Bahaikipedia:Non-free content

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There are some works, mostly historically important photographs and significant modern artworks, that we cannot realistically expect to be released under a free content license, but that are hard to discuss in an educational context without including examples from the media itself. Because the inability to include these examples limits scholarship and criticism, in many jurisdictions, people may use such works under limited conditions without license or permission.[1]

These legal doctrines, called "fair use" and "fair dealing", permit the use of copyrighted material under a restricted set of criteria. They are not a blanket permission for the unlimited use of text, images, and other copyrighted materials. "Fair use" is a technical/legal notion that may not match what an individual thinks of as being "fair".

Content used under these doctrines on the English Bahaikipedia must meet U.S. legal tests for fair use. Significantly, Bahaikipedia places additional restrictions on material that is not available under a free content license; the content can be used only if it is not replaceable with free content. See "Downstream use" for a more detailed explanation of the rationale for these additional restrictions. For example, Bahaikipedia might allow for the inclusion of a photo documenting a historical event such as the Hindenburg disaster, but a modern publicity still of a vehicle, building or living person would be subject to stricter criteria. See "Acceptable use" and "Examples of unacceptable use" below for further instances where fair use defenses may and may not be tenable on the English Bahaikipedia.

An editor uploading copyrighted material must provide a detailed non-free media rationale, or the uploaded material will be deleted.

Policy[edit]

Transcluded from Bahaikipedia:Non-free content criteria; this is the part of the current page that is official policy

Yes check.svg The following section of this page is an official policy on Bahaikipedia. It is considered a standard that all users should follow. Feel free to edit this section as needed, but please make sure that changes you make to this policy reflect consensus before you make them.

Bahaikipedia:Non-free content criteria

Examples of acceptable use[edit]

Non-free content that meets all of the policy criteria above but does not fall under one of the designated categories below may or may not be allowable, depending on what the material is and how it is used. These examples are not meant to be exhaustive, and depending on the situation there are exceptions. When in doubt as to whether non-free content may be included, please make a judgement based on the spirit of the policy, not necessarily the exact wording. If you want help in assessing whether a use is acceptable, please ask at Bahaikipedia:Requested copyright examinations or Bahaikipedia:Media copyright questions. Bahaikipedia talk:Copyrights, Bahaikipedia talk:Copyright problems, and Bahaikipedia talk:Non-free content may also be useful. These are places where those who understand copyright law and Bahaikipedia policy are likely to be watching.

Text[edit]

Inclusion of brief attributed quotations of copyrighted text, used to illustrate a point, establish context, or attribute a point of view or idea is acceptable under "fair use". Text must be used verbatim: any alterations must be clearly marked. Removed text is marked by an ellipsis (...), insertions or alterations are put in brackets ([added text]). A change of emphasis is noted after the quotation with (emphasis added), while if the emphasis was in the original, it may be noted by (emphasis in original). All copyrighted text must be attributed.

In general, extensive quotation of copyrighted news materials (such as newspapers and wire services), movie scripts, or any other copyrighted text is not "fair use" and is prohibited by Bahaikipedia policy.

Example

Original text:

"The threshold for inclusion in Bahaikipedia is verifiability, not truth. "Verifiable" in this context means that any reader should be able to check that material added to Bahaikipedia has already been published by a reliable source. Editors should provide a reliable source for material that is challenged or likely to be challenged, or it may be removed." (Bahaikipedia:Verifiability, 2007)

Quote:

"The threshold for inclusion in Bahaikipedia is verifiability, not truth. (...) Editors should provide a reliable source for [potentially controversial content] or it may be removed." (Bahaikipedia:Verifiability, 2007; emphasis in original)

Audio clips[edit]

  • Music clips may be used to identify a musical style, group, or iconic piece of music when accompanied by critical, analytical or historical commentary and when attributed to the copyright holder. Samples should generally not be longer than 30 seconds or 10% of the length of the original song, whichever is shorter. (For songs under 5 minutes in length, 10% is shorter.)
  • Spoken word clips of historical events, such as speeches by public figures, may be used when accompanied by critical or historical commentary and when attributed to the speaker/author. Spoken word audio files of Bahaikipedia articles that incorporate copyrighted text pose legal problems because the resulting audio file cannot be licensed under the GFDL, and should be avoided.

