It's pretty simple: I propose we formalise the policy of not accepting trademarks, regardless of their copyright status.
http://commons.wikimedia.org/wiki/Commons:Trademarks
Comment, discuss, support, oppose, etc, on Talk page.
thanks, Brianna user:pfctdayelise
On 06/09/06, Brianna Laugher brianna.laugher@gmail.com wrote:
It's pretty simple: I propose we formalise the policy of not accepting trademarks, regardless of their copyright status. http://commons.wikimedia.org/wiki/Commons:Trademarks
Sounds plausible on the surface. But. * What about spurious trademark claims? Apple has been threatening everyone who uses the prefix "i-" or the suffix "-pod". * Trademark law is far from uniform internationally. Which sets of trademark laws do we decide to ignore? * How many and which countries must it be trademarked in? * How do we deal with claimed trademarks that are not registered trademarks?
- d.
On 06/09/06, David Gerard dgerard@gmail.com wrote:
Sounds plausible on the surface. But. * What about spurious trademark claims? Apple has been threatening everyone who uses the prefix "i-" or the suffix "-pod".
Well, images don't suffer the problems of text in that regard. Restrict it to demonstrated trademarks. Many things are obviously trademarked which don't need to be examined that closely. There are trademark offices, right? So we look them up. Or whoever's so keen to delete looks something up.
But basically stick to the idea of: is it intending to primarily show a trademark? If so, then this applies.
* Trademark law is far from uniform internationally. Which sets oftrademark laws do we decide to ignore?
Well it's just like copyright then :) The general principle of respecting the laws of the country of origin [of the thing, not the image creator] works well IMO.
* How many and which countries must it be trademarked in?
See above, potentially just one.
* How do we deal with claimed trademarks that are not registered trademarks?
Hm... I mostly intend this to apply to registered trademarks. So I don't know - status quo - they can stay?
cheers, Brianna
On 9/6/06, Brianna Laugher brianna.laugher@gmail.com wrote:
It's pretty simple: I propose we formalise the policy of not accepting trademarks, regardless of their copyright status.
Why?
On 06/09/06, Anthony wikilegal@inbox.org wrote:
Why?
This is answered on the Talk page.
Also to resolve the uneasy situation of especially German copyright law, which appears to consider many designs "PD-ineligible" which other countries would not. We have had many repetitive arguments about this issue and a clear policy statement should cut a lot of them down.
Lest this sound terribly anti-dewiki, it's not about trying to catch them out. It's about making our policies more in line with our ultimate aim, to provide freely usable media. If we're doling out trademarks, *regardless of their copyright status* we're not really achieving that.
Brianna
On 9/6/06, Brianna Laugher brianna.laugher@gmail.com wrote:
On 06/09/06, Anthony wikilegal@inbox.org wrote:
Why?
This is answered on the Talk page.
The talk page suggests that anything restricted by trademark law is non-free. That would mean that pretty much every page about any product in any language Wikipedia is non-free, as the pages invariably mention the product name.
I'd say that's moved out of the realm of reasonableness.
Also to resolve the uneasy situation of especially German copyright law, which appears to consider many designs "PD-ineligible" which other countries would not. We have had many repetitive arguments about this issue and a clear policy statement should cut a lot of them down.
Are you sure this would resolve that situation? Are all of these designs registered trademarks?
Commons is global, and I don't think an image should be ineligible for commons simply because it is public domain in a single country. But that's just my opinion. If things are decided the opposite way I still don't see the big deal.
Lest this sound terribly anti-dewiki, it's not about trying to catch them out. It's about making our policies more in line with our ultimate aim, to provide freely usable media. If we're doling out trademarks, *regardless of their copyright status* we're not really achieving that.
I disagree strongly with that statement. Even if you restrict it severely to just registered trademarks, I still don't agree.
By this line of thinking do you also want to exclude all images of living people from the commons, because images of people are not completely free to use in any context. Just as you can't use someone else's trademark to sell a product, you can't use their photograph either. And some jurisdictions even extend this right to publicity after death. So we couldn't even keep pictures of some dead people on commons.
I suppose this is a slippery slope argument, but slippery slope arguments are pretty easy to defeat. Just explain why trademarked images are less free than images of living people, or modify your proposal to exclude images of living people from commons too.
And if your proposal, with that modification, is accepted, then I propose we start a Wikipedia Commons (note the "p") to put images which can be freely used in an encyclopedia, even if they can't be used on a bottle of dish detergent.
Anthony
On 06/09/06, Anthony wikilegal@inbox.org wrote:
And if your proposal, with that modification, is accepted, then I propose we start a Wikipedia Commons (note the "p") to put images which can be freely used in an encyclopedia, even if they can't be used on a bottle of dish detergent.
