[Foundation-l] foundation-l Digest, Vol 89, Issue 44

[Robin McCain]

On 8/16/2011 2:13 AM, foundation-l-request at lists.wikimedia.org wrote:
> One suggestion for archiving would be to have a complete set of projects
> filed with the copyright office and other key depositories quarterly.
>
> This could also address a potential long-term copyright problem.  This
> has less to do with Wikipedia infringing on the copyrights of others
> than with the reverse.  It already happens that others use Wikipedia
> material without credit in works on which they claim copyright.  Re-use
> of that material on-wiki at a later date will inevitably result in a
> copyvio squabble, especially if the originally plundered version is no
> longer recognizable. This could be many years hence.  What other means
> are available to protect the viral nature of freely licensed material?
>
> Forks could also be helpful in this regard.  They would need to respect
> free licences, and, as a by-product, add evidence favouring the freeness
> of the material.  A person creating a fork based on some topic area is
> unlikely to significantly alter all the articles imported, preferring to
> draw different conclusions from the same underlying facts.  This is
> bound to leave an identifiable residue that will protect the licence.
Anything filed with the copyright office is a static slice in time.

Copyright is such a sticky issue - If you publish something, copyright 
it , then go back and revise the original then you must copyright the 
whole thing over again - because copyright is based on an "image" of 
something. There is a limit to which you can use material that has a 
copyright by others - it is called plagiarism and is well defined in 
law.  However - If you take material that is old enough to be out of 
copyright and publish a new edition of that material - you can copyright 
the new edition - but (as I understand it) only the image thereof - not 
the actual material.

I may well be wrong, but a rather involved example might be in order.  
Someone has an original photographic print of Adolf Hitler. Originally 
the rights to that image had to be cleared by 1. the subject (however he 
was a public figure so his rights were automatically "released" unless 
otherwise stated) 2. the photographer 3. the rights-holder (originally 
NSDAP) and 4. the possessor of the print.  However point 1 was cleared 
upon the subject's death (since he had no estate exercising control at 
the time of death other than 3), Point 2 was cleared when the assets 
were seized by the Allies. Point 3 reverted to the state of Bavaria 
since the NSDAP was chartered under their laws and has been dissolved by 
that agency. In this special case the state will not contest use by 
others unless the purpose is to further the goals of the NSDAP ie. 
Nazism and/or fascism. So the first three are covered and only point 4 
applies to use in new work.

Now the fun part - I buy a copy of that "new work". It has a new 
copyright. Exactly what is covered here? Only the "image" in the book. 
So if I went to the National Archives, found the negative of that print 
and made my own copy I could use my copy without restriction. However if 
I used a scanner or camera to copy the image from the "new work" itself 
then the new copyright would apply and I would need to obtain permission 
from the publisher.

So if someone used material "as-is" from Wikipedia in a new work, they 
could not "own" the material that came from Wikipedia, only the "image" 
represented by their own publication. Since the material is likely just 
text, I'm guessing that the "as-is" material could be freely copied by 
others. This could get to be tricky as it is like the government 
document that is stamped "Secret" because of one word. Obscure that word 
and the document can be released under FOIA.