Images[edit]

Some copyrighted images may be used on Bahaikipedia, providing they meet both the legal criteria for fair use, and Bahaikipedia's own guidelines for non-free content. Copyrighted images that reasonably can be replaced by free/libre images are not suitable for Bahaikipedia.

  • Cover art: Cover art from various items, for identification only in the context of critical commentary of that item (not for identification without critical commentary).
  • Team and corporate logos: For identification. See Bahaikipedia:Logos.
  • Stamps and currency: For identification of the stamp or currency, not its subject.
  • Other promotional material: Posters, programs, billboards, ads. For critical commentary.
  • Film and television screen shots: For critical commentary and discussion of the cinema and television.
  • Screenshots from software products: For critical commentary.
  • Paintings and other works of visual art: For critical commentary, including images illustrative of a particular technique or school.

Examples of unacceptable use[edit]

The use of non-free media in lists, galleries, discographies, and navigational and user-interface elements normally fails the test for significance (criterion #8), and is thus unacceptable.

Here are other uses that would almost certainly not satisfy the policy.

  1. An article containing one or more unattributed pieces of text from a copyrighted source.
  2. An image of a rose, cropped from an image of a record album jacket, used to illustrate an article on roses.
  3. A detailed map, scanned from a copyrighted atlas, used in an article about the region depicted. The only context in which this might be fair use is if the map itself was a topic of a passage in the article: for example, a controversial map of a disputed territory might be "fair use", if this controversy is discussed in the article. Note that simply "tracing" copyrighted material does not make it free.
  4. A work of art, not sufficiently well known to be recognized by a large percentage of casual readers, whose theme happens to be the Spanish Civil War, to illustrate an article on the war. (However, because of its iconic status, it is presumably "fair use" where there is a small image of Picasso's Guernica in the article Bombing of Guernica.)
  5. A photo from a press agency (e.g., Reuters, AP), not sufficiently well known to be recognized by a large percentage of casual readers, to illustrate an article on the subject of the photo. If photos are themselves particularly newsworthy (the subject of discussion in the news, and not merely depicting an event, person or people widely discussed in the news), low-resolution versions of the photos may be "fair use" in articles mentioning the photo.
  6. An image of a Barry Bonds baseball card, to illustrate the article on Barry Bonds. A sports card image is a legitimate fair use if it is used only to illustrate an article (or article section) on the card itself; see the Billy Ripken article.
  7. An image of a magazine cover, used only to illustrate the Bahaikipedia article on the person whose photograph is on the cover. However, if that cover itself is notable enough to be a topic within the article, then "fair use" may apply; see the Demi Moore article.
  8. An image of a living person that merely shows what s/he looks like. The rationale is that this is potentially replaceable with a freshly produced free photograph.
  9. An image found on the Internet where the original source is unknown or not verifiable.
  10. A chart or graph. These can almost always be recreated from the original data.
  11. An image of a contemporary newspaper article, when the information it contains could easily be used as the basis of an original article and cited as a reference.
  12. A large copyrighted commercial photograph, where its use might undermine the ability of the copyright holder to profit from her work.
  13. Seventeen short audio clips of a contemporary pop-music group in a single article. A fair use defense might be tenable for a smaller number if each is accompanied by critical analysis or scholastic commentary in the surrounding text.
  14. An audio excerpt of one minute's duration, used to illustrate a stylistic feature of a contemporary band; 10% of the length of the work or 30 seconds, whichever is smaller, is the recognized limit (see Bahaikipedia:Music samples).
  15. A short video excerpt from a contemporary film, used without comment or analysis in the surrounding text.
  16. An album cover image as part of a discography. A discography is a type of list, and such usage of images on a list normally does not significantly increase readers' understanding of the topic.
  17. Pictures of people who are still alive, groups that are still active, and buildings still standing; these are almost always replaceable because of the relative ease of taking a new picture, provided such an alternative would serve the same encyclopedic purpose as the non-free image.

