Hi James,
A few answers to the questions.
1. As far as I'm aware, WMF has not gone after anyone for copyright
infringement. I can't 100% rule out that it might have happened many years
ago, but I don't think we ever have.
2. The content creator or creators have the best standing for a lawsuit
because they're the copyright owners. As far as standing for WMF goes, it's
a pretty complex question. I think there could be some theories of standing
that might allow WMF to sue on behalf of one or more users to enforce a
copyright, but I can't say for sure if any of them would hold up in court.
3. Not sure what circumstances have led to GPL or similar licenses coming
up for litigation. It's equally possible that an individual content creator
chose to sue or was sued in the context of the GPL, it just depends on the
resources involved.
4. I don't see the connection between organizational standing and the value
of a publisher's right. If there were some hypothetical really egregious
case of Wikimedia project licenses being infringed and WMF wanted to sue,
there's a possibility of funding a suit by a group of users even if we
couldn't get associational standing. A separate publisher's right seems to
me to potentially pit authors and publishers against each other and allow
publishers to demand money even when the author is okay with dedicating
their work or a use of it to the public.
Counter issues
1. Licensed content is unlikely to be affected since it is published with
the license, it would seem to me that the same license would apply to the
published copy. Though it's possible if the law were poorly worded, it
could create a right outside of the existing regime and that wouldn't be
covered by existing CC licenses and would require an update as a result.
I am much more worried about PD content, which could potentially become
mired in confusion if specific publications of it were separately
copyrighted even though the underlying content is free for the public.
2. My best guess at damages would be some calculation of lost profits. That
is, the publisher would say "if i had the exclusive right to sell this, I
would have made X dollars, but that didn't happen because the person I'm
suing made all these copies without permission, so they should pay me X."
3. Text and data mining probably wouldn't be affected, or at least would be
no more affected than they are under the existing copyright regime.
On Mon, Apr 18, 2016 at 4:31 PM, James Heald <j.heald(a)ucl.ac.uk> wrote:
Hi everyone,
I've been invited to represent Wikimedia at a round-table of interested
parties with the UK Government on Wednesday, to offer thoughts on the
current EU consultations on Freedom of Panorama, and on a proposed new EU
"neighbouring right" for publishers (similar to the EU broadcasters'
right).
Dimi has already put up some good thoughts on the FoP consultation
questions,
https://meta.wikimedia.org/wiki/EU_policy/FoP_Consultation
but it would be useful to pull together talking points on the proposed
Publishers' Right.
As Dimi flagged up in his report recently, the publishers' pitch for this
can be found at
http://www.publishersright.eu/
while the questions in the EU consultation can be found at:
https://ec.europa.eu/eusurvey/runner/Consultation_Copyright?surveylanguage=…
& click on the button "The role of publishers in the copyright value
chain"
There is a clear attempted grab buried in the consultation, under question
4:
proposing that publishers should have the ability "to receive compensation
for uses made under an exception"
which can be contrasted with the exceptions under 5(3) of the InfoSoc
directive which do *not* require compensation.
But apart from this, it would be useful to discuss WM's take on the issues
that the Publishers' Right is being canvassed for to supposedly address,
from the standpoint of WMF as a publisher, that reserves its recourse to
copyright to defend the terms on which our material is made available.
Questions:
* Is this something (going after some entity for copyright infringement)
that we have in fact ever done ?
(Either for text or images)
* Would WMF have standing to initiate such a suit, or (if WMF only has a
nonexclusive license to the material on WP pages) would such a suit have to
be initiated by the content creator ?
* When eg the GPL has been defended in Europe, is that typically only
possible because there has been a copyright transfer agreement required to
the project from contributors ?
* Is there therefore at least some case for what the publishers are asking
for ?
Counter-issues:
* Do such neighbouring rights threaten to upset copyleft ecosystems, by
locking up PD content and/or copyleft content as part of a publication
protected as a whole ?
* What sort of damages would publishers be able to seek? What 'value'
would these be computed on, outwith the value of the copyrights?
* Implications for text & data mining, summarisation, etc. "Right to read
is the right to mine".
More thoughts ?
-- James.
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