Commons:Deletion requests/Template:PD-Austria-1932

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Template:PD-Austria-1932

(I do apologise for the length of this DR. However, this template is based on an alleged subtle flaw in a national legislator's transposition act for a EU directive and its interplay with the directive and national copyright law. The complexity is in the template.)

The template is factually incorrect. It was authored by a (now indefinitely blocked) Commons user on the basis of one user's extremely far-reaching, personal interpretation of the Austrian transposition act of the EU Term Directive. The user's interpretation is clearly at odds (as he and the creator of the template have both acknowledged) with the corresponding provision in the Term Directive itself (i), clearly at odds with the legislative motives accompanying the draft of the transposition act (ii), and, against this backdrop, is ultimately based on an incomplete interpretation of the Austrian transposition act, disregarding the general need to interpret national provisions in conformity with Community law and in consideration of the lawmaker's intent (iii). Unsurprisingly, no user has ever been able to come up with any support for this interpretation in the literature or in existing case law, and a thorough review of the literature indeed suggests that the interpretation is not shared by a single scholar of Austrian copyright law. To the contrary, it is plainly at odds with a leading treatise on Austrian copyright law (iv). The entire template is the result of original research gone awry. It should have never been created.

Background. The Term Directive (now Directive 2006/116/EC) of July 1, 1995, stipulates that "[t]he rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after his death". Article 1(1). In order to achieve the directive's goal of harmonising copyright terms, Article 10(2) then provides as follows:

The terms of protection provided for in this Directive shall apply to all works and subject matter which were protected in at least one Member State on the date referred to in paragraph 1 [1 July 1995], pursuant to national provisions on copyright or related rights, or which meet the criteria for protection under [Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property].

In other words, Article 10(2) stipulates "that the harmonized terms of protection apply in all Member States on the condition that the particular work or other subject matter was still protected in at least one Member State of the European Community or in one Contracting State of the European Economic Area on 1 July 1995". Walter/von Lewinski, European Copyright Law, 2010, § 8.10.12.

One obvious implication of this provision is that starting in 1995, a work could be protected until 70 years after the author's death in a Member State even though the work had previously entered the public domain pursuant to that Member State's national laws. In the words of the CJEU:

It is clear from Article 10(2) of the Directive that application of the terms of protection laid down by the Directive may have the effect, in the Member States which had a shorter term of protection under their legislation, of protecting afresh works or subject-matter which had entered the public domain [...] That solution was adopted in order to achieve as rapidly as possible the objective, formulated, in particular, in the second recital in the preamble to the Directive, of harmonising the national laws governing the terms of protection of copyright and related rights and to avoid the situation where rights have expired in some Member States but are protected in others.

— CJEU of 29 June 1999, C-60/98 – Butterfly v. Briciole de Baci, para. 18 et seq.

Austria transposed the Term Directive through a 1996 amendment to the Copyright Act (BGBl 151/1996).

Rationale for the creation of this template. Article VIII(2) of the 1996 amendment stipulates:

In as far as this Federal Law provides for a prolongation of the term of protection, it shall apply to works produced, recitations and performances given, photos taken and broadcasts effected before April 1st, 1996:
1. for which the term of protection has not expired on July 1st 1995 according to the regulations in force so far, or
2. which are protected in a Member State of the European Economic Area and for which the protection period in this Member State has not expired on July 1st, 1995.

Template creator observes that "this Federal Law" refers to the transposition act. They further observe that the transposition act does not in itself provide for a prolongation of the term of protection for photographic (and, in fact, most kinds of) works. (This is because Austria had already extended their term of protection to 70 years in the 1970s. However, works that had entered the public domain before did not benefit from that extension.) Because the transposition act does not extend the term of protection for works, they conclude that photographic works were therefore not subject to a revival of protection in 1996. Finally, template creator observes, uncontested, that photographic works published prior to 1932, having never benefited from the 70-year term eventually introduced by the national legislator, had already fallen into the public domain under Austrian law long before 1995.

