I asked this question a few hours ago on another thread - 'contents
under education/information licenses', and since then Erik said: "As for
the argument that we do allow fair use -- we do indeed. But as I always
emphasize, fair use is not on equal footing with freely licensed
content. It can be removed almost at will, or replaced with more freely
licensed content of lower quality. A rationale is required for its
invocation, and many projects now have whitelists of allowable fair use
But we tried to formulate a policy in EN Wikipedia to make open content
mandatory in a very limited class of images...see
and the discussion on it...you'll see that there was (and is still)
virtually no support for such a principle from anyone.
Is there a clearly stated policy on fair use please, whether to
eliminate it or otherwise?
Thanks for any help -- Luke
The Board and Executive Director are compiling a database of
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Peace & Love,
Member, Wikimedia Foundation Board of Trustees
DISCLAIMER: Unless otherwise stated, all views or opinions expressed
in this message are solely my own and do not represent an official
position of the Wikimedia Foundation or its Board of Trustees.
Currently, on many projects, we allow three kinds of multimedia content :
1) content in the public domain
2) content available under "free" licenses (with our own definition of
"free"; some people disagree with GFDL being a free license)
3) content available under the "fair use" clause of US copyright law.
1) and 2) are easily reusable by third parties, while 3) is not (each
use of a "fair use" document must be justified).
Clearly, these rules were set with the view of the US law : we put
stringent rules on allowing only "free" content, and then we opened a
whole boulevard with the US-specific "fair use" clause. I might even go
as far as to say that our stringent rules are acceptable only because we
have this "fair use" allowance.
Now, fair use does not exist in the legislation of many countries; or,
rather, it exists in a weaker or different form ("right of citation").
As a consequence, many wikipedias, targetting citizens of countries
other than the US, have decided to prohibit fair use content or at least
severely restrict it.
This proves a problem with some providers of content (companies,
government administrations, etc.) who would gladly provide e.g.
photographs usable for any informational or educational purpose, but
that they do not want to appear in advertisements (especially for
products unrelated to their activities).
An example is the European space agency (ESA) and the French space
agency (CNES) : they would gladly allow their photographs to be used for
any educational or informational purpose (including commercial, e.g.
DVDs, paper encyclopedias, textbooks etc.) but they do not want their
material to appear in e.g. advertisements for supermarkets or, worse,
political advertisements, because in such cases some idea of endorsement
of the product on their part is implied. They cannot use trademark
legislation to fight such abuse, in most cases.
Note that, in the US, NASA, whose photographs are in the public domain,
is protected from abusive by specific US laws prohibiting misuse of some
symbols of the US government, including the NASA logo (the same applies
for e.g. military insignia). The photo may well be termed "public
domain", but they can actually prosecute you if you use it in an
Note also that the Wikimedia Foundation also copyrights its logos in
order to prevent abuse. We should not be hypocrites and deny to others
what we do for the same purpose (especially since the Foundation grants
individual authorizations, not a blanket "for education or information").
In addition, the legislation of some countries may not allow blanket
licenses for any use (considered as clauses abusing the rights of the
authors, and thus null and void).
A solution would be to create a new category of content allowed on
Wikimedia projects :
4) Content available for use for any purpose, commercial or non
commercial, as long as it is informational or educational.
I see only advantages :
* This would enable us to counter systemic bias ; that is, allow content
from some providers from countries where "fair use" does not apply (we
for instance currently totally unbalance the portrayal of space programs
by having 7000 photos from NASA and hardly any from ESA/CNES).
* This would enable us to attract interesting content from providers who
do not want their work to be used in advertisements, for questions of
corporate or institutional image.
* This would be coherent with the goals stated in the bylaws of the
Wikimedia Foundation, that is, distribute informational content.
Common objections are :
* Jimbo said he would not longer allow content restricted to "non
=> This does not apply here, since the above mentioned content would be
usable for commercial uses.
(Non-commercial only licenses would be an annoyance for people willing
to distribute DVDs or in case we lack funds and we're forced to put up
advertisements. Neither would be hampered by the above mentioned
* Such content would be "unfree".
=> Then ban all fair use from all projects, since "fair use" content is
considerably more unfree. "Fair use" content is usable for
educational/informational use only for narrow cases, and is only usable
by US residents.
In short, this objection is US-centric. :-)
* ESA and CNES should do like NASA does.
ESA and CNES operate under different laws and rules than NASA. NASA
employs many of its photographers, whose work is in the public domain as
work of US government employees ; ESA and CNES have to buy many
photographs from non-employees, typically under conditions allowing any
educational or informational use but disallowing uses in commercial
Again, US-centric objection. :-)
To summarize my point of view: to be coherent, we should
* either allow such content usable for any educational or informational
uses, including commercial:
* either prohibit "fair use" content from all projects (and perhaps also
content constrained by laws other than copyright, e.g. insignia of US
Gregory, I fear that there might be some sort of misunderstanding here.
