[WikiEN-l] A very interesting recent "fair use" case ruling

[Tim Starling]

Anthony DiPierro wrote:
> On 6/21/06, Fastfission <fastfission at gmail.com> wrote:
>> It is a very interesting case and I find it very encouraging. The most
>> relevant aspects in respects to Wikipedia seem to me (non-lawyer that
>> I am) to be:
>>
>> 1. That moving a work into a very different context seems to be
>> considered transformative (i.e. from "expressive use of images on
>> concert posters" into a "biographical work"). Does moving an image
>> into an "encyclopedic work" make it "transformatively different"?
>> Under the court's argumentation here, almost certainly (accompanying
>> the images with textual material and creating something substantially
>> different as a whole than the original).
>>
> This part doesn't seem at all new.  "Transformative use" has long been
> considered to include the context of the work, and not just whether or
> not the work itself was altered.  Use of an artistic work for the
> purposes of commentary, such as in an encyclopedia, would generally be
> considered highly transformative.  Of course, note the qualification
> "of an artistic work".  Taking a diagram from an educational textbook
> and using it in an encyclopedia article to accomplish the same basic
> purpose would be much less transformative.

Yes, transformative use has long been a feature of fair use in the US. 
However, it's not a feature of fair use/dealing under English common law or 
the Berne Convention. Unless there is some amount of harmonisation, US law 
will remain largely irrelevant for Wikipedia. As I've repeatedly argued, 
Wikipedia should be freely redistributable throughout the world, not just in 
the US.

-- Tim Starling