Commons:Requests for comment/Non-US Freedom of Panorama under US copyright law

The following discussion is archived. Please do not modify it. Subsequent comments should be made in a new section. A summary of the conclusions reached follows.

The main outcome of the discussion was the creation of {{Not-free-US-FOP}}; see also concluding discussion at #Concluding. The issue may well have to be revisited in future. Rd232 (talk) 08:42, 15 April 2013 (UTC)

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Following a recent DMCA takedown request (listed at wmf:DMCA_Oldenburg), the issue of how US copyright law treats non-US freedom of panorama exemptions has gained a new prominence. This RFC aims to broadly discuss the issues and potential ways forward.

Related discussions:

• Commons:VP#DMCA_Take-Down.
• Commons_talk:Freedom_of_panorama#Non-US_FOP_vulnerable_to_DMCA.
• Commons:Deletion requests/works by Claes Oldenburg.
• Commons:Office_actions/DMCA_notices#Notification_of_DMCA_takedown_demand_-_Claes_Oldenburg.
• As one solution to this type of problem, see also: Commons:Requests for comment/Commons Abroad and related ideas.
• Discussion at German Wikipedia: de:Wikipedia_Diskussion:Kurier#Oldenburg_Office_action.
• See also Commons:Lex loci protectionis, on the legal principle in intellectual property law that "the law of the country in which legal protection for the intellectual property is claimed" applies.

Proposals

Tag files potentially affected by US FOP clashing with source country FOP

copied from COM:VP Rd232 (talk) 12:10, 13 November 2012 (UTC)

In light of comparisons to the situation with the URAA, I have taken the liberty of creating an analogous template to {{Not-PD-US-URAA}}, called {{Not-free-US-FOP}}. This template can be applied to any work that depicts a non-free sculpture or artwork, and offers fair warning to content reusers regarding this issue, as well as allowing us to easily identify affected files at a later time if we decide to no longer host these files. I've demonstrated use of the tag at File:Houseball detail.jpg. I'd like to get feedback on this idea and give others an opportunity to edit the language of the tag before placing it on a larger number of images. Dcoetzee (talk) 03:09, 12 November 2012 (UTC)

That template looks a little too definitive to me. I read a fair bit of uncertainty in the legal analysis above, so I wouldn't want to concede too much without a court case. I agree it's good to warn reusers of the issue, but maybe with a little less certainty that the photograph is unfree. --99of9 (talk) 06:56, 12 November 2012 (UTC)

I expanded it and made it a lot less definitive. Rd232 (talk) 08:15, 12 November 2012 (UTC)

step 1 replace takendown images with replacement image; step 2 migrate takendown images to en wikipedia with this template. Slowking4⇔ †@1₭ 13:40, 12 November 2012 (UTC)

Might give it the partially-red-partially-gray logo, not the red definitely-copyrighted one. Looks pretty good though looking at it for the first time now. Carl Lindberg (talk) 06:37, 13 November 2012 (UTC)

Done so. -- King of ♥ ♦ ♣ ♠ 07:56, 13 November 2012 (UTC)

I think a tag is good. However, if the photo is illegally obtained, for instance, taken in a museum or other setting where there are explicit "do not photograph" then it is still in violation of international treaties.

What international treaties? "Do not photograph" signs are usually just house rules. If you don't follow them, they have the right to expel you from their premises, but as long as the subject of the photo is public domain, you are not violating any copyrights. -- King of ♥ ♦ ♣ ♠ 16:55, 18 November 2012 (UTC)

See Commons:Non-copyright_restrictions#.22House_rules.22. Usually these are just house rules. Even when photos are illegally obtained we still accept them, as a rule. You can nominate individual photos for deletion if you disagree with this practice. Dcoetzee (talk) 22:08, 18 November 2012 (UTC)

How would that make a photo "illegally obtained"? What law is being broken? There can be house rules, but they are not laws (usually). I'm also pretty sure there is nothing approaching an international treaty on those matters -- which treaty are you referring to? Carl Lindberg (talk) 14:38, 20 November 2012 (UTC)

If you pay for admission there may be terms associated with that payment which your photography is breaking; this would seem to me to fall under contract law and may be tested in civil suit. Barefootliam (talk) 05:37, 27 November 2012 (UTC)

... which would then be limited to a contractual issue between the photographer and the institution. If the photographer wishes to keep the photo here, we will typically let them, and will not pre-emptively delete unless the photographer wants it to be (in light of the claims of the institution). After all, they still own the copyright, unless they actually signed something transferring it, something that a simple admission ticket can not do. "Illegal" implies that a law was being broken, which is something different altogether. It might be that the photographer does not have the necessary rights to give a CC-BY (or similar) license, but that is usually up to the photographer to deal with. There is no way we can know or should guess at what type of contracts may or may not exist, what special permission may have been granted to the photographer, etc. Carl Lindberg (talk) 16:44, 9 December 2012 (UTC)

• I agree that using this tag would be helpful for any future action. I've translated it into German. Sandstein (talk) 19:33, 20 November 2012 (UTC)

Tag files where FOP may be thought an issue, but isn't

"It's often not obvious whether a building or sculpture is out of copyright, and some research may be needed." (Avenue at Commons talk:FOP) Documenting this can be helpful, maybe with a custom tag of some sort (though covering both US and source country FOP issues may complicate things a bit). More generally, we could consider expanding {{Information}} or its conventional usage to more explicitly handle different copyright layers, which it currently doesn't do very well. For instance, {{Author info}} can be used to handle different authorship aspects, {{Copyright information}} the license tags for different copyright layers. Rd232 (talk) 01:21, 15 November 2012 (UTC)

Files like this should not have FOP tags at all - they should have separate tags indicating why the photograph is free and why the underlying work is free. I've already done this in an ad hoc way for some images, although I'd like to see an example where it's done properly with internationalized templates. Dcoetzee (talk) 08:31, 15 November 2012 (UTC)

Documentation of freedom (PD/licensing/other) for multiple levels of potential copyright is something we seem to struggle with on Commons. cmadler (talk) 14:30, 19 November 2012 (UTC)

One problem with applying various tags for different components of the work is that it's then often unclear which tags apply to which aspects. Could wrapper templates (e.g. like {{Self}}) be useful to indicate when a tag is referring to an underlying work depicted within the photo? --Avenue (talk) 01:20, 20 November 2012 (UTC)

Here's an example of one that I've tried to fix: File:Hammer Museum Westwood June 2012.jpg. It's not FOP, but I can't find the right template to indicate a pre-12/1/90 US building (currently using the deprecated {{PD}} until I find the right thing). I used {{Copyright information}} as the wrapper, using the "object" parameter for the underlying copyright status of the building, and spelled it out in the summary under "Author". Thoughts/suggestions? cmadler (talk) 17:21, 20 November 2012 (UTC)

That's the best we can do at the moment - but it can be improved on, because here we've not got internationalisation of the author details. That's partly what I was thinking of with expanding {{Information}} - I'm thinking of how {{Artwork}} has fields for "artist" and "source/photographer". Otherwise, we could use a version of {{Copyright information}} for the author details ({{Author info}} was supposed to do that, but I'm not happy with it). Rd232 (talk) 19:11, 20 November 2012 (UTC)

I've created {{PD-US-architecture}} for this purpose, feel free to tweak it as needed. cmadler (talk) 18:58, 20 November 2012 (UTC)

Seems useful. Needs internationalising of course. Rd232 (talk) 19:11, 20 November 2012 (UTC)

I'm not familiar with how to do that, so it will have to fall to someone else. cmadler (talk) 19:24, 20 November 2012 (UTC)

"for which the plans were otherwise published before December 1, 1990" - are you sure about that? Wouldn't the plan itself be copyrighted just as any other 2D drawing would? After all, since the law did not specifically exclude architecture, I think a drawing of an architectural plan would be copyrighted. It is merely the building itself which is not copyrighted. -- King of ♥ ♦ ♣ ♠ 19:41, 20 November 2012 (UTC)

IANAL. I based it on this article (which I found linked via Commons:FOP#United States), specifically the third paragraph, which says, "The Architectural Works Copyright Protection Act, passed in 1990, extended copyright protection to architectural works unless the building was constructed or the plans to the building were otherwise published before Dec. 1, 1990. Courts have generally agreed that all buildings not yet substantially complete as of Dec. 1, 1990, are covered by the act." (my emphasis) Am I misinterpreting that? cmadler (talk) 20:07, 20 November 2012 (UTC)

No. But the copyright in a building does not include the right to prevent pictures etc. of the building, meaning such works are not derivative and are wholly owned by the photographer (at least in the eyes of the U.S.), so the tag really doesn't need to be added to any photo of post-1990 buildings either. I'm a little dubious on the tag's usefulness. And of course, it only refers to the constructed buildings -- the drawn plans have always been protected as graphical works. Carl Lindberg (talk) 16:48, 9 December 2012 (UTC)

"such works are not derivative" I question this. Isn't FoP more akin to a special case of fair use (special because it's not dependent on the context of the reuse). That is, the resulting work is a derivative work, but it's allowed in all cases. We agree that it's free, but the issue is to correctly describe why it's free. It's not an issue in the US (although it could be if the US FoP law is changed in the future), but could be an issue for re-users in other countries. cmadler (talk) 14:31, 13 December 2012 (UTC)

AFAIK freedom of panorama provisions are usually phrased as "this type of reproduction of X does not infringe X's copyright". That is, FoP is a specific copyright exemption, rather than being an area copyright isn't worded to cover in the first place. I'm not sure if/when this distinction makes any difference though. Rd232 (talk) 15:30, 13 December 2012 (UTC)

In the U.S. case, the law is worded The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place. So, at least for this situation in the U.S., such photos are explicitly outside the scope of the copyright holder's rights, i.e. outside of their derivative work rights. You are correct that the wording in other countries is often a bit different although they amount to basically the same thing. Carl Lindberg (talk) 13:12, 14 December 2012 (UTC)

Campaign to change U.S. FoP law

page for following this up: Commons:Freedom of panorama campaign

• Support it'll keep certain sectors busy, and why not. As useless a waste of money as any other waste of money that has been spun up. Can't use pics on commons as it is now so why not go on a crusade for common sense. Send in the Spanish lobbyists. Penyulap ☏ 10:06, 13 November 2012 (UTC)
• Comment I do favour this, but I think this needs to be part of a much broader US copyright reform lobbying movement. Dcoetzee (talk) 21:18, 13 November 2012 (UTC)
  • Yes. FOP, rule of the shorter term, etc. cmadler (talk) 14:31, 19 November 2012 (UTC)

Support--KTo288 (talk) 22:36, 25 November 2012 (UTC)

If they can delete pictures of KraCkuh SluGg, what next, my Nukka?

Replace DMCA-deleted images with placeholder and revision-delete affected versions

copied from COM:VP Rd232 (talk) 12:03, 13 November 2012 (UTC)

I propose that for DMCA targets, we add one step before deletion - should add 30 seconds to the deletion process, tops.

1. On the targeted image page, upload a new version which replaces the target image. such as File:Image removed DMCA.png "Image removed due to DMCA notice", and add a wikilink link to the WMF DMCA notice and to any discussion.
2. Delete the now-previous version which is the DMCA target.