I think that we all share the same ideal of information sharing.
However, practically, there are constraints with which we have to
In this case, we might wish that the CNES put their photographs in the
Public Domain, but our wishes are irrelevant because this is
impossible. (Furthermore, I feel that you are quite unfair to the
CNES, because it is not their choice anyway).
Since we are already using non-free images under "fair use"
conditions, I fail to understand how the "if it's not Free it sucks"
type of discourse is relevant.
The question is that, *practically*, there are Wikipedia which for
different reasons do not have Fair Use provision ; that there is a
legitimate need for some photographs ; and that we have people quite
willing to share their photographs as much as they possibly can.
In this respect, it is legitimate to wonder whether Wikipedia which to
not have Fair Use might allow themselves to use these images. Lyrical
discourses relying on the Judgement of History contribute little to
I'll try to avoid the finer details here and get to the substance of the
problem. Some organizations want to apply licensing terms that allow
"educational" and "informational" use of their content. They profess to
allow "commercial" use. However, they also want to prevent
"advertisement" and "political" use.
Framing the issue this way assumes that these categories are distinct.
That assumption is misleading and, especially in the context of our
philosophical commitments on licensing issues, not one we can operate
with. Their concession to commercial use recognizes that education and
information can be commercial products. But what about, for example,
using this material to advertise an educational product? This is
territory where it isn't feasible to bless some approaches and cordon
off others, at least not without detailed agreements spelling out what
is and isn't permissible. Such things quickly become too complicated for
our own contributors, to say nothing of anyone downstream who wants to
And that's only the first stage of blurring the attempted distinction.
As any political operative would say, at least for public consumption,
everything they put out *is* informational. They claim to believe that
if voters had all the facts, they would all reach the same conclusion
and support this position or that candidate. It's not negative
campaigning, it's making sure people have all the information they need
about your opponent.
As for the differences between information and advertising, it's much
the same thing. Most marketing (think of the worst corporate article on
Wikipedia you've ever wanted to delete) still aims to be informational,
even though it's coming at you from a slanted and perhaps distorted
perspective. Perhaps some of you may not be familiar with the term
"infomercial", which is I guess rather American, but that phenomenon
illustrates the problem quite well. Considering that the second half is
from commercial, with a meaning equivalent to advertisement, according
to this philosophy such use should be allowed and not allowed at the
I think much of the problem is a sense that dedicating something to the
public domain means abandoning the ability to defend it against abuse.
But the kind of abuse contemplated is less a matter for copyright and
licensing. Trademark law has been mentioned, and that might work in some
situations. But really these kinds of problems are, or ought to be,
covered by moral rights. Fundamentally, the situation these
organizations want to prevent is use to imply endorsement against their
wishes, whether that be commercial or political. To me, that's a moral
rights issue, and shouldn't need to involve licensing. To deal with the
problem, they should focus on the endorsement, not resort to other
categories instead that are poor proxies.
Regardless of how somebody licenses or releases their content, they
aren't supposed to lose their moral rights, as I understand it. Probably
some of the difficulty understanding each other here is because the US,
which has the strongest tradition of releasing content to the public
domain, has also been among the most resistant to the moral rights
concept. I could certainly support some changes and clarifications to
the law in this regard, preferably at a level of international
coordination. Perhaps that would make agencies in other countries
comfortable with releasing their material more freely. But for our
purposes in the meantime, I don't think accepting content with
additional restrictions like these gets us closer to our goals.
This is just right off the top of my head, but what about The Degree
Confluence Project (home page: http://www.confluence.org/)?
They aren't a wiki, but their entries are text and images submitted
willingly and freely by volunteers. If I remember correctly, those willing
to upload anything need to fill an online form releasing all the material -
their howto page explains how to submit material
(http://www.confluence.org/howto/visitsubmit.php). Furthermore, they've
been around for a few years with relative success, so it's not a "new
I'm not sure if that is what would interest you, Ant, but I thought it would
be worth at least bringing it up.
All the best,
in (02:17:22), Anthere wrote:
>If you had to cite organisations which share a lot with our, which
>organisations would you cite ?
>Key words here being
>We'd like to contact some "similar-like" organisations to share best
>Do you have names to suggest (not necessarily limited to open source or
>foundation-l mailing list
>Does anyone know of cases where this has actually happened? Also, does
>> this relate to any particular legislation? I've only ever heard of
>> this sort of thing in consumer protection or trade practices
As a member of the board of Wikimedia France, I had a meeting with the
head and the legal counsel of some society of authors, whose name I
shall leave unstated (the problems are not specific to them).
Their legal counsel told me that their stance is that all legal
conditions stating that the author cedes all rights for an unbounded
duration are abusive and that they were ready to fight that in court if
These people have a very different point of view from ours.
Publishers try to have them sign agreements in which they sell their
works for a fixed pity sum for any use whatsoever.
