[Foundation-l] Clearing up Wikimedia's media licensing policies (some important points)

[teun spaans]

Gregory,

You write: "Under the "fair dealing" (or in the US "fair use") laws of most
countries we
can use works even with the explicit disapproval of the copyright holder"

And "the lawmakers or courts of most countries have realized "

I don't believe your conclusion is correct. Fair use exists in the US,
Canada and probably a bunch of (ex) UK countries. Other countries indeed
have something related, but usually the rules are much, much stricter than
what US courts allow.

It is not only Italy, it is in many other countries. For example, the Dutch
law has someting called "citaatrecht", or "citation right". This allow the
reproduction of "parts of textual works, images, sounds, ...". Though the
text is ambiguous as to the reproduction of parts of images or the
reproduction of the entire image, the latter is usually assumed.

It is allowed for "announcement, judgement, discussion, criticism, or
scientific debate."

Note that education is not in this list, as it is in the US and Italy. An
announcement is for example a news event when a photo exhibition would be
openend: the announcement may briefly show a remarkable photo from the
exhibit. So wikinews would benefit, but not wikipedia. Judgement/recension:
an author giving his judgment about the work of an other author. Criticism:
when a critic writes an essay on a painting, he is allowed to show a pohoto
of the painting. Scientific debate: when one scientists writes a treatise,
and another disagrees, it's ok to cite portions, else OR would be impossible
to criticize.
So your argument That "fair use" images can be used in a fork and "by
permission" can not, is invalid. Education is dealt separately, one may
publish it without consent, but is obligated to pay the author.

In all cases, the following requirements must be met:
* mention name of author
* mention source
* the cited work must already be legaly published
* citation may not be too long
* moral rights must be observed, no distortion of the citation
* the purpose must in relation to the size of the citation
* citation must be according to what is considered decent social behaviour

The use of images just as an illustration of a text is, according to the
site of the dutch photographers federation, explicitly not considered a
legal citation.

When I browse through the album covers on the english wiki, I guess 99% of
the album covers  is mere illustration, and not discussed in the text.

I wonder how the laws of Japan, Belgium, France and Germany are in this
respect. It is my guess that japans law might be based on US laws after
WWII.

My conclusion for the moment is and remains that fair use is basically a US
law. It is not a license. It is not free content except the US, Canada and
some (ex) UK countries. We should not look at "what is allowed under US
law?" We should not look at "can we push the borders of the US law?" We
should look at the questions: "How can we make existing content free? How
can we create new free content?"

I wish you health and happiness,
teun spaans

On 2/8/07, Gregory Maxwell <gmaxwell at gmail.com> wrote:
>
> On 2/8/07, Claudio Mastroianni <gattonero at gmail.com> wrote:
> > Il giorno 08/feb/07, alle ore 16:06, Gregory Maxwell ha scritto:
> >
> > > Under Italian law you are permitted 'abridgment, quotation or
> > > reproduction of fragments or parts of a work for the purpose of
> > > criticism or discussion, or for instructional purposes.'
> > > (see Italian Copyright Act Article 70; Nimmer and Geller (1998-),
> > > Italy, §8[2][a])
> >
> > Oh nice: I'll upload a lot of "fragment" of IMAGES.
> > Now I know I can.
>
> So you think Wikipedia must reproduce whole unabridged and high
> resolution copies of copyrighted works which suitable for replacing
> the commercial value of these works, in order to educate people?
>
> If that is your view I really believe it is mistaken.
>
> When we reproduce a copyrighted work, we should be careful to avoid
> our copy replacing the work on the marketplace and thereby harming the
> commercial value of that work... Not only is this the polite thing to
> do, it is what is required of us by law and not just in Italy. This
> includes providing only crops or low resolution versions ('fragments')
> and only as much as we need to facilitate our discussion.
>
> The statement under Italian law is not all that different from the
> laws of other nations. Nor should it be, since all people everywhere
> have the same need to discuss and educate people about copyrighted
> works.
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