On 11/25/05, Justin Cormack justin@specialbusservice.com wrote:
On Fri, 2005-11-25 at 15:19 +0100, Uwe Brauer wrote:
Hello
I just found the following image http://en.wikipedia.org/wiki/Image:RFJesus.jpg
which seems to be under a different sort of license, if I am not mistaken.
I would like to include that image, in the corresponding German wikipedia article, however so far people hesitated since they believe that this license as expressed in the above url, would/could violate the GDL. I find it odd that different wikipedias have different standards concerning the license politics.
What can be done? May the simplest solution would be to contact the artist (if he/she can be find) and ask for explicit permission.
Any comments, suggestions?
This is typical of en-w's "flexible" approach to licensing.
Someone is pretending that because it was printed in some newspapers under terms that we know nothing about somehow this gives us permission to use it under some unknown terms even though we dont accept pictures where we are explicitly given permission any more.
Currently its not worth trying to get rid of these pictures from en as there are still thousands of more dubious ones (no source for example). It might get picked up at some point in the fair use examination.
You cant use it in de: only real free images, sensible policy.
Justinc
Is this really how it works in the German Wikipedia (and other non-English Wikipedias)? I assume you must allow some form of fair dealing, as it's difficult to think of a photo of the real world that doesn't contain *some* copyrighted materials incidently. Does the German Wikipedia have many pictures of celebrities and big events? Do you find that not allowing non-free images detracts significantly from the encyclopedia (ignoring, if you can, the benefits of the images being free)?
I think a big part of the hesitation of really embracing being a free encyclopedia is the fear that the encyclopedia would be so much less useful without fair use images. I guess I can get a rough idea of the answers to these questions just browsing the sites on my own, and maybe looking at some statistics if I can find them, but it'd be nice to hear from the perspective of someone who really spends a lot of time on those Wikipedias.
Anthony
2005/11/26, Anthony DiPierro wikilegal@inbox.org:
Is this really how it works in the German Wikipedia (and other non-English Wikipedias)?
Yes, the German Wikipedia does not allow fair use for pictures period. Several other (including my own nl:) do the same. And what is more, it is also the policy on Commons.
I assume you must allow some form of fair dealing, as it's difficult to think of a photo of the real world that doesn't contain *some* copyrighted materials incidently.
As far as I can see, the 'no fair use' policy mostly restricts itself to the pictures themselves, and to book covers, works of art etc. that are the main subject of the image. I have not seen protests against objects being shown (except for the above), or against buildings, except that on the Dutch Wikipedia pictures of the Atomium are not allowed because someone found a news message where someone was actually charged a few hundred Euro for having a picture of the Atomium on his private but public website.
Does the German Wikipedia have many pictures of celebrities and big events?
It depends on what you call 'many'. But http://commons.wikimedia.org/wiki/Category:People has quite a large number of pictures already.
Do you find that not allowing non-free images detracts significantly from the encyclopedia (ignoring, if you can, the benefits of the images being free)?
No, I don't see how it detracts. On the English Wikipedia there are also plenty of articles without pictures, does that distract you?
-- Andre Engels, andreengels@gmail.com ICQ: 6260644 -- Skype: a_engels
On 11/27/05, Andre Engels andreengels@gmail.com wrote:
2005/11/26, Anthony DiPierro wikilegal@inbox.org:
Is this really how it works in the German Wikipedia (and other non-English Wikipedias)?
Yes, the German Wikipedia does not allow fair use for pictures period. Several other (including my own nl:) do the same. And what is more, it is also the policy on Commons.
It's somewhat odd that the different languages have different policies on fair use. From a legal standpoint, it really shouldn't matter what language the article is written in. I suppose it's enough to stay under the radar this way, though.
It'd be interesting to see if there are any cases of a US company suing another US company in court for violating foreign law. I believe it is legally possible (based on my extremely limited knowledge of international copyright law), but it'd be a strange case. Does 2 Live Crew distribute "Pretty Woman" in Germany?
I assume you must allow some form of fair dealing, as it's difficult to think of a photo of the real world that doesn't contain *some* copyrighted materials incidently.
As far as I can see, the 'no fair use' policy mostly restricts itself to the pictures themselves, and to book covers, works of art etc. that are the main subject of the image. I have not seen protests against objects being shown (except for the above), or against buildings, except that on the Dutch Wikipedia pictures of the Atomium are not allowed because someone found a news message where someone was actually charged a few hundred Euro for having a picture of the Atomium on his private but public website.
That makes sense, I guess. How about on the text side? I assume there's not an outright ban on quotations, but how lenient are the rules on that? This is another point that usually comes up when someone suggests completely banning fair use.
Does the German Wikipedia have many pictures of celebrities and big events?
It depends on what you call 'many'. But http://commons.wikimedia.org/wiki/Category:People has quite a large number of pictures already.
Well, this is a place where there are a lot of images on the English Wikipedia which are fair use, and I kind of assumed they wouldn't be there if we already had a free picture on the commons.
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.
Do you find that not allowing non-free images detracts significantly from the encyclopedia (ignoring, if you can, the benefits of the images being free)?
