Can I Use U.S. Public Domain Works To Create Products For Sale In Germany?

Hello Debra, Hello Logan,

It is a long time since I bought your package. Must have been May or June last year. But now a serious question poped up and I hope you can help me with that.

Is it legal to use any of the PD stuff (books, fotos, movies, etc.) that’s available in the US to sell it in Germany?

I’m thinking of selling special books on CDs for the use as resouces in English courses at school.

Thanks in advance for your help.

Kind regards

Jens

Hi Jens,

Thanks for the great question and I ‘m really glad you are asking this.

As time permits, I recommend a review of our report, “The Global Copyright Dilemma” which came as a bonus with your kit.

Most countries of the European Union do actually apply the “rule of the shorter term” or “comparison of terms” to works published outside of the EU as directed by the Copyright Duration Directive (93/98/EEC).

In a nutshell, this means that countries of the European Union can judge a foreign work’s (non-EU countries) copyright status based upon the copyright status of the work in it’s country of origin.

This is why in many EU countries, if a work is Public Domain in the U.S., it’s automatically Public Domain in most EU countries as well.

However, the articles within the Copyright Duration Directive (93/98/EEC) that provide for the mandatory application of the rule of the shorter term can be overrode if there were signed bilateral copyright treaties in place before the Copyright Duration Directive (93/98/EEC) came into existence.

Unfortunately, such is the particular case with Germany.

In 1892, the U.S. and Germany agreed on a bilateral copyright treaty that stated that works of either country were copyrighted in the other country by the other country’s laws.

This treaty is still in effect and enforced today, even though the treaty was signed into effect over 100 years ago.

In other words, just because a work is Public Domain in the United States doesn’t necessarily mean that the same work is no longer under copyright protection in Germany.

When assessing the copyright status of a Public Domain book from the U.S., you have to apply Germany’s copyright laws to the work to determine the copyright status of the work in Germany.

Since Germany follows the 70 years after author’s death copyright duration like other countries of the EU, you would have to take that into account.

As a helpful rule of thumb, any book that is Public Domain in the U.S. will be Public Domain in Germany as well as long as the author of the book died more than 70 years ago, or before 1940 as this is being written.

Let me know if you need any further clarification but basically what this whole thing means is that you have to apply the copyright rules of Germany to any Public Domain work from the U.S. that you may be thinking about using before making a determination as to whether the work is actually Public Domain in Germany as well.

As long as you are using Public Domain material to create physical products for sale in Germany, this will apply.

Thanks Jens!

Logan

Hi Logan,

Thanks for your quick reply.

Your explanation helped a lot to clarify that issue, especially for written materials. But what about music, photos and videos that are  e.g. downloadable from the Library Of Congress? How to deal with that?

Let’s say I’d like to create a CD-ROM with photos and videos of World  War 2. As you stated in one of your newsletters, they are mostly PD in  the US. But how can I find out if they are PD in Germany as well? Or  can I suppose, that if the material is from an official US government  site and the resources are PD, that they are PD in Germany too?

Thanks in advance for your help.

Jens

Hi Jens,

The materials at the Library of Congress consist of both materials produced by individuals as well as materials produced by the U.S. Government so we have to address this in these two very different areas…

As far as music, photos and videos created by individuals, just like written
materials, you have to apply German copyright law to these items on an individual basis to determine what their copyright status is in Germany.

As far as music, photos and videos created by the U.S Government, you’re right, these works are automatically Public Domain in the U.S. technically however, a U.S. Government work, although excluded from copyright protection within the U.S., may actually be protected by copyright abroad.

U.S. Copyright Laws basically state that works produced by the U.S. Government may be protected by the copyright laws of foreign countries.

That’s why sometimes in a work produced by the U.S. Government, you’ll see a notice such as this…

“This is a work of the U.S. Government and is not subject to copyright protection in the United States. Foreign copyrights may apply.”

For instance, when determining the copyright status of a U.S. Government
document in Germany, you have to apply German copyright law to it and
realize that techinically, it would receive the same amount of protection
that Germany currently offers to documents produced by it’s own government.

I don’t know what the copyright duration is for works produced by the German government – for some reason that simple fact continues to allude me.

If you can find that out, then you’ll know how long U.S. Government works
are protected in Germany.

I just wanted you to understand all of the above before I told you this…

The fact of the matter is that although U.S. Government works do enjoy
copyright protection abroad, rarely if ever is this copyright protection actually enforced.

In other words, I seriously doubt that you would get yourself into trouble
with the U.S. Government for selling CD’s in Germany packed with U.S.
Government produced information that’s Public Domain in the U.S. – the U.S.
Government has much bigger issues to worry about.

Thanks Jens,

About The Author:

Logan Andrew is an online entrepreneur, information publisher, and author that has been using Public Domain material to create profitable products and businesses since 2001. He is also co-author of "The Public Domain Treasure Hunter's Survival Kit" available here. For more info Logan, click here.

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