posted 08-28-2007 04:40 AM               

This are indeed personnalized stamps from Austria.

And the US stamps would probably be copyrighted.

We cannot theoretically exclude, of course, that the person who produced these stamps from the Austrian Post did obtain authorization from the USPS to do so.

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Jürgen P Esders
Berlin, Germany

International Director (Europe), Space Unit
Vice President, Weltraum Philatelie e. V.

posted 08-30-2007 08:18 AM               

quote:

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If someone orders a personalized stamp he confirms (with the order) that he is the copyright owner.

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posted 09-03-2007 10:34 AM               

I don't think you are being realistic. It's like with any photo lab - they do not have the time nor the staff to check whether the films, negatives and slides the customer brings to them for reproduction violate any copyright. This responsability is with the person who orders the prints. If USPS wants to make claims against anyone, they should sue the customer. He is the perpetrator.

The company that produces a knife is not responsible if you chose to stick the knife into any other person's body. It's your call ....

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Jürgen P Esders
Berlin, Germany

International Director (Europe), Space Unit
Vice President, Weltraum Philatelie e. V.

posted 09-04-2007 09:21 AM               

I can't agree with you on this one. There is such a thing as duty of care. Manufacturers and others are responsible for reasonable checks. For example, if I copy a book under copyright at say a University and the University has not taken reasonable steps to prevent that, then the University is in breach of copyright. There have been court cases in the past on this very point. In the above case the customer would certainly be in breach of contract. But the real question is, did the Post Office take reasonable steps to prevent copyright breach. Although one would need a lawer to give an authoritive opinion, I would argue that allowing another countries' stamps to be copied (and it was quite obvious that they were US stamps) is a lack of due care and therefore that the Austrian Post Office is, in fact, in breach of copyright. I agree that the Austrian PO can't check for copyright on every personalised stamp but they have a responsibility to at least look at the proposed stamp and ask for further documentation if there is any doubt. To do less is, in my humble opinion, irresponsible and unacceptable. Another case is ISPs who have been charged in court for not removing copyright material as soon as they are notified. The excuse that they didn't have the resources to do the checks was not accept by the courts. The Austrian PO is lucky the probable breach does not involve the music or film industry or they would quickly find themselves in hot water.

posted 09-04-2007 02:58 PM               

Law and its prosecution takes place in a context. It does not exist "as such". That is what I meant by your demand being "realistic" - or rather not.

Is there criminal intent? Is there a motive? Does the "crime" have the scope that constitutes a danger for any interests, legal or financial? Is the cost of the legal intervention likely to be recovered? Are there any circumstances (such as cross border prosecution) that drive up costs and difficulties?

I'm afraid in the present case all of those questions are to be answered by "no".
- The customer who ordered these stamps probably acted in error, not intentionnally. Will prosecuting him serve society? Probably not.
- Does the reproduction of these stamps create any financial losses with anyone? Unlikely. The stamp can not be used within the US - it cannot be confused with a US stamp. The number of copies printed will only create marginal revenue. It can be used as a stamp in Austria - so Austrian Post has no legal issue here.
- Is the cost of the legal intervention likely to be recovered?
Very unlikely. The fees of the lawyers will exceed the potential wins many, many times.

- Are there any circumstances (such as cross border prosecution) that drive up costs and difficulties?
Absolutely. While based on the Berne convention, copyright law is basically national law. The case would have to be won in Austria. Austrian courts might come to different conclusions than US courts. In any case, the involvement of lawyers in at least two States make the cost excessive.

Is there a complainant? USPS or the creating artist would have to wish to pursue the case. Are they likely to want to do this, considering the aforementioned considerations? I doubt that.

So - no complaint, no case.

Things have changed in the world of mail services. Austrian Post is a private enterprises. They no longer issue official documents, but receipts for a payment. Like any copy shop, photo lab, phone company, internet provider, they need to have their clients sign certain things in their contract forms, otherwise do the occasional random check, and that's it. For the rest, the customer is liable.

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Jürgen P Esders
Berlin, Germany

International Director (Europe), Space Unit
Vice President, Weltraum Philatelie e. V.
http://groups.yahoo.com/group/Astroaddies

Edited by eurospace on September 04, 2007 at 03:03 PM.

posted 09-05-2007 09:00 AM               

I agree with you that there is unlikely to be a prosecution, unless the USPO was worried about a precedent being set. There are plenty of examples where large, and unrecoverable, court costs have been incurred to stop a precedent. However, it is unlikely in this case, especially as two separate countries are involved.

However, that was not my point. My point was not whether there would be a prosecution or not, but whether the action, or lack thereof, by the Austrian PO was acceptable. I still maintain it is not. The fact that it is a private company that needs to make a profit is irrelevant. It still has a responsibility to act responsibly, irrespective of whether a prosecution is likely or not. This is an argument that has been raging in Australia for well over a decade. In the 1980s & 90s many companies argued successfully in public that their main responsibility was to make a profit for shareholders and stay within the letter of the law. That attitude, while still entrenched in some areas, is changing. Companies are slowly realising that they have many other responsibilities. It no longer holds that a company has any less responsibilities than a Government department or Government run organisation. It is no longer acceptable or legal in Australia to draw up a contract and say the rest is up to the customer. Companies can still be found liable, even if a customer signs a contract saying otherwise. The test which is now being applied in a ever increasing number of areas is two fold.
1) Was the contact reasonable, not to mention legal?
2) Did the company act in good faith and with due diligence?