You mean, a service project designed to hold common images used on the Wikipedias so that they don't have to keep duplicate images on the projects? That's a great idea, and we should propose it to the Foundation immediately! I wonder if we need to change anything in the software to support it.
- d.
On 9/6/06, David Gerard dgerard@gmail.com wrote:
On 06/09/06, Anthony wikilegal@inbox.org wrote:
And if your proposal, with that modification, is accepted, then I propose we start a Wikipedia Commons (note the "p") to put images which can be freely used in an encyclopedia, even if they can't be used on a bottle of dish detergent.
You mean, a service project designed to hold common images used on the Wikipedias so that they don't have to keep duplicate images on the projects? That's a great idea, and we should propose it to the Foundation immediately! I wonder if we need to change anything in the software to support it.
I assume you're being sarcastic, as Wikimedia commons does exactly this, but just thought I'd mention it because in your first post to this thread you seem to like the idea of restricting trademarked images.
Anyway, thinking about this more I have to say that providing free images for people to use on their bottles of dish detergent is at least currently outside the scope of Wikimedia. The same could be said of most other products too. So unless trademark law restricts the ability to use an image on textbooks, or encyclopedias, or dictionaries, or newspapers, or quote books, or species directories, then I don't see the problem with it being on commons. Ironically, the only image I can think of which this would restrict is the same image which isn't even free wrt copyright law and would probably continue to get grandfathered in anyway - the Wikimedia logo.
Anthony
On 06/09/06, Anthony wikilegal@inbox.org wrote:
Anyway, thinking about this more I have to say that providing free images for people to use on their bottles of dish detergent is at least currently outside the scope of Wikimedia.
So you propose to change (or make more specific) the [[Commons:Project scope]]. I am not necessarily opposed to that either. I just dislike living in perpetual limbo-land and with the lack of guidance from on-high, making concrete policies is one way to resolve it.
But anyway, I note that we've (the collective Wikimedia community, that is) abolished WikipediaOnly permissions. Do you support that or not? Because you can use those in Wikipedia et al, yet we require stronger permissions. We also abolished non-commercial (NC) clauses, even though Wikipedia itself is a non-commercial enterprise. Do you support that?
I am not trying to be paranoid here, but I feel uneasy that we recognise a (2D) video cover design is not free and yet somehow we accept the infamous "Pringles photo" ( http://commons.wikimedia.org/wiki/Image:Pringles_(aka).jpg ) simply because the original object is 3D. And also http://commons.wikimedia.org/wiki/Image:BibelTV-logo.jpg ... doesn't seem quite right.
Brianna
On 9/6/06, Brianna Laugher brianna.laugher@gmail.com wrote:
On 06/09/06, Anthony wikilegal@inbox.org wrote:
Anyway, thinking about this more I have to say that providing free images for people to use on their bottles of dish detergent is at least currently outside the scope of Wikimedia.
So you propose to change (or make more specific) the [[Commons:Project scope]]. I am not necessarily opposed to that either. I just dislike living in perpetual limbo-land and with the lack of guidance from on-high, making concrete policies is one way to resolve it.
Actually, I don't see anything in the project scope that needs to be changed. It says it right in the project scope: commons is for media that is "useful for some Wikimedia project". The purpose is not to collect images to use on your products.
But anyway, I note that we've (the collective Wikimedia community, that is) abolished WikipediaOnly permissions. Do you support that or not?
Yes, I support that.
Because you can use those in Wikipedia et al, yet we require stronger permissions.
You can legally use them in Wikipedia, but you can't use them in any other encyclopedia. That's the problem. Furthermore, they *are* banned from Wikipedia, not just the commons. Trademarked images *aren't* banned from Wikipedia. Do you think they should be?
We also abolished non-commercial (NC) clauses, even though Wikipedia itself is a non-commercial enterprise. Do you support that?
Actually I think it's debatable whether or not Wikipedia is a non-commercial enterprise. They're non-profit, but they do engage in commerce under the definition in US law. But anyway, I'd go back to my comment about Wikipedia-only permissions. NC-only images are banned in Wikipedia, not just commons.
I am not trying to be paranoid here, but I feel uneasy that we recognise a (2D) video cover design is not free and yet somehow we accept the infamous "Pringles photo" ( http://commons.wikimedia.org/wiki/Image:Pringles_(aka).jpg ) simply because the original object is 3D. And also http://commons.wikimedia.org/wiki/Image:BibelTV-logo.jpg ... doesn't seem quite right.
Brianna
IMO the Pringles photo is restricted by copyright and is not free. The pringles can design is a 2D work which is not freely licensed.
