[Foundation-l] Fair Use and Registered Trademarks

Thu Jul 14 20:49:08 UTC 2005

Le 13 juil. 05 à 00:12, Delirium a écrit :

> Robert Scott Horning wrote:
>
>
>> Jean-Baptiste Soufron wrote:
>>
>>
>>> Actually, I don't think you can digitize some public domain work  
>>> and  change its title unless you also change its content.
>>>
>>> At least in France, that would be forbidden by the moral rights   
>>> legislation.
>>>
>>>
>>>
>> This is likely to be a huge, and perhaps incompatable difference,  
>> between American and French law.  Changing and modifying public  
>> domain works is commonly accepted, and often encouraged under many  
>> circumstances.  That appears to be precisely what has happened  
>> here with the Gutenberg Encyclopedia.
>>
>
> Indeed, there was a recent U.S. Supreme Court case unanimously  
> confirming this---a company (Dastar Corp.) republished a modified  
> version of a public-domain work of film and passed it off as if  
> they had produced it themselves, not attributing or mentioning at  
> all the original producrs.  The original producers (Twentieth  
> Century Fox Film Corp.) sued, and lost, because under U.S. law (as  
> confirmed in this case), the original author of a public-domain  
> work has *no* rights of any sort, not even the right to be  
> credited, since by definition public-domain works are not owned in  
> any fashion by anyone.

Are you sure ?

It can mean that the author has no right to be credited, but does it  
mean that someone else can claim to be the author ?

The french law solution would probably be similar : there is no  
obligation to name the author of a PD work, but it would be forbidden  
to claim the book for its own.

> See: [[en:Dastar Corp. v. Twentieth Century Fox FilmCorp.]]
>
> Robert Scott Horning wrote:
>
>
>> From what I see, based on some research I've just done searching  
>> various web pages and trying to read court opinons, etc. (IANAL)  
>> the use of a trademark is reserved for the company who holds it.   
>> In this case we (or at least I am) trying to advertise the project  
>> and discuss the project in public forums.  In this situation, I am  
>> not legally entitled to describe the project as "Wikisource  
>> Encyclopaedia Britianica, 11th Edition", because that implies  
>> endorsement from Encyclopaedia Britianica, Inc.  This puts the  
>> Wikimedia Foundation into a real legal bind if that trademark is  
>> used widely, for example as a hyperlink from Wikipedia articles to  
>> Wikisource, or even discussed outside of Wikimedia projects.
>>
>
> Well, this is a gray area of law, as most trademark law is.  There  
> is room for acceptable use of a trademark when reporting factual  
> information, however, even in advertising---Coca-Cola uses the work  
> "Pepsi" in some advertisements, for example those that report the  
> results of taste tests between the two companies' products.  Simply  
> stating that a verbatim copy of the 11th edition of the  
> Encyclopaedia Britannica is in fact "The 11th Edition of the  
> Encyclopaedia Britannica" seems like it might be a mere factual  
> statement and permitted, but I wouldn't be willing to bet anything  
> on that.

It is :-)