Gregory Maxwell wrote:
On 11/27/05, Anthony DiPierro
<wikilegal(a)inbox.org> wrote:
What about non-free pictures that are legal for
Wikipedia to use?
No-derivatives images, non-commercial only images, by permission
images. Are these banned? Are there many floating around? I believe
these are banned from commons, except for some logos owned by
Wikimedia.
These are banned on *english* Wikipedia and I presume on all others.
We would rather have the smallest amount of fair use content (or
otherwise unfree content) on Wikipedia possible, because it would
maximize our goal to be a *free* encyclopedia.
This makes philosophical sense. It allows for "some" free use
material. "Some" is a moving target that relies on flexibility and
common sense. Unfortunately, some people prefer absolute black and
white rules that avoid exercising common sense.
This would be true even
if there was no confusion or international disconnect over fair use.
However, the English Wikipedia community has decided that in order to
do our job successfully we must make some non-minimal use of fair use
content because a great many historically significant images are only
available that way and a great many other images are much more
available.
The public interest argument when used alone may be very weak. The
first question that should come up when fair use is claimed is, "Does
this contributor understand fair use?" Perhaps the information page for
any image claimed to be fair use should include a fair use analysis
section where the contributor MUST answer a series of relevant
questions. In addition to applying the four criteria of US law the
person would need to show where the picture comes from. If it is from a
book he would need to show any credits which the author of the book gave
with regards to the picture; it's important to be able to trace a
picture to its original source..
He should also be prepared to show why the picture is NOT in the public
domain. This is important because having a work in the public domain
would make any fair use argument moot.
We don't extend the same tolerance for 'with
permission' or
'non-commercial' because it isn't at all clear that choice of freedom
in that case cuts us out from a great number of images which we could
obtain in no other way.
I would follow this, but not without some regret.. Simply put, I think
that a lot of people who add these provisions to our apparent source
have probably not thought this through. Personally, I would prefer to
allow much of this material with the proper credits and caveats. In
many ways the due dilligence required by a downstream user of our
pictures is no different from that required by a downstream user of our
information. That user has his own responsibility for verifying that
the information is accurate.
In any case, there is already pressure from some on
English Wikipedia
to further restrict our use of fair use to only cases where it can
clearly be articulated that no reasonable freely licensed content
could be created to replace the fair use image.
This is one more question that could be asked in a fair use analysis
This might be a
misunderstanding of what I was saying. Not including
non-free images clearly has positives and negatives. Personally I
believe the positives outweigh the negatives, at least in the vast
majority of cases. In my opinion every article should have at least
some image in it eventually. Adding a non-free image fixes that
problem in the short term, but in the long term it lessens the chance
that a free image will come along.
You make it sound a lot more cut and dry than it actually is... Fair
use is not a blanket permission to violate copyright as such it is not
really a good quick fix to a missing image. In most interesting
jurisdictions, since parody isn't something we are likely to do, we
must be making critical commentary of the creative work we borrow from
in order to make a strong fair use claim.
Section 107 of the US copyright law includes "Notwithstanding the
provisions of Sections 106 and 106A, the fair use of a copyrighted work,
... for purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research,
is not an infringement of copyright.
This is much wider that just criticism. The reference to Section 106A
suggests that it is not even necessary to even attribute the source, but
this seems contrary to the fair dealing as it exists in other
countries. Notwithstanding this I think that academic integrity
requires proper attribution even for works that have been in the public
domain for a very long time.
For the case of a great many articles, it's simply
easier to nag
someone with access to the right place or object to take a picture.
Anyway, the English Wikipedia seems to be relying
less on fair use
than it has in the past. I think it's good for us to look at the
other languages to see that it really wouldn't be that horrible to
drop reliance on it completely.
Ah, so you've spotted that trend. It's true and I think it is an
unquestionably good thing.
It's good that reliance is being reduced, but an absolutism that denies
the use of all fair use images does not seem warranted. It is easy to
imagine situations where allowing a fair use image would be the right
thing to do. This might include images where the copyright status is
unclear, or orphan works. These can always be taken down easily if
there is a complaint from a person with the right to make that
complaint. If such material lasts long enough (I would suggest three
years from the upload date.) the doctrine of laches could become applicable.
Ec