[WikiEN-l] Re: New fair use tag proposal

[Michael Snow]

Haukur Þorgeirsson wrote:

>>For non-profits the "benefit" can be furtherance of the stated mission,
>>which for many is educational. The benefit to a commercial photographer
>>might be getting their work and their name out for publicity value and
>>public exposure. A copyright holder agreeing in advance that a use is
>>"fair use" would make a subsequent attempt to litigate very difficult to
>>pursue. A note that a copyrighted image or text is used by permission
>>and considered "fair use" so long as it is for a non-commercial
>>educational purpose and properly credited should be an option on
>>Wikipedia.
>>    
>>
>I think you are still unnecessarily conflating
>"fair use" with "licensing". Saying that a copyright
>holder agrees in advance that certain use is "fair
>use" is a rather convoluted way of licensing an image.
>You can simply say "I allow this image to be used for
>such and such purposes" without mentioning "fair use"
>at all.
>  
>
Actually, a statement by the copyright holder that the use is considered 
fair use does serve an important purpose, and is distinct from granting 
a license or permission to use. The statement would probably prevent the 
copyright holder, should that particular use ever be litigated, from 
arguing a contrary position to the court. Effectively, the party 
claiming fair use is relieved of the obligation to prove that the use is 
indeed fair. See [[estoppel]]. The distinction is important because mere 
licenses can often be revoked at any time if no consideration is involved.

This is why copyright owners sometimes approach people about the way 
copyrighted content is being used, but still offer to give permission 
for its use. Very often they know well enough that the situation would 
qualify as fair use anyway, but phrase it as granting permission while 
carefully insisting that "all their rights are reserved." Openly 
agreeing that something is fair use is very rare, and PRA's willingness 
to do so is a generous gesture.

--Michael Snow