Gregory Maxwell wrote:
On 11/27/05, Anthony DiPierro wikilegal@inbox.org wrote:
What about non-free pictures that are legal for Wikipedia to use? No-derivatives images, non-commercial only images, by permission images. Are these banned? Are there many floating around? I believe these are banned from commons, except for some logos owned by Wikimedia.
These are banned on *english* Wikipedia and I presume on all others.
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.
This would be true even if there was no confusion or international disconnect over fair use. However, the English Wikipedia community has decided that in order to do our job successfully we must make some non-minimal use of fair use content because a great many historically significant images are only available that way and a great many other images are much more available.
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?" 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..
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.
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.
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
This might be a misunderstanding of what I was saying. Not including non-free images clearly has positives and negatives. Personally I believe the positives outweigh the negatives, at least in the vast majority of cases. In my opinion every article should have at least some image in it eventually. Adding a non-free image fixes that problem in the short term, but in the long term it lessens the chance that a free image will come along.
You make it sound a lot more cut and dry than it actually is... Fair use is not a blanket permission to violate copyright as such it is not really a good quick fix to a missing image. In most interesting jurisdictions, since parody isn't something we are likely to do, we must be making critical commentary of the creative work we borrow from in order to make a strong fair use claim.
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.
For the case of a great many articles, it's simply easier to nag someone with access to the right place or object to take a picture.
Anyway, the English Wikipedia seems to be relying less on fair use than it has in the past. I think it's good for us to look at the other languages to see that it really wouldn't be that horrible to drop reliance on it completely.
Ah, so you've spotted that trend. It's true and I think it is an unquestionably good thing.
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.
Ec