[Foundation-l] contents under education/information licenses

[David Monniaux]

Currently, on many projects, we allow three kinds of multimedia content :
1) content in the public domain
2) content available under "free" licenses (with our own definition of 
"free"; some people disagree with GFDL being a free license)
3) content available under the "fair use" clause of US copyright law.

1) and 2) are easily reusable by third parties, while 3) is not (each 
use of a "fair use" document must be justified).

Clearly, these rules were set with  the view of the US law : we put 
stringent rules on allowing only "free" content, and then we opened a 
whole boulevard with the US-specific "fair use" clause. I might even go 
as far as to say that our stringent rules are acceptable only because we 
have this "fair use" allowance.

Now, fair use does not exist in the legislation of many countries; or, 
rather, it exists in a weaker or different form ("right of citation"). 
As a consequence, many wikipedias, targetting citizens of countries 
other than the US, have decided to prohibit fair use content or at least 
severely restrict it.

This proves a problem with some providers of content (companies, 
government administrations, etc.) who would gladly provide e.g. 
photographs usable for any informational or educational purpose, but 
that they do not want to appear in advertisements (especially for 
products unrelated to their activities).

An example is the European space agency (ESA) and the French space 
agency (CNES) : they would gladly allow their photographs to be used for 
any educational or informational purpose (including commercial, e.g. 
DVDs, paper encyclopedias, textbooks etc.) but they do not want their 
material to appear in e.g. advertisements for supermarkets or, worse, 
political advertisements, because in such cases some idea of endorsement 
of the product on their part is implied. They cannot use trademark 
legislation to fight such abuse, in most cases.

Note that, in the US, NASA, whose photographs are in the public domain, 
is protected from abusive by specific US laws prohibiting misuse of some 
symbols of the US government, including the NASA logo (the same applies 
for e.g. military insignia). The photo may well be termed "public 
domain", but they can actually prosecute you if you use it in an 
advertisement.

Note also that the Wikimedia Foundation also copyrights its logos in 
order to prevent abuse. We should not be hypocrites and deny to others 
what we do for the same purpose (especially since the Foundation grants 
individual authorizations, not a blanket "for education or information").

In addition, the legislation of some countries may not allow blanket 
licenses for any use (considered as clauses abusing the rights of the 
authors, and thus null and void).

A solution would be to create a new category of content allowed on 
Wikimedia projects :
4) Content available for use for any purpose, commercial or non 
commercial, as long as it is informational or educational.

I see only advantages :
* This would enable us to counter systemic bias ; that is, allow content 
from some providers from countries where "fair use" does not apply (we 
for instance currently totally unbalance the portrayal of space programs 
by having 7000 photos from NASA and hardly any from ESA/CNES).
* This would enable us to attract interesting content from providers who 
do not want their work to be used in advertisements, for questions of 
corporate or institutional image.
* This would be coherent with the goals stated in the bylaws of the 
Wikimedia Foundation, that is, distribute informational content.


Common objections are :
* Jimbo said he would not longer allow content restricted to "non 
commercial" usage.
=> This does not apply here, since the above mentioned content would be 
usable for commercial uses.

(Non-commercial only licenses would be an annoyance for people willing 
to distribute DVDs or in case we lack funds and we're forced to put up 
advertisements. Neither would be hampered by the above mentioned 
conditions.)

* Such content would be "unfree".
=> Then ban all fair use from all projects, since "fair use" content is 
considerably more unfree. "Fair use" content is usable for 
educational/informational use only for narrow cases, and is only usable 
by US residents.

In short, this objection is US-centric. :-)

* ESA and CNES should do like NASA does.

ESA and CNES operate under different laws and rules than NASA. NASA 
employs many of its photographers, whose work is in the public domain as 
work of US government employees ; ESA and CNES have to buy many 
photographs from non-employees, typically under conditions allowing any 
educational or informational use but disallowing uses in commercial 
advertisements.

Again, US-centric objection. :-)

To summarize my point of view: to be coherent, we should
* either allow such content usable for any educational or informational 
uses, including commercial:
* either prohibit "fair use" content from all projects (and perhaps also 
content constrained by laws other than copyright, e.g. insignia of US 
government administrations).

Regards,
--DM