Wikipedia and copyright issues

We have attemped to find the proper place to bring up this issue. Not finding that place, we are listing it here. Please remove to the proper location, if necessary.

On April 7th, we placed a new listing on Wikipedia for "The MERLIN Project(r)" This item was place WITH THE PERMISSION of the copyright owners (see below) It was summarily removed by someone claiming that it was a copyright infringement of a URL maintained in Great Britain by Nobel Laureate Brian Josephson. The item on Dr. Josephson's site is ALSO there with the permission on the copyright owners.

We have placed the following on the "discuss this page" link attached to the Merlin Project listing. PLEASE REPLACE THE LISTING AT YOUR EARLIEST CONVENIENCE. Jim Caise (for) The MERLIN Project Research Grp. jimcaise@yahoo.com

'Talk:The MERLIN Project From Wikipedia, the free encyclopedia.

PLEASE NOTE:

The "fourmilab" link you quoted carries copy from the original copyright owners (with their permission) and is so indicated on that site. The copy placed in the "Wikipedia" listing was edited and rewritten specifically for this posting with the wriiten permission of the copyright owners, Paul Guercio and Dr. George Hart.

If you require confirmation, Mr. Guercio's email is: paulguercio@onebox.com or merlinproject@onebox.com Dr. Hart's email is ghart23@earthlink.net' - jim caise jimcaise@yahoo.com

See Do fair use images violate the GFDL?, permission grant extent, Avoid Copyright Paranoia

Discussion was started on Larry Sanger/Talk

Hey Larry. I am one of the maintainers of periodic elements pages. I recently added links for each of the elements to a Los Alamos National Laboratory website that has great information (http://pearl1.lanl.gov/periodic/default.htm). Earlier today I found this copyright notice:

Unless otherwise indicated, this information has been authored by an employee or employees of the University of California, operator of the Los Alamos National Laboratory under Contract No. W-7405-ENG-36 with the U.S. Department of Energy. The U.S. Government has rights to use, reproduce, and distribute this information. The public may copy and use this information without charge, provided that this Notice and any statement of authorship are reproduced on all copies. Neither the Government nor the University makes any warranty, express or implied, or assumes any liability or responsibility for the use of this information

My question is this: Does this constitute that this work is in the Public Domain (or something similar) that can be re-copyrighted under the FDL? Related question: Can an otherwise FDL document be forced to include such notices from source material? maveric149

IANAL, but I was involved with some complicated negotiations regarding federally copyright material. The answer to your question is no. The reason for this long notice is precisely to get around the fact that the federal government can't copyright anything. So what happens is that the federal government contracts a non-federal group to produce the data who then give the government the right to use the work. In this case, the copyright belongs to the University of California who have put conditions on its use which are not compatible with the FDL. Chenyu

I'm sure you're entirely correct about the positions of the lawyers on both sides, but let me clarify some of the other nuances of copyright law: Rule #1: Anyone can claim to own a valid copyright on anything, and since there's no downside to doing so, lawyers for the presumed holder of the copyright always claim all rights, regardless of whether or not they think they have any. Rule #2: Even if the lawyers on the other side think the ones exercising rule #1 are just blowing smoke, they always advise their clients to believe the spurious claims, because if the lawyer is wrong, he can be held liable for contributory infringement, so "just say no" is the safe thing to do.

In this particular case, the UC's copyright claim is almost certainly hot air, since it's very clearly a "work for hire" paid for with federal tax money. The prohibition on the federal government on claiming copyrights does extend to works for hire, but that's a fine point that some judges can be bamboozled about. The lawyers on both sides know this, but the UC's lawyers still insist on claiming copyright and any lawyer you hire will advise you to take the claim seriously even if it probably will be thrown out of court eventually. So, the UC Regents (who are entitled to claim copyrights in general on stuff they create without federal funding) will continue to claim the copyright. But the facts are probably that we can use the text legally since we already paid for it. If we use the text, though, the regents might sue, and even though we'd probably win eventually it might cost too much to defend and federal courts don't general award legal costs for these kinds of defenses. Such is the state of copyright law. --LDC

Unfortunately, you are almost certainly wrong in this case. 17 USC 101 (2001) defines a "work of the United States Government" is a work prepared by an officer or employee of the United States Government as part of that person's official duties, which means that the exclusion of copyright in 17 USC 105 (2001) does not apply to government contractors. 17 USC 101 (2001) also defines work for hire and in this case, it's pretty clear that it isn't a work for hire. (Works by contractors are not works for hire.)

