Anthony DiPierro wrote:
On 6/21/06, Fastfission
<fastfission(a)gmail.com> wrote:
It is a very interesting case and I find it very
encouraging. The most
relevant aspects in respects to Wikipedia seem to me (non-lawyer that
I am) to be:
1. That moving a work into a very different context seems to be
considered transformative (i.e. from "expressive use of images on
concert posters" into a "biographical work"). Does moving an image
into an "encyclopedic work" make it "transformatively different"?
Under the court's argumentation here, almost certainly (accompanying
the images with textual material and creating something substantially
different as a whole than the original).
This part doesn't seem at all new. "Transformative use" has long
been
considered to include the context of the work, and not just whether or
not the work itself was altered. Use of an artistic work for the
purposes of commentary, such as in an encyclopedia, would generally be
considered highly transformative. Of course, note the qualification
"of an artistic work". Taking a diagram from an educational textbook
and using it in an encyclopedia article to accomplish the same basic
purpose would be much less transformative.
Yes, transformative use has long been a feature of fair use in the US.
However, it's not a feature of fair use/dealing under English common law or
the Berne Convention. Unless there is some amount of harmonisation, US law
will remain largely irrelevant for Wikipedia. As I've repeatedly argued,
Wikipedia should be freely redistributable throughout the world, not just in
the US.
-- Tim Starling
It'd certainly be nice. To some extent it's unreasonable, of course
(we don't want to be freely distributable in China, for example). But
to the extent that content is only legally distributable in the USA,
it probably shouldn't be in Wikipedia.
I don't forsee there being any consensus on this issue for a long time, if ever.
Anthony