[Foundation-l] Let me ask this a third time WAS: EDP: US servers loophole?

[Nyenyec N]

Sorry if I can't make myself very clear, English is not my first language.
I'd like to get an answer to what I think is a simple question
regarding the Foundation's intent behind the Licensing policy
resolution available at
http://wikimediafoundation.org/wiki/Resolution:Licensing_policy

The text says:

EDP: a project-specific policy, in accordance with United States law
and the law of countries where the project content is predominantly
accessed (if any), that recognizes the limitations of copyright law
(including case law) as applicable to the project, and permits the
upload of copyrighted materials that can be legally used in the
context of the project, regardless of their licensing status

End quote.

Let me phrase my issue as yes/no questions.

If the Hungarian Wikipedia accepted an EDP that allowed types of media
for which _Hungarian_ copyright law prohibits distribution without the
copyright holder's permission, but based on the _US_ concept of fair
use they could be used for illustration in certain cases, then

a) would it be against the intent of the Resolution?
b) would such an EDP be acceptable for the Foundation?

As I tried to describe before, there are classes of images that we
cannot use if we hold ourselves to Hungarian copyright law (e.g. movie
posters fall into this category I believe). Currently HuWiki uses them
based on the fact that the server is located in the US and the US
"fair use" doctrine does not prohibit the distribution of such images
when used properly.

If this is not the right forum to ask this question, could you please
point me to the person or site where I should go to?

Thanks,
nyenyec

On 4/4/07, Nyenyec N <nyenyec at gmail.com> wrote:
> Thank you for the answers, so far. Let me rephrase my problem.
>
> Hungarian copyright law does have something similar to "fair use"
> called "szabad felhasználás". This is, however, just like in Germany
> much more limited than its US counterpart.
>
> The interpretation of the law is not always easy, but after some very
> informal discussions with some Hungarian lawyers and copyright
> experts, we do know that there are classes of images that you can't
> distribute without the copyright holder's permission in Hungary.
> This seems to be the case for album covers, movie posters etc.
>
> So far, we permitted these in HuWiki based on the fact, that the
> servers are located in the US, therefore we can rely the more liberal
> US "fair use" concept. We marked them with warning messages that these
> are not free images, and might be deleted in the future.
>
> However, it is my understanding that with the Resolution, the
> Foundation's intent was to close this loophole and make the projects
> accept rules that don't make it illegal to distribute the content in
> their home countries without breaking the law.
>
> Disclosure: I'm a free content person and would prefer a solution
> similar to EsWiki, DeWiki and others where they only allow images from
> Commons. But there are several other editors who would rather have
> more images and don't really worry about copyright, free content and
> ease of reuse as long as their articles are well illustrated.
>
> We started to draft our EDP, but it would be nice to have this
> clarification from the Foundation: do they want the projects to
> collect content that is free to redistribute in their home countries
> or is it OK, that it doesn't break US copyright laws?
>
> Thanks again,
> nyenyec
>
> On 4/5/07, Ray Saintonge <saintonge at telus.net> wrote:
> > Gregory Maxwell wrote:
> >
> > >On 4/3/07, Nyenyec N <nyenyec at gmail.com> wrote:
> > >[snip]
> > >
> > >
> > >>Let's take album covers as an example. Hungary, just like Germany
> > >>doesn't have a broad equivalent of "fair use". According to Hungarian
> > >>law, album covers cannot be distributed without permission.
> > >>
> > >>
> > >I think we need a FAQ point that says:
> > >
> > >Q: "But my country doesn't have anything like fair use / fair dealing"
> > >A: "You're probably incorrect."
> > >
> > >See the current Hungarian copyright act, (Act LXXVI of 1999, I have no
> > >clue how to cite Hungarian law).
> > >
> > >I'm fairly confidence that you have some degree of fair use, ...
> > >although it may not be as permissive as US law, the Wikimedia policy
> > >is focused on the part of fair use which should be most widely
> > >available (the part required to prevent copyright from being used to
> > >effectively stop free speech).
> > >
> > One also needs to consider the extent to which the fair practice
> > provisions of the Berne Convention apply to Hungary as a signatory.
> >
> > Ec
> >
> >
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> >
>