(i) The claim in the template is clearly at odds with the Term Directive. It is straightforward to see that the Term Directive provides otherwise, stating that the 70-year term "shall apply to all works and subject matter which were protected in at least one Member State [on 1 July 1995]". Article 10(2). Under template creator's view, the Austrian lawmaker limited this fundamental stipulation in the Term Directive to the few categories of works and related subject matter for which the Austrian transposition act itself introduced longer periods of protection. As far as photographs are concerned, what this template claims is that, say, a photograph from 1930 can under no circumstances benefit from the 70-year term even though it was most definitely protected in another Member State on 1 July 1995. (This would, in itself, be a rather absurd result: The authors of works or related subject matter whose term of protection had to be extended as a result of new EU requirements would have received an additional treat from the national legislator, wheareas the authors of works or related subject matter that the national legislator itself had previously deemed worthy of a longer period of protection would have been denied it.)

(ii) The claim in the template is clearly at odds with the motives of the legislator. In the motives accompanying the (eventually adopted) draft of the transposition act, the Austrian government notes that "Article VIII(2)(2) and Article IX(1)(2) correspond to [entsprechen] Art. 10(2) of the Directive, which provides that the term of protection as provided in the Directive is to be applied to all works or subject matter which were protected, as of 1 July 1995, in at least one Member State on the basis of its national provisions in the area of copyright law or related rights" (emphasis added). 3 der Beilagen XX. GP, p. 33. It is evident from this comments that by no means was the intent underlying Article VIII(2)(2) to restore protection only for the small number of works for which the transposition act itself provides a longer term of protection. Rather, the government meant to fully comply with Article 10(2) of the Term Directive and extend this approach to all works and subject matter within the scope of the Copyright Act.

(iii) The claim in the template is irreconcilable with established rules of statuatory interpretation. Template creator's justification for their interpretation of the unfortunately worded Article VIII(2)(2) of the transposition act is devoid of any discussion of the fact that, under the jurisprudence of the Austrian Supreme Court, national provisions must be interpreted in conformity with Community law. "National courts have to interpret national law in light of the wording and the intent of a Directive." OGH of 31 August 2010, 4 Ob 120/10s = MR 2010, 392, 396 (note Walter) = ÖBl 2011, 38, 40 – Thermenhotel L II. "When interpreting national provisions, courts have to obey the wording and the intent of the directives to the greatest extent possible." OGH of 2 September 2015, 7 Ob 107/15h – Spätrücktritt in der Lebensversicherung ("Marleasing formula", cf. CJEU of 13 November 1990 – Marleasing SA v. La Comercial Internacional de Alimentacion SA). For purposes of interpreting national law in light of Community law, "the wording of a norm is not an uncrossable line; rather, what matters is the purpose of the norm. The application, required by the CJEU, of all methods of interpretation of national law means that a development of the law by the judiciary [Rechtsfortbildung] beyond the wording of the law may be necessary." OGH of 15 February 2011, 4 Ob 208/10g – Fußballer des Jahres IV. "A contradiction between national law and a directive must be avoided if at all possible." OGH of 16 December 2014, 4 Ob 209/14k.

Here, even following template creator's reading of Article VIII(2)(2) of the transposition act (which ignores the motives of the legislator), it is straightforward to see that Austrian law can be interpreted in conformity with Community law. After all, nothing in the transposition act or the Copyright Act (or, for that matter, any other provision in Austrian law) directly conflicts with Article 10(2) of the Term Directive. Rather, even if template creator's reading of the provision is to be followed, the plain wording of Austrian law would simply be incomplete, in that it would only provide for the revival of protection of some but not all kinds of works for which this was required by the European lawmaker. Therefore, no contra legem reading of Austrian law would be necessary to reconcile it with the requirements of the Term Directive's Article 10(2). At the same time, it follows the established jurisprudence of the Austrian Supreme Court that an unintended gap [planwidrige Regelungslücke] in a national law can be filled by the courts. See, OGH of 15 February 2011, 4 Ob 208/10g – Fußballer des Jahres IV.