The Bibel TV logo is trickier. I think it's a borderline case, because it's somewhat free in many jurisdictions. But this has far more to do with copyright law than it does with trademark law.
In what jurisdictions is it legal to put the Bibel TV logo in an encyclopedia article? Presumably Germany (not copyrightable) and the United States (fair use), but I don't know the complete answer to this question, and I think the answer to it is the key to whether or not it's an acceptable image.
Anthony
On 9/6/06, Anthony wikilegal@inbox.org wrote:
In what jurisdictions is it legal to put the Bibel TV logo in an encyclopedia article? Presumably Germany (not copyrightable) and the United States (fair use), but I don't know the complete answer to this question, and I think the answer to it is the key to whether or not it's an acceptable image.
Thinking about this some more, I see two possible answers to get out of "limbo-land".
1) If an image is useable under the rules of more than one project (such as German Wikipedia and English Wikipedia), then it can be in commons.
OR
2) If an image is useable under the rules of every single project, then it can be in commons.
I could see arguments for either policy. But the restrictions certainly shouldn't be tighter than that. If an image is useable under the rules of every single project, then it certainly should be allowed in commons.
Are trademarked, but public domain, images disallowed (per se) from any project?
Anthony
I don't like the terms in what it's formulated, as it would fall down much photos i feel free. However, i don't think [[Image:Pringles (aka).jpg]] free, and [[Image:BibelTV-logo.jpg]] is a {{logo}} for me.
I like the way Anthony tries to go. Useable under the rules of more than one project is not good for me. e.g: dewiki & dewikisource? It'd be the image is free under the terms of X projects (as English Wikipedia is not usable). What really matters is probably the scope of the licensing. if an image is free on EEUU and Europe, it should be allowed on commons, while not being copyrighted on Brunei is probably not.
The problem with the {{Logo-Germany}} is that it's a box-for-all, quite similar to the fair-use. If it's PD on the trademark registration country, it should be ok, but *who decides the ineligibility?* Quite problematic. But i wouldn't go so far as your proposal.
On Wed, September 6, 2006 16:07, Platonides wrote:
If it's PD on the trademark registration country, it should be ok, but *who decides the ineligibility?*
The way this thread is starting to read I'm almost wondering if we're heading towards the conclusion that 'one size will never fit all' as each country / jurisdiction will operate different restrictions for the same material and for us to define something as 'commons' usuable worldwide will be close to impossible.
I hate to suggest it, but are we looking towards some sort of infobox on each image/media page with a table of country/ies and statuses, leaving it to the user in each instance to confirm what status applies to their proposde use?
Alison Wheeler
On 07/09/06, Alison Wheeler wikimedia@alisonwheeler.com wrote:
I hate to suggest it, but are we looking towards some sort of infobox on each image/media page with a table of country/ies and statuses, leaving it to the user in each instance to confirm what status applies to their proposde use?
We have something a bit like this with http://commons.wikimedia.org/wiki/Template:Logo-Germany .
Maybe this is the way to go. Many users will ignore such fine print, though. Though I guess that's a problem then for individual projects, not Commons...
I don't know. Copyright law also seems to be very difficult to resolve sometimes, but we are muddling along.
Brianna
On Thu, September 7, 2006 04:38, Brianna Laugher wrote:
Maybe this is the way to go. Many users will ignore such fine print, though. Though I guess that's a problem then for individual projects, not Commons... I don't know. Copyright law also seems to be very difficult to resolve sometimes, but we are muddling along.
I've put up an idea of what I meant as a status table at http://commons.wikimedia.org/wiki/User:AlisonW/Licensestatustest Obviously a template solution would be used to get the countries and standard texts inserted, but it might work and also provides us with a caveat for when (rather than if!) images get used where they shouldn't be ...
Alison Wheeler
On Thursday, September 07, 2006 9:14 AM, Alison Wheeler wrote:
I've put up an idea of what I meant as a status table at http://commons.wikimedia.org/wiki/User:AlisonW/Licensestatustest Obviously a template solution would be used to get the countries and standard texts inserted, but it might work and also provides us with a caveat for when (rather than if!) images get used where they shouldn't be ...
Alison Wheeler
I encourage everyone to visit the example that Alison created and share their thoughts on this possible solution for multi-licensing. Something like this may go some ways to solving some of our concerns.
Cary Bass
I dislike the idea of this because there is no 1-to-1 correspondence between language and country. en.wp is the Wikipedia of choice for most of the world. So which country's laws to adopt? Chinese, French, Arabic.. many languages have this fact. Australia has some looser copyright limits than the US for pre-1955 material, and it doesn't seem right to restrict use of these by applying American laws to them.