This maintains file information and history. It also allows adding {{OTRS pending}} while permission is sought for the (deleted) target, and/or while the WMF-suggested counter-notice is filed by an intrepid editor. Adding such status info is currently not possible under current Commons deletion practice. Of course automatic image replacement occurs in all wikis, increasing awareness and internal accountability. In the event that a DMCA counter-notice or OTRS license request is successful, the re-upload of the target image can proceed as a "new version", retaining total history. If the image is never restored, the history remains intact, for future would-be uploaders. (pocket rationale) On many content sites like Yahoo, YouTube and Google, content deleted due to DMCA notices are boldly labeled. The DMCA deletion of content is as important as the content itself. DMCA-driven deletions need more accountability. --Lexein (talk) 08:45, 12 November 2012 (UTC)

This strikes me as an excellent idea. Wikis that were using the image would automatically be notified, without imposing anything onerous on them. They can easily remove the notice from their articles if and when they wish. It would also be useful to keep the image description page and history hosted here, not just for our internal purposes but also for any external re-users. --Avenue (talk) 12:09, 12 November 2012 (UTC)

i agree. tracking dcma history is useful. Slowking4⇔ †@1₭ 13:28, 12 November 2012 (UTC)

This is an excellent idea. cmadler (talk) 14:54, 12 November 2012 (UTC)

+1. Move to the RFC, and ask the WMF about the idea? Rd232 (talk) 01:16, 13 November 2012 (UTC)

I think it's essentially unrelated to the RFC. It would apply to any DMCA takedown, not just ones that involve FOP issues. But yes, we should raise the idea with the WMF. --Avenue (talk) 03:36, 13 November 2012 (UTC)

I think it is a good idea. I would definitely add {{Pp-office-dmca}} and fully protect the page with at least upload protection, but potentially page protection as well. In this particular case due to an ambiguity in the DMCA request, you'd have to delete the information page as well though. But I like the idea. With regard to thumbnails in other language pages, I have no problem with 1 month or something, but after that, they should just be removed, but that is something we can discuss separately/later. TheDJ (talk) 09:58, 13 November 2012 (UTC)

"In this particular case due to an ambiguity in the DMCA request, you'd have to delete the information page as well though." Can you explain what you mean? If there is such an ambiguity, claiming copyright over legitimate Commons content (e.g., file information and description), does that create an opportunity for a counter-notice? cmadler (talk) 14:05, 13 November 2012 (UTC)

Yes but it'd be a pain in the ass to file a counter-notice just to restore useless file descriptions, and would alarm and confuse people who think the entire thing is being challenged. I do like the idea of providing notifications of DMCA deletions, although they actually do already get this to some extent, in CommonsDelinker's edit summary, when removing the image (presuming the DMCA was mentioned in the deletion summary). I don't know if keeping the images in articles is what we want so much as informing editors of affected pages on corresponding talk pages. Readers generally won't care or be interested enough to help. Dcoetzee (talk) 15:09, 13 November 2012 (UTC)

They used a standard template, and the template it says: "The copyrighted work at issue is the text that appears on the ... website". Now from the description following that line, it's quite clear they probably meant just the images of the sculptures. But you can't really be sure, so both should probably be deleted at this time. Does this give you any benefit in filing a counternotice ? Well you might file a successful counter notice but this technicality will mean nothing. Counter notices are almost always successful anyways (difficult to mess up). This is not relevant however. What is relevant, is that after a successful counter notice, you are can be taken to court by the copyright owner,. For a final decision about the usage of these works, the technicality of the original notice will probably not affect in any way the proceeding nor the result, so no, I doubt it will give you any advantage. It might have been grounds for the WMF to deny the original DMCA on grounds of a technicality, but then the owners would simply have sent a corrected version and the WMF would have had to take action anyways. TheDJ (talk) 15:55, 13 November 2012 (UTC)

The placeholder idea is rather petty, unless we remove the image from articles when we do the swap. If we leave the placeholder in articles, we're going to lose a bit of maturity and credibility for the sake of vindictiveness. Sven Manguard Wha? 15:59, 13 November 2012 (UTC)

The core of the placeholder idea is to keep the file description page, and provide a message to potential and existing internal and external reusers. It would make sense to use CommonsDelinker to remove the image from existing Wikimedia uses. Rd232 (talk) 16:10, 13 November 2012 (UTC)

I agree with that. If we include placeholders in articles at all, we should do it no longer then a month or something and then just cleanup. There is some merit in it as a temporary measure I think. It might inspire someone (other than us) to actually review the usage and possibly file a counter notice. TheDJ (talk) 18:01, 13 November 2012 (UTC)

Not even for a month. It's childish, and serves no purpose. All the people involved enough to want to file a DCMA counter-claim are involved enough already to hear through other channels, like the Signpost. Sven Manguard Wha? 18:58, 13 November 2012 (UTC)

Why not try to increase awareness and involvement? I don't think that's pointless. Our usual deletion processes run for at least a week, and I don't think we should automatically scrub the articles of the placeholder image any quicker than that. Of course, if editors on the affected project want to remove it sooner (or retain it beyond that period), that's their prerogative. --Avenue (talk) 22:35, 13 November 2012 (UTC)

i don't think it's all that petty. is chilling effects petty? how are we going to tag and track all the takedowns as they occur? is not the metadata; history important? Slowking4⇔ †@1₭ 20:20, 14 November 2012 (UTC)

Saying that it's childish doesn't make it so. No one above has indicated any desire for it to be vindictive. It's on you to present reasons why it is petty, rather than impugn the motives of the people who came up with the idea. The purpose you claim is invalid is given above--if you think it is invalid, explain WHY. Otherwise you are just making personal attacks. Trlkly (talk) 01:18, 17 November 2012 (UTC)

• The placeholder image strikes me as a very good idea. We want to encourage the filing of counter notices where takedown request are in error and this will do just that. If image removal from articles is not done immediately, then I think it should be done no more a month later, and a notice should be placed on the talk page to explain why the placeholder is there and link to a page with either a copy of or a link to (1) the takedown request and (2) information about counter notices. Thryduulf (talk) 11:10, 18 November 2012 (UTC)
• I actually think we should place something visable on the image pages, especially as many people reuse content elsewhere and should they be checking the integrity of the image copyright at source they should be able to readily prove they acted in good faith, as well be advised of why its no longer there. It also helps to stop editors attempting to upload new images under the same name. Gnangarra 04:03, 19 November 2012 (UTC)
• Weak support. Educational placeholders are a good idea, and if I read this proposal correctly, this is what is proposed here. --Piotr Konieczny aka Prokonsul Piotrus ^Talk 23:13, 19 November 2012 (UTC)
• Yes, this placeholder sounds like a good idea. Sandstein (talk) 19:30, 20 November 2012 (UTC)
• Support, as the placeholder gives editors notice of an issue with an image in their article. Saffron Blaze (talk) 00:20, 8 December 2012 (UTC)

Copy affected images to servers outside the US

We can

1. copy images to other servers hosted outside the US (eg Wikilivres).
2. more ambitiously, we can try to link those servers with Wikimedia projects such that projects could transclude such images served from other countries. See also Commons:Requests for comment/Commons Abroad and related ideas. Rd232 (talk) 12:30, 13 November 2012 (UTC)

For what it's worth, I remain concerned that transcluding images from a server in another country would probably still be illegal, since we'd still be displaying the content on the US site (albeit at reduced resolution and in context). Moreover, it remains very unclear to me whether we can link to sites hosting content that is not free in the US (this may or may not be contributory infringement). Traditionally, when transcluding images, such linking is generally needed to comply with the license of the photograph. Dcoetzee (talk) 15:12, 13 November 2012 (UTC)

I see it more as an alternative fair use method. Linking may be problematic, although the WMF may have DMCA exemptions here too. Linking might not be legally required if we were relying on fair use, although I doubt we'd happy omitting links anyway. --Avenue (talk) 22:48, 13 November 2012 (UTC)

Strictly speaking, I suppose that you could use {{PermissionOTRS}} and store the link in the OTRS ticket, but that would mean more work for OTRS volunteers, which might be too much to handle for them. --Stefan4 (talk) 22:56, 13 November 2012 (UTC)

We have legal entities in various countries now with various different laws. It would be quite legal for Wikimedia UK to run a UK Commons Wiki which contained images such as UK Freedom of panorama pictures of sculptures on permanent public display in the UK. It should also be possible for at least some of those images to add a migrate to Commons date. Over the next century or so I'd expect all the images we start with to get to Commons. OK that's longer term than some of us are used to working to, but it is doable and there is no deadline. It might also be rather less bitey to say "we have migrated the following images to UK Commons as there is a copyright problem in having them here" as opposed to we have deleted the following images due to copyright concerns. There may even be some projects that could use such data whilst it is on the UK Commons, though probably not any WMF projects. WereSpielChequers (talk) 21:28, 14 November 2012 (UTC)

•  Support If we decide to delete non-US FoP files, this is a way to keep faith with the original uploaders, who believed we would continue hosting their files. We should make strong efforts to copy all affected files elsewhere before they are deleted here. Even if the files are not deleted here, copying them elsewhere does no harm. --Avenue (talk) 21:35, 26 November 2012 (UTC)

Question, If the wikimedia foundation remains a legal entity in the United States and remains based there, can it be taken to court in the US for servers it owns and controls abroad?--KTo288 (talk) 23:17, 26 November 2012 (UTC)

I'd presume so. This would mean there'd be no point in moving them to WMF-controlled servers, and I don't think anyone has suggested doing so. Instead people could transfer them to Wikilivres, which does not belong to the WMF, or to other suitable sites. I believe Wikilivres is now operated by Wikimedia Canada, which like other chapters is a separate and legally independent organisation from the WMF. It's possible that other chapters (e.g. Wikimedia Deutchland) might be interested in starting similar sites. --Avenue (talk) 20:38, 29 November 2012 (UTC)

That makes more sense now, in my ignorance I presumed that the local chapters to be subsidiary to the US wikimedia foundation, and the WMF could be brought to book for the activities of the overseas chapters. This leads me to another question, mention was made of creating a Commons UK, which would not be that useful as the WMF projects coud not use files hosted there, but since we can create a Commons UK under the aegis of the UK chapter, could we not create a wikipedia UK, wikipedia Canada etc as official mirrors (but not forks) of the main wikipedia, subject to local laws. Actually come to think about it you would not need to duplicate all of the WMF project (though if resources allow that would not be a bad thing)- but only those pages which would be constrained by US laws, have an infobox or something saying that additional content is available at the UK or Canadian wiki project that a user can link to, is this feasible?--KTo288 (talk) 12:43, 1 December 2012 (UTC)

That might be possible, although because other countries' laws are more restrictive in some ways than US law, these pages might have to have some content removed as well as added. But it seems unnecessary when fair use allows embedded content from non-US servers. That is a simpler solution to the current problem IMO. I'm also unsure about the legality of linking to pages containing content that is copyrighted in the US; would the fair use exemption apply, in the same way as it would when the content was embedded in the page on the US server? --Avenue (talk) 15:04, 1 December 2012 (UTC)

•  Support We definitely need a Commons project that gets rid of all these silly U.S. copyright laws altogether. --FA2010 (talk) 17:37, 29 November 2012 (UTC)

All countries' copyright laws have their own particular problems, and any new "Commons" project would have to follow the laws of the country it was based in. But there is strength in diversity. I think the international Wikimedia movement should aim to take advantage of more favourable copyright rules, where they exist. For example, 50 years pma and FoP for public interiors in Canada, and 2-D FoP in Germany. --Avenue (talk) 20:49, 29 November 2012 (UTC)

• …to servers administrated by an organization that is subject a permissive copyright law, including FOP. Yes, and we have indeed to think about Geo-based DRM so this site won't be blacklisted by e.g. U.S. ISPs. Not easy but given the benefit:  Support -- Rillke^(q?) 16:36, 5 December 2012 (UTC)
•  Support - sorry if this has come too late, but I only became aware of this discussion after some of my images where tagged with the rather threatening {{Not-free-US-FOP}}. Even then, it took me some time to find this discussion. (I've now added a link here from the template). Be that as it may, I fail to see how the US should morally have any jurisdiction over an image like this, a photo taken in the UK, of a sculpture by a UK artist, by a UK photographer (me). The only connection I can see is that the servers are US based. Taking them elsewhere solves the problem. Alternatively, I'll happily host my images on my own UK based server instead. This will be a shame though, as Wikipedia, etc, won't be able to use them directly.  An optimist on the run! 18:03, 11 December 2012 (UTC)

Migrate images to English or German Wikipedia with "fair use"

interesting in this case where they issued a takedown of a "PD-no notice" image but not a "fair use" image of a pre-1978 work, i.e. w:Clothespin (Oldenburg).

