Axel-
> The wiki-author doesn't add a picture, he adds
a reference to a
> picture.
....with the intent and expectation that the image and
the text be
combined into a whole by the user's browser.
What matters in law is the text of the FDL, because that's what we're
dealing with. The FDL states that aggregation with "separate and
independent" works is acceptable. The wiki-author creates a combined work
of the previous work and the image reference -- with the expectation that
they will be *aggregated* on *some* users' systems. Texts and images are
separate works, stored separately, sometimes transferred together,
sometimes not. They do not constitute a single, individual work only
because some browsers display them together. This case is explicitly
treated in the FDL. Do you accept that there is a distinction between
aggregation and combination? Then where does combination end and
aggregation begin?
The classical example for aggregation is a CD-ROM of several works. But
just like a Wikipedia text with an image, the individual works are almost
certainly tied together via references and identifiers. Would a CD-ROM
that displays dynamically copyrighted, keyword-associated pictures when an
article is shown infringe the FDL? Hardly.
> Many copyright holders see things differently.
Author Dan van der
> Vat, for example, was asked to pay 25 British pounds for quoting two
> sentences from
> Churchill's History of the Second World War in his book "The Atlantic
> Campaign". Sure: The legality is questionable.
In other words: this would be laughed out of court.
Maybe so, but would Wikipedia go to court?
It is neither, since short textual quotes are quite
different from
images in at least two respects relevant to fair use.
1) Quotes are typically a tiny fraction of the whole
work, while images
are typically 100% of the whole work.
Even when they are "combined" with Wikipedia articles? ;-) At least now
you are interpreting the term "work" reasonably. The next step is to do so
not only when it suits your argument ..
2) There is no functioning market for the rights in
short quotes, but
there is a functioning market for the rights in images.
Mostly true, and we should be very careful in dealing with images that are
part of this market. This is the essence of a reasonable fair use doctrine
for Wikipedia: Try to figure out if someone may be interested in stopping
distribution of picture X, and if so, do not include it (possibly with
some rare exceptions of high political/historical significance).
Now, I don't think Wikipedia is at any risk
whatsoever: if somebody
complains about an image, we simply take it down. We don't have money,
so we won't get sued. The downstream users of our materials however may
not share these luxuries,
That's why we will provide the flags in the image table.
and in addition may have commercial interests
which weakens their fair use defense considerably.
People who want to make money with Wikipedia can be expected to do some
manual work.
In effect our fair
use images shut out large classes of potential users of the
encyclopedia.
So does the FDL. But we can make fair use optional.
Regards,
Erik