Fair use

[Drew R. Smith]

Hayford mentioned to me earlier that an older thread had decided that CZ does not allow Fair Use for any copyrighted material. I was under the impression that Fair Use was allowed, but discouraged. Further, the upload form still shows Fair Use as one of the copyright options.

Should we allow Fair Use? And if not, could someone update the upload form to remove Fair Use from the list of options?

Drew

[Meg Ireland]

I've discussed this before with Stephen Ewen via emails back in 2008.

Fair Use is allowed as long as it meets the criteria set down on the CZ policy page. See:

http://en.citizendium.org/wiki/CZ:Fair_Use_Policy,_Media#Category_Five:_Book.2C_periodical.2C_and_disc_covers.2C_and_promotional_posters.2C_comic_strip_frames.2C_and_closely_similar

[Hayford Peirce]

Well, yes, but I just looked at the reference that Meg has kindly furnished and I think it is full of a trillion qualifications and warnings. It is certainly not a clear green light that says: "Go ahead and use 'fair use' as your justification."  I just wish that it were more conclusive one way or the other.

[Eugene van der Pijll]

"The following is only a draft proposal and should not be relied upon in any way."

[Martin Baldwin-Edwards]

"Fair use" is a legal claim to a minor derogation from copyright law. It varies from country to country, but CZ has a description of the approximate state of coverage by US law. For those who understand copyright law, it is manageable: others should seek advice. The examples given (CD cover, bookjacket) in specific contexts and with small image-size are reasonably safe for this legal claim. Therefore, there is no need to change anything on CZ. The problem is with the US (and other countries') legislation, which does not codify copyright issues carefully enough: basically, governments are more concerned with protecting copyright and big business than allowing the ordinary consumer to know securely what is or is not permissible. Complain to your Senator...

[Meg Ireland]

Which is why I engaged in email discussion with Stephen Ewan to clarify the legal situation with CZ. As long as the album, cd, book, or magazine cover conforms to what is written in the criteria, there should be no legal problems for this project.

"The following is only a draft proposal and should not be relied upon in any way."

[Howard C. Berkowitz]

"Fair use" is a legal claim to a minor derogation from copyright law. It varies from country to country, but CZ has a description of the approximate state of coverage by US law. For those who understand copyright law, it is manageable: others should seek advice. The examples given (CD cover, bookjacket) in specific contexts and with small image-size are reasonably safe for this legal claim. Therefore, there is no need to change anything on CZ. The problem is with the US (and other countries') legislation, which does not codify copyright issues carefully enough: basically, governments are more concerned with protecting copyright and big business than allowing the ordinary consumer to know securely what is or is not permissible. Complain to your Senator...

This points, indirectly, to CZ's need to have both appropriate email accounts at @citizendium.org, as well as a postal mail address(es). While the US government may be vague -- incidentally, I have worked for the Library of Congress, not directly for the Copyright Office but with them -- the Recording Industry Association of America is not, and is the source of most intellectual property legal actions. While they would not be authoritative for books, they could be asked for permission for CD covers, etc. They might refuse, but if they agreed, CZ would be protected. My guess is that they might consent, as they have backed away from some of their early hyperaggressive positions, and this really is to their advantage.

For books, publishers might well grant permission.

[Eugene van der Pijll]

Which is why I engaged in email discussion with Stephen Ewan to clarify the legal situation with CZ. As long as the album, cd, book, or magazine cover conforms to what is written in the criteria, there should be no legal problems for this project.

No legal problems, no. But is anything that is legal, also allowed by Citizendium policy? Or does CZ want to uphold higher standards of free-ness?

(The answer to that appears to be that there is no CZ policy on this point.)

[Meg Ireland]

We're not discussing anything else except fair use images and the criteria set down has not had any major problems. As for "high standards", your comments might have more weight if you actually contributed to the project, but after months being on this forum criticising aspects of CZ, your edit history reads zero.

No legal problems, no. But is anything that is legal, also allowed by Citizendium policy? Or does CZ want to uphold higher standards of free-ness?

(The answer to that appears to be that there is no CZ policy on this point.)

[Martin Baldwin-Edwards]

Given that copyright law is heavily weighted in favour of the copyright holder, I fail to see why CZ would want to impose extra burdens on itself when its primary function is to produce high quality articles and continue to exist. As a matter of policy, Stephen did try to negotiate agreements with some copyright holders in cases where the fair use provision was uncertain: as far as I recall, many of them had no interest in allowing anything at all, and others didn't even respond. (I hope my recollection is accurate.) So, this is a non-issue.

[Meg Ireland]

Eugene is correct is one respect, and I hope to get the policy issue moving again and resolved once we get the priority of the Charter finished. The Editorial Council will be activated in any event. But I agree with you Martin.

Given that copyright law is heavily weighted in favour of the copyright holder, I fail to see why CZ would want to impose extra burdens on itself when its primary function is to produce high quality articles and continue to exist. As a matter of policy, Stephen did try to negotiate agreements with some copyright holders in cases where the fair use provision was uncertain: as far as I recall, many of them had no interest in allowing anything at all, and others didn't even respond. (I hope my recollection is accurate.) So, this is a non-issue.

[Hayford Peirce]

A number of us may (or may not) have been burned by our Wikipedia experiences.  When I first joined WP it was still relatively new and I both originated many, many articles *and* uploaded all sorts of pictures.  Some of which I found in old places such as Australian newspapers, where, under Australian law, the copyright had apparently run its course, and many of which I scanned myself from old, old book covers.  In most cases I was also working with "administrators" or whatever they call themselves who were interested in the same subjects.  They seemed to know more about the legal procedures of uploading than I did, so I followed their lead.  A couple of years later, one by one by one, every one of my uploads began to vanish, sometimes deleted by a bot, sometimes by a person.  Always there was some statement to the effect that my upload was illegal.