1. migrate images to wikimedia projects that allow fair use.
2. create articles to support "minimize fair use" rules.
3. change rules on german wikipedia to allow unlimited fair use for FoP images. Slowking4⇔ †@1₭ 16:22, 13 November 2012 (UTC)

German Wikipedia does not have fair use, and many other language Wikipedias also disallow it. As for large scale migration, English Wikipedia requires that the images be in use and imposes a number of other requirements on non-free images (see Wikipedia:NFCC). Such a mass migration would not be possible, and considering that there is a significant number of users (although still in the minority) that want to get rid of fair use on English Wikipedia, changing the rules to allow these images will be impossible. Sven Manguard Wha? 16:37, 13 November 2012 (UTC)

I think his whole point was to introduce an EDP for german wikipedia (which is possible). I think after this, there might actually be support for a limited EDP in the de.wp community. TheDJ (talk) 18:07, 13 November 2012 (UTC)

Not only will I oppose it, but I will expend a great deal of time actively campaigning against it. Fair use, under any form, is an unworkable mess, and conflicts with our mission at a fundamental level. I'm not a zealot, or at least I don't think I am, but limiting fair use is one cause I'm willing to spend my limited political capital to achieve. Sven Manguard Wha? 18:54, 13 November 2012 (UTC)

An EDP on German Wikipedia wouldn't be any worse than e.g. en:Template:PD-US-1923-abroad, en:Template:FoP-USonly, en:Template:PD-ineligible-USonly or en:Template:PD-HHOFFMANN. In fact, a {{PD-old-70}} image and a photo of a sculpture are free for many more people than a picture published in 1922 by a person who died in the 1970s. The images are free to use in some countries, but not in other countries. --Stefan4 (talk) 20:00, 13 November 2012 (UTC)

Note that exemption doctrine policies are not allowed to contradict US law. See [1], "A project-specific policy, in accordance with United States law and the law of countries where the project content is predominantly accessed (if any) [...]" Dcoetzee (talk) 21:20, 13 November 2012 (UTC)

Sure, but how is that relevant here? We are talking about freely licensed photos, so there's no need to avoid infringing on the photographer's copyright, e.g. by reducing the resolution of the copy hosted on the local wiki. --Avenue (talk) 22:55, 13 November 2012 (UTC)

Such an EDP on German Wikipedia would basically say: "This photo of a copyrighted artwork, taken in public space, is used here as fair use according to U.S. law (+rationale), and is furthermore subjet to FoP according to German law", I think. It would still restrict the use of such photos in the same way as in the English-language Wikipedia. Gestumblindi (talk) 23:18, 13 November 2012 (UTC)

Yes. The work is (potentially) a derivative work under U.S. law and so cannot be used in an "unlimited" fashion, but only according to the narrow constraints of US fair use, on any WMF project, because of the EDP requirement I cited above. I do however support the German Wikipedia opening itself up to fair use images for images that are non-free in the US but free content in Germany, which seems quite reasonable. Dcoetzee (talk) 02:21, 14 November 2012 (UTC)

yes, the restrictions on commercial use are the downside to "fair use". apparently, maintaining the revenue stream is the primary motivation of the rights holder. given that images are a fundamental quality factor in wikipedia, i find "fair use" a necessary expedient until reason can prevail. maximizing image use including "fair use" is a cause i will spend a great deal of time to advance. Slowking4⇔ †@1₭ 20:08, 14 November 2012 (UTC)

 Comment I proposed that German WP create an EDP to allow "fair use" of works that are free in Germany but not in the US at de:Wikipedia_Diskussion:Kurier#Ganz_einfache_L.C3.B6sung. Probably needs someone more familiar with German WP to drive it forward though (eg with a Meinungsbild or something). Rd232 (talk) 12:39, 15 November 2012 (UTC)

 Comment I made a similar move in Catalan WP (ca:Viquipèdia:La_taverna#Fi_de_la_llibertat_de_panorama_a_Commons_i_polítiques_locals). Catalan EDP already allowed "fair use" of works if use of such works is not forbidden by local laws - this has been used mostly for US works under US fair use. Now, we are in process of clarification that works in PD or FOP in Catalan speaking countries but non-PD or non-FOP in US match our existing rules and can be uploaded. We are not going to upload these images right now, but we should be ready to get them in case the URAA images or non-US-FOP images we use start being deleted from Commons.--Pere prlpz (talk) 01:03, 16 November 2012 (UTC)

How many images could we migrate and for it still to be fair use, usually a single image,maybe two if it is especially complex would be sufficient, migrating ore than that would be seen exactly for what it is an attempt to hold on to images at other projects that we no longer feel we can legitimately host here.--KTo288 (talk) 23:08, 26 November 2012 (UTC)

You are right: we can use under fair use only the images actually used (and needed) in the projects. But the goal is keep using those images, not to save the unused ones.--Pere prlpz (talk) 23:39, 26 November 2012 (UTC)

That may be the goal of this particular initiative (of migrating files to local projects, where US fair use allows). I think we should also not forget our wider goal of making free images available for wider re-use, and that these images are free in many jurisdictions. While this initiative might minimise damage to our projects, it doesn't take us very far towards that wider goal. --Avenue (talk) 00:25, 28 November 2012 (UTC)

no, we need not limit fair use to only images actually used. rather this is an artifact of the "minimize fair use" compromise at english wikipedia. german wikipedia need not incorporate that restriction. one goal at a time. Slowking4⇔ †@1₭ 22:59, 30 November 2012 (UTC)

Perhaps, although the fact that the WMF complied with a DMCA notice for files on Commons makes me wonder why you think unused files on the German Wikipedia would be any different. Wouldn't any arguments for fair use covering unused files there apply with equal force to unused files here? (And several of the deleted files were actually in use.) --Avenue (talk) 15:31, 1 December 2012 (UTC)

Do nothing

Maybe this sounds radical after the already long discussions on several pages, much gnashing of teeth, and various proposals, but: Maybe the best approach would be to - do nothing? Years of Commons practice have shown that such DMCA requests are a very rare exception, and the practice of just accepting country-of-origin FOP hasn't led to many problems. It's unclear how an American court would actually rule, but with the DMCA process, the WMF is on the safe side, and the loss for Commons isn't that big if occasionally some over-zealous manager thinks that works by X should be taken down. Gestumblindi (talk) 17:50, 13 November 2012 (UTC)

I'm in favor of this. Not just because it's a good idea, but because any alternative to the proposal immediately above (expanding fair use) is preferable. Sven Manguard Wha? 18:57, 13 November 2012 (UTC)

Oppose, on the basis that failing to at least inform content reusers about this legal risk may lead to them facing legal penalties down the road (and the DMCA generally does not protect them). That's why I favour at least tagging the affected files with {{Not-free-US-FOP}}. I know we have a disclaimer, but we should do our best to advise content reusers of major risks, as we do for the URAA, for PD-Art, for trademarks, and even for pornography ({{2257}}). Dcoetzee (talk) 21:46, 13 November 2012 (UTC)

Yes, we should at least tag the affected files with a warning. --Avenue (talk) 22:18, 13 November 2012 (UTC)

Well, I'm not opposed to that. But otherwise, I'm not sure that much needs to happen at this point. Gestumblindi (talk) 23:15, 13 November 2012 (UTC)

I rather like this option, let the DMCA complainant take his complaint further. Most people just use the "take-down notices" as a scare tactic. If they want to go through the hassle of going the legal route, let them. Per http://en.wikipedia.org/wiki/DMCA_takedowns#Knowledge_of_Infringing_Material, Wikimedia would then be able to file a counter-notice. No lawsuit from the other party, it's fine. Oaktree b (talk) 20:29, 14 November 2012 (UTC)

Just for clarity: By "do nothing" I didn't mean the WMF shouldn't comply with DMCA takedown requests, but that we, as Xiong says below, shouldn't "anticipate takedown notices that may never come" - so, let's take down those few files, but otherwise a warning tag for possibly affected files could suffice. Gestumblindi (talk) 01:35, 22 November 2012 (UTC)

Endorse. Do nothing unless and until pushed; then go ahead and delete the image itself. I do like that a placeholder be uploaded and the image page retained, rather than deleted entirely. So long as the image itself is deleted, the copyright holder cannot further complain. And history is preserved. But let's not fly into frantic action to no purpose, or to anticipate takedown notices that may never come. Don't borrow trouble. — Xiong熊talk* 07:12, 18 November 2012 (UTC)

• Endorse, in conjunction with the warning tag. It's probably prudent for the WMF to delete such files in the face of actual DCMA requests, but absent clear caselaw about whether lex loci protectionis would really apply in such cases, the best course of action (as well as the one most in sync with our project's goals) is not to engage in copyright paranoia for its own sake. Sandstein (talk) 19:38, 20 November 2012 (UTC)

Oppose Initially for me this was the most attractive option, sice it would allow us to continue to carry on as we have and only take notice of a stupid interpertation of the law when we have to. For me boils down to if the DMCA take down notices are legitimate or not, and the legal advice the Foundation has been given that they are, which means much as we may individually hate the interpertation, that under US law these files are copyvios, and a copyvio is a copyvio.--KTo288 (talk) 16:49, 26 November 2012 (UTC)

• Oppose per Kto288. This wasn't entirely clear to me earlier, but the WMF seems quite sure that we cannot legally host such files under U.S. law. '"Preemptive obedience" is not the way we approach threats to project content. [...] we wanted to be sure that we were required under U.S. law to remove the images, even if they were subject to freedom of panorama protection in the country that they were taken.'[2] It seems such files will ultimately need to be removed from Commons. But they remain free in other countries, and we should try to find suitable homes for them first. --Avenue (talk) 00:05, 27 November 2012 (UTC)

Endorse A really good idea! Just bend down and put your head in the sand – that's the best way to get screwed and, subsequently, have a great excuse for beeing passive: “Not our fault, couldn't see anything, couldn't do anything, sorry!” --Eva Kröcher (talk) 21:44, 27 November 2012 (UTC)

Only allow users to download images usable in their location

moved from talk page Rd232 (talk) 20:09, 14 November 2012 (UTC)

Rather than eliminating useful images because someone somewhere MIGHT use those images improperly, wouldn't it be better to (a) make it easier for folks wanting to use an image to find out whether or not the image they are choosing can be used in the jurisdiction in which they are wanting to use it and (b) make it clear what jurisdiction / law covers the image(s) in question?

From a technical standpoint, I would think that would be a fairly simple thing to do. If we make the location where the image was taken the prevailing fact, we should be pretty well covered from a legal standpoint there...and we can make sure the pages detailing the copyright laws of the various countries stay current (which already seems to be happening). Secondly, we can make the user's download location and use location a required field...and then it should be a rather simple task of collating the two laws (user download / use location(s) against image taken location) and picking the more stringent of the two. From a user standpoint, we don't even have to confuse them with all the legal text, the system should be able to send a simple message along the lines of:

"Copyright laws that govern ("the image" or "your download / use") location "do" / "do not" allow us to let you download or use this image."

We can add a link to the applicable copyright law summary page(s) for those who want to read the text themselves.

