Gregory Maxwell wrote:
On 11/29/05, Ray Saintonge <saintonge(a)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:
1) Wikipedia was persistently infringing their copyrights.
I have not said anything about "persistently" infringing anybody's
copyright
2) 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.
3) Wikipedia was making outrageous claims of fair use
What makes a claim outrageous?
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...
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
