[Foundation-l] Clearing up Wikimedia's media licensing policies

[David Strauss]

Note: I'm not trying to comment on what policy is or should be, just 
clarify the nature of fair use. Of course, being a discussion of fair 
use, this post is U.S.-centric.

Andre Engels wrote:
> 2007/2/8, Gunnar René Øie <gunnarre at nvg.ntnu.no>:
> 
>> Because if the fair use claim is valid and strong enough, then
>> commercial re-users can use those fair-use images. Non-commercial and
>> "Wikipedia only"? Not so.
>>
> 
> Can they? The en-wp fair use rationale states that it is valid fair use
> "On the English-language Wikipedia hosted on servers in the United States by
> the non-profit Wikimedia Foundation."

There's a big difference between the en-wp rationale for fair use and 
the policy for whether an image can be used on Wikipedia under fair use.

The fair-use *rationale* has a goal of emphasizing Wikipedia's 
characteristics to strengthen its legal claim to fair use. This is 
Wikipedia claiming maximal rights.

The fair-use *policy* has a goal of restricting fair use to a safe 
subset of what Wikipedia may legally use. This is Wikipedia exercising 
minimal rights.

> And what about ND images? If there is an image that is fair use on a page,
> and the rationale is strong enough to allow me to use it, then surely I
> would be allowed to use an ND image at the same place.

Yes, because fair use is tangential to licensing. If you have a good 
fair-use rationale for an image, then you may use it under fair use. 
Having the additional option of a no-derivatives license does not 
infringe on that right.

The Creative Commmons project clarifies this on every license they 
publish with a fair use disclaimer emphasizing this aspect of fair use. 
But to be clear, they are not *granting* you the option of fair use. You 
have fair use whether they say you do or not.