Downstream use[edit]

The mission of the Wikimedia Foundation, which runs Bahaikipedia, is "to empower and engage people around the world to collect and develop neutral educational content under a free content license or in the public domain, and to disseminate it effectively and globally."

Free content means free of significant legal restrictions, in particular those of copyright. Bahaikipedia distributes content throughout the world with no restrictions on how people use it. We therefore reject copyright licenses exclusively for use on Bahaikipedia, or exclusively for non-commercial usage. That is not free enough. These and other works may be used here, but on a different basis, the legal concept of fair use.

To honor its mission, Bahaikipedia imposes higher standards on itself than US copyright law. Just because something is "fair use" on a Bahaikipedia article in the US does not mean it is fair use in another context. Our articles may satisfy US law, where a downstream user's use of the exact same content in a commercial setting would be illegal. That would fail our mission. Commercial use is a complex issue that goes well beyond a company's for-profit status, another reason to be careful. We provide content to users in many countries with varying fair use and fair dealing laws. For these reasons and more we intentionally limit the media content we offer, to make sure what we do offer has the widest possible distribution.

We do not want downstream re-users to rely on our assurances about the law. They are liable for their own actions, no matter what we tell them. We therefore show them and let them make their own decision. To that end we require sourcing material saying exactly where any non-free content comes from, and a detailed fair use rationale for every use of copyrighted content in every article, justifying why use in that article is permitted.

Those concerns are embodied in the strict requirements above that all non-free content must meet, and our demand for fair use rationales. Being generous to the world sometimes means being hard on ourselves. Please understand that these rules are not arbitrary; they are central to our mission.

Tagging non-free image files[edit]

When uploaded images are claimed as fair use they need both a copyright tag and fair use rationales. We have various templated copyright tags for non-free content. These should be put in the image description page.

Please also add the source from which the image has been reproduced. Remember there is no one-size-fits-all rule about fair use. Fair use must be explained and a separate rationale must be written each time the image is used in an article, specific to the use of that particular image in that article.

Tagging for review[edit]

The following is currently a proposed addition to the review process examining the fair use of images. It is not official policy or guideline, but is a suggestion being discussed.

There are several tags that you can use in addition to the fair use tag to help for review purposes.

If you would like an image to be reviewed by another user as to whether or not it is fair use, you can add the tag {{fairusereview}} to it, which will flag it for an informal review by other editors.

If you believe an image that is tagged as fair use is definitely not fair use, you can add {{dfu}} to it, and the copyright problem will be reviewed by an administrator within seven days.

Images which have been deleted as not meeting the Bahaikipedia criteria for "fair use", ie. the 'repeatability' criterion, should be listed at Bahaikipedia:Deleted fair use image replacement.

If you have reviewed a non-free image (whether it is tagged as {{fairusereview}} or not) and are quite confident that the image does qualify as "fair use" on the listed pages, add {{reviewedfairuse|pages=[[names of pages]]|user=~~~|date=~~~~~}} to the page. Do not review an image for "fair use" in an article if you either uploaded the image or made the decision to include it in the article where it is being used.

The reviewer may choose to accept a reasonably presented rationale in good faith without necessarily agreeing with each point asserted, as long as it does not contain information that the reviewer believes to be incorrect or misleading. If incorrect or misleading information is removed, and the reviewer believes that the remaining information is sufficient to provide a reasonable "fair use" rationale, then the rationale should be accepted. If the reviewer considers that the rationale is incomplete or does not provide sufficient detail to make a determination, then the reviewer should consider that the criterion has not been met.

Reviewers are urged to consider that some discretion and personal judgement is required in assessing whether certain of these requirements are met, and in these cases may choose to assume good faith, unless there is reason to doubt. Other users may be invited to review or comment if a clear determination can not be made.

If the image is used in more than one article, it is preferable that individual articles are assessed individually with a separate template box used for each article reviewed, as future edits to a particular article may render "fair use" claims as void.

As the aim of this process is to improve Bahaikipedia, reviewers should, where possible, attempt to elevate the standard of the "fair use" of the image, by making any edits they consider appropriate, where possible. For example rewording an inadequately written Fair Use rationale, or deleting unnecessary information, is a far more constructive action than simply deeming that a criterion has not been met.

