On 19/09/06, Delirium <delirium(a)hackish.org> wrote:
This discussion started with a
mention of laws about taking pictures of various Royal properties, which
is an extra-copyright restriction. You seem to favor us honoring those
sorts of restrictions as well. But there are *quite* a lot of those, if
we want to get into expansive conformance. In some countries, it's
illegal to publish material that impugns the honor of a president, king,
revered religious figure, or some other such thing. Should we ignore
these laws? If so, how do we distinguish between the ones we follow
(apparently UK ones) and the ones we don't?
<rant - sorry, this isn't particularly directed at you, it's been
simmering for a while>
The issue is that a British author entered into a contract made
legally under British law to do something in Britain. This is by no
means a bizzare or inhuman contract - "I will let you into private
property, and let you take photographs, on the condition you don't use
them commercially". Art galleries everywhere do much the same thing;
it's nothing to do with copyright or draconian privacy laws, it's just
a matter of a contract between an individual and an organisation.
So regardless of any legal situation in the US, it is a breach of
contract *on the part of the author* to release those images for
commercial use, even if he does it outside the UK. US copyright law
doesn't come into it, US freedom of speech doesn't come into it,
because it isn't about either - it's about the fact that the author
has made a contract which is legally binding and *he personally* would
be breaking it if he released the work under a free license.
Wikimedia is fine - we're not a party to the contract, and it's an
open question as to what on earth the other party can do to us if the
photographer decides to break his contract. But we should never be
pretending we can get people out of their local legal constraints,
unrelated to copyright, just because publishing in Florida gives us
funky copyright possibilities.
It's fair to say "we publish in Florida and aren't bound by German
laws on reproducing swastikas", because that's a German law binding on
German publications. It's (usually) fair to say "we publish in Florida
and aren't bound by overseas copyrights on PD-US work", because we're
looking at a US law binding on US publications. It's not fair to say
that publishing in Florida means editors can escape any restrictions
they have fairly entered into or had placed on them, especially when
those have nothing to do with copyright, because we're looking at
local laws binding *on our editors*.
Even if the end result is an encyclopedia that breaks no laws in
Florida, we should not be expecting or encouraging our editors to
break their own laws to get there.
</rant>
--
- Andrew Gray
andrew.gray(a)dunelm.org.uk