Note: I'm not trying to comment on what policy is or should be, just clarify the nature of fair use. Of course, being a discussion of fair use, this post is U.S.-centric.
Andre Engels wrote:
2007/2/8, Gunnar René Øie gunnarre@nvg.ntnu.no:
Because if the fair use claim is valid and strong enough, then commercial re-users can use those fair-use images. Non-commercial and "Wikipedia only"? Not so.
Can they? The en-wp fair use rationale states that it is valid fair use "On the English-language Wikipedia hosted on servers in the United States by the non-profit Wikimedia Foundation."
There's a big difference between the en-wp rationale for fair use and the policy for whether an image can be used on Wikipedia under fair use.
The fair-use *rationale* has a goal of emphasizing Wikipedia's characteristics to strengthen its legal claim to fair use. This is Wikipedia claiming maximal rights.
The fair-use *policy* has a goal of restricting fair use to a safe subset of what Wikipedia may legally use. This is Wikipedia exercising minimal rights.
And what about ND images? If there is an image that is fair use on a page, and the rationale is strong enough to allow me to use it, then surely I would be allowed to use an ND image at the same place.
Yes, because fair use is tangential to licensing. If you have a good fair-use rationale for an image, then you may use it under fair use. Having the additional option of a no-derivatives license does not infringe on that right.
The Creative Commmons project clarifies this on every license they publish with a fair use disclaimer emphasizing this aspect of fair use. But to be clear, they are not *granting* you the option of fair use. You have fair use whether they say you do or not.