This way, useful images are retained in the Commons and are used when and where their use is allowed. — Preceding unsigned comment added by TomFawls (talk • contribs) 15:21, 14 November 2012 (UTC)

This is (sort of) already our practice for images that are copyrighted in some parts of the world, but not the source country or the US. For example, many works are copyrighted in Mexico but nowhere else. The {{PD-old-70}} license tag provides a warning in small type. However, this case is different, in that the copyright status of these works is in question in the US. The WMF is not legally permitted to host any content that is a copyright infringement in the US, regardless of its copyright status in any other nation. Unfortunately case law is nonexistent in this area, providing very little guidance as to what nation's law a US court would use. Dcoetzee (talk) 19:18, 14 November 2012 (UTC)

I think TomFawls was talking about restricting users from downloading images they're not allowed to use in their location (presumably with an optout "yes I understand I'm not allowed to use the image but I want to download it anyway", except where it's US-copyrighted content and the user is from the US). That's certainly a big step up in clarity and helpfulness compared to the status quo. However, unless this approach can allow us to host content which is copyrighted in the US if we refuse to serve it to US visitors, then it doesn't directly help with the core issue of this RFC. In that case, it's still helpful for reusers, absolutely - it's the same road as {{PD-in}} or {{COML compliance}}, which I think we should definitely go down once mw:Lua (hopefully early next year) makes it more practical. The question then becomes: would it be legally OK to serve US copyrighted content to non-US visitors only, from a US location? It's a choice-of-law question which there may well not be a clear answer to. Rd232 (talk) 20:15, 14 November 2012 (UTC)

I definitely think using the power of Lua to give people clear copyright information related to their location, and possibly even forbid downloads in locations where a work remains in copyright, is an intriguing idea. The question of whether such restrictions make distributing works from the US to countries where it is PD is one which I haven't seen any case law regarding, and I would be reluctant to embrace this novel approach. Dcoetzee (talk) 21:20, 14 November 2012 (UTC)

I don't think LUA could be used for that. Templates shouldn't be able to get information like the user location. Platonides (talk) 18:21, 15 November 2012 (UTC)

The user would specify their location, using a drop-down list or whatever. Dcoetzee (talk) 22:51, 15 November 2012 (UTC)

I think that it would be problematic if certain parts of Commons (or other projects) only would be available in certain parts of the world. Then someone somewhere in the world makes a Wikipedia article about something, and it turns out that images only are displayed in certain countries, and so the article becomes very confusing to people in other parts of the world. For example, Swedish law says that "artworks made available to the public may be reproduced [...] in connection to the text of a critical discussion, except in digital form". Well, all images on Wikimedia projects are in digital form, so should Commons and Wikipedia be completely stripped from images not available under a free licence if the user accesses the website from Sweden, since fair use claims are invalid if the images are in digital form? Many articles are based on the assumption that there are fair use images in the articles, and it would then often be very difficult to understand the article if the images are removed. Also, some images on Commons are unfree in Sweden, for example all images using the {{PD-Art}} template and some images using the {{PD-Italy}} template. Should those images also be hidden from view for users from Sweden? --Stefan4 (talk) 21:40, 14 November 2012 (UTC)

Well, this approach is one that German Wikipedia relies on quite often, hosting things that are copyrighted in the US but free in Germany on the basis that the target audience is not in the US but in Germany. I'm not certain that this holds water, legally, but neither am I sure it doesn't. Rd232 (talk) 22:05, 14 November 2012 (UTC)

I have no idea whether this is legal (or whether it contradicts the licensing resolution, in which case an amendment from the Board would be required). I'll also note that, alarmingly, one of the findings in LICRA v. Yahoo! was that the display of Nazi memorabilia on eBay was illegal if people in France could view them - and the US courts ultimately upheld this against Yahoo!, reversing a First Amendment argument on jurisdictional grounds. It seems that a global website truly is expected to comply with all laws in the world at once - which is of course completely impossible. Since there is no hope in actually being completely safe and legal, I don't think trying to push down the road of complete compliance for every reader is the right way to go.Dcoetzee (talk) 22:17, 14 November 2012 (UTC)

What are the legal grounds for the "target audience" argument (e.g. for hosting US-copyrighted but DE-free material on de.wikipedia.org)? I'm not aware of anything in US law that would support this.

Using the reader's location to make the copyright tags or other warnings we display more relevant seems like a good idea. I might even support requiring readers to click on something saying they've read these warnings before they can download, or maybe even view, certain material that might present problems in their jurisdiction. But I'd be very reluctant to start blocking their access completely, and I'd hope we would strongly resist doing so unless the legal requirement for doing so (under US law) was very clear. Besides the difficulty of following every country's law, proactively complying with non-US laws may cause us legal problems if we later want to reverse course. For instance, I understand that one of the factors in Yahoo losing in the US appeal court was that they had removed much of the material in question without being forced to by the French courts.[3] --Avenue (talk) 00:04, 15 November 2012 (UTC)

I don't think the Yahoo case you link to is relevant here, because it was about freedom of speech, and by removing the material voluntarily, Yahoo removed the issue of their freedom of speech being restricted. Rd232 (talk) 12:21, 15 November 2012 (UTC)

As to the "target audience" thing - I don't really get it either. But de:Wikipedia:Nicht commonsfähig suggests it's something to do with de:Schutzlandprinzip, i.e. en:lex loci protectionis. Rd232 (talk) 12:26, 15 November 2012 (UTC)

Make it like google or youtube: Geolocation

This technology is already prooven by many providers. Depending on the country-location of the IP commons can behave differently. So the Lex loci protectionis can be considered. For example: An image is taged as "freedom-of-panorama" and a user with an US-location will see it, so a rule in commons can be applied that he can only see the thumbnail, but the full resolution image is not selectable. --Avron (talk) 08:19, 22 November 2012 (UTC)

This would still not prevent the use of thumbnails in local projects in a way which is not compliant with US fair use law (e.g. for decorative purposes). Image size is not even the most significant factor in fair use determinations. Dcoetzee (talk) 22:41, 25 November 2012 (UTC)

Yes, this doesn't seem useful for ensuring fair use compliance. It could be useful for other purposes, e.g. to allow readers to opt-in to see images that are protected in their jurisdiction. --Avenue (talk) 00:26, 26 November 2012 (UTC)

Thumbnail was just an example what is possible if we know the country-location. If even thumbnails are not allowed for a specific country, so commons won't show it. --Avron (talk) 09:05, 26 November 2012 (UTC)

The point is that it is never safe to show thumbnails of works that are not free in that nation, unless fair use permits it to be shown, and fair use determinations cannot be made by present-day automated software because of their complexity. Excluding thumbnails for some users but not others can lead to articles that are difficult for some audiences to follow (e.g. those that refer to figures). It's tenable in some cases but only with everyone being aware of it. Moreover, geolocation such as performed by Google is a contractual licensing requirement, not a means of avoiding copyright violation on works with different rights in different nations - it's not clear that this would offer us or the WMF any real protection. Dcoetzee (talk) 19:34, 26 November 2012 (UTC)

Again: thumbnails were only an example. If an user from the united states will read an french articles, yes then it is possible that he won't see the images in the article. This is not nice but that is Lex loci protectionis. Google books has not only a contractual licensing requirement. When something ist PD in a country you don't need a contract.--Avron (talk) 09:54, 27 November 2012 (UTC)

Indeed. I have often seen links to pre-1923 works on Google Books on Wikimedia projects, but when I click on the links, it says that there is no e-book available. On the other hand, if I use a US web proxy, then the page looks very different, and it says that the book is available. It seems that Google uses geolocation to determine if a pre-1923 book whose author died less than 70 years ago should be listed as "available" or as "unavailable". Of course, Google doesn't need a contract to make this work available in the US, so presumably there is no contractual licensing requirement which needs to be followed. Google only seems to do this based on the PD status in the country where the book is accessed. --Stefan4 (talk) 10:58, 27 November 2012 (UTC)

Amend Commons:Licensing policy to allow all images that are allowed under USA FoP

In the present situation the local law is only used as extra restriction to USA law and never as a relief. I don't see why care about local laws at all if the WMF houses in the USA and thus USA law is leading. Then it is more logical to take the benefits of more loose USA law than local law as well. Lymantria (talk) 12:28, 15 November 2012 (UTC)

Agree many wikimedia projects brake many local laws. There is no talk of respecting non-essential content restrictions on any grounds other than with copyright. Why not apply the same principle to copyright restrictions as we do to all other kinds of restrictions, i.e. respect only those restrictions which must be respected under the circumstances; in this case US law.--U5K0 (talk) 22:07, 17 November 2012 (UTC)

Support The current policy, while well intended, is damaging Wikipedia's educational scope. Should be sufficient to tag images with the appropriate disclaimer regarding use in non-FOP countries. --ELEKHH^T 22:46, 17 November 2012 (UTC)

 Comment at present Commons:Licensing requires media (i) that are explicitly freely licensed, or (ii) that are in the public domain in at least the United States and in the source country of the work. Can someone who supports this proposal explain how the policy would be amended (and note whether the result complies with the WMF Licensing Resolution)? Rd232 (talk) 05:19, 19 November 2012 (UTC)

Amendment proposal change (i) to "(i) that are explicitly freely licensed in the United States". (addition highlighted) --ELEKHH^T 07:54, 19 November 2012 (UTC)

Support only for FOP. (Elekhh's proposal above seems to go beyond this.) As I wrote in another section, I've always understood that a key reason for requiring works to be free in the source country was that since many countries apply the rule of the shorter term, a work that's free in the source country would be free in most other jurisdictions. But there doesn't seem to be an FOP equivalent to the rule of the shorter term, so this rationale is obviated. If lex loci protectionis is the applicable rule, I agree with Lymantria that we should simply apply US FOP (which we must) and only US FOP. Atomium, here we come! cmadler (talk) 15:07, 19 November 2012 (UTC)

•  Question There are other things, such as COM:DM, COM:IDENT and COM:TOO, where there doesn't seem to be any "rule of the shorter term". Why is FOP any different? --Stefan4 (talk) 15:11, 19 November 2012 (UTC)
  • Perhaps we should reconsider how we apply those also. Going to US-only for TOO would allow us to add a lot of works that are copyrighted in the UK and Australia but free in many other countries. cmadler (talk) 16:51, 19 November 2012 (UTC)
    • It would also mean deleting a few images under COM:TOO#Germany and COM:TOO#Switzerland which are presumably copyrighted in the United States. No idea about COM:DM, but I would be surprised if all countries define it in exactly the same way. --Stefan4 (talk) 16:59, 19 November 2012 (UTC)
      • If they're copyrighted in the United States, they need to be deleted anyway, under our current rules that require works to be free in both the source country and the US. WMF servers are in the US, so works need to be free in the US. It's the exact same issue we're currently dealing with on FOP here. cmadler (talk) 17:33, 19 November 2012 (UTC)
• Weak support. If there is consensus behind applying only US FoP for future FoP uploads, this would be legal, and Cmadler's argument is good. One could make a moral argument that we don't wish to abuse US copyright law to host works by e.g. French architects that are protected in France as it would constitute a sort of cultural imperialism, but I don't find this very compelling. Dcoetzee (talk) 19:22, 19 November 2012 (UTC)
• Support. Turnabout is fair play. --Piotr Konieczny aka Prokonsul Piotrus ^Talk 23:10, 19 November 2012 (UTC)
• Support. Although it would mean that we delete art works in countries where FOP allows it, Commons would probably win. And most important to me, the rules would be consistent for all images. Yann (talk) 10:55, 25 November 2012 (UTC)
• Support. This would be in line with the General disclaimer, which says that compliance with State of Florida law is the main guideline for legality in Wikipedia project space.--Ianmacm (talk) 19:32, 25 November 2012 (UTC)
• Support. If we can't longer keep stuff free in other countries, then we should abide to US copyright law only. I see no benefit for our projects and free knowledge in abiding to two legislations giving such different results. This should work for FOP, de minimis, threshold of originality, and, most important of all, duration of copyright.--Pere prlpz (talk) 23:11, 25 November 2012 (UTC)
• Oppose the specific wording change proposed above, but support the idea if it's restricted to aspects like FOP and TOO for which there is no rule of the shorter term (per cmadler and Stefan above), as long as we also phase out our hosting of non-US FoP material. I also believe this is a big enough change that it should be discussed more widely before we take action. --Avenue (talk) 23:28, 25 November 2012 (UTC)
• Oppose One of the purposes of Commons is to provide useful media files for potential reusers. Photos of buildings are likely to be needed by reusers in the countries where the buildings are located. If Commons begins to host images which the main reusers can't use, then it is less likely that people will try to obtain permission from architects, giving the main reusers much fewer images to choose from. Commons would essentially be a collection of useless images which can't be used by the people who want to use them. Besides, it would mean a legal risk for the photographers. Also, it seems to be against the terms of use to upload a photo of a copyrighted building if you are in a country which does not provide freedom of panorama when you upload the image, so a change of policy would mean that we ask people to violate the terms of use. See wmf:Terms of Use#4. Refraining from Certain Activities: "Infringing copyrights, trademarks, patents, or other proprietary rights under applicable law." See the text at the top of the page: "Please be aware that you are legally responsible for all of your contributions, edits, and re-use of Wikimedia content under the laws of the United States of America and other applicable laws (which may include the laws where you live or where you view or edit content)." So it seems that a user who is uploading an image from France needs to comply with both the copyright law of France and the copyright law of the United States in order not to violate the terms of use. Instead of changing the COM:L#Interaction of United States copyright law and non-US copyright law policy, a better solution is to try to get politicians in the concerned countries to change stupid laws. --Stefan4 (talk) 23:30, 25 November 2012 (UTC)