(iv) The claim in the template has no support whatsoever in existing case law or the literature. To the contrary, it is refuted by at least one leading commentator on Austrian copyright law. Dokalik in Kucsko/Handig, urheber.recht, 2nd ed. 2017, §§ 101–116, para. 7, notes: "The extension of the term of protection pursuant to Art. VIII(2) of the 1996 amendment applies to the works created, speeches and performances performed, photographs created and radio programmes broadcast prior to April 1, 1996, whose term of protection, under the previous provisions, had not expired by July 1, 1995, or that are protected in a member state of the European Economic Area and whose term of protection in said member state had not yet expired on July 1, 1995."

It is clear from this that, according to Dokalik, a restoration of a work's copyright protection does not depend on whether the implementation act extended the term of protection or not. What matters is that the the work was protected in a Member State on July 1, 1995.

Conclusion. It follows that the template should be removed as a licensing option. The implication of template creator's view, shared by nobody in the legal world, is that Austria has not only failed to properly transpose the Term Directive but that there is in addition no way for courts to interpret Austrian law in a way compatible with the directive. In order for this template to work, Austria must be in breach of EU law, meaning that a rights owner could potentially sue the Austrian government if people use their {PD-Austria-1932}-tagged image (cf., Zöchling-Jud, Richtlinienkonforme Interpretation am Beispiel der Leerkassettenvergütung, Medien und Recht 34(1), 2016, pp. 26 et seq.). One does not have to be an expert on EU law to realise that the interpretation advanced in this template would, if correct, be nothing short of a legal sensation.

Wikimedia Commons is not the proper venue for adventurous interpretations of the law (Commons:Project scope/Precautionary principle). Throughout the EU, it is assumed that with the transposition of the Term Directive, one can safely assume that a work is protected until 70 years after the death of the author if it was protected in any one Member State on July 1st, 1995. Austria should be treated no differently than all the other Member States. — Pajz (talk) 09:47, 11 November 2018 (UTC)

•  Comment I've posted a link to this discussion on Commons:Village pump/Copyright. Question: if this is deleted, what happens to files tagged with it? I've tagged several files with this in the past, and with some of them there might be other reasons why they are PD, and that is probably also true for other people's files. Is there a good way to notify everyone with a file tagged with this of this discussion? Tokfo (talk) 10:22, 11 November 2018 (UTC)
  • If any qualify for {{PD-anon-70-EU}} (or any other valid tag), that can be used instead. It's never wrong to add multiple tags, if they all apply -- that can help users in third other countries where one particular tag may not be valid, but a second tag could be. And of course for situations like this, which are hopefully rare (but can happen with law changes too). Carl Lindberg (talk) 14:15, 11 November 2018 (UTC)

•  Comment There is one case where an EU country's law did not fully implement the directive -- I believe Romania made their move to 70pma non-retroactive, which was OK at the time of the law, but they have since joined the EU and did not change it. That however, is backed up by some research and court decisions as well. Going the other way, I believe the UK did not implement Article 1(4) of the directive, which may have helped made some PD statuses more clear on certain works published anonymously, but we do go with the actual law in a country in that case -- as the EU directive does not have a direct effect, if my understanding is correct, but rather just the implementation in the national law. And it would not be the first time that some "unfortunate wording" in a law ended up with a result somewhat different than the legislator's intent. That all said, I would highly prefer such tags (ones at odds with EU directive) to be backed up by at least some outside legal opinions, and preferably a court case confirming the interpretation, as I mentioned on the talk page. As a non-Austrian though, I was not about to nominate the tag for deletion ;-) Carl Lindberg (talk) 14:15, 11 November 2018 (UTC)

•  Delete per nom. As Carl Lindberg says, multilicensing is not a issue, but this template is potentially damaging to Commons so COM:PCP says delete it. Abzeronow (talk) 16:57, 11 November 2018 (UTC)

