[Foundation-l] Re: Wikisource Copyright

[David Newton]

Ray Santionage wrote:

>>I've recently been in a discussion on the Wikisource website and I
>>would like some definitive answers about the licence that the text of
>>Wikisource is under and also about the policy with respect to fair use
>>on Wikisource. I've posted this question here as there is no dedicated
>>Wikisource mailing list that I can find.
>>

>In law there is seldom a definitive answer.  If you are looking for a
>simple solution it's not going to happen.  If somebody gives you one it
>is no solution.  Applying GFDL depends on whether that application is
>necessary.  Public domain, fair use and licenses are applied
>cumulatively, and not in a mutually exclusive fashion.  When someone
>puts a copyright notice on a web page or a book it really only means
>copyright to the extent that it is copyrightable; it clearly does not
>mean that everything on that page or book is copyright.  It may very
>well be that the only thing copyright about a page is its general layout
>and format, and that would be reason enough to add a copyright notice.
>The public domain or fair use nature of material is not modified by the
>application of a GFDL statement.  Being in the public domain obviates
>fair use claims.

I'm not asking for a definitive answer under law of the implications
that the licence that Wikisource is under entails. I'm asking for a
definitive answer about what licence the text of Wikisource is under.
The text of the Wikipedia is under the GFDL, there is no question of
that. There is a question as to whether Wikisource text must be GFDL,
GFDL-compatible or public domain, ie the same conditions as apply to
text posted to the Wikipedia, or whether those restrictions are not in
place. It is a straightforward question and if there is not a
straightforward answer we have a serious problem with Wikisource's
copyright situation.

>When considering the copyrightability of UN resolutions, or all UN
>documents for that matter, what law do you apply?  Is there a UN
>Copyright Act?  In the absence of such a law can any UN document be
>copyright?

In the United States I apply the US Code for the copyrightability of
UN documents. To quote from Title 17 Chapter 1 Section 104(b)(4), "the
work is first published by the United Nations or any of its
specialized agencies, or by the Organization of American States; or".
Therefore works of UN origin certainly can be copyrighted under US
law.

>>The British Act of Parliament is under Crown
>>copyright as it was passed in 2004. There is a waiver on copyright of
>>British statutes allowing them to be reproduced pretty freely, but it
>>does have conditions that are incompatible with the GFDL. On
>>Wikisource the rather dubious claim is also made that foreign statutes
>>and court decisions are not subject to copyright at all in the United
>>States.
>
>Why dubious?  Uncopyrightable in the interests of public policy is not a
>dubious claim

It is dubious because neither statute law nor case law support the
contention that foreign statutes and court decisions are automatically
public domain in the United States. Statute law, ie the US Code Title
17 Chapter 1 Section 105 is the relevant here for federal works,
"Copyright protection under this title is not available for any work
of the United States Government, but the United States Government is
not precluded from receiving and holding copyrights transferred to it
by assignment, bequest, or otherwise." Case law supports the
contention that state and local laws and court decisions are also in
the public domain. However, the arguements that apply that case law to
local and state laws and decisions, ie those about having public
access to the laws of the land, do not apply to foreign statutes and
decisions. Consequently to claim that such laws and decisions are
automatically public domain in the United States is unwise I would
say. There is no US law to apply to foreign statutes in this case
other than the ordinary rules of copyright law.

Your answer to my question about the licence for Wikisource implies
that it is subject to the GFDL for copyrighted works posted there in
the same way that the Wikipedia is. What is relevant in the particular
circumstances is that if copyrighted works must be covered by the GFDL
then copyrighted works that have licences incompatible with the GFDL
cannot be published on Wikisource. That means that British statutes
from 1955 and later cannot be published and UN resolutions cannot be
published as both are copyrighted works with licences that are
incompatible with the GFDL.

As for fair use, I have posted in the Scriptorium and the response has
disappointed me to say the least. The responses that I have received
have been contrary to the policy of Wikisource as set out at
[[Wikisource: Copyright]] and they indicate to me that the people
concerned do not have a deep understanding of copyright law, or if
they do they choose to ignore those bits of copyright law that they do
not like. The argument for fair use applying to entire documents in
incredibly weak, and no account seems to be take of that fact.

David Newton