• How many building photos do we have with explicit permission from the architect? I'm sorry, but I don't think that's a good practical reason for determining our policy in this area. The jurisdictions applying to the photographer are an issue, but not all photographers live in the country they are photographing. For travelling photographers, it is more like the house rules in a museum - which we don't enforce. I have more sympathy with your concerns about re-use, but there I think tagging with suitable notices is a better solution than complete prohibition. --Avenue (talk) 00:11, 26 November 2012 (UTC)
• It has been for a long while that it has been argued that Commons' stringent requirements would persuade The World towards more free licensing. So now after eight years, how many countries introduced FOP legislations?, and as Avenue points out, how many architects released images via OTRS? Close to none. And how many editors launching DRs or admins deleting images tried to contact architects? Another argument often invoked is the benevolent protection of the photographer, but the status quo is that everything is deleted regardless of whether there is anyone at risk. Example here. --ELEKHH^T 10:21, 26 November 2012 (UTC)
  • There are a few images where the architect has provided OTRS permission, but probably not many. Still, that's better than having no images that the main reusers can use. It is up to the uploader to contact the architect. I only have time to nominate photos for deletion. --Stefan4 (talk) 10:28, 26 November 2012 (UTC)
    • It takes much less time to do a DR than to write a letter to the architect. In this case even we possibly have an OTRS for one image, no one bothers to check whether the other images are also intended for release or fraud. Is too easy to delete vs. encouraging donors. --ELEKHH^T 11:02, 26 November 2012 (UTC)
      • Also, the issue of FOP has definitely been discussed by politicians (see [4]), although the proposal was rejected. If Commons starts accepting images regardless of laws in the source countries, politicians might not bother to make such proposals. --Stefan4 (talk) 01:04, 8 December 2012 (UTC)

• Support Lymantria, that's one of the greatest and most constructive ideas in this issue, so far. I really like the vision of WMF shooting themselves in the foot that way. Can you imagine how small and clear a category like Modern sculptors will be in future? Or the article about Jonathan Borofsky in your home wiki – pure text, off with all that nasty photos. Keep it up! --Eva Kröcher (talk) 09:46, 27 November 2012 (UTC)
  • I don't uderstand you, modern sculptures aren't allowed under USA FoP.--Pan BMP (talk) 06:58, 2 December 2012 (UTC)
    • I think that was Eva's point, although it does feel like a <sarcasm> tag is missing. --Avenue (talk) 12:22, 2 December 2012 (UTC)
      • Oh yes, and I understand the point. The issue is that on the restrictive side this is the way we are going. Outdoor art can be ruled out by complaining through an American court. Then why only take the restrictive side of American law, if apparently it is leading? Lymantria (talk) 18:13, 6 December 2012 (UTC)
• Oppose per Stefan4. We don't host images for the purpose of hosting images, they must be reusable, and making sure they are free in the source country should be a priority. We can't throw legal rigour overboard because we don't like laws. Hekerui (talk) 09:31, 28 November 2012 (UTC)
  • Why must an image be free in the country of the underlying work? Where it's a question of PD, this matters because many countries use the rule of the shorter term (so PD in the source country means PD in many/most countries). But clearly, each country will apply their own FOP rules, regardless of the rules in the country of the underlying work, so FOP in the source countries does not necessarily mean FOP in many/most countries, and conversely, non-FOP in the source country does not necessarily mean non-FOP in many/most countries. cmadler (talk) 15:18, 29 November 2012 (UTC)
• Oppose I still don't think we could say for sure US law would apply. In fact SABAM has been known to take action by successfully sending takedown notices to websites because they published Atomium photos. It is also possible someone could sue uploaders directly. I think this could do a lot of damage.--Pan BMP (talk) 06:58, 2 December 2012 (UTC)
• Reading the Loriot-issue, a German court found that someone can sue the Wikimedia Foundation in Germany because the site is dedicated to German audience and accessible through wikipedia.de. Since files also display in Wikipedia, the WMF could be sued in the country the infringement appeared, applying the law of that country. Thus, I am not convinced. -- Rillke^(q?) 16:24, 5 December 2012 (UTC)
•  Comment I've just found this proposal from 2011: Commons:Photographs of modern buildings. Rd232 (talk) 18:50, 5 December 2012 (UTC)
• Oppose per Stefan4 and Rillke. With the Loriot decision, we have already a real case where a German court applied German law to media hosted by the WMF. Maintaining the established Commons practice "all media must be free in the U.S. and in the source country", there is of course still the risk of problems in a third country, but the risk is reasonably minimized. Uploading files in the full knowledge that these are not free resp. not freely re-usable in the country of origin would be a very bad idea IMHO, and expose the WMF as well as uploaders to an unacceptable amount of legal risk and imponderabilia. Gestumblindi (talk) 19:16, 5 December 2012 (UTC)
• Support For FoP cases only. Saffron Blaze (talk) 00:37, 8 December 2012 (UTC)

Create a fair-use version of wikiCommons

Some languages of wikipedia allows fair-use, others don't. Thus (or other reasons?) fair-use images is not allowed to upload to wikicommons, and fair-use files are only allowed to be uploaded to local wikis. Such situation adds many extra work. Such as the title card picture of Doctor Who, it needed to upload to every fair-use-allowd local wiki (which also have the article). How about creating a fair-use version of wikiCommons, allow users to upload fair-use images (including fair-use panorama) only, and the files of it only will be allowed to display in fair-use-allowd wikis. And there are extra limitations, such as files in it must be used in at least one local wiki, or it will be deleted soon.--維基小霸王 (talk) 14:14, 19 November 2012 (UTC)

Different projects have different rules for fair use. For example, French Wikipedia only allows logos, buildings and money whereas Japanese Wikipedia only allows sculptures. Other projects, such as English Wikipedia, allow many other kinds of images. A common fair use project would probably make it harder to keep photos of sculptures away from French Wikipedia, and someone might try to sneak in photos of buildings on Japanese Wikipedia. --Stefan4 (talk) 14:37, 19 November 2012 (UTC)

A fair-use Commons is not necessarily possible, as fair use claims often depend, at least in part, on the nature of the use. Anything could fall under a fair use claim somehow, but in a Commons-type environment it would be difficult or even impossible to defend. cmadler (talk) 14:50, 19 November 2012 (UTC)

This would basically only work if each project using the image had to explicitly indicate, using some technical mechanism, that they wish for the image to be available on their project (and could reverse this later). Otherwise, it would be too easy to "sneak" images onto projects that don't permit them under their local exemption doctrines. Dcoetzee (talk) 19:18, 19 November 2012 (UTC)

No-no and double no. Commons is for all reusers not just wiki projects, we really don't need the complcations that would arise should Commons claim fair use on behalf of unknown parties.--KTo288 (talk) 22:45, 25 November 2012 (UTC)

I agree with Dcoetze and 維基小霸王:

• Most of local communities fail to properly manage fair use images - at least at some extent - when compared with Commons community. I'm sure that in a central fair use repository, control of fair use justifications would be more strict that it is now in some projects, even if I take in account the added difficulty of checking justifications in a hundred different languages by the same community.
• The most important advantages would be:
  • Easier use because no need of local upload - please notice that users not caring of legitimacy of fair use for a given use would be able to do exactly the same as now. It would be just easier, either for good and bad use of fair use.
  • Best control of fair use images.
• If an extra local control is needed, it shouldn't be difficult to set up the technical facilities to allow local communities to exert the same control of commons-fair-use images used in their projects than they exert in the now locally loaded images.

Reuse by external parts shouldn't be more an issue than now with downloads from English Wikipedia or other projects.--Pere prlpz (talk) 00:36, 26 November 2012 (UTC)

Identify, tag, ask, delete or keep

Files that may be in dispute, i.e. works by US citizens installed in countries with freedom of panorama should be identified and tagged as such, we should than ask the authors of these works if they object to Commons hosting these images, we should delete the work of those that do and keep and thank those who do not.

We have always been prompt to remove copyvios however useful, educational or how much we like the image. A copyvio is a copyvio is a copyvio, even if it is so only because of a stupid law, as long as the servers are in the US and the foundation is incorporated inthe US we are victims to its laws. --KTo288 18:24, 26 November 2012 (UTC)

Support I agree with KTo288. We should deal with the problem in our legal parameters. Many laws around the world are inconvenient, but Commons is strong when it accomodates laws and hosts images that can be reused without getting a headache about whether they are actually free. Hekerui (talk) 09:35, 28 November 2012 (UTC)

Except of course, they are not necessarily copyvios. We have not been prompt to delete when there is legal uncertainty (such as the Not-PD-US-URAA situation). If there was a court case which gave some guidance, I'd be more inclined to agree. There is no court ruling we can point to in order to explain deletions, whereas in the case of photos of statues there most certainly are cases. Carl Lindberg (talk) 16:57, 9 December 2012 (UTC)

Stamp

Apologies if this is overly simplistic, but since the laws seem irreconcilable for practical purposes, why not place a stamp across the center of the image with the origin, or something that explicitly prevents reproduction of the copyrighted material? That way will mitigate the issue of wanton reproduction, and will force people to have to invest much more time than they ordinarily would before they blast pictures out.

General discussion

Since I'm apparently the first to come here, I'll start by saying that we should take full advantage of non-US FOP opportunities. As long as we're confident that an image is safe under all applicable copyright laws, we should never delete it on these grounds. People who use DCMA to obstruct usage that's fully legal should have to do all the legwork. Nyttend (talk) 01:09, 13 November 2012 (UTC)

I vaguely agree (despite my Commons:Deletion requests/works by Claes Oldenburg DR), but where we know that a copyright holder has made DMCA claims about their works, my concern would be whether people realise

1. the potential consequences for uploaders: see en:Online_Copyright_Infringement_Liability_Limitation_Act#.C2.A7_512.28h.29_Identify_infringers.
2. the "red flag" test, with unknown consequences for WMF liability en:Online_Copyright_Infringement_Liability_Limitation_Act#Red_Flags. I'd rather delete a few images than risk a legal nightmare. Rd232 (talk) 01:20, 13 November 2012 (UTC)

That's where WMF counsel comes in. We're not going to argue that they should keep something that they've deleted, and likewise we shouldn't argue that they should delete something that they've not deleted. To paraphrase what I said at the DR you reference, a community discussion should never result in the deletion of these images, unless they have other problems. Nyttend (talk) 01:37, 13 November 2012 (UTC)

Which they apparently do, in the WMF's opinion, unless I'm reading too much into the first two paragraphs of Philippe's post at the Village Pump. --Avenue (talk) 04:13, 13 November 2012 (UTC)

Why do we require images to be free in the source country anyways? Wikimedia is a US-based organization and is legally responsible only to US law. Even if there are issues with this and/or it's a bit extreme, we could at the very least allow buildings in countries with noncommercial FoP. The uploader could dual-license under CC-BY-SA for countries with commercial FoP, and CC-BY-SA-NC for countries with noncommercial FoP. There are zero liabilities for us, and it still meets the definition of "free content" IMO as long as the uploader uses a suitable commercial-OK license. After all, we allow things that are all rights reserved in some countries, e.g. reproductions of artworks in the UK. -- King of ♥ ♦ ♣ ♠ 01:49, 13 November 2012 (UTC)

In my opinion, the takedown request should be rejected on principle because otherwise it might easily become a precedent that makes Wikimedia vulnerable to indirect censorship. Soon we'd have requests of the sort "Take down X because it's illegal in our country - or else." Also, agreeing in such requests that deny freedom of panorama or other things unknown to US law would make the Commons (and certainly other Wikipmedia projects) virtually worthless for non-US users. --Der Bischof mit der E-Gitarre (talk) 03:13, 13 November 2012 (UTC)

The problem isn't the WMF's liability. WMF is well-covered, they have Godwin as their lawyer for goodness sake. It's liability for uploaders, which is very real and has lead to threats of prosecution. If we were to switch to American-only laws, we'd expose people to liability in pma+70 countries for works that have no copyright in the US. We'd also run into the local projects demanding local uploads be turned on again (for projects that have disabled it) and then you run into the problem of local projects without enough admins becoming rampant hosts for copyright violations. The way we do things now is a compromise that benefits everyone. It shields uploaders from liability in their country and allows the files to be legally hosted in the U.S. Unfortunately it can lead to problems like in this case. -Nard (Hablemonos)(Let's talk) 03:31, 13 November 2012 (UTC)