 Comment An aside, but template seems to have been used as a catch-all for pre-1932 Austrian works. Some paintings, drawings and text got into the category when template states to only cover photographs. Even if this template is kept, this template needed some curation badly. Abzeronow (talk) 05:32, 13 November 2018 (UTC)

•  Keep Unless I misunderstood this case, it seems to imply that the 1993 CE restored all copyrights of artistic works, irrespective of the works themselves being protected by 1 July 1995. This seems to be an abusive and wrong interpretation of that Directive, and it has already been tested on court in 2016, with the Court of Justice of the European Union ruling that Directive 93/98/EEC harmonizing the term of protection of copyright in the EU does not have the effect of restoring or reviving rights that, prior to its entry into force (1 July 1995), were for any reason in the public domain in all the EU Member States. They further ruled that in that regard, it is irrelevant whether the loss of rights prior to that date was due to application of a national law requiring formalities that do not comply with the Berne Convention in order to maintain the rights in a work.. If you answer to this comment, and speacially if I misunderstood something here, please ping me as I'm very interested in this discussion.-- Darwin ^Ahoy! 11:41, 23 November 2018 (UTC)

DarwIn, hi, yes, this is a misunderstanding. What I'm saying - and that is perfectly in line with Montis - is that if the work was protected in any one member state on 1 July 1995, then copyright in a member state where it was no longer protected on 1 July 1995 was restored/revived (to 70 years pma). Indeed, as the CJEU pointed out in Montis, if the work had been in the public domain in *all* member states on 1 July 1995, then there would be no restoration/revival of copyrights anywhere. But what the template here claims is something entirely different: The template claims that for photographic works it doesn't at all matter if the work was protected on 1 July 1995 in other member states because due to a flaw in the Austrian transposition law, Austria would under no circumstances restore copyright in these works. And that is clearly not what the Term Directive says. Does that clarify it? Best, — Pajz (talk) 12:32, 23 November 2018 (UTC)

@Pajz: Thanks for the explanation, but I'm still confused. Isn't this a general tag about photos published in Austria? I find it very odd that a photo published in 1930 in Austria, which have entered the Public Domain in Austria in 1950 according to the country own laws, would still have a copyright elsewhere in 1995. What am I failing to understand here?-- Darwin ^Ahoy! 13:24, 23 November 2018 (UTC)

DarwIn, well, the Term Directive stipulated a term of protection of 70 years pma for (photographic and other) works. It then said that every Member State had to accord this term to all works that were protected on 1 July 1995 in at least one Member State. Meaning that the work may well have been out of protection in Austria between 1950 and 1995, but as long as it was protected in one other Member State in 1995, Austria had to grant it protection for 70 years pma starting in 1995. Let me give you an illustration of this point: A few years ago, the Hamburg Appeals Court had to deal with the following case: Plaintiff took a photo of a submarine in 1941 (first published in 1943). Defendant reproduced this photo on the front cover of a book without permission. The Court sided with the defendant in finding that the work had entered the public domain under German law in 1968 because the term of protection at that time was 25 years following the first publication. However, the Court then found that owing to the transposition of the Term Directive, protection was restored on 1 July 1995 to 70 years pma. The reason for that was that the Court found the work was protected in Spain on 1 July 1995, which, since 1879, granted 80 years pma protection to photographers. The Court then analysed the development of international law between Spain and Germany, eventually finding that due to the principle of non-discrimination in the EU, Spain had to grant the same protection to a German photographer. Therefore, the Court concluded that on 1 July 1995, the work was protected at least in Spain and that therefore, Germany had to protect it for 70 years pma thenceforward. (OLG Hamburg, March 3, 2004, 5 U 159/03 = ZUM-RD 2004, 303 - U-Boot-Foto, full text available on Wikisource). Best, — Pajz (talk) 13:40, 23 November 2018 (UTC)

