In India, and in many countries outside the US, the concept of fair use
is referred to as 'fair dealing' - the terms are analogous, but not
exactly similar. In India, the copyright act outlines fair dealing
principles in Sec 52, and if you would like to see the old and new
provisions under this section, refer to:
Current Indian copyright law (with suggested amendments from government
and civil society):
http://www.altlawforum.org/intellectual-property/advocacy/proposed-amendmen…
Proposed amended copyright law (soon to be tabled in parliament):
http://tinyurl.com/3tb7drx
While under fair dealing it is possible to 'use' an image without
permission under prescribed circumstances, this naturally does not mean
that a user is free to change the licensing terms of the image. My
understanding is that to upload an image on to Wikimedia Commons, the
image licensing terms are fairly strict and clear; either it has to be
out of copyright (i.e. its copyright term is verifiably over) or it has
to be licensed CC BY SA, GFDL or Public Domain. So, in short, the
concept of fair use/ fair dealing is inapplicable to Wikimedia Commons
and doesn't help there in any way.
English Wikipedia allows for non-Wikimedia Commons images to be used in
articles under fair use/ fair dealing, so that is an option that is
option that is open to you as well when working there. Furthermore, all
Indic language Wikipedias can also set a similar policy (i.e. allow for
image use on the language Wikipedia through fair dealing) - so that is
something that you and others might want to consider - I don't know what
the current policies across Indic language Wikipedias are. This is one
way to bypass both (a) the copyright policies set by Wikimedia Commons
and (b) the difficulty in establishing copyright provenance in images of
Indian religious iconography.
Fair dealing provisions in India are quite wide, and would allow you to
use a wide set of commonly available images for illustrative purposes
only - though you could seek specialised legal help if you want full
clarity.
Cheers,
Achal
On Wednesday 11 May 2011 09:02 AM, Mahitgar from Marathi Wikipedia wrote:
> Dear All,
>
> Thanks for beginning discussion on this important topic,Pandarpur and
> God Viththal is very old and very central to Marathi and Maharashtra
> culture, I still remember few years back I failed to upload an image
> of God Vitthala of Pandharpur on commons, subsequently some one
> succeeded to upload an image under proper license.
>
> While it is true that we need to believe in people, I have very
> closely observed quite a few people selecting some license for the
> sake of it or just to retain the image. While it is true that now that
> Vithathal image is there on wikipedia pages,still I am not sure how
> far legal it is ?
>
> while god is one or many, for Indian Legal system idols in temples
> are treated as person and those are public places but not necessarily
> in public domain per say, many temples across India you will notice
> having notice boards which strictly prohibit taking a photo graph of
> the idol and temple; I dont know why this system exist in the temple
> but when it is there we are supposed to comply the law.
>
> Why we need to be concerned ?
>
> So an image coming without permission from temple authority is anyway
> illegal.What we need to understand is not that we are concerned about
> copy right for the sake of it, we ( commons/wikipedia) are concerned
> of the issue because we just do not want to do a collection of
> information and knowledge, but we share, and we do not want just
> share through wikipedia site but we want wikipedias to be a vehicle of
> knowledge sharing where other medias of communication can come forward
> to take this info and knowledge to masses. When we share info
> knowledge with other media people, they will do so only if they are
> assured that material available at wikipedias is legal enough.
>
> There is total lack of awareness , concern and sensitivity and above
> all Law is a complex subject. Given that, the funny thing is you go to
> a person with a request to make otherwise an unimportant thing copy
> right free he may not co-operate ask you thousand frustrating
> questions, but the same fellow you may find,floating copy-right of
> others happily every now and then
>
>
> At Wikipedia for many Indians, it is there first time in life time
> that some one is asking them about copy right, they are simply
> surprised in disbelief and usually they are so passionate about their
> subject at their hand at least until they receive several
> requests/warnings they happily tend to ignore such communications .
>
> And why not so ? just few years back,to write copyright related help
> pages (on marathi wikipedia), I thought to procure few Copyright
> related books from the market, In Pune I went from shop to shop what I
> could get just a bare act copy.Only one shop was carrying book with
> detail commentary and the price he told me for the same was just Rs
> 12000!.Then at least for few months I tried to get an appointment with
> a law college principal and simply all that effort turned out to be
> futile without getting an appointment ever.
>
> Servers are in USA! So can I bypass the Indian laws ?
> Again I see a huge number of people using fair use clause for
> uploading images on Wikipedia, and that too under provisions of
> non-Indian laws ! Whether servers are in USA and some thing is legal
> under their law suffice the requirements of Indian Laws ? When a kite
> is floating from Indian soil to out of India border or a kite is
> floating in Indian sky from out side India,is it not an Indian law,
> at least to all Indian subjects, is supposed to get applied ?