I tend to agree. The call to switch to following US copyright only (and not the source country) strikes me as an expression of a gut reaction, a natural one perhaps, but not something we should decide on in the heat of the moment. It could have many unintended consequences. And it really has little to do with the topic of this RFC. If people are serious about it, I'd suggest starting a separate RFC on that issue. --Avenue (talk) 03:58, 13 November 2012 (UTC)

Which is why I think we should accept noncommercial FoP. It doesn't create liability for uploaders; Commons is a noncommercial project, and the uploaders are distributing the images noncommercially. -- King of ♥ ♦ ♣ ♠ 04:35, 13 November 2012 (UTC)

BTW, Godwin is no longer the Foundation's General Counsel. Mr Geoff Brigham is. TheDJ (talk) 09:05, 13 November 2012 (UTC)

What exactly is the U.S. legal situation regarding FOP-elsewhere photos hosted on Commons? I gather from the first two paragraphs of Philippe's post at the Village Pump that the WMF's believes that "current U.S. conflict of law principles indicate that U.S. copyright law would apply in evaluating the scope of a copyright holder’s rights" and that under U.S. law "the copyright holder of a sculpture has the right to exclude others from publishing images of that sculpture", including sculptures located in countries whose law allows FOP for sculptures. Do we have any grounds to doubt this interpretation of U.S. law? --Avenue (talk) 04:31, 13 November 2012 (UTC)

It depends on other countries' laws. If Country X has FoP for sculptures as well as lex loci protectionis, then it's OK in Country X no matter what the US says. However, this is a moot point with regards to Commons, since it has to be OK in the US. -- King of ♥ ♦ ♣ ♠ 04:37, 13 November 2012 (UTC)

The legal situation is that according to U.S. law, the copyrights in the U.S. belong to the foreign artist and it is a violation of the foreign artist's U.S. copyrights for their work to be reproduced in the U.S. The only possible loophole is that a U.S. court may decide to apply the source country's copyright laws rather than U.S. copyright law, depending on the technicalities of the case and the whims of the judge. Regardless, the WMF must comply with the DMCA take-down notices (unless they are 100% clearly frivolous). It is up to the image uploaders to challenge the DMCA notices with counter-notices. Smallbones' case is unique as the sculptures he photographed are actually in the US, and thus are not subject to the URAA re-copyrighting, and are actually public domain (regardless of FoP). Kaldari (talk) 05:13, 13 November 2012 (UTC)

I would so like someone to force this through a putback (but, IIRC, only the original uploader can file a counternotice?). It seems to be rather logical that images of a sculptural work by an American artist installed in a foreign country which extends FoP to it would be untouchable under American copyright law. No one made them install those works over there, after all ... it was their responsibility to study foreign copyright law before they accepted the commissions. Daniel Case (talk) 05:35, 13 November 2012 (UTC)

That is what I've thought. However, the Texas Instruments signing key controversy was successfully challenged by someone who wasn't the original poster of the keys. -- King of ♥ ♦ ♣ ♠ 05:45, 13 November 2012 (UTC)

AFAIK, anyone can fill a counter-notice. However, it would be better if FOP exists in the country of residence of the applier, or than his country uses the rule of shorter term. Yann (talk) 05:53, 13 November 2012 (UTC)

What happens if someone disputes a DMCA claim and the activity is found to be illegal in the United States but legal in the country where the person disputing the claim is located? Can a court still force the uploader to go to jail or pay lots of fines? --Stefan4 (talk) 13:15, 13 November 2012 (UTC)

The US cannot jail any foreign party, unless they seek extradition, which AFAIK has never been granted for criminal copyright infringement (Kim Dotcom sits in New Zealand still), nor do I believe uploading a few images to Commons could ever qualify as criminal infringement. Fines do remain a possibility, and a foreign court may uphold fines levied against one of their citizens by the US, unless they find the law in question to be morally abhorrent. Dcoetzee (talk) 14:59, 13 November 2012 (UTC)

KoH, if I understand correctly the problem is that in our case (serving pictures from central servers to many different countries) lex loci protectionis can mean two different realities: the law of the place where the servers are, and the law of the place where the copyright infraction occurs. Sometimes the two are the same, sometimes not. Some countries such as France and Greece have conflict of law rules that apply the law of the state where the work is used; I believe there's at least one ruling by the European Court of Justice where the plaintiff can choose between the two laws. In our case, a rights holder could sue according to the French laws about pictures infringing French copyright even of our servers are in the US. Obviously we can't comply with the laws of all countries at the same time, so as a compromise we comply at least with the laws of the source country—at least it's my understanding of why we request "double freedom", so to speak.

Regarding PD-Art, my understanding is it's a WMF 'political' position. It's also unclear whether the sweat of the brow doctrine still stands with regard to European law. Jastrow (Λέγετε) 21:16, 13 November 2012 (UTC)

We should strive for a political solution in US and Europe. But right now Commons will always have a copyright-issue in one or another country. Why not create a legal entity just for wm-commons somewhere in a country with more liberal copyright-legislation, preferrably a country that is usually not covered by most major lawfirms? Maybe even the Canadian entity http://wikilivres.ca/wiki/Main_Page might be suitable, as mentioned earlier in other Diskussion on this topic. --Ordercrazy (talk) 10:24, 13 November 2012 (UTC)

Indeed Canada has one of the world most liberal copyright policies. Short life term, extensive fair use exceptions, but especially useful for us: 3D FoP. -- King of ♥ ♦ ♣ ♠ 10:36, 13 November 2012 (UTC)

It would be very useful if we could upload FoP photos of artworks to Wikilivres (say) and be able to use them directly in Wikimedia projects; mw:InstantCommons in reverse, if you like. Would this cause any legal problems? --Avenue (talk) 11:04, 13 November 2012 (UTC)

If images are used on any WMF projects in a way which doesn't constitute fair use, then maybe it would cause legal problems. --Stefan4 (talk) 13:15, 13 November 2012 (UTC)

Can we envisage realistic uses and circumstances that would probably result in legal problems? The sort of usage I'm familiar with (thumbnails in educational articles discussing the topic depicted) seems to me like it would often constitute fair use. If we can identify the possible problems, we can hopefully start to judge whether policy or technical approaches might avoid them. --Avenue (talk) 13:55, 13 November 2012 (UTC)

Some users like to create galleries of all of their uploads in their own userspace. Such use of the images probably doesn't qualify for fair use. In this case, the users would be forced to create the gallery on a project outside the United States. --Stefan4 (talk) 14:21, 13 November 2012 (UTC)

My suggestion would be this: upload affected files to an archive like Wikilivres that has no affiliation with the WMF in another nation. If any projects want to use any of the images under fair use, they can reupload them locally, with downscaling as needed. One of the complicating factors is that even linking to a site giving the full-resolution image, out of context, could possibly qualify as contributory infringement if the work in question is copyrighted under US law. It seems absurd that one law-abiding site linking to another could be illegal, but this area of law is untested. Dcoetzee (talk) 15:03, 13 November 2012 (UTC)

Your suggestion does seem safer, although less convenient. Tagging the artwork-FOP files we host would be a useful first step. Was your comment about linking just referring to the reverse InstantCommons idea, or did you mean this also presents problems for fair use on local wikis? --Avenue (talk) 22:15, 13 November 2012 (UTC)

It presents an obstacle only because uploaded files normally need to link to their source. I'm pretty sure this is fine though because case law is really sparse and conflicted in the area of linking. Dcoetzee (talk) 02:26, 14 November 2012 (UTC)

Even if it turned out that linking did qualify as contributory infringement, I gather this hasn't yet been judged a criminal offence.[5] In contrast, people uploading photos of copyrighted sculptures here (even ones in countries where FOP covers sculptures) are arguably directly infringing the sculptor's copyright under U.S. law, with criminal penalties potentially including years in prison. So people could be subject to more severe worst-case penalties for uploading here than for just linking. --Avenue (talk) 10:29, 14 November 2012 (UTC)

When copying a file from Flickr, Wikipedia or any other website, the usual thing is to link to the site where the image was found. How are we supposed to indicate the source of an image if linking to Wikilivres is illegal? --Stefan4 (talk) 15:15, 13 November 2012 (UTC)

I don't see how linking would be illegal, but it would not be useful for Wikipedia. Embedding would be useful, but it might be a problem. Yann (talk) 17:08, 13 November 2012 (UTC)

@Ordercrazy: US copyright laws are nearly as liberal as most countries ones. The problem is that it gives very different results compared with other countries, and very different results than usual Commons practice before URAA and that DMCA. Then, abiding to US and source country law makes us delete a lot of content that's already in Commons. I'm considering to support allow uploading media that is free in the US, not matter if it is free in source country or anywhere else. This way we would lose some media (FOP sculptures in FOP countries) but we would get some new media, too (FOP buildings in non-FOP countries).--Pere prlpz (talk) 21:41, 13 November 2012 (UTC)

@Yann: Linking to copyright violations has sometimes been considered contributory infringement under US law, see e.g. [6]: "In December 1999, for example, a U.S. District Court in Salt Lake City, Utah granted a preliminary injunction against a religious organization that maintained a Web site that established links to other sites containing material that infringed on the plaintiff's copyright. The court ruled that the links constituted "contributory infringement" and ordered them removed." This is still a developing area however. Dcoetzee (talk) 22:03, 13 November 2012 (UTC)

Wikipedia and other WM projects have plenty of links to websites which "infringe" on someone's rights. I wonder why nobody has been fined yet. Yann (talk) 07:20, 14 November 2012 (UTC)

I don't know if it's universal, but most of the WMF's major projects have policies against linking to copyright infringements. Unless a project has an EDP for non-free content, they won't be able to use the files under that scheme. Osiris (talk) 11:13, 14 November 2012 (UTC)

You are right that most WMF projects have such policies, and we are not prone to link to copyvios. Anyway, we have a lot of external links and most websites are less concerned about copyright than we are. Then, I'm sure WMF projects link to several thousands of copyright infringements. I don't see this as a big problem, but strictly enforcing the no-links-to-copyvios policy is impossible, even if all users were interested - and a lot of them aren't.--Pere prlpz (talk) 22:14, 14 November 2012 (UTC)

Also, the same argument would apply to all the options considered here, including the status quo. If these sorts of photos are important enough to a project, they can change their policies to allow them. In some cases, yes, that may mean adopting an EDP. --Avenue (talk) 00:26, 15 November 2012 (UTC)

If I understand correctly US FoP is stricter than that in Germany because it didn't apply to sculptures. I am a citizen of the Czech Republic, if I take (and use) photograph of a sculpture exhibited permanently on a public place in the Czech Republic, Czech law (similar to the German law and law in many other European countries) clearly says that I am not violating any rights of the original author (see {{FoP-Czech Republic}}. Applying only US FoP will effect WMF projects badly. Ironically, it would probably effect Czech and German wiki most, because there is no fair use on those wikis nor statues created between 1923 and 1977 located in Europe could be tagged {{PD-US-no-notice}}.--Pan BMP (talk) 16:39, 18 November 2012 (UTC)

Applying US FoP to foreign images certainly damages our breadth of content but may be legally required (although this is debatable). If the German and Czech Wikipedias want to continue to use these images, I think it's important that they look into proposing exemption doctrines to allow reduced resolution versions under fair use, because they could be deleted at any time, especially if we receive a DMCA request. Dcoetzee (talk) 22:13, 18 November 2012 (UTC)

Commons are currently containing many pictures, which are completely free in the country of origin, they are allowed by COM:FOP, but their status in the US is "dabatable", I am suggesting keeping them until their legal status in the US proven to be violation of some rights. Meanwhile we should try to find some solution. For example lunch WMF to the Moon... problem solved, no DMCA! :) More realistically: there are lots of local Wikimedia chapters, why are servers run only by US WMF? Lets say both photographer and sculptor as well as sculpture are from country A, they can surely go to court in that country and settle their case. I don't see much reason, why some "technicality", that the photography is on some server in country B should effect choice of law in that case.--Pan BMP (talk) 20:55, 19 November 2012 (UTC)

