[Foundation-l] Clearing up Wikimedia's media licensing policies

Fri Feb 9 07:10:58 UTC 2007

Robert Scott Horning wrote:

>Ray Saintonge wrote:
>  
>
>>Mark Wagner wrote:
>>    
>>
>>>Nothing will change for en.wiki? Hardly. If I'm reading this
>>>
>>>correctly, most of the images used under a claim of "fair use" are no
>>>longer allowed, and we'll need to figure out how to delete some
>>>200,000 images, as well as how to educate thousands of users who are
>>>used to uploading those sorts of images.
>>>      
>>>
>>Record album covers? book covers?  publicity shots?  These are all used 
>>to such an extent that the owners can be treated as having abandoned 
>>copyright
>>    
>>
>Unfortunately there is no "statute of limitations" on copyright 
>infringement.  Unlike trademark and patent laws, copyright can be 
>enforced retroactively many years, even decades after the infringement 
>has occured.  It does not require active enforcement if somebody wants 
>to go in and try to seek damages... even if the image has since passed 
>into the public domain.  And due to the Berne Convention, there is no 
>asserted copyright that must be filed first in order to assume 
>copyright.  All images have complete copyright protections unless you 
>have explicitly recieved the content via license... hence the need for 
>something like the GPL and GFDL.
>
This is not correct.  See Section 507 of the US copyright law which 
provides a three year limitation for civil action, five years for wilful 
criminal infringements.

Under Section 411 registration of US works is a prerequisite to starting 
an action for infringement, and no damages can be collected inrespect of 
a period that preceded registration.  To satisfy the Berne convention 
the work is still protected from the time it is produced, but that is 
not enough to start an action.

>This is relatively recent in terms of American copyright standards, 
>where you could assume abandonded copyright if it wasn't registered with 
>the Library of Congress, or if the copyright wasn't renewed. 
> Politically, I think that is a much more valid way to address copyright 
>where only those things that people are willing to say "I want this 
>copyrighted!" can get that kind of protection, but that isn't current law.
>
As a rule of thumb I would say three years of complete inactivity on the 
part of the copyright owner would be sufficient for a claim of 
abandonment.  In the case involving the Scientology papers a shorter 
period was ruled applicable for abandonment.

As things stand almost anything can be copyrighted, including such 
ephemera as advertising flyers that most of us like to throw away.  We 
could not legally reproduce a 50-year old grocery flyer to show what the 
prices were like then; it does not matter if the company long ago ceased 
operation.  The need to register would create a situation where orphaned 
material of this sort could be forced into the public domain by 
abandonment.  The broad brush of the current regime only favours the big 
publishers, and creates confusion for everybody else.

I have occasionally considered the idea of promoting an OrphanWiki.  
Because of the potential legal implications this would need to be a 
separate project.  Such a Project would include certain works which are 
strictly speaking still protected by copyright, but whose owners are 
unknown.  What the project is doing would be flagrantly publicized in 
the hopes of flushing out the owner.  If nothing at all is heard for 
three years the work could be treated as having gone into the public 
domain by abandonment.

Ec