servers in the US means that you need to abide by those laws. This has a most disturbing influence on our (that is to say European) legitimate access to our cultural heritage. Until at least 2019 I suggest that European cultural heritage should stay far away from storage solutions that are based in the US. And perhaps Wikipedia should consider getting out++Moving serversThe Wikimedia foundation might want to consider moving its servers to a jurisdiction with an active public domain, although they would most likely lose the benefits from the US fair use doctrine. as well.

Is it even more complicated? Let me know at mz@kl.nl.