I still think the principle of adopting the laws of the country of origin (of the piece of work, not uploader) makes the most sense. I see the German Wikipedia has a copy of the Australian Aboriginal flag, despite its copyrighted status in Australia. This disturbs me to no small extent - the statement of 'public domain' seems patently a lie... so probably I also have to accept that 'simple' logos that originate in Germany are indeed uncopyrightable.
Brianna
On 14/09/06, Cary Bass bastique@bellsouth.net wrote:
On Thursday, September 07, 2006 9:14 AM, Alison Wheeler wrote:
I've put up an idea of what I meant as a status table at http://commons.wikimedia.org/wiki/User:AlisonW/Licensestatustest Obviously a template solution would be used to get the countries and standard texts inserted, but it might work and also provides us with a caveat for when (rather than if!) images get used where they shouldn't be ...
Alison Wheeler
I encourage everyone to visit the example that Alison created and share their thoughts on this possible solution for multi-licensing. Something like this may go some ways to solving some of our concerns.
Cary Bass
Commons-l mailing list Commons-l@wikimedia.org http://mail.wikipedia.org/mailman/listinfo/commons-l
On Thu, September 14, 2006 04:31, Brianna Laugher wrote:
I dislike the idea of this because there is no 1-to-1 correspondence between language and country. en.wp is the Wikipedia of choice for most of the world.
Just to clarify, that is *exactly* the reason I put up the 'status' test page; I was listing jurisdictions against copyright status, not language.
Whilst we can utilise the law in the uploader's location, or in the USA, to determine some things it is absolutely clear that we cannot rely on either of those two locations to give us carte blanche to use that image everywhere in the world; a jurisdictional approach will be the only way, moreso for content re-users than for WMF projects directly.
Alison
On 9/14/06, Alison Wheeler wikimedia@alisonwheeler.com wrote:
On Thu, September 14, 2006 04:31, Brianna Laugher wrote:
I dislike the idea of this because there is no 1-to-1 correspondence between language and country. en.wp is the Wikipedia of choice for most of the world.
Just to clarify, that is *exactly* the reason I put up the 'status' test page; I was listing jurisdictions against copyright status, not language.
I like the idea. Just some of the examples, even fake, are really badly chosen. *winks* You can't put a work under PD in France for example.
Whilst we can utilise the law in the uploader's location, or in the USA, to determine some things it is absolutely clear that we cannot rely on either of those two locations to give us carte blanche to use that image everywhere in the world; a jurisdictional approach will be the only way, moreso for content re-users than for WMF projects directly.
I believe unfortunately that both USA law and law of the country of the uploader need to be obeserved. My take in the end though, is that until we've had to defend ourselves to the end on real issues and a court somewhere has ruled what law applies, we will just be debating to no avail.
Delphine
On 9/14/06, Brianna Laugher brianna.laugher@gmail.com wrote:
I dislike the idea of this because there is no 1-to-1 correspondence between language and country. en.wp is the Wikipedia of choice for most of the world. So which country's laws to adopt? Chinese, French, Arabic.. many languages have this fact. Australia has some looser copyright limits than the US for pre-1955 material, and it doesn't seem right to restrict use of these by applying American laws to them.
While I understand your concern...
I still think the principle of adopting the laws of the country of origin (of the piece of work, not uploader) makes the most sense.
...what do you mean by "country of origin of the piece of work"?
I'm French, I take a picture in Germany of anAmerican work of art that's public domain in the US but not in Germany. Which law applies?
/me is lost.
Delphine
Delphine Ménard wrote:
On 9/14/06, Brianna Laugher brianna.laugher@gmail.com wrote:
I dislike the idea of this because there is no 1-to-1 correspondence between language and country. en.wp is the Wikipedia of choice for most of the world. So which country's laws to adopt? Chinese, French, Arabic.. many languages have this fact. Australia has some looser copyright limits than the US for pre-1955 material, and it doesn't seem right to restrict use of these by applying American laws to them.
While I understand your concern...
I still think the principle of adopting the laws of the country of origin (of the piece of work, not uploader) makes the most sense.
...what do you mean by "country of origin of the piece of work"?
I'm French, I take a picture in Germany of anAmerican work of art that's public domain in the US but not in Germany. Which law applies?
/me is lost.
Copyright law is stupid. Intellectual property law is stupid. Trademarks law is stupid. None of these laws have caught up to technology yet.
We have taken it upon ourselves to produce content that is /as free as/ /possible/ - which means that for the moment, we are bound to abide by the most restrictive law that could apply.
Yes, it is silly. But only by respecting copyright law does copyleft work, so we are as much in favour of copyright protection as the free licensing of works.