No, I don't see how it detracts. On the English Wikipedia there are also plenty of articles without pictures, does that distract you?
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.
Of course, if all the rest of the languages still lack the image, maybe they'll be the ones to make the free image for us :). I'm joking to some extent. Besides that being kind of rude there are *some* images which are much more likely to be made by someone who only speaks English.
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.
-- Andre Engels, andreengels@gmail.com ICQ: 6260644 -- Skype: a_engels
Anthony
Anthony DiPierro wrote:
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.
There are articles it would be a loss to, though quite obscure. I think the current rate of attrition (and a slightly harder-arsed attitude to blatant laziness and stretching "fair use") will do fine for now.
- d.
It's somewhat odd that the different languages have different policies on fair use. From a legal standpoint, it really shouldn't matter what language the article is written in. I suppose it's enough to stay under the radar this way, though.
If about 99% editors and readers of Polish Wikipedia live in Poland, do you think that they couldn't be sued for infringing copyright only because they do it on an American server?
On 11/27/05, Pawe³ Dembowski fallout@lexx.eu.org wrote:
It's somewhat odd that the different languages have different policies on fair use. From a legal standpoint, it really shouldn't matter what language the article is written in. I suppose it's enough to stay under the radar this way, though.
If about 99% editors and readers of Polish Wikipedia live in Poland, do you think that they couldn't be sued for infringing copyright only because they do it on an American server?
-- Ausir Wikipedia, wolna encyklopedia http://pl.wikipedia.org
Again, from a legal standpoint, I don't think it should matter whether 99% of editors and readers live in Poland or 5% do. So if someone *could* sue Wikipedia for an image in the Polish Wikipedia, then they probably *could* sue Wikipedia for an image in the English Wikipedia.
Maybe the likelihood that someone *would* sue Wikipedia changes. But that, at least for images whose copyright is held by American companies, brings back the question of whether or not an American company is likely to sue an American non-profit organization for violating Polish copyright law (regardless of where the servers are located).
And, by the way, many of the servers aren't in the United States anyway.
Anthony
On 11/27/05, Anthony DiPierro wikilegal@inbox.org wrote:
Again, from a legal standpoint, I don't think it should matter whether 99% of editors and readers live in Poland or 5% do. So if someone *could* sue Wikipedia for an image in the Polish Wikipedia, then they probably *could* sue Wikipedia for an image in the English Wikipedia.
In case it's not clear, I'm implying here that Wikipedia probably *could* be sued for copyright infingement which is fair use even on the English Wikipedia.
I've had some conversations with actual lawyers about this, and they've suggested that this is possible even in the case of images whose copyright is held by US companies. The US company could get a ruling in a foreign court using foreign laws. Whether or not this ruling could be enforced is another question, but as Wikipedia is starting to hold assets in lots of different countries that part is becoming easier.
Anthony
Anthony DiPierro wrote:
On 11/27/05, Anthony DiPierro wikilegal@inbox.org wrote:
Again, from a legal standpoint, I don't think it should matter whether 99% of editors and readers live in Poland or 5% do. So if someone *could* sue Wikipedia for an image in the Polish Wikipedia, then they probably *could* sue Wikipedia for an image in the English Wikipedia.
In case it's not clear, I'm implying here that Wikipedia probably *could* be sued for copyright infingement which is fair use even on the English Wikipedia.
I don't think that it's in anybody's interest to pursue such a convoluted legal scenario. A convoluted suit works against the plaintiff because there are too many places where his action can be derailed. The interests of justice would probably be best served by stripping issues down to the basics.
I've had some conversations with actual lawyers about this, and they've suggested that this is possible even in the case of images whose copyright is held by US companies.
"Possible" covers a very wide range of probabilities, many of which are not realistic. Unless there is something on the table, a lawyer's opinion is not significantly different from anyone else's. International copyright law is not something that most lawyers get involved with, so they have likely not had a chance to research it. Some of our non-lawyer Wikipedians are probably more familiar with copyright law than most lawyers.
The US company could get a ruling in a foreign court using foreign laws. Whether or not this ruling could be enforced is another question, but as Wikipedia is starting to hold assets in lots of different countries that part is becoming easier.
The whole topic is one big cloud of uncertainty. Has there ever been any legal case anywhere where the GFDL was a major issue? I think that there are some areas where we should welcome being sued. Without that things will only get worse. We just need to be clear about what issues are worth taking a stand on. We don't lack people who only guess at what the law is, and then proceed to interpret theri guesses restrictively to our disadvantage. All the time the underlying tone is one of wanting to be squeaky clean law abiders.. Law is just not that clear cut.
The deepening pockets argument is a problem one. Perhaps this can best be handled by having national chapters own their equipment, and setting up firewalls between national chapters.
Ec
On Sun, 27 Nov 2005 17:10:53 -0500 Anthony DiPierro wikilegal@inbox.org wrote:
Again, from a legal standpoint, I don't think it should matter whether 99% of editors and readers live in Poland or 5% do. So if someone *could* sue Wikipedia for an image in the Polish Wikipedia, then they probably *could* sue Wikipedia for an image in the English Wikipedia.