@Pajz: I see. It is an old sentence by the Higher Regional Court of Hamburg, which seems to be some first or second instance regional court, recalling the old and much used Phill Collins case, but ignoring all that is written there. The non-discriminatory principle was never supposed to be used in such an abusive way, and that is quite clear from the Phil Collins case they use to justify such an odd court sentence. In any case, this is directly contradicted by the 2016 EU court sentence, namely: "Article 10(2) of Directive 93/98, read together with Article 13(1) thereof, must be interpreted as meaning that the terms of protection laid down by that directive do not apply to copyright which was initially protected by national legislation but which was extinguished prior to 1 July 1995.". Given the blatant differential of authority (and dates) between the 2003 Hamburg court decision, and the one from the Court of Justice of the European Union (2016), I don't see any reason at all to use Hamburg as a reference and ignore the EU own court on its own maters. At best it could be used for Germany, and stop there. Therefore, I reinforce my opinion of  Keep for this license, as it seems to be perfectly OK, and far from anything that would grant the use of the Precautionary Principle.-- Darwin ^Ahoy! 14:35, 23 November 2018 (UTC)

DarwIn, couldn't you be more precise and identify the exact claim it is in this DR that you take issue with? I'm really not following your train of thought here. (1) Are you saying that the Term Directive only extended copyright protection to 70 years pma in Member States where the work was still protected on July 1, 1995? (2) And/Or are you saying that if a work entered the public domain in Member State A in say, 1970, it definitely was not protected anymore in Member State B on July 1, 1995? If you could answer these questions, I think it would be for the benefit of this discussion. — Pajz (talk) 15:56, 23 November 2018 (UTC) (Also, just for the record: I gave you an example decision illustrating a point that I felt you were asking about. You framing it now as if what I said rested on the decision, is unjustified, factually incorrect and generally referred to as a cheap rhetorical trick.)

@Pajz: It's not me, but the EU court in the mentioned sentence, that says precisely that: "Article 10(2) of Directive 93/98, read together with Article 13(1) thereof, must be interpreted as meaning that the terms of protection laid down by that directive do not apply to copyright which was initially protected by national legislation but which was extinguished prior to 1 July 1995." It seems clear that the 2003 Hamburg court decision was an abusive interpretation of the 1993 EC directive, which would never pass an EU court (at least today), as it is directly contradicted by that 2016 sentence. As for your questions: (1) That 2016 EU court sentence says: Yes, if the work was previously protected by national legislation of the country, and that protection was already extinguished (for whatever reason, it does not matter). (2) See (1).-- Darwin ^Ahoy! 16:09, 23 November 2018 (UTC)

Ok, thanks, that's very helpful. So you are saying that the Term Directive only extended copyright protection to 70 years pma in Member States where the work was still protected on July 1, 1995. However, aside from the wording of Art. 10(2) not containing any such limitation, the CJEU has also repeatedly told us that this is not the case. In Butterly, it told us that "[i]t is clear from Article 10(2) of the Directive that application of the terms of protection laid down by the Directive may have the effect, in the Member States which had a shorter term of protection under their legislation, of protecting afresh works or subject-matter which had entered the public domain". In Sony/Falcon, it even told us that the term of protection stipulated in the Directive is "also applicable, pursuant to Article 10(2) thereof, where the subject‑matter at issue has at no time been protected in the Member State in which the protection is sought", importantly noting that "according to the wording of Article 10(2), the first alternative requirement under that provision concerns the prior existence of protection for the subject‑matter at issue in at least one Member State. That provision does not require that Member State to be the State in which the protection for which Directive 2006/116 provides is sought." Supreme Courts across Europe have followed the CJEU's jurisprudence (e.g., German Federal Supreme Court of 7 October 2009, I ZR 80/04 - Tonträger aus Drittstaaten II). Leading treatises on European copyright law also agree with this interpretation. (See, e.g., Stamatoudi/Torremans, EU Copyright Law, 2014, para. 8.56: "[W]here copyright in a work had expired in one or some Member States, it will revive in every EU country (including those Member States which acceded to the EU in 2004) if it was still protected in another Member State on 1 July 1995."; Angelopoulos in Dreier/Hugenholtz, Concise European Copyright Law, 2nd ed. 2016: "As a consequence of the non-discrimination rule, a work that received protection in a country with a longer term of protection prior to the adoption of the Term Directive, such as Germany, which had a 70-year pma rule, will under the new rules also be protected in Member States which granted only 50 years pma, even if that protection had already expired in those Member States.") What you are relying on in Montis is a sentence taken out of context. The context becomes quite clear from the decision's reasoning, the conclusion of which can be found in para. 37: "It must therefore be held that the first condition laid down in Article 10(2) of Directive 93/98, read together with Article 13(1) of that directive, must be interpreted as meaning that the terms of protection laid down by that directive do not apply to copyright which was initially protected by national legislation, but which was extinguished prior to 1 July 1995 and which is not protected in the territory of any other Member State." The premise of the judgement is of course that the subject matter was not protected in any other Member State, and the question presented was answered on that basis. — Pajz (talk) 16:46, 23 November 2018 (UTC)

