User:Lupo/Section 108

17 USC 108(h) is a provision in U.S. copyright law introduced in the 1998 with the CTEA allowing libraries and archives to publish in facsimile or digital form for the non-commercial purposes of "preservation, scholarship, or research" any published work during the last 20 years of its copyright term if and if the library or archive has performed a reasonable investigation that these two conditions do indeed hold.
 * the work is no longer subject to normal commercial exploitation (i.e., it's not sold regularly anymore), and
 * copies of the work cannot be obtained at a reasonable price,

Until 2005, section 108(h) did not apply to musical works, movies, images, and sculptures. Since April 27, 2005, it does apply to such works. (See the Preservation of Orphan Works Act and the House report 109-33.)

(In-)Applicability
At least for books, the second condition makes the provision inapplicable in practice because apparently the understanding is that "copies of the work" includes even antiquarian copies (used copies, second-hand copies). For other kinds of works, where there is no real second-hand market, it may still be applicable. Note, however, that old photographs often are available at antiquarian dealers. Furthermore, there's some ambiguity in the terms "reasonable price" and "reasonable investigation", which are not defined.

See and.

PD-old-70 and 17 USC 108(h)
It was once thought that section 108 might provide a way out of the dilemma of non-U.S. PD-old-70 works that are still copyrighted in the U.S., but PD in many other countries. Given the "used copy" difficulties, I don't see how we could make use of that provision. Furthermore, the permission to publish such works applies only to archives and libraries; it does not extend to re-users, unless they themselves also are a library or an archive. The Wikipedias and Wikinewses are not archives. The Wikisources and the Commons are, IMO, archives.

Commons
For the Commons, the rule, even if it were applicable, thus doesn't help much, because while the Commons might be able to host and publish some images under this provision, such images could not be used in any Wikipedia under section 108. There also remains the question of whether such images are "free enough" to satisfy the conditions of the WMF licensing policy at all, or whether the WMF would consider that an EDP on the Commons. The policy currently bars the Commons from having EDPs.

Wikipedias and Wikinewses
Images hosted on the Commons under 108(h) could be used locally on the Wikipedias and Wikinewses under "fair use" or an equivalent Exemption Doctrine Policy as allowed by the licensing policy, on projects where U.S. law applies (which may or may not be all of them). On projects where local foreign law was allowed to take precedence over U.S. law, the works could be used as PD works. It is currently being questioned whether U.S. law must be respected on all projects. There is a pending WMF Board resolution on this subject, but there's no due date for it.

Wikisources
For the Wikisources, section 108(h) would, if it were applicable, indeed allow to legally host PD-old-70 works published 1923 - currently 1932 (95 - 20 = 75 years ago). On Wikisources where U.S. law prevailed, an EDP would be needed for this. Since the permission to publish does not extend to downstream users unless they are libraries or archives themselves, such works would also need to be tagged to indicate that the works may still be copyrighted in the U.S. and are published under 17 USC 108(h). This is also required by 17 USC 108(a)(3). 17 USC 108(a) is an umbrella paragraph that applies to all subsequent paragraphs of 17 USC 108. See Rasenberger/Weston: Overview of the Libraries and Archives Exceptions in the Copyright Act, Section 108 Study Group of the Library of Congress and the U.S. Copyright Office, April 2005.

But as long as the existence of antiquarian copies makes the application of 17 USC 108(h) impossible in practice, none of these approaches seems feasible.