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

[Ray Saintonge]

Jon Harald Søby wrote:

>On 2/8/07, Gunnar René Øie <gunnarre at nvg.ntnu.no> wrote:
>  
>
>> 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.
>>    
>>
>Wrong. If the fair use claim is valid and strong enough, then
>commercial re-users can use those fair-use images IN THE USA. Please
>note that 30-33% - or some 111 million people* - of all first-language
>users live outside the US, and thus cannot legally freely reuse this
>content. If you count second-language speakers as well, this number
>rises to 1.5 BILLION PEOPLE who cannot freely reuse Wikipedia
>content.* Is that within our scope? I don't think so.
>
I don't see the issue in simple terms of how many people can use the 
fair use material.  Still having that many people arguing for fair use 
can present quite a strong voice.  I would argue that a person living in 
a country that does not grant an individual copyrights greater than what 
that individual receives in his own country could claim fair use for 
works by a US producer.  Denying fair use for US sourced material would 
be giving that person greater rights than what he receives in his own 
country.

When considering transitivity of fair use only one of the four factors 
gives us any trouble.  The nature of the work used does not change, it 
is impossible for the re-user to use any more than the already 
insubstantial portion that we use, and if our use does not affect the 
market for the right's owner goods it is impossible to see where the 
market effect will change.  If the re-user combines our fair uses with 
the fair use from an other site to create a composite, or even manages 
to tap enough of several fair uses to effectively re constitute the 
entire original work he is an abuser as well as a re-user.  That kind of 
behaviour is completely out of our control. 

The first factor is the problem: "the purpose and character of the use, 
including whether such use is of a commercial nature or is for nonprofit 
educational purposes". We can control the purpose and character of our 
own use, but not that of the re-users.  Our use is clearly not of a 
commercial nature, but we allow our re-users to act commercially.  The 
use of the word "including" in that clause suggests that that provision 
is not used alone, and need not be the sole determining factor.  It does 
cannot be interpreted to automatically exclude all commercial use and 
include all nonprofit educational uses.  Judicial analyses of this 
factor tend to focus on the transformative nature of the use.  Is the 
user changing the use into something other than that applied by the 
rights owner?  We could ask ourselves, "If circumstances differed only 
in that we were a commercial operation instead of a non-profit one would 
our own identical use still be fair use?"  If yes, would it not also be 
so for our re-users?  If our own use is transformative, an identical 
re-use is also likely to be transformative, notably in mirror sites.  
Further transformations by re-users into new uses should also be 
acceptable.  The only thing left then is those commercial sites who 
manage to transform fair use back into an infringement.  This, like so 
many other abuses, is well beyond our control.  Is is a "_significant_ 
legal restriction" in the sense intended by Kat's analysis.

Much of my comments above depends on US law.  Other countries will be 
more restrictive, and that will certainly influence our decisions.  
Perhaps a policy that derives from the Berne Convention concept of "fair 
practice" might be more useful than a country by country analysis.

Ec