Different countries, Etsy and public domain laws

[JennyH]

I’ve been planning Etsy digital products for a while and I’m just about to start listing. Watching other people set up their shops on YouTube I saw them choose which countries they sell to. But when I’ve come to choose the settings myself I see there’s no way to restrict where digital products are sold. Other sellers confirm this is the case

My products include some digitally enhanced public domain art within sets (as well as new art). These are all public domain or CC0 in the UK and in the artist’s country and for the country of the photo of the art if relevant. . I expect to mainly sell to English speaking countries like US and UK and all the art complies with copyright laws for these countries. I’m in Scotland.

But some countries have stricter laws or don’t agree to the shorter term rule where the artist’s country law trumps other laws, see table I put together which indicates which countries I want to exclude

I don’t expect I’ll sell to countries like Mexico but Mexico’s laws would restrict what I want to sell. Can you see a way around this? Can I put a note at the end of the listing description saying that this isn’t a suitable product due to legal restrictions to buy if you’re in Mexico… list of countries? Or would that not have any legal weight and draw attention to the problem? I’m intending to also add a note at the end about the digital file set being intended for personal use or as a physical gift for friends and family, but due to varying copyright terms it isn’t appropriate to sell on or forward the files as a set. So I could add something else about which countries it’s not an intended product for?

Have Etsy sellers ever lost cases where the artist died more than 75 years ago and it is public domain in the artist’s country and the seller’s country? My assumption is the only people who could sue you would be the Museum/photographer or the artist’s estate? If it’s public domain in those places then do you need to worry about the country you’re selling to? Or in other words, what could be an objection from Mexico about them being allowed to buy my art sets?

What are your thoughts and do you have any evidence for them?

[AndyJ]

Hi Jenny and welcome to the forum.

I can't comment on Etsy geofencing policy. However as far as copyright is concerned, provided that you are entirely satisfied that the source images you want use are out of copyright in Britain then on the same will apply in the vast majority of countries in the world. All countries which are members of the Berne Convention (just a handful such as Iran and Somalia are not members) are bound by the Convention to apply whichever is the shorter of the term of protection in the country of origin or their own country.

I am confused about your desire to exclude France and Spain. Both these countries, being members of the EU, have to apply the same lifetime plus 70 years as all other EU members, and the UK because of its former membership. Only if you know that the country of origin of one of the works you want to use is, say, Mexico, would you have a problem with a longer term. However UK law expressly applies the shorter term rule found in the Berne Convention (see section12(6)). Mexico does not apply its own domestic law to works created outside its borders, so going back to my original statement, if you are sure that according to the copyright law of the country of origin and UK law that the source work is no longer in copyright, you won't have a problem.

[JennyH]

@andy3 “Mexico does not apply its own domestic law to works created outside its borders” that’s useful to know and makes sense, because why would it bother Mexico? There are other countries which don’t apply the shorter term though - am I ok as long as the country where the art was originally made does apply it (or it’s already public domain there) and where I’m selling from (UK)? The buying location doesn’t matter so much?

So what I need to pay attention to is not including art which originates from countries with long copyright terms and no shorter term agreement?

When I thought I could sell on a country by country basis my hesitancy with France was more their attitude to moral rights and more emphasis on the artists’ and museums’ ownership rights. It is ok legally. With Spain info I found had them with a slightly longer term excluded artists I want to include, although because they do the shorter term agreement that would actually be ok too.

[AndyJ]

If you are selling in the UK and mainly directing your sales towards the UK market (eg pricing in £s and not Euros etc), then that is key. However when talking about whether or not original works are in the public domain or not, the determining factor is the country of origin for that work, not where you are selling your work. If the source work is not in the public domain, then your taking and using it would usually be infringing, full stop. Where you are selling your adaptations is irrelevant in such circumstances. Conversely if the work is in the public domain, your work won't be infringing and so again it doesn't really matter where the sales are.

You make the point about moral rights and the right for an artist not to have his work brought into disrepute by an adaptation of it. This is a perfectly valid concern and as you say, many European countries (not just France) view the moral rights of their artists very seriously. However in a case where the estate of, say, a deceased French artist wished to allege such infringement of moral rights, they could only sue in France and since you are not based in France the French courts would be limited in what they could do about it as a UK court would not enforce a foreign judgment for something which English or Scots law would not have objected to.

Returning to your first posting and the idea of Etsy geofencing your sales. If such a system does operate then it will have to exclude the whole of the EU or allow the whole EU. It would be illegal for Etsy to only specify certain individual EU countries, because the single market must be a level playing field for all member states. That is the main justification for the harmonised copyright law across the EU. Since moral rights have nothing to do with free access to a single market they are not subject to EU legislation and each member state can use its own laws on the issue.

[JennyH]

. However in a case where the estate of, say, a deceased French artist wished to allege such infringement of moral rights, they could only sue in France and since you are not based in France the French courts would be limited in what they could do about it as a UK court would not enforce a foreign judgment for something which English or Scots law would not have objected to.

That’s useful to know thanks, especially as I might be punking French art

You know a lot about this @AndyJ do you have a law background or have you learnt about through trying to work out what you can use commercially?