If you see an image tagged as fair use that could be replaced with a free alternative, add {{subst:rfu2}} to the image description page (add {{subst:rfu}} if the image was uploaded before July 13, 2006). Be sure to notify the uploader! The image will be added to today's subcategory of Category:Replaceable fair use images so that it can be deleted. Large images that should be scaled down to qualify as fair use may be tagged with {{fairusereduce}}.

Legal position[edit]

Under U.S. copyright law, almost all work published after 1922 has an active copyright (although there are exceptions — see United States copyright law for the details). In general, the use of copyrighted work without the permission of the copyright holder is copyright infringement, and is illegal. As such, on Bahaikipedia, which is hosted in the United States, we are normally only able to use material that is not under copyright or is available under a sufficiently free license.

There is an important exception to this rule, recognized in a clause in the copyright act that describes a limited right to use copyrighted material without the permission of the copyright holder — what is known as fair use (or "fair dealing" in some countries, where standards may vary). This clause exists to protect criticism and commentary, and to prevent copyright holders from restricting free speech.

This page is a guideline for dealing with fair use materials on the English Bahaikipedia. It provides general guidance on what is or is not likely to be fair use and how you can best assist editors when attempting to include material under fair use. However, it is not official policy. You, as the uploader, are legally responsible for determining whether your contributions are legal.

If you use part of a copyrighted work under "fair use" (except for short inline quotations), you must make a note of that fact (along with names and dates). It is our goal to be able to freely redistribute as much of Bahaikipedia's material as possible, so original images and media files licensed under a free content license or in the public domain are greatly preferred to the fair use of copyrighted files. See Bahaikipedia:Boilerplate request for permission for form letters asking copyright holders to grant us a license to use their work under the terms of the GFDL.

Never use materials that infringe the copyrights of others. This could create legal liabilities and seriously hurt the project. If in doubt, produce an equivalent item or text yourself. The Wikimedia Foundation reserves the right to remove unfree copyrighted content at any time.

Copyright law governs the creative expression of ideas, not the ideas or information themselves. Therefore, it is perfectly legal to read an encyclopedia article or other work, reformulate it in your own words, and submit it to Bahaikipedia. (See plagiarism and fair use for discussions of how much reformulation is necessary in a general context.)

Law[edit]

The Copyright Act of 1976 sets out four factors to consider when deciding if the copying of a copyrighted work is fair and allowable without the consent of the copyright holder (Template:UnitedStatesCode):

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of Fair Use if such finding is made upon consideration of all the above factors.[1]

Briefly, these indicate that

  1. The use must not attempt to "supersede the objects" of the original, but rather, must be scholarly or critical.
  2. The less of the original that is used in relation to the whole, the more likely that use is fair, though the importance of the specific portion is also considered (as quoting the most important part may attempt to "supersede" the original).
  3. The use must not infringe on the copyright holder's ability to exploit his original work (for instance, by acting as a direct market substitute for the original work), though not through criticism or parody.

To these, Bahaikipedia adds that if the media could be repeated by an editor then 'fair use' is not sufficient criteria for inclusion. Editors are asked to upload a free equivalent instead.

There is also a substantial body of case law which can be consulted, and is useful for determining what some of the vague terms in these factors (such as "substantiality" and "purpose") have translated to previously in a court of law. Stanford University Libraries has put together a summary of some of the most relevant cases on the subject.

On Bahaikipedia, copyrighted, non-free material may be used under fair use if we firmly believe that the use would be judged to be fair if we were taken to court. Whenever possible, however, "free" material should be used instead of fair use material to avoid compromising the goal of a free encyclopedia and to avoid unnecessary legal exposures.

Other Wikimedia projects[edit]

This policy is specific to the English language Bahaikipedia. Other Wikimedia projects, including Bahaikipedias in other languages, may have different policies on non-free content.

See also[edit]

References[edit]

  1. February 8, 2007 statement by Kat Walsh for the Wikimedia Foundation board of trustees

External links[edit]