We may consider "free of rights" content to be a Good Thing (TM), but to
them this is a Bad Thing (TM). To them, "free of rights content" ("libre
de droits" in French) means, for instance, cheap CDs and DVDs in which
you have 1000s of photos and other pictures that you can use without
paying royalties, that is, in practice, this means loss of income to
them. By "loss of income", I don't mean "loss of a little income in
an ocean of $$$", but I mean making it difficult to make ends meet at
the end of the month.
For almost everybody on this list (I'm leaving out Brad and Danny, sorry
folks), Wikipedia is a hobby project that we contribute to in our free
time. This is not the case of these people. Their works are their
livelihood. They're in a bad position, they feel shafted by the economic
powers, so they naturally have a tendency to be wary of evolutions that
may make their situation worse. That's human. When I discussed "free of
rights" stuff with them, I felt like somebody trying to promote Sauron
of Mordor to hobbits. Not a comfortable position, believe me.
This is something I'd like to stress : in most of our dealings as
representatives of Wikimedia France, we haven't encountered people who
acted against our wishes out of spite, but rather people who have to
deal with pressures (from their hierarchy, from economic powers,
from the legal system, etc.) and respond in a fairly understandable way.
As Delphine explained, going into a head to head confrontation is
counter-productive; one must at least try to understand why they act in
this way, and they often have a fairly good rationale from their point
of view. (I'm not saying we should accomodate each and every request
from people we disagree with, but at least we should try to consider
that they're often acting sensibly from their point of view.)
Trying to push radical ideas in an "all or nothing" approach tends to
lead to a lose-lose situation. In order to get something out of people,
they have to listen to what you say (yay! I feel like
If you start becoming confrontational, they start getting
confrontational too, and they stop listening.
Besides, I feel very uncomfortable promoting what we do as "sensible".
We have ultra-stringent requirements about "free" content, yet we allow
GFDL content (which all the quirks of the GFDL, which makes it unusable
for many applications), and then we explain that we allow "fair use"
content, a very vaguely defined legal exception. As we say in France,
before pointing out the straw in someone else's eye, beware of not
having an entire woodblock in one's own. Our licensing policy is
inconsistent too, and people will not take it kindly if we ask that they
alter theirs whereas we are incapable of sorting out ours.
An important point is that for the last 150 years, French copyright law
has been (at least in theory, practice is different, see below) centered
around the idea of an *author* making a *work of the mind* which is his
*property*. The author then authorizes *each use* of the work.
(In practice, authors cede rights to publishers, but the contracts are
then supposed to delineate the limits of these cessions of rights. They
also cede their rights to societies who collect rights on their behalf.)
Law delineates what can and cannot be done in publishing contracts (CPI
L132-1 to L132-17). It prohibits indiscriminate ceding of rights (CPI
L131-1, L131-3). Law imposes that the author should be remunerated in
proportion to the use of his work (CPI L131-4), with some exceptions.
In comparison to that, support for the possibility of free licenses
seems to hinge on CPI L122-7-1.
I don't have the case law out of my head; certainly, getting a
comprehensive file on French case law with respect to the protection of
authors would probably involve paying a lawyer to research it. But,
indeed, there *are* protections against ceding all rights for any use,
that's a fact, and courts *have* ruled that some clauses in publishing
contracts were abusive. (Fundamentally, this is because
these contracts are unbalanced : on the one hand you have a
self-employed author, cartoonist, photographer etc. who has to pay the
bills at the end of the month, on the other hand a big corporation.) Our
beloved "free licenses" are largely untested in court, and I suspect
that how they interact with existing legislation could fill entire
doctoral theses in law...
Another important issue is that this whole debate is not
France-centered. "Copyright" as practiced in the US is largely an
American conception (though British law may be somewhat similar to some
extent, even though apparently the British recognize scanning images as
creating rights?). The Berne convention, which many countries
(including, somewhat recently, the US) have signed is based on 19th
century French ideas of the rights of authors (I reckon Victor Hugo
pushed for it. Yes, the guy who originally wrote the Hunchback of
Notre-Dame. :-) )
[ When I say CPI, I mean the French intellectual property code,
available on http://www.legifrance.gouv.fr . This is a very entertaining
reading. Plus, after a while, one is capable of peppering one's
conversation with "see CPI L122-5 third paragraph", a sure win in
academic cocktail parties.]
Is the website called "Česká Aikido Wikipedie" known to the WMF?
This website is about the Japanese martial art aikido, and is most
surely run by a private indivudual who makes no money from it. Still
I wonder if the WMF objects to other websites using words like
"Wikipedie" in their names. I must say I reacted quite strongly when I
The California Supreme Court issued its ruling yesterday in the Barrett
v. Rosenthal case, one of the most closely watched cases involving the
Communications Decency Act section 230. The Court came down strongly in
favor of internet freedom and immunity from liability for those within
the protection of Section 230. This has significant implications for
"distributor" and "user" theories of liability/immunity. Overall, this
decision is very good for Wikimedia Foundation projects, and our users.
I encourage anyone interested to see the opinion at