On 9/14/06, Alphax (Wikipedia email) alphasigmax@gmail.com wrote:
We have taken it upon ourselves to produce content that is /as free as/ /possible/ - which means that for the moment, we are bound to abide by the most restrictive law that could apply.
Yes, it is silly. But only by respecting copyright law does copyleft work, so we are as much in favour of copyright protection as the free licensing of works.
Yes and no. I don't think we have to pick the most restrictive. I think that we could probably agree on a relative level of international freedom that would be acceptable to most -- i.e., free under any country which is a party to the Berne convention, for example, would not be an unreasonable determination, just to throw one out there. That would include most of the major content producers and consumers of the world, and is less arbitrary than saying "USA, Germany, France, UK."
On the other hand, even within that determination there are some questionable things, such as the really ridiculous notion in some countries that any photograph which contains a picture of a copyrighted building in it is copyrighted by the architect. This strikes me as being copyright-out-of-control, where the rights of one party are drastically respected while the rights over another are trod upon. Since copyright terms have been expanded to ridiculous lengths all around, it becomes a really depictable monopoly on culture. I think if there are ways to resist some of these sorts of things without being legally risky, we should consider them. In the US, for example, photography of publicly accessible buildings is explicitly allowed in US copyright law without being infringement. Wikimedia servers could host such photos without fear of real legal reprisals, even if a re-user in a country with a more ridiculous law would have difficulties. We could make this very clear in the tagging so that nobody would be accidentally put into a negative legal situation. Just a thought and an example.
Copyleft uses the copyright system but it is always quite conscious of the limits of the copyright system (the CC licenses make it very plain that they don't intend at all to infringe upon fair use rights). The copyright system is currently a travesty -- limited monopolies have become virtually perpetual and the right of the producer has been held as almost entirely dominant over the rights of the consumer (or culture writ broadly). Copyleft is a way to strengthen these other rights; it respects copyright law but does not enshrine it, and especially not its excesses.
FF
On 9/14/06, Delphine Ménard notafishz@gmail.com wrote:
...what do you mean by "country of origin of the piece of work"?
I'm French, I take a picture in Germany of anAmerican work of art that's public domain in the US but not in Germany. Which law applies?
/me is lost.
Which law applies depends where you are publishing the work. If you were publishing it in Germany then you would have to deal with the fact that it is not PD. If you were publishing it in the US then you would not.
"Country of origin" generally means "the place where something is being published and thus where it is likely to end up in court." Thinking about things as "where would I be before a judge?" is a good way of thinking about jurisdictional issues, even though with international treaties that itself is not always foolproof.
My problem with the example page given is that it gave the appearance that a given contributor could license their works differently in different countries (i.e. use free licenses one place and non-free in another). That's clearly against the intent of Commons. I think, though, that an approach which said, "This work is licensed as CC-BY-SA" and then have a way to indicate that either "this only applies in countries X, Y, and Z, because of such-and-such legal condition" or "this does not apply in country X, because of such-and-such legal condition." An example of this are photos of copyrighted architecture, which in the USA (and I think Germany) are explicitly said not to be copyright infringement, but in France and some other countries are considered derivative works. So a photo of the Eiffel tower at night could say, "GFDL in the USA and Germany; in France elements of this could be considered copyright so-and-so."
I'm not sure a large and free-form table is the best way to accomplish this. I think it will confuse people. I think perhaps though that if we agree on certain issues (say, the architecture one), we could make specific templates relating just to those instances. They should be relatively limited in scope.
(The "free in the USA" requirement is necessary in any case, since the Wikimedia servers "publish" the content from the USA. Whether it is sufficient is a different question all together.)
FF
On 15/09/06, Fastfission fastfission@gmail.com wrote:
I'm not sure a large and free-form table is the best way to accomplish this. I think it will confuse people. I think perhaps though that if we agree on certain issues (say, the architecture one), we could make specific templates relating just to those instances. They should be relatively limited in scope.
There do seem to be a small number of recurring issues in this regard: - public art - architecture (= derivative works? freedom of panorama?) (in some, maybe all, countries these are considered together?) -limits of PD-ineligible (notably, German logos) -privacy rights -possibly 'sweat of brow' vs 'mechanical copy'? (we are still inconsistent about this, with flags) -and if we're going to go down this route, many countries probably have laws about offensive/seditious material?
Brianna
On 9/14/06, Brianna Laugher brianna.laugher@gmail.com wrote:
On 15/09/06, Fastfission fastfission@gmail.com wrote:
I'm not sure a large and free-form table is the best way to accomplish this. I think it will confuse people. I think perhaps though that if we agree on certain issues (say, the architecture one), we could make specific templates relating just to those instances. They should be relatively limited in scope.
There do seem to be a small number of recurring issues in this regard:
- public art
- architecture (= derivative works? freedom of panorama?)
