[Foundation-l] Re: Wikisource Copyright

Mon Nov 21 20:26:09 UTC 2005

David Newton wrote:

>Hi,
>
>Le Wednesday 16 November 2005 23:48, David Newton a Ã(c)crit :
>  
>
>>It is clear that most of the documents in Wikisource are under public domain,
>>because their copyright has expired. A few new documents are under free
>>licences (GFDLÂor CC) or public domain when the author decided to release
>>them in that way.
>>    
>>
>So it sounds to me that documents do not have to be under the GFDL or
>a GFDL-compatible licence, just a licence that allows their
>reproduction on the website. Is that what you are saying?
>
That's not what he's saying at all. The simple point is that being in 
the public domain overrides GFDL or any other licence.

>>>I think fair use doesn't apply to any document in Wikisource because these are
>>>published in their entirety.
>>>      
>>>
>>>>When considering the copyrightability of UN resolutions, or all UN
>>>>documents for that matter, what law do you apply?  Is there a UN
>>>>Copyright Act?  In the absence of such a law can any UN document be
>>>>copyright?
>>>>
In his reply to this Soufron made particular reference to section 
104{b)(5) of the United States copyright law. This has the effect of 
extending copyright protection under United States law to publications 
of the United Nations. It derives from the adherence of the United 
States to the Second Protocol of the Universal Copyright Convention 
(UCC). That protocol has the effect of extending the applicability of 
Article II(1) of the UCC to the certain international organizations 
including the United Nations. In turn that article says:

> 1. Published works of nationals of any Contracting State and works 
> first published in that State shall enjoy in each other Contracting 
> State the same protection as that other State accords to works of its 
> nationals first published in its own territory, as well as the 
> protection specially granted by this Convention.

So United Nations works are protected in the United States to the same 
extent that works of United States citizens are protected in the United 
Nations. Unless there is such a thing as a copyright act of the United 
Nations, that protection is nothing at all.

If these works are copyright then from when? From 1955 based on the 50 
year Berne Convention Rule? From 1964 based on the presumed failure of 
the United Nations to renew copyrights on these resolutions? From 1971 
based on the year when the United States adopted the Second Protocol?

This still does not address the United States position that laws cannot 
be copyrighted as a matter of public policy. That is especially clear in 
relation to the federal law of the United States, but less so in 
relation to the laws of the several united states and foreign laws. That 
begs the question, "What is the legal status of international laws and 
resolutions in the United States?" It could easily be argued that as 
long as the United States is a member of the legislating organization 
those laws have the status of laws of the United States, and are 
therefore uncopyrightable.

The applicability of UN copyrights in other countries is still not 
solved by this, and may very well depend on their separate national laws.

>[cut]
>  
>
>>>As for fair use, I have posted in the Scriptorium and the response has
>>>disappointed me to say the least. The responses that I have received
>>>have been contrary to the policy of Wikisource as set out at
>>>[[Wikisource: Copyright]] and they indicate to me that the people
>>>concerned do not have a deep understanding of copyright law, or if
>>>they do they choose to ignore those bits of copyright law that they do
>>>not like. The argument for fair use applying to entire documents in
>>>incredibly weak, and no account seems to be take of that fact.
>>>      
>>>
>>Agreed.
>>    
>>
>Given the above what do we do about it? If, as you seem to be saying,
>that licences allowing reproduction on the website other than the GFDL
>can be used, then we need to get a copyright notice at the bottom of
>each copyrighted work on the site setting out the terms under which
>they can be reproduced.
>
I don't see fair use as being relevant to our publication of the UN 
resolutions. I will be the first to agree that fair use is often 
misunderstood, and applied to excuse actions that would not otherwise be 
acceptable. Some misuse it because they feel it is an easier argument 
than going through the work of establishing public domain status; for 
others it is an act of desparation when they can find no other basis for 
including a desired work. There is nothing in fair use doctrine that 
would disallow its applicability to whole works, but such cases would be 
uncommon and need to be argued separately.

>>I copy the answer from JB Soufron below:
>>    
>>
>>"Actually, the texts on the website of the UN are copyrighted by the UN as
>>mentionned on [the copyright notice]. It is forbidden to reproduce these
>>texts except in the limit mentioned in their [terms of use]. To put it
>>simply, this basic license allow people to reproduce the texts but not to
>>modify them, which seems normal since these are legal texts and that
>>distributing modified versions could induce people in error. I think that
>>wikisource could make a good use of these texts if they come with a proper
>>disclaimer. --Soufron 11:22, 20 November 2005 (UTC)"
>>
Copyright does not arise from the notice alone. There must be authority 
for an editor to attach these notices.