In reading the 2016 ruling, it appears that both parties agreed that the works in question were not protected in any Member State in 1995, and the court therefore assumed that was true, and thus considered Article 10(2) satisfied. The ruling still states the principle that a work could be protected in any Member State and thus be revived; the conclusion though does seem to state something else (though it could be in the narrow situation where there was a law which extinguished copyright due to lack of formality, not normal expiration). Otherwise, it is at complete odds with the 2009 EUCJ ruling in Sony. They simply decided that these works were not protected in any Member State in 1995, per the agreement of both parties (and I think the plaintiff tried to argue it later, but the Netherlands court disallowed that because it was too late to bring the argument). Carl Lindberg (talk) 20:14, 24 November 2018 (UTC)

Note: This would make about 1500 images up to (speedy) deletion - see here. --JuTa 10:57, 25 November 2018 (UTC)

They probably should not be speedied, as many may also be {{PD-anon-70-EU}}, and we'd have to check that (or other tags which could apply). Carl Lindberg (talk) 17:53, 25 November 2018 (UTC)

The number that would have to be speedied is far less than 1500. More in the neighborhood of 200 as most of the files that would be affected are by Madame d'Ora/Dora Kallmus or Georg Fayer Have gotten as far as the S part of the category in checking these files, a lot of these are also {{PD-anon-70-EU}}. Abzeronow (talk) 04:33, 26 November 2018 (UTC)

@Clindberg: "In reading the 2016 ruling, it appears that both parties agreed that the works in question were not protected in any Member State in 1995, and the court therefore assumed that was true, and thus considered Article 10(2) satisfied." I can't find any evidence of such an agreement, where have you seen it? To me, it continues seeming quite clear that the court is saying that when copyright existed in the national legislation and was extinguished, it must not be restored.-- Darwin ^Ahoy! 19:38, 2 December 2018 (UTC)

@DarwIn: Sorry, I documented that more in the parallel discussion. The ruling states:

31. At the outset, it must be recalled that Article 10(2) of Directive 93/98 provides that the terms of protection provided for in that directive are to apply to all works and subject matter which, on the date referred to in Article 13(1) of that directive, namely 1 July 1995, are either protected in at least one Member State, pursuant to provisions of national law on copyright or related rights, or, alternatively, meet the criteria for protection under Directive 92/100.

32. As regards the first of those conditions, it is apparent from the file before the Court, and as the Advocate General stated in point 63 of his Opinion, that, on the one hand, the works at issue in the main proceedings had initially been protected in the Member State in which protection is sought, but that that protection was thereafter extinguished, prior to 1 July 1995, and, on the other, it must be held that, on that date, those works were not protected in any other Member State.