The devil is in the details. As far as I know it's legal to host works that are legal to distribute in Germany on a German server. The first problem is that Wikipedia and other projects using media would still be based in the US, so you wouldn't be able to use the media from the German server. You could in theory also move German Wikipedia to German servers, although the technical issues with doing this would be enormous (deploying new versions of Mediawiki across the world, etc.) The second problem is that WMF is still a US-based organisation, so even if the assets are served and used only in Germany, action could still potentially be brought against them in a US court. It's possible the German chapter could split into a separate organisation that the WMF has no direct control over, but then they each have to have separate donation and funding pools, etc. and it'd be a logistical nightmare. You get the idea. Dcoetzee (talk) 18:01, 20 November 2012 (UTC)

A further issue is that the US government asserts authority over all .com, .org, .net, and .info domains (probably others as well), so such a repository would need to use .de or another clearly non-US TLD. These are all issues that have been tackled by Wikimedia Canada in establishing Wikilivres, so they are not insurmountable, but the do present issues, and using such files within any WMF projects is probably off limits. cmadler (talk) 18:16, 20 November 2012 (UTC)

I'm not sure whether transcluding such images in Wikipedia (eg from Wikilivres) would be legally OK from a US perspective (it's technically not that difficult I think to have an additional media repository). The images themselves would be served from outside the US, while the main page would come from the US. Rd232 (talk) 18:26, 20 November 2012 (UTC)

I'm not sure either, but I think the transclusion idea would have enough benefits that it's worth pursuing further, at least until we are sure whether it's OK. --Avenue (talk) 23:41, 25 November 2012 (UTC)

If Commons transcludes images from an external project, it might be harder to act in the event of a DCMA takedown notice if someone claims that the use of the images isn't fair. You could add the image to a "bad image list", which prevents File:Adolf Hitler.png from displaying on pages at Meta, but a DMCA takedown notice would probably require you to put the image on a "bad image list" on every single WMF projects. Even if you do that, the image still displays fine at m:File:Adolf Hitler.png, so you've not done enough. The Wikimedia Foundation generally doesn't seem to be happy about hotlinking to images on an external project. For example, Wikivoyage had to start almost without any images at all when the project was integrated as a Wikimedia project. For that reason, I doubt that the foundation would approve any hotlinking to Wikilivres. --Stefan4 (talk) 00:49, 26 November 2012 (UTC)

I don't see why it would be any harder for the WMF to address a DCMA takedown notice for transclusions than for uploads. In fact, it seems easier. Instead of deleting the file (which requires admin rights), all they'd need to do is remove the specified link (which any user can do). I don't think they have any obligation to proactively police fresh uploads or links to the same files, as long as they remain unaware of them, but if anything it would probably be easier to do this for links than for uploads.

If the WMF has any official position regarding image transclusion on Wikimedia projects, I'd be interested to know more about that, but I think there's a danger in reading too much into previous decisions. These probably depend very much on the specifics of the situation. --Avenue (talk) 10:59, 26 November 2012 (UTC)

It would also be necessary to remove the image from historical versions of the page, meaning that a lot of revisions may have to be deleted. On the other hand, if the file is on Commons, the WMF can just delete the file from Commons and leave the article history intact. --Stefan4 (talk) 23:26, 26 November 2012 (UTC)

I'm not so sure about that. But thanks, you've helped me realise that it mightn't even necessary to delete the link from the live version to start with. Why not simply upload a blocking image (reading "Hotlinked image obscured due to DMCA notice" or similar) on Commons or the affected projects? That would take priority over the problematic hotlink, in the live version and all historical versions. --Avenue (talk) 23:36, 27 November 2012 (UTC)

If you upload an image on Commons which blocks the image on Wikilivres, then yes, you remove the image from articles. However, you also create an implicit link on the file information page ("there is a file with the same name on Wikilivres which is illegal in the United States"). Not sure if this would be a problem. I don't know how rules about linking to copyright violations work in the United States. In my country, there have been some court rulings (most notably the Pirate Bay case) where this was found to be illegal, but US law might be different. --Stefan4 (talk) 10:03, 28 November 2012 (UTC)

I don't know either. If it was a problem, I guess the DMCA takedown notice would also have to be redacted before it could be published, since that would specify the link they wanted shut down. Would it make a difference if we allowed hotlinking from several sites, and so it wasn't clear which site(s) the allegedly infringing file was on? (As well as Wikilivres, there could be similar sites run by other chapters, or maybe even other organisations.) --Avenue (talk) 12:08, 28 November 2012 (UTC)

A possible workaround: before transcluding a file from Wikilivres, set up a redirect to the actual filename, and use the redirect in articles instead. Then if the link had to be taken down, deleting the redirect and replacing it with the blocking image (or a redirect to the blocking image) would not leave any visible traces of the offending link. --Avenue (talk) 15:44, 1 December 2012 (UTC)

Anyway, let's not blow this out of proportion. We are focussing on one tiny part of the issue - what the WMF would need to do if they received a takedown notice for a hotlink on some project, and they decided that they should comply because (among other things) the project's use of that file didn't qualify as fair use. I trust we would have policies in place that made this a pretty rare event. --Avenue (talk) 12:08, 28 November 2012 (UTC)

The WMF might not even have to comply with DCMA notices regarding transclusions. I gather there's been at least one court decision (Flava Works v. myVidster) finding the opposite, that transcluding or embedding files (videos in that case) did not constitute contributory infringement, and the transcluding website did not need to comply with the DMCA requests it received. This was despite it being pretty clear that someone had infringed on the plaintiff's copyright. (There needn't be any infringement in our situation since FoP or fair use exemptions should apply, depending on the jurisdiction.) Here's a legal blog post discussing the case: Seventh Circuit: Embedding and Linking Is not Contributory Copyright Infringement. --Avenue (talk) 12:13, 26 November 2012 (UTC)

Lex loci protectionis applied to the internet

Someone please correct me if I'm wrong, but doesn't applying lex loci protectionis online basically force us to consider the laws of the most restrictive country in every case? cmadler (talk) 13:58, 13 November 2012 (UTC)

I don't think so. At the very least, from a legal standpoint we only have to care about the US and the country of origin for the copyright. It is up to reusers to determine if they can legally reuse any content on Commons. This is long accepted, hence the "personality warning" template and the warnings for usage of Nazi symbols (which are illegal under most cases in Germany and some parts of Central/Eastern Europe). Sven Manguard Wha? 16:52, 13 November 2012 (UTC)

If I'm not wrong, we must care for the law of the country where the servers are located. When uploading or downloading media, we must care about the country of the uploader or downloader - although I'm not sure about who would be the infringer. Source country law doesn't matter except for when the law of server, uploader or downloader country says it matters. In Commons it matters just because of Commons policy, not because of law.--Pere prlpz (talk) 21:35, 13 November 2012 (UTC)

Yes, the laws of the uploader or downloader's country would seem to apply, and both the WMF and the uploader/downloader could be infringing. Here "downloading" would include merely viewing the media (when served from Wikimedia servers). See also Jastrow's post above. --Avenue (talk) 21:50, 13 November 2012 (UTC)

One advantage of considering copyright status (or at least the term of copyright) in the source country is that the w:rule of the shorter term may apply in the country of the uploader/downloader/viewer. --Avenue (talk) 22:07, 13 November 2012 (UTC)

It's about time that some countries grew up and accepted that a photograph of a building or installation artwork taken from a public location cannot be copyrighted. What useful purpose does this serve? This is particularly true in the age of the Internet, where people are used to freedom of speech. Can you imagine Wikipedia having to remove images of the White House or the Empire State Building because the architect complained? Countries with laws that restrict freedom of panorama should not be indulged. My own country, the UK, has got it right, otherwise we would not be seeing The Angel of the North on Commons. The logic of why an artist or sculptor would put a work in a public place and then complain when someone took a photograph of it is bizarre.--Ianmacm (talk) 09:44, 25 November 2012 (UTC)

I mostly agree with this. But how do we get there? That is the question... Yann (talk) 11:29, 25 November 2012 (UTC)

There should be no question of pandering to countries that have freedom of panorama laws that are well out of date in the age of the Internet. It is a pity that some countries in continental Europe have laws that lack basic good sense about copyright in a public viewing area, but that is the way it is.--Ianmacm (talk) 12:04, 25 November 2012 (UTC)

What about a certain large North American country, which happens to be where the WMF is headquartered? Its laws are what precipitated this whole RFC. They mean that the WMF would have little choice but to comply with a DMCA takedown request for The Angel of the North, for instance, regardless of how civilised the U.K.'s laws might be. Is this desirable? Is it avoidable? --Avenue (talk) 12:54, 25 November 2012 (UTC)

I don't know, because I am not a legal expert. The UK's law in this area is sensible, and says that anything that is permanently visible in a public area is exempt from copyright infringement. The main problem seems to be continental Europe. I was p!ssed off when the image of the European Court of Justice was removed in November 2011 because of FOP issues (for anyone who is interested, it looks like this). The reason why such a lacklustre view is copyrighted is hard to understand, but it is allowed under the law of Luxembourg.--Ianmacm (talk) 14:17, 25 November 2012 (UTC)

Graphic works are not covered by FOP in the UK (or almost anywhere else). Parts of Europe have problematic FOP laws, as do many other places around the world, but that's not new. What's new here is it's now clear that by filing DMCA take-down notices, copyright holders can enforce U.S. FOP laws over material on Commons from other countries, including the U.K. (e.g. item number 10 in the Oldenburg DMCA notice). BTW, this section is discussing a possible rationale for an even stricter approach. If you want to support a weakening of Commons' FOP rules, you might want to chime in at #Amend Commons:Licensing policy to allow all images that are allowed under USA FoP above. --Avenue (talk) 15:37, 25 November 2012 (UTC)

Claes Oldenburg and Coosje van Bruggen seem to have a thing about copyright, as their website suggests. Quite why anyone would think that they own the view in a public area is a mystery, but some countries will indulge people with this idea. It would be interesting to hear how the value of the original artwork could be affected by a photograph of it in a public area.--Ianmacm (talk) 18:15, 25 November 2012 (UTC)

Lex loci protectionis the other way around

As I understand it, the WMF is based in the United States, so copyright cases against (any?) wikiproject should be done against the site holder, the WMF, and thus through a US-court. Why bother about FoP of buildings in countries that do not have FoP, when US law is applied? Lymantria (talk) 08:23, 15 November 2012 (UTC)

That's a policy matter, not a legal restriction. Works have to be free in the public domain and the source country (except for PD-Art exceptions). That in turn stems back to moral ideas about respecting rights of authors abroad in the context of their local communities, and respecting projects who don't wish to host or use images by local artists that are not free in their own nation (for example, German Wikipedia would probably be very reluctant to use German works that are not free in Germany, like a work published in 1922 by a German artist who died in 1970). Dcoetzee (talk) 08:28, 15 November 2012 (UTC)

This idea of respecting rights does sound very neat, but seems to be only one way around. The pain point is of course that local projects seem to be restricted in publishing images that are perfectly free in their countries, but are not in the USA. The high moral standards are USA-centered. When an image is uploaded which is perfectly free in its country of origin, let's say a work of art permanently in public space in my home country, it really feels like a slap in the face of the image author if it has to be removed because of copyright issues. That it is treated as if it were an image of a work of art in the public space of the USA, quod non. I'd think it is more clear to not suggest on this project that any local law matters except for the USA law. Cruel, but correct. It takes away the hypocrisy. Lymantria (talk) 12:11, 15 November 2012 (UTC)

It may make sense to apply only the US law to works from authors which have filed US-applicably-only DMCA notices to us, even when those works wouldn't be free in the country of origin. That is, if you choose the US as your jurisdiction for a non-US work, we comply with it, but we will use that jusrisdiction from now on for all of your works, even if it would have received greater protection outside of the US. Platonides (talk) 18:34, 15 November 2012 (UTC)

I've always understood that a key reason for requiring works to be free in the source country was that since many countries apply the rule of the shorter term, a work that's free in the source country would be free in most other jurisdictions. But there doesn't seem to be an FOP equivalent to the rule of the shorter term, so this rationale is obviated. If lex loci protectionis is the applicable rule, I agree with Lymantria that we should simply apply US FOP (which we must) and only US FOP. Atomium, here we come! cmadler (talk) 19:30, 15 November 2012 (UTC)