>
> Accepted that intellectual property acts in most countries are
> similar now a days but those simply can not be the same because laws
> are subject to final definition by supreme judiciary of each country
> independently.
>
> How fair is the fair use under Indian Laws?
>
> While I dont have a detail commentary of Indian Copy right law , what
> I read until now is bare copyright law .My understanding is while
> Indian Copy Right act has provisions of fair dealing but those
> concessions are largely for educational and restricted community
> performances. While Wikipedia has educational component and non profit
> but we are not a website that restricts other making profit from the
> info available on it so in perfect sense we are not supposed to get
> concessions on account of fair use/deal under present Indian Copy
> right act; unless owner of the copyright himself permits such usage.
>
> Similar to commons,unlike to english wikipedia, I have kept a proposal
> on Marathi Wikipedia to bar usage of fair use provision since
> according to me we (wikipedia and indic wikipedians) are not supposed
> to benefit any concession under Indian Copyright fair use clause. We
> do lack enough legal expertise at mr-wiki community,so inputs on this
> issue from other indic wikipedians are most welcome ,imporant and will
> be valuable to us all.
>
> Look forward to read more opinions on above issues and continued
> discussion of copyright subject on this forum
>
> Thanks
>
> Mahitgar from Marathi Wikipedia
>
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> ------------------------------------------------------------------------
> *From:* "wikimediaindia-l-request(a)lists.wikimedia.org"
> <wikimediaindia-l-request(a)lists.wikimedia.org>
> *To:* wikimediaindia-l(a)lists.wikimedia.org
> *Sent:* Tue, 10 May, 2011 12:18:54 PM
> *Subject:* Wikimediaindia-l Digest, Vol 35, Issue 17
>
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> Today's Topics:
>
> 1. Re: Fwd: Copyright problems of images from India (Sreejith K.)
> 2. Re: Fwd: Copyright problems of images from India
> (wheredevelsdare(a)hotmail.com <mailto:wheredevelsdare@hotmail.com>)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Tue, 10 May 2011 16:48:23 +0530
> From: "Sreejith K." <sreejithk2000(a)gmail.com
> <mailto:sreejithk2000@gmail.com>>
> Subject: Re: [Wikimediaindia-l] Fwd: Copyright problems of images from
> India
> To: Wikimedia India Community list
> <wikimediaindia-l(a)lists.wikimedia.org
> <mailto:wikimediaindia-l@lists.wikimedia.org>>
> Message-ID: <BANLkTinaqSxY1=q4WnrnGcYDxTgv2F6J_Q(a)mail.gmail.com
> <mailto:q4WnrnGcYDxTgv2F6J_Q@mail.gmail.com>>
> Content-Type: text/plain; charset="utf-8"
>
> All paintings of Hindu deities are not copyright free. There are
> clauses for
> it. As per Indian copyright act, only paintings that were published 60
> years
> before are in public domain. Now the question here is how to prove the age
> of the painting. Lets take a different example, may be Lord Ram or Lord
> Shiva. How can we prove the age of the painting? In one discussion, a
> commons admin asked me to find a book that was published 60 years back in
> which this image is included. I need not explain the difficulty in getting
> such a proof.
>
> Similar case with photographs of images before 1943. Colorization does not
> add new copyright, unless they add changes to it which makes it
> significantly different from the original. Now, how do you prove the
> images
> of such photographs? These photographs were taken during their
> lifetime and
> probably belongs to their family when it was taken. As per current
> rules in
> Commons, the family will have to send OTRS saying that the image
> belongs to
> them. Even then, someone could say that the photographer is not from their
> family and so the OTRS cannot be accepted. See this example ->
>
http://commons.wikimedia.org/wiki/Commons:Requests_for_undeletion#File:Varg…
>
> There are a lot of copyright violation photos uploaded to Commons. In
> between those deletions, a lot of genuine photographs get deleted for lack
> of proof. The concern here is on how to save them.
>
> - Sreejith K.
>
>
> On Tue, May 10, 2011 at 4:37 PM, Bala Jeyaraman <sodabottle(a)gmail.com
> <mailto:sodabottle@gmail.com>>wrote:
>
> > 1) >>Ayyappan, a popular god of Kerala, has his image circulated
> > everywhere on the plant with no proof of copyrights. It makes sense to
> > believe that this image is not eligible for copyright because
> > Hindu deities are all common property,
> >
> > i have to disagree with this. All images of Hindu deities are not public
> > property. Most of the popular images were done by painters some time
> in the
> > immediate past - Ravi varma's paintings form the base for many deity
> images.
