Fastfission wrote:
On 1/20/06, Ray Saintonge <saintonge(a)telus.net>
wrote:
Absolutely. Unfortunately, there are extreme
views at both ends of this
spectrum. The simple fact that publishing an image would somehow be in
the public interest is not enough to defeat someone's copyrights. On
the other hand it is also simplistic to say that because there is a
subsisting copyright the image cannot be used at all. "Fair use" is a
tool on the path to free use that can be used to great effect in the
right circumstances. By rejecting it completely we also make it easier
for those favoring more restrictive copyrights because they can now take
the abandoned ground unopposed.
I think in regards to Wikipedia policy there are two options:
1. We reject all fair use images in favor of entirely "free" ones. One
could read this as a retreat from copyright holders (as you imply
above), or one could read this as the only genuine way to create truly
free cultural products. Commons embraces this approach (with the
latter reasoning), WP:En does not.
2. We approach fair use reasonably, not being afraid of using it where
we need to and with a philosophy of "least likelihood of anybody
thinking they could sue us and win." This solution is not the
*easiest* one -- it rests on subjective and often uninformed
interpretations of an ambiguous part of U.S. copyright law -- and nor
does it necessarily accomplish the primary goal of ultimate
redistribution freedom (in fact most countries do not have statutes
anywhere as lenient as the "fair use" provisions in U.S. copyright
law), but it lends itself to producing a more "complete" and
"professional-looking" encyclopedia. It also might mean that we are
making some sort of stand about the limitations of copyrights, but I
suspect this is only a secondary motivation or interpretation. In any
event, this is the policy we current follow on WP:En.
It should be quite clear by now that I strongly support the second
option. Still I would be more inclined to base it on a fair-minded
attitude in preference to one based on what could happen in a law suit.
Fair mindedness involves taking into account the rights of others. A
person who claims fair use should indeed have some elementary
understanding of what he's talking about. Ultimate redistribution
freedom can be a big problem, but putting too strict a definition on
that can lead to all sorts of dilemmas. I know that most of our
discussions have focused on images, but the fair use law that applies to
images is the same one that applies to text, and for me disallowing all
fair use text would imply disallowing properly attributed quotes of
one-sentence length. Purpose is key to one of the fair use texts, and
we have no way of controlling this in downstream users. Perhaps we need
to assume that the downstream use will fail that test. Is it the most
important of the four tests? Since no one test alone is determinative,
can a usage which fails that test satill be fair use when it passes the
other tests? Once we answer that in a US legal context, we will have a
better idea of how to approach that problem in relation to other countries.
We can't duck from the political motivation, but it must remain
secondary. Before that can be a real motivation we need to be very
aware in the legal areana.
Ec