I am advocating a less strict policy regarding buildings, but I am probably in a minority. Yann (talk) 11:41, 17 November 2012 (UTC)

Please see proposal above #Amend_Commons:Licensing_policy_to_allow_all_images_that_are_allowed_under_USA_FoP. Rd232 (talk) 05:20, 19 November 2012 (UTC)

If we distribute material that is protected in the source country, let's take France, a court in France would find that French Wikipedia is distributing this infringing material to French users in France, they may also sue the WMF in France or take their site off, I guess. Since Commons files are always available in the "local" Wikipediae, I see a risk here but I would like to see legal advice from the WMF. -- Rillke^(q?) 16:31, 5 December 2012 (UTC)

I think then we should apply the choice of law rule called "lex loci originis". Lex loci originis is the law of the country of origin, ie the law of the country of first publication. Raoli ✉ (talk) 17:43, 5 December 2012 (UTC)

Some DCMA claims likely copyfraud for many areas outside the US

So far I think it wasn't discussed: actually with sending a DCMA notice the owner of a copyright claiming copyright according to section 120 is committing copyfraud against the creator of an image within countries in which the domestic freedom of panorama does include art work, e.g. Oldenbourg committed copyfraud for the area of Germany because he has no right to claim copyright for those images according to German law. Anyone outside the U.S. within a country whose copyright laws are including art work into the freedom of panorama can use and publish those images legally without objections. --Matthiasb (talk) 16:42, 19 November 2012 (UTC)

Copyfraud? That depends on US law. It does seem a violation of the moral rights of the photographers, that their (perfectly lawfully and properly produced) works are destroyed and not treated with respect. But moral rights aren't enforced in the US anyway. --Simonxag (talk) 02:08, 21 November 2012 (UTC)

Please notice that the question in these DCMA claims are just about if these images can be lawfully stored and distributed in the US, no about creating and distributing them in Germany or other countries.--Pere prlpz (talk) 14:58, 21 November 2012 (UTC)

With the US functioning effectively as the hub of the internet and mass media culture in general? With the images being deleted from the main (only?) place they are being stored? With the images having been created for the purpose of serving the public good and serving as a resource for future creators, which they are being prevented from doing? I think the distinctions you draw are rather academic. --Simonxag (talk) 22:09, 21 November 2012 (UTC)

Practically and perhaps morally, yes. Legally, no - and the issue in this section is a legal one. Rd232 (talk) 00:39, 22 November 2012 (UTC)

Request for expert opinion

If you are as well-versed in United States copyright law as a lawyer practicing in that area should be, please help us out by letting us know what our options are. Thanks. Davidwr (talk) 04:05, 18 November 2012 (UTC)

I think as a better option, the Wikimedia Foundation and/or Wikimedia Deutschland would be doing the movement an enormous service if they could pay a firm of lawyers to provide some reliable advice on how this particularly complex area of the law should be applied. AndrewRT (talk) 23:52, 27 November 2012 (UTC)

The WMF has already explained the implications of US law for the Oldenburg images and similar non-US FoP photos. From Commons:Village_pump/Archive/2012/11#DMCA_Take-Down: "Currently, U.S. copyright law does not recognize freedom of panorama for works of art, such as sculptures, and thus the copyright holder of a sculpture has the right to exclude others from publishing images of that sculpture, so long as it still enjoys copyright protection. While it is true that some of the sculptures in question here are located in countries whose copyright regime conflicts with the U.S’s regime, current U.S. conflict of law principles indicate that U.S. copyright law would apply in evaluating the scope of a copyright holder’s rights."

Regarding our options, it makes more sense IMO for us to generate options and try to evaluate them ourselves first. --Avenue (talk) 00:48, 28 November 2012 (UTC)

Tagging started

For those following this page but not VP, I've started tagging affected files with {{Not-free-US-FOP}}. I developed a semiautomatic tool to facilitate this. See Commons:Village_pump#Planned_semi-automatic_tagging_of_copyrighted_sculptures_with_.7B.7BNot-free-US-FOP.7D.7D and Category:Freedom of panorama works possibly copyrighted in the U.S.. Please leave comments at VP thread. Dcoetzee (talk) 04:36, 20 November 2012 (UTC)

Request for clearer requests for comments

Hello,

I was editing Wikimedia Commons, and I have seen a banner at the top of all the pages of the site, asking me for my thoughts. I have come here, and I have read the intro, I have clicked on a few links, I have read some stuff… However, I don't know what the “DMCA” request was about, from who it was, on which grounds it was, what laws of what countries. I don't know what the current policy is, what some want to change, into what, for what reasons. I don't know on what my thoughts are wanted.

And this is not the first time I experience this. From time to time, a “request for comment” jumps in, and it's the same scenario. Nothing appears to be made for exposing the subject and the request to the targeted persons. I land in a place where a bunch of people have technical talk about some stuff, with no clear explanation, often no explanation at all. And I wonder : “What the fuck is this all about ?” And, usually, I leave quickly. This time, I write my impressions to you.

Cheers,

--Nnemo (talk) 20:39, 22 November 2012 (UTC)

hm, well on the one hand I'm totally sympathetic, and I'm keen to get people involved who don't know what's what already. And on the other hand, the intro at the top of the RFC, whilst certainly improvable, does answer many of those questions fairly well. If it's not made clearer, and well thought-out and carefully explained proposals are lacking, it's in large part because the RFC is intended to help clarify issues and develop proposals. If you came here expecting a simple vote, that's going to be a bit offputting. Rd232 (talk) 21:02, 22 November 2012 (UTC)

Suggestion for improvement: put a standard information on the top: what is this page, who should read this, who should participate, and so on. because obviously, the banner is read by a whole lot more people than it ought to be. Bennylin (yes?) 13:58, 23 November 2012 (UTC)

What is this

blablabla

Who should read this

foo

What could you do

bar

Totally agreed, a summary of the issues at hand is most appropriate for any RFC, especially a widely advertised one. Dcoetzee (talk) 22:45, 25 November 2012 (UTC)

Add a Links to relevant history section and a Why discuss this now? section and I agree completely. – Philosopher ^{Let us reason together.} 12:08, 26 November 2012 (UTC)

I've knocked up {{RFC intro}}. How's that? Rd232 (talk) 00:07, 30 November 2012 (UTC)

Looks good. It occurs to me that that template could also work for re-organizing RfCs that have become "idea labs" so that a useful conclusion can be reached about particular issues. – Philosopher ^{Let us reason together.} 06:12, 30 November 2012 (UTC)

I'm not sure what you mean, but this RFC clearly needs it, maybe you could demonstrate! Rd232 (talk) 13:09, 30 November 2012 (UTC)

Concluding

We seem to be running out of steam here. Let's summarise and see where we might go from here.

1. [OK] {{Not-free-US-FOP}} is a new equivalent to {{Not-PD-US-URAA}}; using it we can warn potential reusers, and get a better handle on the scope of the issue. There seems consensus to do this.
2. [OK] Try to be clearer about cases where FOP might appear to be an issue, but isn't. Tools like {{Copyright information}} and {{PD-US-architecture}} can be used. This is generally an area we can improve in, not just for FOP issues.
3. [OK] Campaign to change US copyright laws (as individuals; or as a campaign organised outside Wikimedia. Not through Wikimedia or Commons.).
4. [OK] Replace DMCA-deleted images with placeholders and revision-delete affected versions. There seems community support for this, but it's basically up to the WMF, since they need to act when doing DMCA deletions. WMF has been asked about this and there is a fair chance this may happen (pending lawyers' OK).
5. [OK] Encourage projects to develop Fair Use policies that cover at least files which are in copyright in the US but out of copyright in the source country. This means more projects can then use files we can't host.
6. Amend Commons:Licensing policy to allow all images that are allowed under USA FoP, even if they're copyright violations in the source country (under source country FoP rules). There is no consensus for this proposal. If anyone wants to pursue it, it's probably best to break it out of this RFC.
7. Create a fair-use version of wikiCommons, so that all fair-use projects can use the same image. Whilst superficially appealing, it's technically and procedurally too complex to enforce, given variations in fair use policies.
8.  ? Further pursue the idea of creating a non-US-based Commons, to host works copyrighted in the US but not elsewhere. See also Commons:Requests for comment/Commons Abroad and related ideas. It's not clear how we can move this forward practically; maybe by talking to one or more Wikimedia chapters? There are also unresolved legal issues especially around Wikimedia projects linking to or transcluding content from such a website.
9.  ? Pursue the idea of geolocation, so that Commons-hosted works are only shown to users legally able to view them (the Google Books approach). This may not be practical given Wikimedia's technical setup, but it surely needs WMF support.

So, where should we go from here? Are there any things we (or I) have missed? Rd232 (talk) 15:30, 2 December 2012 (UTC)

• Item 6 Support seems stronger than implied by that X. Saffron Blaze (talk) 00:39, 9 December 2012 (UTC)
• Item 8 (creating a non-US Commons) seems to miss one element discussed above (though not heavily). Wikilivres already exists, and we could transfer most files tagged with {{Not-free-US-FOP}} there now. So we can at least move ahead with that part easily.

In item 1, you say {{Not-free-US-FOP}} is equivalent to {{Not-PD-US-URAA}}. Is it really? I don't see much similarity, other than that they both deal with files that may be freely used in some jurisdictions but not in the US. --Avenue (talk) 16:53, 2 December 2012 (UTC)

The similarity is that it's not just about "some jurisdictions" but about the source country: Not-PD-US-URAA as well as Not-free-US-FOP are files that are free in their country of origin, in very many cases uploaded by people from the respective country in the (correct, according to their jurisdiction) belief that they're acting in accordance with law, and furthermore in many cases heavily used in the respective Wikipedia language versions, besides the English Wikipedia. Gestumblindi (talk) 19:18, 2 December 2012 (UTC)

Sorry, I guess my mistake was reading too much into the word "equivalent". --Avenue (talk) 20:28, 2 December 2012 (UTC)

Well anyway, I welcome any comments on where to go from here. The summing up wasn't meant to be an "all finished now", more a "now what?". Rd232 (talk) 19:20, 5 December 2012 (UTC)

I think we could deploy the upload form with something that would oblige the uploader to provide details about the file (ie the kind of work) to be loaded. I made two examples below. Raoli ✉ (talk) 00:04, 6 December 2012 (UTC)

• An useful inclusion to use

  This work might not be available under a free license in the United States because it is based on an artwork or sculpture that may be protected by copyright under U.S. law. (Commons is hosted in the United States and as such, U.S. law is applicable.) In the source country of the artwork or sculpture, taking photographs of such works permanently located in a public place does not generally infringe on their copyright, under a principle known as "freedom of panorama". In U.S. law, there is no freedom of panorama for artwork or sculptures, and under the choice-of-law principle lex loci protectionis, U.S. courts might apply U.S. freedom of panorama standards to this work, rather than the standards of the source country. However, in practice, it is unsettled whether and how this approach would be applied in real-world U.S. legal cases involving freedom of panorama elements. The current policy on Commons is to accept photos of artwork and sculptures that are covered by freedom of panorama in their source country. This policy may change in the future, depending on the outcome of community discussions and new case law. This is not a valid license tag on Commons; this file must be usable under freedom of panorama in its source country or it will be deleted.

  and/or

  United States copyright law does not protect architectural works before 1 December 1990. In 1990, the Architectural Works Copyright Protection Act amended subsection 102(a) of the US copyright law by adding paragraph (8), "architectural works." A building that was substantially constructed or for which the plans were otherwise published before 1 December 1990, is in the public domain in the United States. For images of architectural works in the United States completed on or after 1 December 1990, please use {{FoP-US}} on the description pages of the images.

• 

  in the Upload standard form

• 

  in the Upload Wizard

---

The above discussion is preserved as an archive. Please do not modify it. Subsequent comments should be made in a new section.

Same issue arises on en:WP

https://en.wikipedia.org/wiki/Wikipedia:Featured_picture_candidates/Graffiti_in_Olinda,_Pernambuco,_Brazil#Graffiti_in_Olinda.2C_Pernambuco.2C_Brazil Saffron Blaze (talk) 19:09, 7 March 2014 (UTC)