Fair Use & Fair Dealing on Venus

On October 22nd 1975, the Soviet Venera 9 probe landed on Venus, & sent back the first ever photograph from the surface of another planet. The photograph is low quality, black & white, shows some rocks near the spacecraft, & isn't always shown in reference works, though the better quality pictures from later Venera missions are more commonly seen. Most books & websites show predominantly the radar images of large surface features taken by NASA's Magellan probe, which as we will discuss later, are in the public domain. The Wikipedia page on Venera 9 reproduces the photograph it sent from the surface. The photo file page there justifies the reproduction on grounds of “fair use”, saying “This image is a faithful digitisation of a unique historic image, and the copyright for it is most likely held by the person who created the image or the agency employing the person. It is believed that the use of this image may qualify as fair use under United States copyright law. Other use of this image, on Wikipedia or elsewhere, may be copyright infringement.”

The criteria for use to be considered fair use are set out in section 107 of the copyright law contained in Title 17 of the US Code. These are the purpose & character of the use, the nature of the work, the amount of the work used & the effect on the market value of the work. Courts tend to look at this on a case by case basis. A case which applies the reasoning used by the Wikipedia community for the Venera 9 photo is Time Inc. v Bernard Geis Assocs. This involved a work about the Kennedy Assassination making use of images from the famous Zapruder film of the events of that day. The Federal District Court for the Southern District of New York found that the use was fair since there was a public interest in knowing about the assassination, which only these images could illustrate, & there was no injury to the copyright owner, who did not themselves sell the images. Similarly, the Russian government is not marketing the Venera images, I would argue that there is a public interest in understanding the surfaces of other planets, & - this being the particular relevance of the Venera photos as opposed to Soviet photos of the moon or Mars – no photos of the Venusian surface exist which were not produced on behalf of the government of the Soviet Union.

By contrast, British copyright law gives no such defence, only a defence of “fair dealing”. This is much more narrowly defined, in s30 of the Copyright Designs & Patents Act 1988 to allow copying for the purposes of criticism or review, & for the purposes of reporting on current events, but this latter excludes the use of photographs, even if it could be argued to apply to reporting of events from 37 years ago.

Photographs taken by NASA, like any work produced by the US Government, are automatically in the public domain. NASA photos & other data are available at the website of the National Space Science Data Centre, or NSSDC. According to the FAQ on that website, all the photos it holds are in the public domain, with no caveat. However, this is contradicted by its pages showing photos taken by European Space Agency spacecraft, such as the Huygens probe to Titan, or Mars Express, where it says that these images are copyright. No such notice is given when Soviet images are shown. Indeed, the Wikipedia page for the photograph taken by Venera 13 claims that it has been released into the public domain by the NSSDC. The lack of clarity on this makes me wonder if these Soviet photos are indeed in copyright.

I rely for the details of Soviet & Russian copyright laws on the Wikipedia articles. This is normally a heinous crime in my book (though using Wikipedia as an initial reference / summary of the subject is great & I do it often), but the articles seem thorough & well referenced, from primary & secondary sources that are either not readily available, in Russian, or both. My Russian is somewhat limited, & neglected, & though I could order coffee & ask for directions to the nearest metro station, I don't think I could manage to follow the civil code. 

The relevant law in force at the time the photo was taken was that passed in 1973 in anticipation of the USSR's accession to the Universal Copyright Convention. The details were implemented in each of the Soviet Socialist Republics in their own laws. In Russia, the copyright on photographs was until 25 years after the death of the author. In Kazakhstan, only 10 years. Under Article 4 of the convention, the copyright on photographs must run for at least 10 years, & where it is not calculated from the death of the author, it should be calculated from the first publication. Although the spacecraft was launched from Kazakhstan, any steps likely to count as authorship, the remote operation of the camera or the design of the automatic systems that would operate the camera on Venus, are more likely to have taken place in Russia. This means that it would still have been in copyright when a new law of 1993 extended the copyright duration to 50 years. In any case, the new law was retroactive. This was extended in 2004 to 70 years. All this suggests that the photograph taken by Venera 9 might still be in copyright.

Who owns it then? When Venera photos appear in books, the acknowledgement is often simply given to the aforementioned NSSDC. However, the Collins Stars and Planets Guide acknowledges the Russian Academy of Sciences. A search of their website reveals no Venera pictures, but ultimately the Russian government must be or have been the copyright holder. Russian law doesn't permit non-natural persons to be the author of a work, but the employer of an authoring employee effectively has the ownership, by holding the economic rights. The main relevance of the natural author will be in calculating the duration of copyright. This suggests that a natural person should be identified as author in order to calculate the now 70 year period of copyright from their death. 

As mentioned above, the European Space Agency, ESA, does retain copyright of images it produces, but with a broad licence to reproduce them for non-commercial informative purposes. Their web page on copyright doesn't discuss the question of authorship in a work produced by an automated spacecraft on another planet. If we look at the 1988 Act in the UK for its take on this question, under sections 9 & 12, if a work has no identifiable individual author, the copyright lasts 70 years from first publication of the work, or its creation if it's never published.

So, can I include the Venera 9 photo in this article legally? I'm not sure that I can, though I'm certain I'd get away with it if I did. However, just to be sure, I've instead used a nice UV photo of the whole planet, taken by NASA's Pioneer Venus in 1979, & sourced from the NSSDC.

References
en.wikipedia.org/wiki/Copyright_law_of_the_Russian_Federation en.wikipedia.org/wiki/File:Venera_13_-_venera13-left.jpg en.wikipedia.org/wiki/File:Venera9.png en.wikipedia.org/wiki/Soviet_copyright_law nssdc.gsfc.nasa.gov/photo_gallery/photogallery-faq.html#use
portal.unesco.org/en/ev.php-URL_ID=15381&URL_DO=DO_TOPIC&URL_SECTION=201.html www.copyright.gov/fls/fl102.html www.copyright.gov/title17/92chap1.html www.esa.int/esaMI/Intellectual_Property_Rights/SEMDLA25WVD_0.html www.law.cornell.edu/copyright/cases/293_FSupp_130.htm www.legislation.gov.uk/ukpga/1988/48www.legislation.gov.uk/ukpga/1988/48/section/30