[Foundation-l] Wikimedia logos on Commons

[Ray Saintonge]

Kat Walsh wrote:
> In fact, free content licensing depends on the existence of copyright.
>   
Hmmm! This sounds like a religious person saying that we need Satan in 
order that God's glory might shine brighter. :-)
> The position we've taken is basically one that copyright as it stands
> does not always produce the best situation.
>   
It doesn't indeed.
> Because we believe that society would be better off if everyone had
> easy access to educational information, and the ability to use that
> information in the way that most suits their needs, we want to
> encourage the development of material that is under less restrictive
> terms. Which may be public domain, but is more frequently still
> copyrighted, but not under the default conditions which leave *all*
> rights reserved to the copyright holder.
>   
Fair enough.  This speaks for a more graduated series of possibilities 
between the two black-and-white extremes.  Fair use provides this to 
some extent, but it has become a blunt tool that deals inadequately with 
the the rights of the author and the public.  To me, having a free 
project goes farther than using only material that is already free; it 
also involves freeing apparently unfree material.  Orphan works are 
perhaps the most prominent among these, but even they can be divided 
into sub-classes.  Works where we can establish that no copyright owner 
exists are distinct from those whose copyright owners merely cannot be 
found.  For example, where do corporate copyrights go when a corporation 
goes into bankruptcy?  Tangible assets are liquidated and distributed 
according to established rules, to some extent on a pro-rata basis among 
members of a class of creditors.  Nobody thinks of distributing 
copyrights, but the courts determine that what assets are available are 
properly distributed and discharge the bankrupt.  Who owns the 
copyrights.  The annual reports of that company may have historical 
value, but no-one can use them if we believe in a strict interpretation 
of copyright.  As another example, the sale flyer that your local 
supermarket distributed door-to-door 20 years ago is still protected by 
copyrights.

I am personally involved in a situation with a puzzling copyright 
situation.  I am co-executor of an artist who died in 2005 being 87 
years old.  She has no known relatives, or at least the post-war refugee 
organizations were unable to find any of them.  Yet she left a large 
body of art, some of which is quite interesting.  Nevertheless, she 
never did much to market her work.  It does not have an established 
market value.  That being said, the entire body of work remains 
copyrighted until 2055, and knowing what to do about those copyrights is 
a dilemma.
> We don't say that copyright is evil. We don't demand that all
> copyrighted works be freed. We don't ask everything to be public
> domain. We don't fight the existence of copyright. Instead, we work
> within the existing system to create a body of work under more
> permissive terms.
>   
Not demanding that _all_ copyright materials be freed should not imply 
that we are demanding that all copyright materials should remain unfree 
until the apparently subsisting copyrights have completely expired.  
There is a huge gap there.  It is precisely within that gap that I 
believe that there should be a greater effort to push the envelope.  I'm 
not even saying that this should be happening in Wikipedia as we know 
it, or even in any of the existing sister projects. Perhaps it would 
take some kind of intermediate project where the cards are laid out on 
the table, and we let everyone know that there are uncertainties 
surrounding the copyrights for the material.  We also let it be known 
that if someone with a genuine interest comes out of the woodwork we 
will bend over backwards to be co-operative.
> Copyright was established to serve a purpose: to promote creation and
> progress, to encourage people to create more works. But are the
> current specific details of how that is implemented ideal? No, and I
> don't think anyone would say that they were.
>   
That purpose is consistent with Jefferson's concept of copyrights, and 
is also consistent with the limited monopolies that were granted back 
into the 17th century in England, and is even consistent with a broader 
common law tradition.  Be that as it may, people rarely express this 
creativity for 70 years beyond their death.  What kind of encouragement 
is being provided in the case of relatively unknown works, when the 
theoretical owner doesn't even know that they exist? 