By the way it's not about just sueing Wikipedia, it is about sueing the user of the Wikipedia _content_, which is supposed to be free ("libre").
IANAL but European law generally do not allow USA "fair use". We have kind of similar laws which are much more restrictive, basically resulting "USA fair use = not usable" [should be examined in every darned case individually, and usually denied].
Our goal (in national 'pedias) to create a content which is useable by the native speakers of the given language, and those speakers generally happen to live outside US jurisdiction. Basically we have to follow US *and* local law both to be able to say "the content is free".
Peter (Hungary)
ps: hu.wikipedia basically use the same 'no fair use' policy. I believe most EU and european countries are supposed to act the same, as we probably have very similiar laws regarding this case.
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 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.
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.
Perhaps the difference in the decision is in part caused by our differing competition, is Brockhaus highly illustrated?
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. As time goes on and more photographers join our project, I suspect that such desires will gain traction and we will see a reduction in fair use there.
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.
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.
Of course, if all the rest of the languages still lack the image, maybe they'll be the ones to make the free image for us :). I'm joking to some extent. Besides that being kind of rude there are *some* images which are much more likely to be made by someone who only speaks English.
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.
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
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.
Gregory Maxwell wrote:
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)
Damn typos! :-[
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.
Our competitive disadvantage is not a legal argument for fair use, but the effect on the author's market is. Where we do seem to agree is that some level of fair use is acceptable, even if we would determine that acceptability in different ways.
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.
One image at a time. :-)
I presume you mean orphaned by the contributor rather than the original photographer. If the contributor isn't around anymore to comment or explain why he thinks it's fair use, there's not much you can do to change that. A statement of where the picture came from should be essential; if a third party intervenor can't supply that information for the anon or long lost contributor your choice is limited. If your approach is scrupulously fair it is difficult to argue against it. ... but I say this without ever examining how you approach this in an individual case.
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.
Not always. Questions of which country's laws apply are not easy. Whether a US copyright has been renewed can be a problem. Not knowing when a picture was taken, or by whom can be a problem.
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).
I must confess that I have made no effort to understand the whole issue of cc- licences. They just seem like so much needless complications. I tend to regard such notices as meaningless, especially if they are on some user page where the claim is made that it applies to everything submitted by that user. Currently my position is that anything that I contribute is adequately covered by GFDL, and anybody else's claim that a cc- licence applies can be ignored.
I don't expect that those people who are having diifficulty understanding the principles of copyright are going to do any better with the subtleties of what distinguishes GFDL from CC.
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.
The phrase that I omitted, "including such use by reproduction in copies or phonorecords or by any other means specified by that section," deals with form rather than substance, but does not help in developing an understanding of what fair use is. The four criteria add further guideles for determining fair use. When interpreting the often long-winded and circuitous language of statutes I find that it helps to reduce a provision to its essentials. Once that is done one can add things back one at a time to see if they are relevant to the situation at hand. Are "phonorecords" very important to what we are doing at this time?
As a taxpayer who has seen what his local school district spends on text books, I certainly wish this were true. Alas...
Not just textbooks, but site licences too. School districts often end up in these situations because senior governments haven't got the guts to make the hard decisions that they need to. Our own current provincial government has a philosophy that supports privatized government services. They haven't privatized the educational system (yet), but there is constant speculation that they may try to merge school districts as a cost saving tool.
Many school districts have neither the funding nor the expertise to do what needs to be done to cope with the rising cost of materials. Promoting the broad use of open source software is still a hard sell. The vested interests have done a good marketting job in telling school districts that only their publications are authorized and authoratative.
Authorized textbooks are a scam. There is no good reason why a group of teachers can't get together to use a wiki to write a textbook that would be every bit as good as what they now get from a high priced publisher. The costs would then be limited to the costs of physical production, which in a big enough district could be done with an in-house printing facility. It might even be cheap enough to allow them to have teachers diverted from a few hours of class room duties to work on textbooks. As in any profession the ability to take on-the-job time for reflection and development is as important as the time spent in direct production.
Sorry, looks like I getting too much into an education rant.
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.
Absolutely, but the implications of that have not sunk in with people who think that everything in law is simple and straightforward. The various free licences are still untested in the courts.
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.
I see scholarship and research as equally important. I'm not going to take up the question of oppressive copyright holders now; that would be another rant.
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".
Where did I say anything about breaking the law? Fair use is not a breech of law.
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:
- Wikipedia was persistently infringing their copyrights.
I have not said anything about "persistently" infringing anybody's copyright
- Wikipedia was requiring the copyright holder to jump through a
hoops for each and every image they wanted down.
Again we are dealing with one-off situations. As long as we are dealing with someone's first claim "each and every" does not enter the picture.
- Wikipedia was making outrageous claims of fair use
What makes a claim outrageous?
- 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...
That such things would need to be discussed is normal when there are differences of opinion. There is nothing conspiratorial to it as you seem to suggest.. Favorable interpretations of the law are not illegal.
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.
But nobody is bringing that to you. Far from it. Your last remaks seem to overdramatize the situation.
Ec
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