About an e-mail

 Yesterday I received a surprising e-mail, it was about copyright which wasn't surprising half my inbox is taken up with that. The odd thing was that the e-mail wasn't accusatory, it was asking for my help. I won't share the e-mail because I think it's bad practice to publicize private correspondence but I'll summarize its contents here.

1. The sender represented an established educational institution
2. That institution is located in Germany
3. They were having trouble contacting the rights owners of a film they wished to use.
4. Said film was L'Atalante by Jean Vigo (a personal favourite)
5. Did I know who the rights holders were or if the rights had expired?

That's the gist of the conversation. If you're wondering why I'd get randomly contacted about L'Atalante, it's because my channel has uploaded a cut of the film with English subtitles, and it's done pretty well if you'll permit the light bragging. The curious thing though is that they found my e-mail address through my Esperanto translation blog. Still in the dark on how that happened. Anyway, I immediately understood the confusion, the reason this person couldn't find the rights holders to negotiate for usage is because they do not exist. 

L'Atalante was written and directed by Jean Vigo and the music was composed by Maurice Chaubert. Jean Vigo passed away shortly before the film was released in 1934 from tuberculosis, and Maurice Chaubert died in combat in 1940 defending France from the German invasion. These facts are tragic, they were both very talented people, and it gets even sadder when you factor in that Vigo and his wife lived in poverty as none of his four films were financially successful in his lifetime. I remember reading an account of Vigo's work that described a situation so bleak that he was forced to sell his camera to raise funds for him and his wife.

This tragedy does mean that all of Vigo's four movies, Apropos de Nice, Zero for Conduct, Jean Taris, Swimming Champion, and L'Atalante are in the public domain in his home country of France and in mine. They also fell into the public domain in the United States of America, since their financial failures in France killed any chance they had of being distributed and thus registered in the United States. I conveyed this information to my new correspondent, so problem solved, right? Well, there is a problem, or more accurately a potential problem. The correspondent and the institute are German, the reason why that matters is that German law has done something very strange in regard to copyright law, well it's done many strange things on that front, I've been meaning to write something up about Germany's situation for a while, so consider the rest of this blogpost a sneak peek. 

The German state, like most European nations, is a signatory to the Berne Convention, and has a term of 70 years after death of the principal authors. So, under that record, L'Atalante should be good to use there as well. However, anyone who uploads public domain material online can tell you getting angry letters or content blocks by companies with GMBH in their letterheads is a frequent occurrence. Why? Well to be blunt copyfraud, at best these companies have licensed a German language version of a foreign film or just made one without authorization and then used that as a pretext to lobby and bully international entities and individuals to remove their "competition".  

The reason for why Germany is so notorious for this behaviour is because there are many loopholes in Germany IP legislation that creates just enough ambiguity for a cottage industry of copyfraud abuses to thrive. This legal grey area isn't helped by the way German law handles international property. If you read German copyright law, you'll notice some very strange and vague passages about international treaties forming the basis of protection in law.

In all other cases, foreign nationals or enterprises whose principal place of business is
not located within the territory to which this Act applies enjoy protection under international treaties. Section 121 (4) sentence 2 and sections 122 and 123 apply accordingly.

 What this passage and the other references are saying is that intellectual property not created by German citizens in Germany is to be handled by nation to nation treaties. To explain further why this is an incredibly dangerous standing, most nations give precedence to their own copyright system for domestic works and apply concepts of country of origin and of shorter term to foreign works, in short if the laws of your country say book X is public domain it is public domain, and if the laws of the country of origin of book X say it is public domain, but your country does not, then it becomes public domain in your nation as well. It's a bit tricky, but all you have to do is consult your own nation's copyright standards and those of the original country. 

What Germany has done here is forced its citizens to become experts on international relations between the German republic and every other nation it has relations with. If the German republic has signed a treaty with another nation that covers intellectual property, and you wish to make use of an IP from that country, you better contact a lawyer to read through the provisions for you. There are treaties between the United States and Germany and German's have been legally censured for using material that should be public domain in Germany but is still under copyright in the US, and many German companies use their business relations with American ones as excuses to try and enforce their contracts globally. 

I have no idea if there is a similar treaty between Germany and France. Annoyingly, German copyright legislation doesn't specify or list which treaties have an impact and are enforced, it just says international treaties can be applied and left it up to the courts. So, I informed the representative of this possibility and recommended that they consult their legal department for advice. 

And that was pretty much it. One thing I'd take away from this experience is don't worry too much if you find IP law extremely confusing, apparently the people in charge of important cultural institutions who have access to legal departments also can't make sense of it.

