Mainly because a large deal of our feeling confident
that our use of
unlicensed copyrighted material is "fair" is that it is purportedly for
"comment and criticism." This approach seems backed up by a number of
informed sources, i.e.
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-a.ht…
lists "Comment and Criticism" and "Parody" as the two primary
categories of things which receive legal blessing for "Fair use" claims. I
think most people have a pretty poor view of what counts legally as the
latter (most seem to think it just means "used in a funny way" which is not
at all how the courts interpret "parody"). As for the former, the Stanford
page says:
"If you are commenting upon or critiquing a copyrighted work--for instance,
writing a book review -- fair use principles allow you to reproduce some of
the work to achieve your purposes. Some examples of commentary and criticism
include:
- quoting a few lines from a Bob Dylan song in a music review
- summarizing and quoting from a medical article on prostate cancer in
a news report
- copying a few paragraphs from a news article for use by a teacher or
student in a lesson, or
- copying a portion of a Sports Illustrated magazine article for use
in a related court case.
The underlying rationale of this rule is that the public benefits from your
review, which is enhanced by including some of the copyrighted material.
Additional examples of commentary or criticism are provided in the examples
of fair use cases in Section C."
Now whether we achieve this in the article namespace is of course often
under discussion. In the User and Template namespaces media is primarily
used for decoration and personalization. This would not seem to fall under
the above descriptions even in a very optimistic approach.
Unfortunately the Stanford Fair Use case summaries page has almost nothing
relating to using images on webpages (only the "thumbnailing" case which is
not quite the same thing) so it is hard to know what sort of precedent one
would be fallnig back upon in either direction. I know a few cases offhand
but I'm not a lawyer and it is hard for me to sort through what is most
relevant and what would not be.
This is, anyway, my understanding of what the policy is based upon, for
better or worse. There is also a crude risk/benefit equation going on here.
There is simply no compelling reason to allow unlicensed, copyrighted images
in the user namespace, and a number of reasons to be suspicious of it.
I think that we can probably use a more flexible standard for talk pages
than article pages, but that still does not mean that anything goes.
For one thing there is no plan to publish. The last page of the Stanford
commentary begins with, "The difficulty in claiming fair use is that
there is no predictable way to guarantee that your use will actually
qualify as a fair use. "
Two other important consideration that is mentioned in that page are
whether it will cause the copyright owner to lose money, or whether it
will be offensive. As long as a contributor can make a reasonable case
within the four factors we should have some latitude for fair use images
on talk pages.
Ec