On 19/09/06, Delirium delirium@hackish.org wrote:
This discussion started with a mention of laws about taking pictures of various Royal properties, which is an extra-copyright restriction. You seem to favor us honoring those sorts of restrictions as well. But there are *quite* a lot of those, if we want to get into expansive conformance. In some countries, it's illegal to publish material that impugns the honor of a president, king, revered religious figure, or some other such thing. Should we ignore these laws? If so, how do we distinguish between the ones we follow (apparently UK ones) and the ones we don't?
<rant - sorry, this isn't particularly directed at you, it's been simmering for a while>
The issue is that a British author entered into a contract made legally under British law to do something in Britain. This is by no means a bizzare or inhuman contract - "I will let you into private property, and let you take photographs, on the condition you don't use them commercially". Art galleries everywhere do much the same thing; it's nothing to do with copyright or draconian privacy laws, it's just a matter of a contract between an individual and an organisation.
So regardless of any legal situation in the US, it is a breach of contract *on the part of the author* to release those images for commercial use, even if he does it outside the UK. US copyright law doesn't come into it, US freedom of speech doesn't come into it, because it isn't about either - it's about the fact that the author has made a contract which is legally binding and *he personally* would be breaking it if he released the work under a free license.
Wikimedia is fine - we're not a party to the contract, and it's an open question as to what on earth the other party can do to us if the photographer decides to break his contract. But we should never be pretending we can get people out of their local legal constraints, unrelated to copyright, just because publishing in Florida gives us funky copyright possibilities.
It's fair to say "we publish in Florida and aren't bound by German laws on reproducing swastikas", because that's a German law binding on German publications. It's (usually) fair to say "we publish in Florida and aren't bound by overseas copyrights on PD-US work", because we're looking at a US law binding on US publications. It's not fair to say that publishing in Florida means editors can escape any restrictions they have fairly entered into or had placed on them, especially when those have nothing to do with copyright, because we're looking at local laws binding *on our editors*.
Even if the end result is an encyclopedia that breaks no laws in Florida, we should not be expecting or encouraging our editors to break their own laws to get there.
</rant>