(in some, maybe all, countries these are considered together?) -limits of PD-ineligible (notably, German logos) -privacy rights -possibly 'sweat of brow' vs 'mechanical copy'? (we are still inconsistent about this, with flags) -and if we're going to go down this route, many countries probably have laws about offensive/seditious material?
That's a pretty good list to start with. I think we should put off the offensive/seditious material question for another day -- it's a very big kettle of fish. The only exception to that is that there are US laws regulating the need for publishers to maintain detailed records about anyone appearing in sexual situations. I'm pretty sure Jimbo has said in the past that he wasn't interested in trying to keep such records; anyway it's an issue to think about since we do "publish" out of the US.
It would be great if, for the sake of discussing it, we had a little table that explained the international differences on the above issues. I only know bits and pieces about a few of them. It might help us clarify what the legal issue is, and from there we can also probably think about the ethical issues (I'm inclined, for example, to support privacy rights in any compromising photographs which are not of "public figures," whether or not the law strictly requires it or not).
FF
Alison Wheeler wrote:
On Wed, September 6, 2006 16:07, Platonides wrote:
If it's PD on the trademark registration country, it should be ok, but *who decides the ineligibility?*
The way this thread is starting to read I'm almost wondering if we're heading towards the conclusion that 'one size will never fit all' as each country / jurisdiction will operate different restrictions for the same material and for us to define something as 'commons' usuable worldwide will be close to impossible.
I suggested elsewhere the following idea of a golden rule for commons: If an image is free in the US (physical place of the servers) and the coutry of origin, it should be accepted. We should not care for the laws in saudi arabia or japan if the image is in no connection to those countries.
Ciao Henning [H-stt]
On 9/8/06, Henning Schlottmann h.schlottmann@gmx.net wrote:
I suggested elsewhere the following idea of a golden rule for commons: If an image is free in the US (physical place of the servers) and the coutry of origin, it should be accepted. We should not care for the laws in saudi arabia or japan if the image is in no connection to those countries.
This is overly simplistic. Wikimedia's output is intended to be free everywhere... I don't think we should follow unusual and foolish laws in places where we are not required to do so, but that is a long way from only considering the law in the US and the uploaders location.
An example is Iran. Iran is not *currently* a party to most international copyright treaties. As a result their copyrights are not considered valid in most of the world. However their copyright law is effectively equal to what is mandated by the Berne convention.
Today a US user could legally upload modern works published only in Iran, and they would be legal in most of the world.... but they would be illegal in Iran. If we fill the Persian language Wikipedia with these images, would we be succeeding at producing a free content encyclopedia in that language? What happens next week if Iran signs the Berne Convention?
Instead we should conform strictly to the laws of the uploaders location and to the laws of where the servers are hosted... and then attempt to conform to the laws of all places someone may wish to publish or work to the extent that doing so is both reasonable and not in strong conflict with or projects overall goals.
Quoting Gregory Maxwell gmaxwell@gmail.com:
On 9/8/06, Henning Schlottmann h.schlottmann@gmx.net wrote:
I suggested elsewhere the following idea of a golden rule for commons: If an image is free in the US (physical place of the servers) and the coutry of origin, it should be accepted. We should not care for the laws in saudi arabia or japan if the image is in no connection to those countries.
This is overly simplistic. Wikimedia's output is intended to be free everywhere... I don't think we should follow unusual and foolish laws in places where we are not required to do so, but that is a long way from only considering the law in the US and the uploaders location.
I didn't understand "country of origin" to mean the uploaders location, which may not be verifiable.
An example is Iran. Iran is not *currently* a party to most international copyright treaties. As a result their copyrights are not considered valid in most of the world. However their copyright law is effectively equal to what is mandated by the Berne convention.
Today a US user could legally upload modern works published only in Iran, and they would be legal in most of the world.... but they would be illegal in Iran. If we fill the Persian language Wikipedia with these images, would we be succeeding at producing a free content encyclopedia in that language? What happens next week if Iran signs the Berne Convention?
But for the purposes of this rule the country of origin of those works would be Iran, where they were first published, not the US.
It seems that some rule of thumb is needed to overcome the complications of every single theoretical, or even practical, forum shopping possibility for copyright holders.
Will
<snip>
---------------------------------------------------------------- This message was sent using IMP, the Internet Messaging Program.
On 9/8/06, Gregory Maxwell gmaxwell@gmail.com wrote:
Today a US user could legally upload modern works published only in Iran, and they would be legal in most of the world.... but they would be illegal in Iran. If we fill the Persian language Wikipedia with these images, would we be succeeding at producing a free content encyclopedia in that language?