That was one reason I left WP -- I had put a *ton* of hours into those uploads!

When I came to CZ I vowed that it would not happen again.  I'll upload my own pictures, but aside from that, almost nothing unless I am absolutely clear that it will not then be deleted two weeks after I put it into an article.   Almost the first thing I did here was beg Larry to try to find a couple hundred bucks and *buy* some legal advice on this issue, to get something in *writing* that we could use.  But evidently Larry had other priorities, sigh.  I have *lots* of lawyer friends, but none of them is an expert in copyright law, unfortunately.

But until we have an absolutely clear picture of what's permitted and what isn't, I'm simply not going to upload anything....

[Martin Baldwin-Edwards]

Well, several things to say on that, Hayford.

(1) When WP started, the attitude of everyone on the web was that the law didn't apply to them and they could do whatever they felt like. I have seen my published work stolen, being put for sale on an Ivy League uni website, mercilessly and obviously plagiarised; other personal privacy issues being breached and the website owners couldn't give a fcuk so my only option would be to take legal action in Australia or wherever.... So, that eventually the basic principles of copyright law have started to be properly respected is a good thing.

(2) There is no law of the internet. The applicable laws are those of the server location, the downloader's location, and the uploader's location. Three legal systems (potentially) with probably not much in common concerning copyright laws.

(3) CZ under the direction of Larry and Stephen, chose to focus on US law as the primary copyright protection system applicable to CZ. This is not really true, however, and CZ is potentially open to legal challenge from other countries where their copyright provisions are more severe than those of the USA. This is why Stephen drafted the guidance for "fair use" which should be accepted by all copyright hoilders, even in countries where fair use does not (yet) exist as a legal concept. The actual legal situation -- even in the USA -- is slightly ambiguous for the reasons I mentioned in an earlier post: so, expert legal guidance (which Larry did get) is not definitive and is open to challenge in US courts.

(4) This is probably not going to change in our lifetimes, other than that US law may become clearer. There is no way that a law of the internet is conceivably going to emerge in the near future. So, you either accept the intelligent guidance that Stephen has drafted (CZ is unlikely to have problems if you follow it carefully) or you will never upload anything without the explicit written permission of the copyright holder. This latter path you can follow, but it is a lot of work and unnecessary for things such as book and CD covers (in the context specified in the guidelines).

[Arne Eickenberg]

Why don't we simply allow the inline linking to images from other sites? Sure, the website owner might take them offline, but it would be sufficient to archive the page incl. the image with webcitation. Then it's permanent.

Example — archived image URL at WebCite:

Code:

http://www.webcitation.org/getfile.php?fileid=8bf72c56778b8756293d72e17ad1eca842da27ad

Embedding (linked inline):



Why not on a Wiki page?

[Arne Eickenberg]

Why don't we simply allow the inline linking to images from other sites? Sure, the website owner might take them offline, but it would be sufficient to archive the page incl. the image with webcitation. Then it's permanent.

[…]

Why not on a Wiki page?

Wikipedia has several arguments against it:

(1) "inline linking to images on other sites is often considered "leeching"; content sites where the image is stored and from which it is retrieved may not like the new placement"

This argument is moot if WebCite is used. WebCite is a site exclusively maintained for archiving webpages (incl. images & pdfs etc.) for quotation purposes, especially in a scholarly and "expert" context. We quote text all the time. Image citations are allowed under copyright rule, especially if a reduced image size is applied. And we wouldn't be making a copy at CZ. So there isn't even any need for "fair use". We allow inline linking to youtube videos. Why not to images for scientific purposes?

(2) "allowing inline image linking makes it easier for vandals to post images from shock sites"

Not really applicable at CZ. Our members are not using pseudonyms, and vandalism is almost non-existent. Users posting "images from shock sites" would lose CZ membership or be temporarily banned or receive a warning etc.

(3) "allowing inline image linking makes it easier to introduce copyrighted images without obtaining an acceptable free license"

See above: We quote text all the time. Image citations are allowed under copyright rule, especially if a reduced image size is applied. And we wouldn't be making a copy at CZ. So there isn't even any need for "fair use".

When I publish an article or a book, I am allowed to use any image I want, as long as I reduce image size (and sometimes quality), as long as I name the source, and as long as the image quotation is warranted in the context of the article or book—without obtaining any license. That's even a reproduction, by the way. With inline linking at CZ there wouldn't even be a reproduction (v.s.), i.e. no upload. It would just be a quotation, which is allowed under copyright, regardless of the "fair use" dogma.

EDIT: I even think that we would be allowed to upload these images to CZ and use them here under strict copyright, i.e. restriction to use in specific articles with specific topics—without obtaining any license and without informing the copyright holder. This is our right under copyright laws, if the images are used as a scientific citation in an expert context. And I think we all agree that we want CZ to be an "expert" site. All that's necessary is naming the source, reducing image size and quality, plus maybe converting to grayscale. And it has nothing to do with "fair use". It has to do with adequate scientific work.

(4) "inline linking to an image stored on another site increases the bandwidth use of that site, even though the site is not being viewed as intended"

This argument is moot if WebCite is used. WebCite has exactly this purpose. WebCite expects to receive increased bandwidth over time.