> > Similarly there are many unknown temple artists, who have gone uncredite
> > because of our practice of gross insensitivity to others' copyright.
> > Claiming that deity images are not eligible for copyright is wrong.
> They do
> > have copyright and unless there is iron clad proof of publication, dont
> > decalre them to be in public domain. The fairuse clause is there for
> cases
> > like this.
> >
> >
> > 2) While i understand what sreejith is saying, repeated copyright
> > violations in commons by Indian uploaders is mainly to blame for this
> > backlash. In Ta wiki and in commons, i have to repeat many times to
> people
> > that "everything that comes out of google image search is not free".
> In my
> > experience, about half the people react defensively to such advice and
> > reflexively claim the image is "own work" and they "took
it". They
> do not
> > like being pointed out they are wrong and thus damage the reputation of
> > Indian uploaders further. Many of the regular commons users thus become
> > immediately suspicious when a new indian user claims that an image
> is "own
> > work". Even in the outreach programs i participated, people listen to me
> > drone about how taking images of google image search is not ok and
> do the
> > same the immediately after. This issue is not restricted to Indian
> users,
> > but is a major problem for us. The only way to deal with this is a
> > relentless copyright awareness campaign for Indian users.
> >
> > 3) Images of people who died prior to 1951. Here too the case is not
> clear.
> > Many photos of such people are reconstructive work done post-1951.
> > Colourisation of black and white pictures is a major concern. I am
> still not
> > clear, if colourisation passes the originality threshold and becomes a
> > original work on its own. If so, then such a work cannot be claimed
> as PD.
> >
> > Personally i add a ton of descriptive information and long arguments to
> > prove PD in india and in case of my own images, i always upload with
> full
> > resolution and metadata. It is a sad bad situation, but the root
> cause is
> > relative ignorance of Indians (including me) about copyright.
> >
> > regards
> > Bala
> >
> > On Tue, May 10, 2011 at 4:07 PM, Shiju Alex
> <shijualexonline(a)gmail.com <mailto:shijualexonline@gmail.com>>wrote:
> >
> >> Dear All,
> >>
> >> I am forwarding the below mail on behalf of a Malayalam wikipedian
> who is
> >> very active in Wikimedia Commons.
> >>
> >> Of late it is becoming very difficult for many Wikimedians from
> India to
> >> contribute to Wikimedia Commons especially if they are uploading
> historical
> >> images which are in PD. We are facing lot of issues (and many a times
> >> unnecessary controversies also) with the historic images in PD,
> images of
> >> wall paintings and statues, and so on. Please see the below mail in
> which
> >> Sreejith citing various examples.
> >>
> >> It is almost impossible for the uploaders from India to show proof
> of the
> >> century old images of Hindu Gods and Goddesses. The current
> policies of
> >> Commons are not permitting many of the PD images from India citing
> all sorts
> >> of policies which might be relevant only in the western world. With
> these
> >> type of policies we are going to have serious issues when we try to
> go for
> >> GLAM type events.
> >>
> >> But I also do not know the solution for this issue. Requesting
> >> constructive discussion.
> >>
> >>
> >> Shiju Alex
> >>
> >>
> >>
> >> ---------- Forwarded message ----------
> >> From: Sreejith K. <sreejithk2000(a)gmail.com
> <mailto:sreejithk2000@gmail.com>>
> >> Date: Thu, May 5, 2011 at 12:03 PM
> >> Subject: Copyright problems of images from India
> >> To: Shiju Alex <shijualexonline(a)gmail.com
> <mailto:shijualexonline@gmail.com>>
> >>
> >>
> >> Shiju,
> >>
> >> As you might be aware already, we are having trouble keeping historical
> >> images about India in Wikimedia commons. This pertains mostly to images
> >> about Hindu gods and people who died before 1947.
> >>
> >> Please see the below examples:
> >>
> >> - File:Narayana
>
Guru.jpg<http://commons.wikimedia.org/wiki/File:Narayana_Guru.jpg> -
> >> This is the image of Sree Narayana
>
Guru<http://en.wikipedia.org/wiki/Narayana_Guru>ru>,
> >> a Hindu saint, social reformer and is even considered a god by
> certain
> >> castes in Kerala. This image has been tagged as an image with No
> source.
> >> Narayana Guru expired in 1928 and considering the conditions in
> which India
> >> was in during that period and before, it is very difficult to
> get an image
> >> source online. Most active Wikipedians does not have access or
> information
> >> on how old the image is or where a source of it can be found.