Excellent point. Leaving aside the black/white free/nonfree issue, I don't think it'd be a smart idea to *unnecessarily* fill the encyclopedia with a lot of images that a lot of the potential users can't reuse.
I'm less sure about whether or not it's OK to put these images in the French encyclopedia (for example), though. I imagine there are very few people in Iran who would be interested in a French encyclopedia. And if it's OK to put the images in most encyclopedias, but not in a few of them, then should the image be in commons?
What happens next week if Iran signs the Berne Convention?
I'd be interested in the answer to that question. If the copyright automatically becomes valid in most countries, even for pre-existing works, then obviously these images are unusable in any language Wikipedia. Is that what happens?
Instead we should conform strictly to the laws of the uploaders location and to the laws of where the servers are hosted...
I'd say the uploaders are responsible for conforming strictly to the laws of their location, not "us". It would be far too complicated to try to figure out where people are uploading from and then what laws apply there.
and then attempt to conform to the laws of all places someone may wish to publish or work to the extent that doing so is both reasonable and not in strong conflict with or projects overall goals.
For some value of "reasonable" I think the vast majority of people agree with this. I do think that value of "reasonable" varies quite a bit from person to person, though.
Anthony
As posted on the talk page: copied here for those not following there:
I would '''strongly''' disagree with any attempt to bar depictions of products on Commons. If Commons goes down the road of prohibiting any content where there may be any restriction on its use under any circumstances, the project will prove utterly worthless for my use, and many others'. The fact is that almost any product of humankind in recent times has some kind of restriction on use, somewhere. Manufactured objects, almost certainly, especially if they have visible trademarks on them (which almost all do, these days) or a distinctive design (whether considered copyrighted or design protected in another way). This covers pictures of cars, computers, electronic devices of all kinds, buildings, and nearly everything I can think of.
Pictures of living people also have restrictions on them. In some jurisdictions, there is in fact no way for any model release or contract to remove all restrictions; the person depicted still has some rights over the image. Pictures which contain living people even incidentally are also restricted, especially if no model release or contract has been signed. The picture as a whole is PROBABLY legally non-problematic, but if cropped down to show only a person or group as the main subject would be a problem.
Also, in many countries, creators have inalienable moral rights over their creations that cannot be signed away. These are legal restrictions over and above those of the GFDL or other free license.
If commons goes down the road that any restrictions on use at all except those specified by GFDL or CC-By-SA are unacceptable, then Commons will be a repository only for public-domain art (but beware of those copied without the consent of the current owner!), pictures of landscapes and growing things (but even then, beware! Some landscape features have been trademarked ...) and suchlike. That Commons is nearly useless to me, and I will not use it or contribute to it.
-Matt
On 07/09/06, Matt Brown morven@gmail.com wrote:
Pictures of living people also have restrictions on them. In some jurisdictions, there is in fact no way for any model release or contract to remove all restrictions; the person depicted still has some rights over the image. Pictures which contain living people even incidentally are also restricted, especially if no model release or contract has been signed. The picture as a whole is PROBABLY legally non-problematic, but if cropped down to show only a person or group as the main subject would be a problem.
Yes... well probably it would do no great harm to have much stronger requirements with regards to model releases and the like. I don't think policy on this area is complete. Morally we have more of a responsibility to develop something watertight here, but from a legal perspective trademarks seem more dangerous to me due to large companies' deep pockets (and attraction to the courts).
If commons goes down the road that any restrictions on use at all except those specified by GFDL or CC-By-SA are unacceptable, then Commons will be a repository only for public-domain art (but beware of those copied without the consent of the current owner!), pictures of landscapes and growing things (but even then, beware! Some landscape features have been trademarked ...) and suchlike. That Commons is nearly useless to me, and I will not use it or contribute to it.
OK, but you don't need to be so dramatic. No one wants to see that happen. It's not like I am the last authority on policy anyway -- I posted this to get other people's opinions, not merely inform you before it was enacted. ;)
I didn't think this up to be the ultimate killjoy. I thought it up to try and solve some of the contradictions I see in how we handle images today. Do you think the Pringles image is free? The German logos?
What about version 2: instead of applying to all registered trademarks, apply to all registered trademarked logos. This should remove the ridiculous cases like you mentioned above (car body shapes, landscape, device designs etc). But still includes Pringles boxes & German logos.
cheers, Brianna
On 07/09/06, Brianna Laugher brianna.laugher@gmail.com wrote:
What about version 2: instead of applying to all registered trademarks, apply to all registered trademarked logos. This should remove the ridiculous cases like you mentioned above (car body shapes, landscape, device designs etc). But still includes Pringles boxes & German logos.
I think it's the wrong place to apply a policy.
