Talk:Archive:Fair Use Policy, Media

Although the middle of the doctrine is murky (in that there are a lot of unresolved questions) there are certainly some very clearly delineated instances of fair use. There is no question, for example, that quoting five or six lines of text from a novel in order to make a point about the author's writing style falls squarely within the protection of the doctrine.

There is no legal requirement that a person claiming fair use needs to first attempt to obtain permission from the copyright owner. That is probably good policy if you anticipate that some copyright owners will release their works into the public domain. I would be a bit leery about the possibility that a copyright owner may wish to set conditions on the use of their work, but that's for another policy page I suppose.

Finally, I'm a big fan of the public domain, and would like to remind people that anything published in the U.S. before 1923 is in the public domain, as is any work for which the author died before (at the moment) 1936. This applies equally to photographs. There are just enormous quantities of illustrative images in the public domain.

Cheers, Brian Dean Abramson 05:07, 8 May 2007 (CDT)

terms

Pre-1923 items are public domain, no doubt, if created in the US or its territories (in the UK, photographs and artwork are protected up to 70 years from the death of the artist/photographer, and older works may still be protected). Yet even with pre-1923 items, there are possible issues under either property or trademark law which could protect some images; "derivative" images are among these (photos of artwork, for example).

I'm unclear as to what "Libre Substitute" and "Libre media" mean.

"Fair use" will be qualified, first and foremost, by whether or not CZ has a commercial-use-allowable license. If we do, we will have to police fair use far more diligently, and define it far more narrowly, since noncommercial entities generally (but not always) have a broader claim to it.

Secondly, what percentage of the "work" is being presented on CZ -- this applies mostly to text, rather than images, music, etc. If it's less than 10% of the complete work, or only quoted briefly in order to evaluate or characterize the full work, that augurs for fair use.

With images from a work still under copyright, the matter gets more complex. You can look at Wikipedia's policy, for instance, which offers arguments for things like a single frame of a film, an "event poster," or a book cover. These are all gray areas, and WP might someday get in trouble with them.

You have to look at percentage of complete work, possible damage to marketability, use and context, and for-profit or nonprofit status of entity -- you really need legal advice. This, or so I assume, is why fair-use claims have been discouraged on CZ. Russell Potter 08:59, 8 May 2007 (CDT)

I think a significant part of the reason that fair use claims are discouraged is for potential downstream users - we want people to be able to copy info (including images) straight out of our resource, and use them freely under the GFDL. The freer the image, the better for that purpose. I analysed images for fair use in Wikipedia discussions dozens of times, and have occasionally looked up cases for particularly sticky questions. I think Wikipedia's policy is overly conservative actually. WP and CZ are both non-profit organizations which exist solely for educational purposes, and that puts a big, heavy thumb on the fair use scale in our favor. The other factors will all rely on the nature of the work itself, how much of it we use, and whether there is a market for use of the image that we might substitute, but there are many circumstances (such as screenshots from broadcasts and covers of books/DVDs/albums) where market impact will be negligible and our use will necessarily be much cropped or scaled down from the original. Brian Dean Abramson 13:09, 8 May 2007 (CDT)

Thanks for these comments, Russ and Brain.

I am wondering if you two (and other interested persons) would be willing to hammer away at the policy draft here. I think one area we need to have clarity over, by numerous carefully selected examples, is what DOES and DOES NOT qualify as fair use, as that would likely be encountered here at CZ.

Also, I understand that whenever documented efforts to seek the copyright holder have first been taken, basically no court will award damages to the copyright holder but only allow a fair fee. To me, that seems it may be a precondition we might wish to incorporate into policy, except on what would clearly be fair use.

I also wonder: for CZ articles that would be under a non-commercial license, how much better does that bode for fair use? Some have claimed to me that is irrelevant, but I am not ready to buy the argument since one of the fair use prongs includes whether the work was commercial in nature. Then again, just because CZ would be licensed with a commercial license, does that make use fair use images on CZ itself commercial?

I am thinking, just thinking, it might be a good policy direction to take to have certain types of fair use simply be clear-cut: make your fair use claim with proper rationale and that is that. But with others that may be more "gray", it might be good to first place the condition of a frustrated permission attempt before allowing it.

I have more thoughts but sleep is calling....

Stephen Ewen 02:00, 9 May 2007 (CDT)