On 06/09/06, Brianna Laugher <brianna.laugher(a)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". * 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 9/6/06, Brianna Laugher <brianna.laugher(a)gmail.com> wrote: Why?

On 9/6/06, Brianna Laugher <brianna.laugher(a)gmail.com> wrote: 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. 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. 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 9/6/06, David Gerard <dgerard(a)gmail.com> wrote: 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 9/6/06, Brianna Laugher <brianna.laugher(a)gmail.com> wrote: 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. Yes, I support that. 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? 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. 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

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.

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(a)gmail.com> wrote: 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). 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 Thu, September 7, 2006 04:38, Brianna Laugher 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

Anthony wrote: 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.) 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. 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

On 9/8/06, Henning Schlottmann <h.schlottmann(a)gmx.net> wrote: 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.

On 9/8/06, Gregory Maxwell <gmaxwell(a)gmail.com> wrote: 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? 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? 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. 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

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(a)bellsouth.net> wrote:

On 9/14/06, Brianna Laugher <brianna.laugher(a)gmail.com> wrote: While I understand your concern... ...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 -- ~notafish

On 9/14/06, Alison Wheeler <wikimedia(a)alisonwheeler.com> wrote: 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. 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 -- ~notafish

On 15/09/06, Fastfission <fastfission(a)gmail.com> wrote: 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(a)gmail.com> wrote: 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