> Any photograph
> >> published before 1941 in India is in public domain as per Indian
> copyright
> >> act. Common sense says that this image meets this criteria
> because the
> >> person was long lead before 1941, but we still need proof of the
> first
> >> publishing date. Deleting this image on grounds that no source
> could be
> >> found will only reduce the informative values of all the
> articles which this
> >> image is included in.
> >> - File:Aravana.JPG: This image has already been deleted, but you can
> >> see the amount of discussion that went in before deleting it.
> See Commons:Deletion
> >>
>
requests/File:Aravana.JPG<http://commons.wikimedia.org/wiki/Commons:Dele…PG>.
> >> (An almost similar image can be found
>
here<http://www.flickr.com/photos/anoopp/5706721852/in/photostream/>.…
> >> image as put for deletion because it had the image of Swami
>
Ayyappan<http://en.wikipedia.org/wiki/Swami_Ayyappan>in it. Ayyappan,
> a popular god of Kerala, has his image circulated
> >> everywhere on the plant with no proof of copyrights. It makes
> sense to
> >> believe that this image is not eligible for copyright because
> >> Hindu deities are all common property, but again, Commons need
> proof that
> >> the image is in public domain. This is the same case with all Hindu
> >> gods/goddesses. The images can only be kept in Commons if the
> uploader can
> >> provide proof that the images are in public domain.
> >> - File:Kottarathil
>
sankunni.jpg<http://commons.wikimedia.org/wiki/File:Kottarathil_sankunni…pg>:
> >> This is a picture of Kottarathil
>
Sankunni<http://en.wikipedia.org/wiki/Kottarathil_Sankunni>ni>,
> >> the author of the famous book
>
Aithiyamaala<http://en.wikipedia.org/wiki/Aithihyamala>la>.
> >> Kottarathil Sankunni died in 1937 and so it makes sense to
> believe that this
> >> image was created on or before 1937 and thus falls in Public
> Domain. But
> >> some people in Commons is refusing to believe that and is asking
> for proof.
> >> Now it becomes the responsibility of the uploader to show proof
> that this
> >> image was published 60 years before today. The editor who
> nominated the
> >> image for deletion is on the safer side because it is not his
> responsibility
> >> to prove that the image is a copyright violation. So long story
> short,
> >> anyone can nominate any image for copyright violation and it
> becomes the
> >> uploaders responsibility to prove that its not. The deletion
> nomination need
> >> not be accompanied with a reason for disbelief.
> >> - File:Anoop
>
Menon.jpg<http://commons.wikimedia.org/wiki/File:Anoop_Menon.jpg>pg>:
> >> This is the picture of Anoop
>
Menon<http://en.wikipedia.org/wiki/Anoop_Menon>on>,
> >> a popular actor from Kerala. A discussion is going on about the
> uploaders
> >> credibility whether he is the original photographer of this
> image. Please
> >> see File talk:Anoop
>
Menon.jpg<http://commons.wikimedia.org/wiki/File_talk:Anoop_Menon.jpg>pg>.
> >> The reason for doubting the uploader is simple. This image has
> professional
> >> quality and so the uploader cannot be the copyright owner
> because this is
> >> his first upload. Strange? Now, it becomes the responsibility of the
> >> uploader to prove that he took this image and I do not know how
> and nor does
> >> the person who is arguing for it. He claims that the uploader
> can upload the
> >> full resolution image with EXIF but whats even funny is that
> most of images
> >> from the person who is saying this does not meet this criteria.
> Again, back
> >> to round 1 in my first example. Its the responsibility of the
> uploader to
> >> prove his image and anyone can doubt him for any stupid reason
> and commons
> >> hardly cares.
> >>
> >> As you can see, it is getting quite difficult to maintain images from
> >> India in commons. India is a country which has only started to use
> Internet
> >> less than a decade ago and we still do not have many of our
> countries' books
> >> or sources of information online. So any image from India which gets
> >> nominated for deletion in Wikimedia Commons get deleted for absence of
> >> proof. Commons is ruled by *precautionary principle*, where in they are
> >> not willing to take any risks on copyright and will delete any
> image for
> >> which anyone has doubts. This is in contrary to local wikipedia
> projects in
> >> India where it is rules by the *good faith principle* where we will
> trust
> >> the uploader and it becomes the responsibility of the nominator to
> prove
> >> that the image has false copyright claim.
> >>
> >> This issue is beginning to hurt the contents from India. If we can do
> >> something, its time we act immediately. If we are just going to
> just spent
> >> out time discussing about it, the pictures of all Hindu gods and
> people who
> >> died before independence might get deleted by that time.
> >>
> >> Regards,
> >> Sreejith K.
> >>
> >>
> >> _______________________________________________
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