[Foundation-l] [Commons-l] PD-art and official "position of the WMF"

[Patricia Rodrigues]

I believe the matter has got some extra questions in it that are a bit out of the issues I raised in a previous post, which means most of those issues have not been really addressed yet. Some of the extra questions are:

*"Erik and Mike have the right to talk for Wikimedia" - I do not question this. They are both staff members, and I honestly do not know well enough the internal organization of Wikimedia Foundation to be asserting who has the right to talk about which issues. Indeed, the fact that they _were_ talking as Wikimedia staff and giving an explicit position is what prompted me to start fussing on foundation-l. Because I have failed to see whether their statements were done regarding the situation specifically in the UK, or in other countries too; and because I have still oblivious about which copyright law we *must* follow and which we *should* follow. I'll come back to this later.
*"Local projects have the right to make their own amendments" - Absolutely! The Board is not to decide on how local projects should be regulated. Nor am I asking for external interference from the Foundation to revert any local decision. I have seen such requests (mainly for the English Wikipedia) on this mailing list, and the mantra "WMF does not interfere in local decisions" always comes up, and rightfully so. But again, a clarification about our licensing policies helps local projects to decide on their contents; and Commons is especially sensitive to that, and the result was that from a couple of statements, a major turn in the Licensing policy was done. Especially because the change was not to make it narrower, but broader.
*"WMF is not going to be legally harmed for hosting such content" - I truly believe that too, and I really hope that. However, at this point, I couldn't care less about if WMF would be sued or not about images under the PD-art problem. I am mostly worried about:
1) Reusers of this content. We have to tell people that the media is PD, but actually it may not be so PD in their country, so you have to know your local legislation to know if you can reuse it or not. Not exactly very easy. So it's free content, but heh maybe not *that* free. Which takes me to point 2...
2) People in Free Software/Free Knowledge/Free Culture movements/organizations in affected countries. Suddenly, organizations in such countries supporting Wikimedia projects, lack a good reason to convince patrons to release media to the public - if the content can be used even against such organizations' will, why should they bother negotiating such release? I don't know how big this problem is, but it would be good if people from Wikimedia chapters from affected countries could weigh in their opinion.
3) Administrators and/or OTRS personnel receiving take-down orders. What should they do? Contact our designated agent (Mike Godwin/Sue Gardner)? The legal counselor (Mike Godwin)? Ignore such orders and show them {{PD-Art}}, stating we can't do anything because it's against policy? Even if that means ignoring local legislation? (in "local" here I mean where these people are physically located - do they become liable for not taking down such content when prompted to?)
*"We're teaching the world to free up content" - by breaking/ignoring local laws? Again, I question the methods. Why are we then accepting the lack of Freedom of panorama in the USA, or even following USA's interpretation of the Rule of the shorter term? These are also limitations to freedom of use, and on Commons we accept media from other countries that are not following strictly USA's interpretations on these matters... are we doing wrong? Should we start choosing which laws we deem "stupid" (I actually read this term on the discussion about changing PD-Art) and ignore them, regardless of them being US laws or not? This is not a rhetorical question.
So, I'm afraid that some things have not been really clarified... but the main one is: which copyright laws must/should Commons follow, in order to be absolutely compatible with WMF's values and licensing policies? Because the Board resolution from 2007 is not including Commons. Are we in a legal vacuum?

Patrícia



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