If the usage is the problematic thing, we can't protect people from using something in a way that contradicts local law, any more than we can stop them from reusing a GFDL image in print without reprinting the entire GFDL next to it. A licence template does not constitute legal advice either, and we can't guarantee something marked with a particular licence is in fact under that licence - do we remove all images the Foundation doesn't have signed paper on? (i.e., operate at the level of assurance the FSF operates at.)
Ultimately we can only be people's mothers to a certain extent.
Commons was conceived as a service project for the Wikipedias, then people started treating it as an area to make a personal name for themselves on as if it were a wholly separate entity; if the second group of people make it useless for the first purpose, then we would have to duplicate the service project aspect. Which strikes me as ridiculous.
- d.
On 9/6/06, Brianna Laugher brianna.laugher@gmail.com wrote:
On 07/09/06, Matt Brown morven@gmail.com wrote:
Pictures of living people also have restrictions on them. In some jurisdictions, there is in fact no way for any model release or contract to remove all restrictions; the person depicted still has some rights over the image. Pictures which contain living people even incidentally are also restricted, especially if no model release or contract has been signed. The picture as a whole is PROBABLY legally non-problematic, but if cropped down to show only a person or group as the main subject would be a problem.
Yes... well probably it would do no great harm to have much stronger requirements with regards to model releases and the like. I don't think policy on this area is complete. Morally we have more of a responsibility to develop something watertight here, but from a legal perspective trademarks seem more dangerous to me due to large companies' deep pockets (and attraction to the courts).
Dangerous how? Do you know of any cases where an encyclopedia was sued for violating trademark law when it included a trademarked image in one of its articles? Are there any trademark holders threatening to sue Wikimedia for trademark infringement, in cases where the copyright status is clear?
What about the forks and mirrors? Have any of them complained that *they* were getting threatened over trademark issues?
I don't know the answer to these questions, so maybe it is a problem and I just don't know about it. If it is a problem (dangerous from a legal perspective), then we should be talking about banning trademarked images from all Wikipedias, not just from Wikimedia Commons. If it isn't a problem, then I see no reason for a new policy.
I've decided to modify my suggestion slightly: "If an image is useable under the rules of the majority of Wikimedia projects, then it can be in commons. Otherwise, it can't." I suspect the difference between "the majority of" and "all" is minor, but this removes some corner cases (maybe French Wikipedia is especially paranoid about lawsuits over photos of buildings, for instance).
Anthony
Anthony wrote:
Dangerous how? Do you know of any cases where an encyclopedia was sued for violating trademark law when it included a trademarked image in one of its articles? Are there any trademark holders threatening to sue Wikimedia for trademark infringement, in cases where the copyright status is clear?
What about the forks and mirrors? Have any of them complained that *they* were getting threatened over trademark issues?
I don't know the answer to these questions, so maybe it is a problem and I just don't know about it.
The kind of things that do happen is as follows: * In an article, we describe some product under a brand name, perhaps with the false belief that this brand name is a "common term" and not a trademark. * In the same article, we use an image of a product from a competitor. * Both the producer of the item described in the article and the producer of the photographed item may argue that we infringe on their trademarks.
See? It's a question of context.
(When I say "that do happen", I mean that I have actually seen such complaints sent to the Foundation or local chapters.)
If it is a problem (dangerous from a legal perspective), then we
should be talking about banning trademarked images from all Wikipedias, not just from Wikimedia Commons.
I'm sorry, but the world is not in binary.
If you want not to risk trademark infringement, you would have to prohibit ever mentioning a brand name in Wikipedia, since merely mentioning a trademarked brand name in a context where the brand name is misattributed to another holder may expose us to litigation. This is a rather ridiculous proposal.
My humble opinion is that trademarks in images do not pose special issues as long as the context of use of these images is reasonable for our encyclopedic goals (i.e. we don't describe Foobie Cola by putting a can of Foobar Cola).
Now, you will tell me that this makes in practice "unfree" images because you won't be able to use them for any purpose. Another false problem. Our images of living persons are not usable for any purpose in a number of major jurisdictions, simply because misusing such images may constitute an infringement on those person's privacy or "right to image". As an example, if you take a photograph of a personality and photoshop it onto a nude body, the personality may well argue that you deliberately misrepresented her. Also, if you use a photograph of a recognizable person in an advertisement, without that person's authorization, that person, in many jurisdictions, will be able to argue that you misused her image. Again, it's all about context.
maybe French Wikipedia is especially paranoid about lawsuits over
photos of buildings, for instance
I think a much more reasonable proposal, instead of trying to placate all possible litigation aspects (which is ridiculous given how our way of operating makes us a huge target for libel complaints), is to take a pragmatic view: what do we reasonably risk?
-- DM