Modifying these texts, or any other, would be contrary to the purpose of 
Wikisource. I would not consider wikifying a link to an earlier 
resolution to be a modification. In any event to the extent that GFDL is 
applicable it does allow for sections to be declared invariant.

>>Personally, I don't see anything useful in copying UNÂresolutions on
>>Wikisource. The UN web site is certainly as much as available Wikisource, so
>>I don't understand why we should copy anything from it, since we can't modify
>>anything in these texts anyway.
>>
The usefulness is an issue that is quite different from copyrights. The 
UN web site is indeed available, but it does not provide immediate 
cross-links between related resolutions. It does not provide 
opportunities for other references or commentary. Wikisource has the 
potential ability to make them far more useful than they are on the UN site.

>Actually Jean-Baptiste is incorrect about those terms of use. They
>allow people to download the material on the website for their own
>personal, non-commercial use. The UN terms and conditions do not allow
>redistribution or compliation of the material on their website.
>
>http://www.un.org/terms.htm
>
And what is their basis for making those statements. Terms of Use of 
this sort are paper tigers. It is interesting to read the Specht v. 
Netscape case at 
http://cyber.law.harvard.edu/stjohns/Specht_v_Netscape.pdf "We conclude 
that in circumstances such as these, where consumers are urged to 
download free software at the immediate click of a button, a reference 
to the existence of license terms on a submerged screen is not 
sufficient to place consumers on inquiry or constructive notice of those 
terms.... When products are “free” and users are invited to download 
them in the absence of reasonably conspicuous notice that they are about 
to bind themselves to contract terms, the transactional circumstances 
cannot be fully analogized to those in the paper world of arm’s-length 
bargaining."

It would seem that these "Terms of Use" on the UN website do not require 
a clear assent on the part of the user. The website will work whether or 
not the user views the page of terms, or even knows about it. Nor is 
there any specification of legal jurisdiction where a dispute arising 
from those terms could be settled. In the absence of a clear contract, 
one must conclude that statutory provisions.

>That rules out the resolutions being put on Wikisource, which is
>exactly why I posted this thread in the first place, particularly the
>questions about fair use. The results of the discussion seem to be
>that I am correct in my interpretation of fair use at Wikisource and
>that the UN resolutions on the site need to go as they are copyright
>violations.
>
In the absence of an actual claim of fair use I don't see that your 
argument purportedly negating its application can have any relevance. 
Your paragraph is a series of non-sequiturs.

>I think we also need to reinforce the terms and conditions on the site
>to make it clear that fair use is completely banned for the text
>itself. 
>
Absolutely not. That would carry the implication that all quotations of 
any kind from copyright material would not be allowed. Public domain 
material which happened to quote copyright material would not be allowed 
under those terms. As an obvious example, a work of literary criticism 
from the United States whose copyright was not renewed could not be 
included if it happened to include passages from literature that did 
have its copyrights properly renewed. Your extremist position leads to 
an open range of absurd possibilities.

>At the moment users are wilfully misinterpreting ambigous
>terms and conditions. 
>
Please do not confuse ignorance with willfulness. Assume good faith.

>The problem with sites like Wikipedia and
>Wikisource is that many of the users of them do not understand
>copyright law. Where there is a grey area like fair use then we have
>people using wishful thinking to stretch the concept way beyond its
>limits. Particularly with the whole texts reproduced at Wikisource we
>are exposed to potential legal liability with greater risk than at
>Wikipedia.
>
I am well aware of wishful claims of fair use, but I repeat that they 
are not relevant to this discussion. Some of the UN resolutions have 
already been on the Wikisource site since its earliest days, but there 
has not been a peep from the United Nations itself about this. As long 
as a reasonable copyright argument for keeping these resolutions exists 
we should keep them. I would take a direct complaint from the United 
Nations far more seriously than that from one individual who is suddenly 
infected with a bout of copyright paranoia. Given my comments above 
regarding usefulness, they could even become convinced that we are doing 
them a service that is better than what could develop in their own 
diplomatic/bureaucratic system.

Ec