There have been a number of cases in recent years where contacts have not saved companies from prosecution. The contacts have been found to either be uninforceable or to not be sufficient to absolve the company of responsibility for the eventual consequences of their actions.

The days when companies could rely only on a contact they drew up are drawing to a well deserved end. Public opinion in most countries is changing and the law is changing with it.

So, finally, I believe there is unlikely to be any court action in this case but I firmly believe Austria Post is in the wrong and should change their precedures.

posted 09-05-2007 02:46 PM               

I'm afraid if we follow this alley then we will not be allowed to show any stamp in a stamp exhibition without prior consent of the postal administrations issuing the stamps.

Don't laugh - in Belgium it is already prohibited to take and publish photographs of public buildings without the consent of the architect.

USPS will take it as additional advertising for their products, free of charge for them.

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Jürgen P Esders
Berlin, Germany

International Director (Europe), Space Unit
Vice President, Weltraum Philatelie e. V.

posted 09-06-2007 02:49 PM               

At least they used the work of one of the USA best space artists: Robert McCall. I wonder what he thinks of this?

posted 09-07-2007 09:58 AM               

The USPS may very well be happy to see their stamps publicised, but on their terms. With copyright laws it is very important to maintain strict control. This also applies to catalogues and magazines which need to have permission to publish photos of stamps. I assume this permission is usually by a general regulation rather than each publication requiring individual permission, and it changes over the years. My experience is with the Australian PO. Originally, the general restriction was B/W only. Then colour became widespread and this was changed over a number of variations until it reached the option of full colour but at a different size or full size with a black stroke through the corner. I believe this has since evolved further. However, along with that restriction, were usage restrictions. Except for personal use, usage can never be a 'free for all' for legal reasons.

I've checked the USPS Web site and while they don't specifically mention stamps they do list copyright restrictions on the use of downloaded material which includes photos of stamps. The regulations are quite clear. They can only be used for personal use useless written permission is granted. Once an item is sold or used to purchase goods or services, copyright is breached.

A specific example from Australia might also be useful. A journalist summitted a design to Australia Post for a stamp and it was rejected with detailed reasons given, as it varied slightly from the very strict guidelines. He resubmitted and again it was rejected with further recommendations for changes. Finally it was accepted. This example plus statements from Australia Post indicate that they carefully examine every individual design (and more than once if required). While no process can guarantee copyright material will always be caught, I've got no doubt that, on the evidence, Australia Post would have rejected the Austrian proposed stamp. If a Goverment corporation can carry out diligent checks on every proposed stamp, then surely it is not asking too much for the private company producing Austria's personalised stamps to do the same (it might also be noted that a previous Austrian personalised stamp sold on eBay had obvious spelling errors which hardly represents diligent checking - this represents three out of the four Austrian stamps that I've seen having errors or other problems - not a good record).

Tim (KSCartist) makes an excellent observation. It would, indeed, be interesting to know what Robert McCall thinks about the issue.

One final point which I was going to leave but since I'm commenting on copyright I'll reply to. Jürgen makes a fundamental error when ne comments on showing any stamp in a stamp exhibition. This is confusing displaying a legally purchase item that is under copyright versus copying such an item. There is nothing in copyright law that prevents the owner who purchased a legally produced item that is under copyright from displaying that item. It is the copying of the item that is a problem, especially if it is then sold or used to pay for some good or service. Our stamp exhibitions are not under threat, thank goodness, at least not from copyright considerations.

Ross.

posted 09-07-2007 01:23 PM               

I am increasingly seeing philatelic exhibits being reproduced in photocopy, print form or on websites, so the copyright problem is very well present.

Jürgen

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Jürgen P Esders
Berlin, Germany

International Director (Europe), Space Unit
Vice President, Weltraum Philatelie e. V.

posted 09-08-2007 09:03 AM               

Under those circumstances, even if copyright is theoretically broken (and I don't know whether it is or is not) the exhibiter or Web owner has one thing going for him (or her). They are making a single (or very limited number) of copies for viewing purposes only. With the exception of some commercial Web sites , they are not trying to depose of, or make a profit from, the copy itself. It is also quite possible that such usage would be considered 'fair usage' and thus any action is most unlikely. Making a copy for sale is a completely different matter.

Making a few copies to be used on a letter value stamp is probably not, in itself, important. But where you draw the line; 10, 20, 100, 1000. On an individual basis, ie. written permission, this can be done. But it would be extremely difficult, if not impossible, to draw up a regulation that covered number of copies, individual value of each copy, importance of the item, scope of the possible distribution etc. Hence the requirement for written permission and the need to respect it.

posted 09-09-2007 02:43 AM               

Whatever.

Set that figure in comparison with the printed number of commemorative stamps issued in the US or any other major country: 80 million stamps for the "Polar Lights" issue, 40 million stamps for the "Eid" stamp.

You would have a copyright issue with someone printing 10 million and violating copyright. Some private collector getting himself 100 personalised stamps - it's simply not worth bothering for anyone holding the rights.

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Jürgen P Esders
Berlin, Germany

International Director (Europe), Space Unit
Vice President, Weltraum Philatelie e. V.