I would also question whether this purpose was ever a part of the 
reasoning that went into the copyright law of countries that derive 
their law from the Napoleonic Code.  If anything the moral right of 
integrity actively discourages creativity.
> If you start with the idea that it is a social good if everyone can
> have easy access to whatever educational material they need, for
> whatever purpose, then you start to look at ways to accomplish that.
> (If you don't believe that would be a good thing, why are you here?)
> You can't do it if all material is under stringent protections. And
> those protections don't even always serve the best interests of
> everyone "protected" by them. If you want that sort of society, too,
> you don't want all of those protections on all of your work."
>   
We really do agree on this. 8-)   How is it that I end up believing in a 
more pro-active approach?  Is it just me that has this cynical belief 
that those who have the rights will do whatever it takes to preserve 
them.  If their activities incidentally protect work that no-one wants 
to protect, and that keeps their opposition off-balance that all works 
to their benefit.
> You also can't do it if no one is willing to create works to be used.
> What's more, you might consider it a good thing if your releasing your
> work for such uses encouraged other people to do the same thing,
> because it would go even further toward achieving your goals. So you
> try and find an alternative to the default protections of copyright
> that better achieves what it was intended to do: further the interests
> of society as a whole.
>   
Sure.  Ideas and the play of ideas are more important than the form of 
their expression.  Free licensing achieve some of this ... maybe!  They 
still require a lot of judicial testing.  What happens when some 
European court rejects them with the notion that moral rights are 
inalienable so you cannot grant the collective the right to modify your 
work.?
> So the basic ethic of content on the Wikimedia projects is "you can do
> whatever you want with this work, so long as you give everyone else
> the same rights with whatever copies of the work that you give them."
> (This is a simplification, but it's not too far off.) It encourages
> people to free their work in order to use the body of work that
> already exists, or to be part of a larger project. (Sort of like the
> idea of matching donations, or group pledges: I'll do my small part if
> doing so contributes to a larger good.)  No one is compelled to free
> their work if they don't want to, but there are advantages to doing
> so. It seems pretty fair to me.
>   
Sure.
> But none of this implies "copyright is evil". It's "the typical
> effects of copyright are not always what we think would be best, or
> even what it was intended to do".
>   
"Copyright is evil" is more a slogan than an argument. 
> A longer copyright protection makes more sense on works of art than
> works that are intended to be useful in themselves, although in the
> majority of cases, where the full protections of copyright aren't
> doing the artist very much good, perhaps it's not the best option
> either.  (I say this as a thoroughly unremarkable and unremarked-upon
> writer and composer; I have a music degree and have in the past made
> some depressingly small amount of money selling work.)
>   
I see no benefit from giving longer benefit to works of art.  We have 
far more arguments over the copyright of illustrations than of texts, 
and in many cases where the pictures have become part of a large 
commercial library it would be more difficult to trace the real 
copyright owner.  It would be interesting to require that these 
libraries show a complete provenance of their copyrights in this stuff, 
and make copies of all supporting documents publicly available.

When it comes to "a thoroughly unremarkable and unremarked-upon writer 
and composer", (as with the estate of which I'm executor) fame and 
fortune may depend on having a grandchild who really thinks that 
grandma's memory needs to be preserved.  That's still unlikely to bring 
you the money when you need it.  
> A logo isn't intended to be useful or educational in itself. But since
> many humans are visual creatures, they like to have nice-looking
> symbols to represent their organizations. (Me, I'm an
> auditory-oriented person, and I have the visual sense of boiled
> cabbage. But this is what I hear.) It's not terribly important that it
> be free; it doesn't contribute too much to the common culture. If it's
> trademarked, you can't do anything particularly "free" with it either.
>   
I think that many of our colleagues tend to muddle copyright and 
trademarks.  I do like the use-it-or-lose-it approach  to trademarks, 
and it would make a nice addition to copyrights.  I do consider my self 
to be more visual than auditory, but being visual does not promise that 
the hands will agree. I'm sorry to hear that you have the eyes of a potato.
> (While trademark creates a right for the holder, its effect is largely
> the protection of the "consumer" -- to keep people from being misled
> by someone who uses the same or confusingly similar marks. Not that
> this stops aggressive rights holders from sending completely bogus
> trademark infringement letters in order to suppress criticism, but
> they shouldn't get away with it.)
>   
They really protect both sides.
> So I don't see it as a hypocrisy or a contradiction that the Wikimedia
> logos are not free. They're not really part of what we're here to do,
> they're just there for visual identification. We don't demand anyone
> else's logos be free; projects can choose to accept using those images
> for appropriate purposes or choose not to accept them at all. For
> obvious reasons, the Wikimedia logos should be used on all projects.
> :-)
>
> We're looking into the legal implications of protection on the logos,
> but in terms of how pressing a priority it is, it's somewhere behind a
> lot of other things that are really important to do sooner rather than
> later; our new full-time counsel has no shortage of work at the
> moment.
>
> Do our logos need to be all rights reserved? Would trademark
> protection alone be sufficient? (Getting trademark protection for all
> our marks in all countries where we should have it is not as simple as
> it may sound.) I can't give a definitive answer, but we can get advice
> from counsel, in the course of things. One main concern is that people
> don't go around and use the logo for things that would be damaging to
> us, passing themselves off as us, or giving people the idea that we
> approve of or sponsor things we don't have any involvement with.  If
> the logos can be made more free, that would be great. But I don't
> think it is a priority, and it needs to be considered in light of all
> of the effects. Wikimedia first needs to make sure it is a responsible
> steward of our resources, even if that means acting slowly or taking a
> course of action that is not ideal in some aspects.
>   
I agree.  The last point is particularly important, and many who 
complain endlessly about the minutiae of logos are completely out of 
their element when they have to deal in any way with matters of fiscal 
responsibility.
> I freely admit that having the logos on Commons is just a dirty hack,
> so that they are easily accessible from all projects. They should
> probably be included within the skins or something, but I don't know
> how that should work if they need to be resizable and so on; I'm not
> the person to ask that question of. It's not ideal, but it works
> better than other things for now.
>
> (I note that I'm speaking only for myself now, but this is the
> perspective I bring to discussions about licensing, and I think it is
> shared by the other board members.)
>
> -Kat
>   
Thank you for your thoughtful analysis.

Ec