So the CJEU states and appears to agree with the principle that any work which was protected in *any* member state in July 1995 had its copyright restored. But, by reference of "point 63 of his [Advocate General's] opinion", they say they must hold that the works in question were not protected in any member state. So, going to the Opinion of the Advocate General:

62. However, in reply to a question posed at the hearing as to whether the chairs were protected by copyright in any Member State (since in the documentation presented the validity of those rights in Germany appeared to be a matter of contention), both Montis and Goossens bluntly answered ‘no’.

63. We must assume therefore, as a proven fact, that on 1 July 1995 the Charly and Chaplin chairs lacked copyright protection in any State of the European Union. Consequently, Montis cannot invoke the retroactive effect of Article 10(2) of Directive 93/98, relying on the first alternative requirement which triggers it.

There is a footnote on that point 63:

According to Montis, the fact that proof of such validity in Germany could have been produced in the context of another action involving a third party changes nothing, since the present preliminary-ruling proceedings are a procedural issue within the dispute pending before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) in which it is not now appropriate to discuss the facts or produce fresh evidence.

That appears to me that they agree with the Opinion and ruled based on that, which was that since both parties agreed that the works in question were not protected in any Member State, the court had to accept that and move on to other arguments. The footnote also references the fact that the lower court had disallowed the retroactive effect argument on procedural grounds, as Montis brought that argument too late to be considered in the case, and I guess the CJEU declined to consider it as well since they are answering questions as part of the lower court's proceeding. The plaintiff at that point was maintaining that the works *should* have been protected due to the extinguishing law being illegal, but the core of the CJEU ruling seems to be that the law was not illegal, thus the works were in fact extinguished and not protected in that country in July 1995 -- which I would agree with -- but does not speak to our question of whether a work which was protected elsewhere was restored in Portugal (or any other EU country). It seems to me the court sidestepped that question, and the ruling is relatively narrow. Even if it is a bit wider, it probably only really applies to applied art specifically, since that protection was more nebulous -- the Berne Convention did not mandate copyright protection for it, so countries before the EU directive had much wider latitude to protecting it with copyright or not, so it's possible that applied art was not protected by copyright in a more countries than usual in July 1995 (it sounds like there was a question on Germany, at the very least). I would think there would be much less question on whether other types of works were protected by copyright in 1995. The conclusion of the ruling sounds more expansive, but they perhaps simply meant that any such extinguishing laws were valid, and therefore if a work was not protected in any Member State due to them, then the works were not restored. Carl Lindberg (talk) 02:06, 3 December 2018 (UTC)

@Pajz: "The premise of the judgement is of course that the subject matter was not protected in any other Member State, and the question presented was answered on that basis" That's certainly not possible that applied arts where not protected in any other Member State by 1995. I can't see how that interpretation would make any sense. Can you please explain?-- Darwin ^Ahoy! 19:41, 2 December 2018 (UTC)

It is not an interpretation. The CJEU explicitely states that in the very judgement you're discussing: "As regards the first of those conditions, it is apparent from the file before the Court, and as the Advocate General stated in point 63 of his Opinion, that, on the one hand, the works at issue in the main proceedings had initially been protected in the Member State in which protection is sought, but that that protection was thereafter extinguished, prior to 1 July 1995, and, on the other, it must be held that, on that date, those works were not protected in any other Member State." ¶ 32. The CJEU then uses this fact of the case to arrive at the conclusion that you are taking out of context here. This can be gleaned from ¶ 37: "It must therefore be held that the first condition laid down in Article 10(2) of Directive 93/98, read together with Article 13(1) of that directive, must be interpreted as meaning that the terms of protection laid down by that directive do not apply to copyright which was initially protected by national legislation, but which was extinguished prior to 1 July 1995 and which is not protected in the territory of any other Member State." The "and ..." part would not have made any sense whatsoever had the CJEU assumed that Art. 10(2) can, as you claim, never restore copyright protection in a country where it had previously expired under national law. That is just not what the CJEU says, and therefore the Montis decision is entirely consistent with the Court's Butterfly decision a few years earlier: "It is clear from Article 10(2) of the Directive that application of the terms of protection laid down by the Directive may have the effect, in the Member States which had a shorter term of protection under their legislation, of protecting afresh works or subject-matter which had entered the public domain." Indeed. And for that to happen, the work needs to be protected, on 1 July 1995, in at least one Member State. That is exactly was not the case in Montis. — Pajz (talk) 21:23, 2 December 2018 (UTC)

