Yongho Kim wrote:
In the course of it, I argued that Fair Use is about
using the image (e.g.
the Fair Use image or text can be used independent of other textual
context). He then argued that Fair Use is only about "quoting". I need some
advice on this - I am looking for a counterproof that the general academic
practice of quoting up to 5% of a source is NOT what Fair Use stands for.
Something like a portion in the US Copyright Law that mentions academic
quotations.
While it is fair to say that fair use of an image and related text
should be considered separately we are still talking about the same
law. Fair use is as applicable to images as to text. Each situation
must be considered separately on its own merits.
In case my above dispute-solving-approach is mistaken,
I'll introduce the
context as I understand it.
WonYong is making the following claims:
1) Uploading images in ko is not using it, we are merely uploading them to
"quote them" in Wikipedia documents.
Uploading a whole image in full resolution when it is itself the subject
of the copyright is very probably NOT fair use. Uploading the same
image when it is a part of a much bigger work that includes many
pictures MAY be fair use. Similarly uploading a very low resolution
picture as a thumbnail MAY be a fair use "quote" of the picture.
2) Therefore South Korean Copyright Law regarding
academic and media
"quotation" applies to these images - we can use anything as long as it
abides by SK CRL Chapter 6 (Limitations to Intellectual Property Rights),
Art. 25. Said clause states:
제25조 (공표된 저작물의 인용) 공표된 저작물은 보도·비평·교육·연구등을 위하여는 정당한 범위안에서 공정한 관행에 합치되게 이를 인용할
수 있다.
My translation: Art. 25 (Citation/Quotation of copyrighted work accessible
to the public) Copyrighted work accessible to the public can be quoted for
media, criticism, education, and research, within a justified range and in
pursuance to fair custom.
http://tinyurl.com/a7frg
My understanding is that under Fair Use you can make copies of a copyrighted
work. For instance, you can photocopy a work of art and distribute it in
class for discussion. SKCRL 25 would not allow this. SKCRL is merely
spelling out the fact that you can quote verbatim up to 5% of a source when
writing a scholarly paper.
What the above citation describes as "fair custom" in ROK law is
consistent with "fair use" in the United States, "fair practice" in
the
Berne Convention, and "fair dealing" in the laws of many countries. One
point that is unusual about United States law on this is its attempt to
describe what that means in greater detail. In countries which use a
law as short as the quoted one there is much room for argument over just
what "education" and "research" really mean. In some countries a
photocopy for distribution in class would be perfectly acceptable as
fair use. The 5% rule that you mention is not in your citation at all.
Such a rule may reflect a practice followed by Korean courts to make the
work of judges easier. I have heard of a similar 10% rule that is
sometimes used in England.
3) When I pointed out this to him, he told me that I
"misunderstood Fair
Use" and that Fair Use is pretty much the same thing as SKCRL 25. Americans
are doing it, we have the samel law, why can't we do it?
It pretty much IS the same thing, but American law is interpreted by
American courts and Korean law is interpreted by Korean laws. Also, as
I said above, American law goes into more detail.
4) Of course then there is the issue of Mr. WonYong
thinking that the Korean
Language Wikipedia should abide by South Korean Law. I've had serious NPOV
disputes with him over this - suffice to say that he introduced the idea of
a "South Korea-specific NPOV". I'll post on this on a separate email.
It is a Wikipedia for the Korean *language*, not the South Korean
*nation*. Of course North Korea is the only other country where the
same language is official, but it's hard to take its laws into account
when the people there have little or no access to the internet.. If we
assume that some distant day their Wikipedia access is made available
what then happen if the two countries had different laws on this? A
more practical issue is the laws that apply to overseas ethnic Koreans
who continue to read and write the language. They are still bound by
the laws of the country where they live. There is no such thing as a
nation-specific NPOV; there is just NPOV.
Ec