Public Pride

 

It's Pride Month, so I'll take the opportunity to talk about a project I've been working on for a while, a Queer cinema playlist. There's still work to be done, but fret not, unlike the corporate media the playlist and the films on it won't be privated on the 1st of July, to hibernate until next year. No, I'll be adding to the list of projects I chip away at in my spare time all year round.

Contrary to popular belief, there is a lot of material in the public domain that subverts and even rips apart conventional attitudes regarding gender, sexuality and identity. The terminology was different back then, Homophiles, Uranians, and so on, but the intent and content is there. It can be difficult to find the material in the wild, though. This is for a number of reasons that for the sake of brevity I'll quickly list them.

1. Censorship: Many of these films and shorts were the victims of conservative authorities and reactionary movements. These meant that some important early works were cut up or physically seized and partially or completely destroyed. Infamously the German movie Different from the Others (Anders als die Andern) a very early movie about homosexuality made with the explicit intent of appealing for tolerance from the audience was nearly destroyed by the Nazi party, though it survives in an incomplete form.
2. Terminology: Times change and so does language, this can be a problem for an archivist as lots of content that should be included gets missed since none of the contemporary information uses any of the easy to locate keywords in a search. I've seen multiple 1910s-20s American films that depict a gay or at least non-conformist male character, where the only giveaway before you watch it is the usage of the word sissy. And did you know that in the USA in the 19th and early 20th century the preferred term for homosexual was homophilia? It largely died out amongst queer folk after WWII, but you'll still come across the odd usage into the 1970s. 
3. Lack of Interest: By which I mean lack of interest from the big, established archives and reference works. I know some people think it's rather odd that there are so many specialised archives, collection of "Black American Lesbian filmmakers" and lists of "Gay Russian Composers" and sure in a perfect world where everyone is equal the information in them would be included in the main archives. But, that's the point of things like Pride, isn't it. We don't live in a world where everyone is valued equally. The reason for these fragmented archives and collections is that you simply couldn't find any information in the larger archives because the people and subjects they cover weren't considered important enough to preserve and document. 
4. Discrimination: In addition to legal issues, we have to take into account societal opinion. Being queer in much of the world has been illegal for many years, and even in whens and wheres, that didn't have strong legal instruments against self-expression and behaviour that wasn't proper, society has its own courts and sanctions. So, this meant that works celebrating or just exploring these taboo topics were often done in a manner that provided as much privacy as possible for the creators. Pseudonyms, no registration information and limited production of works and public viewings. Think about the circulation of banned books in a dictatorship, these works still exist, and some few can access them, but until the regime collapses they're going to be scarce commodities, and sadly some regimes can live for quite a long time.
5. Copyright: At least how copyright works now. I discussed some of the ways that copyright law can cause issues for the sharing of and engagement with certain works in my essay on pornographic works. Well, the headaches of Intellectual Property as a concept is the reason this blog exists, but I think the issues with pornography are relevant here. Not that I'm equating pornography with being Trans or Gay, it's just that similar problems arise. In my country, anonymous works are protected for 70 years after release, so if you find some material that for one reason or another was released with no identifiers like a post card with two male models kissing as an example, you aren't supposed to do anything with it until you're sure 70 years have passed. Which has a lot of issues, but for the purposes of this blog a major headache is that works that have been discovered in an archive or private collection then there's a question mark over whether it is legal to take actions to make it more accessible like digitisation of photographs and film reel. Usually this will eventually be worked out after a lengthy process of legal consultation, but that is a slow process and the archive or museum has to be invested in the material to bother. That isn't a unique problem for queer studies either, lots of very interesting and important stuff is in this gray area, it's just one where the institutional biases can exacerbate the issue.

Still, there is some good news, things are slowly improving in an uneven fashion. Institutional programs are starting to care about minorities and are starting to sift through their massive collections. In 2018 I attended a screening of Queer films made in the United Kingdom organised by the BFI (British Film Institute) and shown in libraries across the country. If you've been to a BFI screening in a library, town hall or community centre then you'll know that isn't a mass audience, but it is a step on the road. Atleast they know they have material and are willing to show them to the public, or at least the public who bother to read coming soon boards in municipal service buildings. 

More, and more, relics are being discovered and slowly filtering to the masses. One of the reasons for the delay in making a public playlist was that I had assumed there would be several large master list of fictional films at least, which I could work through and check copyright status, but that didn't pan out. I did find many lists, but they're of the top 10 best style, not very useful for what I'm doing. It's a bit like films that are public domain in the United Kingdom, where I ended up making my own. I don't think I'm capable of doing something like that for this, at least not yet, but there are some fragments of information that I can track some work down, and I'm going to keep plugging a way at it. I think the list will grow and make it easier for others to find some of these works and take what they need from them.