On 11/29/05, Ray Saintonge saintonge@telus.net wrote:
We would rather have the smallest amount of fair use content (or otherwise unfree content) on Wikipedia possible, because it would maximize our goal to be a *free* encyclopedia.
This makes philosophical sense. It allows for "some" free use material. "Some" is a moving target that relies on flexibility and common sense. Unfortunately, some people prefer absolute black and white rules that avoid exercising common sense.
(I presume you intended 'fair' not free above)
I think we should be as black and white as it makes sense, but no more. A complete prohibition against fair use would make a substantial number of subjects effectively unillustratable and would put us at a competitive disadvantage to other encyclopedias.
The public interest argument when used alone may be very weak. The first question that should come up when fair use is claimed is, "Does this contributor understand fair use?"
The answer to that on english wikipedia is a resounding NO in a great many cases.
Perhaps the information page for any image claimed to be fair use should include a fair use analysis section where the contributor MUST answer a series of relevant questions. In addition to applying the four criteria of US law the person would need to show where the picture comes from. If it is from a book he would need to show any credits which the author of the book gave with regards to the picture; it's important to be able to trace a picture to its original source..
I would support this, but there is such a huge amount of material already there and such a huge resistance to removing any of it. (I get yelled at when tagging totally orphaned 'fair use' material for deletion!). I'm not sure of how we get there from where we are today.
He should also be prepared to show why the picture is NOT in the public domain. This is important because having a work in the public domain would make any fair use argument moot.
That's usually pretty darn easy, (unfortunately) thanks to modern copyright law.
We don't extend the same tolerance for 'with permission' or 'non-commercial' because it isn't at all clear that choice of freedom in that case cuts us out from a great number of images which we could obtain in no other way.
I would follow this, but not without some regret.. Simply put, I think that a lot of people who add these provisions to our apparent source have probably not thought this through. Personally, I would prefer to allow much of this material with the proper credits and caveats. In many ways the due dilligence required by a downstream user of our pictures is no different from that required by a downstream user of our information. That user has his own responsibility for verifying that the information is accurate.
I don't agree. In many cases where we use an image under fair use, there is very little to no chance of getting the work available under a free license. If the work has already been licensed under cc-by-nc-sa it is highly likely that we can get a copy under cc-by-sa or GFDL, by using the argument that the SA requirements (or GFDL's requirements) are onerous enough that people engaging in the sort of commercial distribution they are trying to inhibit via cc-by-nc will still be interested in obtaining a separate copyright license under more liberal terms.
Furthermore, some people feel that cc-by-nc-sa is unethical because claims to discriminate against some classes of use rather than just distribution (but likely actually fails in that goal because as a copyright license, rather than a contract, it has no ability to impose such limitations).
Frankly, our fair use images are actually more 'free' than cc-by-nc-sa content that we could have for many of our uses. If we were to produce a print edition we could only use cc-by-nc-sa if we could also claim fair use, which happens to be less likely for this content simply because of its nature.
I want it to be possible to produce and sell a print edition of Wikipedia complete with illustrations, this is only realistically possible if we limit our content to be Free or fair use (because a print edition would be able to make the same fair use claims as the online).
In any case, there is already pressure from some on English Wikipedia to further restrict our use of fair use to only cases where it can clearly be articulated that no reasonable freely licensed content could be created to replace the fair use image.
This is one more question that could be asked in a fair use analysis
It's a question we're starting to ask.
Section 107 of the US copyright law includes "Notwithstanding the provisions of Sections 106 and 106A, the fair use of a copyrighted work, ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
This is much wider that just criticism. The reference to Section 106A suggests that it is not even necessary to even attribute the source, but this seems contrary to the fair dealing as it exists in other countries. Notwithstanding this I think that academic integrity requires proper attribution even for works that have been in the public domain for a very long time.
The statute is vague, and you've only quoted it in part making it moreso. A reading of what you've quoted would imply that a school can willfully ignore any copyright they wish as long is it is in the furtherance of their primary objection. As a taxpayer who has seen what his local school district spends on text books, I certainly wish this were true. Alas...
The fact of the matter is that most everything that matters about fair use in the US comes out of case law, not the statute.
You are correct that the simple use of the word criticism was an oversimplification. However, I believe such a statement captures the spirit of the primary intention of fair use in the US (and its cousins around the world) which is that we need to provide some relaxation of the otherwise oppressive control a copyright holder has in order to safeguard the ability for the public to engage in criticism, discussion, and other academic endeavors.
It's good that reliance is being reduced, but an absolutism that denies the use of all fair use images does not seem warranted. It is easy to imagine situations where allowing a fair use image would be the right thing to do. This might include images where the copyright status is unclear, or orphan works. These can always be taken down easily if there is a complaint from a person with the right to make that complaint. If such material lasts long enough (I would suggest three years from the upload date.) the doctrine of laches could become applicable.
While I agree that there are cases where permitting fair use makes sense, I think your cited examples are cases where we should not use fair use. If we can not claim fair use via traditional rationale, then we are just saying "Lets break the law, call it fair use, play stupid, and IFF we are caught we'll fix it because we know the penalty isn't so bad".
That you continue the argument with "(if we break the law long enough) maybe we'll get a ruling that we're allowed to contine because they didn't catch us sooner".
It is *exactly* this sort of reasoning that worries me so greatly. Were I a judge and someone brough me a case where it was shown that: 1) Wikipedia was persistently infringing their copyrights. 2) Wikipedia was requiring the copyright holder to jump through a hoops for each and every image they wanted down. 3) Wikipedia was making outrageous claims of fair use 4) Wikipedia administrators having discussions about how we don't need to worry too much about following the law because we can take material down after a complaint (and thus after much damage is potentially done) and not suffer any harm. 5) Wikipedia administrators having discussions about how if we ignore our legal obligations long enough we might just manage to kill the copyright holders right...
Well, if someone brought me that I wouldn't think to hard before issuing an injunction demanding Wikipedia be taken off line until it could demonstrate that it wasn't infringing on anyone's copyrights.