•  Keep I'm talking only as a simple user who has just skimmed through everything said before and has not dealt with the legal details. I do not attack anyone involved in the discussion personally, but criticize the whole chaotic system of Commons and Wikipedia. I have known this license for several years. I was glad she gave me the opportunity to upload many interesting photos to commons, in my opinion. I have always tried to work as accurately as possible and, for example, to pay attention to the often disregarded desire for a multilingual description. These photos of Fayer or d'Ora cost me a lot of time. I trusted in the correctness of using this license because I got to know it in the context of a deletion discussion edited by two administrators (sysops).
  Now suddenly someone comes up with the idea that this is not true. Where is the legal security for users? What are the conditions when years of existing rules no longer apply overnight? In the legal field, the retroactivity of laws is very restrictive. Everyone should generally be able to trust that his lawful actions will not be detrimental later on. How am I supposed to work here if I do not know if it's ok tomorrow or was it a waste of time, because the work was in vain and files are deleted from some legal niggles. If the files uploaded by me under this license should be deleted, everyone can guess what opinion I have about it ... Working in such a mess in the future, where the right hand does not know what the left does, would be just crazy but not for me anymore. -- Walter Anton (talk) 03:19, 15 December 2018 (UTC)

•  Delete per nom and Abzeronow.   — Jeff G. ツ _{please ping or talk to me} 15:35, 27 June 2019 (UTC)

 Delete Per nomination and further explanation by Pajz (having "known this license for several years" is certainly not a reason to keep it if it turns out to be wrong). However, each of the 1511 images currently using this template might be in the public domain for other reasons. Actually, the first image I randomly clicked on seems to be fine: File:Erzherzoginnen Elisabeth Franziska und Hedwig.jpg - it's a 1912 photo by Carl Pietzner who died in 1927, so it's correctly using {{PD-old-auto-1923|1927}} and in the public domain both in Austria and in the US. In this case, the public domain claim doesn't rely on {{PD-Austria-1932}} which just can be removed. So I would suggest not speedily deleting the images, but changing PD-Austria-1932 into a warning template that says that the files need to be individually checked for their copyright status and deleted if no other reason for a PD claim can be found. Gestumblindi (talk) 22:00, 1 July 2019 (UTC)

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TDLR: Kept for now, but must be deleted when files have been checked.

First of all, a big "thank you" to Pajz for the very detailed analysis of the situation. The situation of files that fell under this provision in Austria prior to 1995-07-01 and were still under copyright on that date in another EU country (for example, because they were published elsewhere) is undoubtedly clear: They fell back under protection in Austria. It's my understanding that the main confusion is whether Austrian files that did not have an obvious separate copyright in other European countries still have to considered copyrighted in those countries at 1995-07-01. In my opinion, Pajz gave enough evidence to at least seriously consider that this is the case. The ruling by the EU Court of Justice mentioned by Darwin seems to contradict this, but there is a lot of doubt on the circumstances of the ruling and whether it applies to our situation (especially cast by Carl Lindberg's analysis). Therefore, I believe we can not keep this license template per the Precautionary Principle.

I marked {{PD-Austria-1932}} as invalid, added an explanation of the situation to Category:PD Austria 1932 and added the category to Category:Commons backlog. All files need to be checked. If another license applies to them, this template should be removed and the file can be kept. Otherwise the files need to be deleted, but this should be done via a regular deletion request and in thematic batches (for example by author or source) that can easily be handled. When not files are left with {{PD-Austria-1932}}, the template can be speedy deleted. Sebari – aka Srittau (talk) 20:43, 3 October 2019 (UTC)