You have raised a problem which is far from settled internationally, when looking at things which are published on the internet. This falls within the legal doctrine known as <a href="https://en.wikipedia.org/wiki/Standing_(law)">Locus Standi
</a>. I'll try and cover that in a moment.
But first, the way that the 'rule' of the shorter term is supposed to work in countries which are signatories to one of the two main international treaties on copyright (the Berne Convention
and the WIPO Copyright Treaty (WCT)
) is as follows. A copyright work which originates in one signatory country (country A) is to be given the same protection in country B as would be given to works produced domestically in country B, as long as that does exceed what would be available in the country of origin (country A). So far so simple. The complication comes when a work is published simultaneously in more than one country, when generally speaking, the terms of copyright protection will be based on the local legal limit without reference to what may be available in the apparent country of origin (eg where the author was based at the time the work was created). And the second, minor, departure from the simple rule of the shorter term occurs within the EU, where the term for all member states has been harmonised at 70 years post mortem, but because some member states had a longer term (eg Spain had 80 years) prior to the introduction of harmonisation, all EU* member states are required to recognise the longest term which applied to a work which was in copyright in a member state on 1 July 1995 .
Application in time
1. Where a term of protection, which is longer than the corresponding term provided for by this Directive, is already running in a Member State on the date referred to in Article 13 (1), this Directive shall not have the effect of shortening that term of protection in that Member State.
2. 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 the date referred to in Article 13 (1)[that is, 1 July 1995], pursuant to national provisions on copyright or related rights or which meet the criteria for protection under Directive 92/100/EEC.
Extract from Article 10 of the original Copyright Term Directive 93/98/EEC
So to return to the issue of the internet and where things are published, as you say, this can effectively mean that protection can vary across the world. And the problem is not just restricted to the copyright term. It includes other things such as the jurisdiction of the courts to hear copyright infringement claims and indeed whether copyright subsists at all for the work in question. A good example of the latter was a case called Lucasfilm v Ainsworth
in which the director of the Star Wars films, George Lucas, sued the man who had made the helmets worn by the stormtroopers in several of the Star Wars films, for selling copies of the helmet to fans. Lucas won in the USA where the law said that the helmets were subject to copyright but he lost in the UK courts where it was found that the helmets were not copyright works. Since the defendant, Andrew Ainsworth, is a UK citizen and was operating his business from the UK, he was largely unaffected by the US decision.
The current muddle exists because the main treaties I mentioned earlier (Berne and WCT) pre-date the existence of the internet as we know it today and so make no special provisions for it. The way a sort of harmonisation is being brought about is through various bi-lateral and multi-lateral trade treaties (for example, the TPP
) which amongst other things, require signatories to apply the 70 year term in their domestic copyright law. However the main proponent of this drive to raise the term is the USA, and as it is perceived that this is being done at the behest of Hollywood and the other large US commercial interests, there is some resistance to this form of apparent trade imperialism.
So in the absence of any universal agreement over such issues as which legal system should prevail in international disputes, the courts tend to turn to the jurisprudence arising from more established areas of international law such as commercial and marine law, when trying to work out whether a local court has jurisdiction. Where a local court finds that it does have jurisdiction it will invariably seek to apply the local law to the dispute before it. Within the EU, there is a Regulation known as Brussels II
which has been used as the basis for resolving jurisdictional conflicts on intellectual property matters between member states.
Re-reading your question I realise that I didn't fully answer the second part about reproductions of public domain works. This is actually a separate issue to do with whether the process itself used to reproduce the original work involves sufficient creativity. It is readily acknowledged that photocopying a work adds no new creativity and a photocopy would not, alone, attract copyright for the 'new' work. Yet in many cases the reproductive process used to copy public domain works, such as old paintings, books, manuscripts and the like, is almost exactly analogous to photocopying. The area which is most contested is where conventional photography has been used to make the digital copy. Perhaps the most famous case concerning this was in the USA and was called Bridgeman Art Library v Corel Corp
. It concerned a number of digital images of old masters made and sold by Bridgeman which were incorporated by Corel in a software program as clip art, without permission. Bridgeman claimed copyright in their digital images, and sued Corel. Corel won at first instance and on appeal. The court found that although it accepted the claim that the photographer who copied the paintings may have used a certain amount of skill and judgement in correctly arranging the lighting and ensuring that the colours were faithfully reproduced, he added nothing new to the final digital version, so there could be no new copyright arising. However in the UK, the caselaw at the time (mainly a case known as Designers Guild
and another named Antiquesportfolio.com v Rodney Fitch
) tended to take the opposite view, holding that the creativity of the photographer did entitle him to a new copyright, even though the original and the digital version might look virtually identical. This would probably not be the case today as the current thinking on originality, as expounded by the Court of Justice of the European Union, is that a copyright work must exhibit something of the personal spirit of the artist or author, and almost by definition, a good digital copy cannot do this without introducing some new and unwanted element to the original. However there have been no recent cases to test this presumption. So although many museums and art galleries etc claim copyright in the digital copies they have made, none have yet gone to court to enforce their claims, for fear of losing. In particular the National Portrait Gallery
backed down in its claim against Wikipedia, and agreed to allow lower resolution versions of their digital images to be made freely available. Something similar has happened with a museum in Germany
. So on that basis, if you wanted to use a digital reproduction of a work which was known to be in the public domain, in the UK, I think you would stand a good chance of not being taken to court, despite a copyright notice appearing on the digital version. If you wish to go into this subject in more depth, take a look under the 'further reading' heading
on the link about the National Portrait Gallery.
* More accurately this applies to all countries within the European Economic Area
which means the 18 EU members at that time, plus Norway and Iceland. The newer accession states such as Estonia and Lithuania etc which did not apply to join the EU until later in 1995, do not fall within this special provision.