[Foundation-l] Re: [Juriwiki-l] Re: Copyright complaints

Wed Feb 15 18:09:27 UTC 2006

Matt Brown wrote:

>> This is an immensely serious issue since it exposes Wikipedia,
>> Wikisource and the Wikimedia Foundation, not to mention the
>> contributors to the sites, to legal liability. I wanted a definitive
>> statement over copyright and I did not get that statement.
>
>Some points:
>
>1) We're dealing with a matter of copyright law and not a basic,
>everyday one.  On legal questions where there isn't a huge amount of
>precedent and case law, you can't get a definitive answer.  Thus, not
>many people feel qualified to comment on what the legal situation is.
>2) The Foundation, I'm sure, does not want to expose itself to
>liability by giving legal advice to contributors.

>-Matt

I wanted a definitive statement over the copyright policy of the
Foundation. Angela provided that statement on this mailing list a
couple of days ago. The position is that public domain, GFDL and
GFDL-compatible text are what is allowed. That is a clear position and
one that, if followed, will not land the person in trouble at all.

We then come to the area of fair use. The problem I have with fair use
on Wikisource is that Wikisource reproduces the whole of a work by
definition. One of the tests for the likelihood of a work being fair
use is that the reproduction is not a "significant" amount of the
work. The whole of a work is certainly a "significant" amount of the
work. This is not like an artistic work where a reduced resolution
version can be used and where such reproductions have been found to be
fair use in things like Bridgeman vs Corel. When reproducing the whole
of a literary work that work is reproduced with full fidelity. The
typographic setting of the work is not relevant here since the US does
not have typographical copyright. Wikisource is also something that
people are encouraged to make use of for commercial purposes. Again
that's one of the major indicators for finding something as fair use
gone.

Fair use, by design, is a legal grey area. I cannot claim to be a
copyright lawyer and an expert on the precedent in the US. What I can
claim to be is a layman with an above average knowledge of copyright
law and also someone who is alarmed by the misunderstandings and
deliberate flouting of fair use that go out on Wikimedia sites. This
UN situation is a classic example of that.

The UN resolutions are copyrighted under US statute law. Therefore in
order to use them on Wikisource either the permission of the UN must
be received or fair use must be relied upon. I don't know of anyone
who has approached the UN for permission and given the terms of use on
their website I doubt that they would be willing to license their
resolutions under a GFDL-compatible license. That leaves fair use and,
as I indicated in the previous paragraph two of the major indicators
for finding that a use is fair use are not relevant for this use of
material.

With respect to the Crown copyright material I know that OPSI are not
willing to license things under a GFDL-compatible licence as they were
asked about this by someone at Wikipedia. Since fair use does not
exist in the UK (where the OPSI servers are located) it cannot be
relied upon as a defence for reusing the content and the materials
must be removed from Wikisource. I don't know whether the UN servers
are in the United States, but I suspect they are. If that is the case
then fair use does exist as a defence for use of the copyrighted
material, I would say it is a weak defence in this case given that two
of the indicators for finding material as fair use are not present.

All in all when creating such a high visibility site as Wikipedia and
its allied sites I would say that we are better off erring on the side
of caution when it comes to copyright law. If that means we cannot get
pictures for articles or use certain source texts then so be it. Only
where there is clear precedent for something being fair use, and the
case concerned can be cited in the guidelines for copyright, should
fair use be relied upon.

David Newton