Government contracts typically include a clause that explicitly states that the work done under the contract is not work for hire and that the copyright belongs to the contractor. In the case of the Department of Energy the relevant regulations are in 48 CFR 927 (2001), and I have no doubt that if you look at the contract that was referenced, you would see that it contains standard language assigning copyright to the University of California, which is probably why they included it in the notice.

And I disagree about the behavior of lawyers and judges. Federal judges generally know the law. Also, when two sides agree on the law and the facts, the losing side generally gives in even if they have more financial resources, because federal judges will grant court costs if one side is obviously behaving badly. If the law were clearly on our side, there wouldn't be a problem, because if the state of California wouldn't even try to sue. Unfortunately, it isn't.

BTW, IANAL, but I learned what I did about federal contracting and IP as part of an effort to get information from the Department of Labor and the state of Minnesota (see my web site for details). -- Chenyu

Well, yes, it's a lot more complicated than I make it sound, but still I have to disagree: federal courts are frequently overturned on appeal in IP cases, often unanimously. For one thing, courts often take things like contract terms and department regulations such as those you mention at face value, without considering whether or not they comport with Title 17, which is controlling authority. The circuit courts have conflicting precedents about these matters, and many long-standing questions have yet to make it to the Supreme Court precisely because the "public domain" doesn't have good lawyers. It's slowly changing: the EFF is taking some good cases (like getting the Sonny Bono act overturned), and the circuits are slowly coming around to agree more with them. I'm not a lawyer either, but I've studied law and IP law in particular a lot, and it's a real mess. --LDC

I say, if the author says its copyrighted under such and such conditions, we treat it as such. Even if the author is legally wrong, its better just to avoid the hassle of potential legal problems, and write the thing ourselves -- SJK

I'd have to agree with SJK here, but if it would save us a lot of work, maybe we should think more about it. I'd like to see what Jimbo has to say, since ultimately he's the one who's liable. --LMS

Could we side-step this issue by having a /Sources subpage on each of the elements with that notice (along with a link to the original)? After reading the notice again, it seems like all they want is recognition for their work. Which seems to be similar to the GNU FDL which provides that authors of prior versions have to be acknowledged. maveric149

Something to consider in this case. If what is being copied is physical data, then the material is not subject to copyright. LANL text about the element would be copyright, but information about the physical properties of the elements is not copyrightable since facts are not copyrightable. The key decision here is the Feist decision by the U.S. Supreme Court which applied to telephone directories.

Also the big issue with the FDL are non-commerical clauses. Restrictions on use which prevent commerical use and resell of information are in conflict with FDL. The trouble is that the copyright notice is that it is ambiguious. It could mean "this information is provided free of charge, do what you want with it" in which case there is no problem. It could also mean "we give you permission to distribute this information for free, but we withhold your right to redistribute the information for a fee."

But if you are copying physical data about the elements, there isn't a problem. If you are copying any commentary about the elements or anything original, then there may be a problem.

Again, IANAL, but our web site redistributes information and in several cases we've run into this issue. -- Chenyu

Probably the easiest thing to do is to e-mail LANL and ask them what they mean by their copyright notice. If you are lucky, the person that wrote the page "gets it" and will give you permission to include the data in the wikipedia. If you are unlucky, then the person that wrote the page "doesn't get it" in which case, it's probably easiest

for us to look for the information elsewhere. -- Chenyu

I have already emailed the maintainer of the LANL webpages in question. That was a week ago, and I still haven't heard back from him. I will try again tomorrow. Visit [1] for an example of the information that LANL provides. maveric149

That's probably the best idea, and I agree that Feist v. Rural at least does allow us to copy the bare facts, so we should do that as well--although you even have to be careful there: if the facts are specifically selected (i.e., they've chosen some specific subset of facts for expository purposes), or if they are presented in some specific order, they might have a claim on those editorial choices as being "creative" and therefore protectable. The telephone directory case didn't have that problem because it was a simple alphabetical list intended to inlude everyone in a certain area, so there were no editorial choices made in presentation. --LDC

I had to lie on the upload page: "I hereby affirm that this file is not copyrighted, or that I own the copyright for this file and donate it to Wikipedia". In fact, I uploaded a Dutch version of the Wikipedia logo, which is a derivative of the Wikipedia logo, which is probably copyright Wikipedia.

The disclaimer does not take into account:

works that are already copyright Wikipedia

works that are copyrighted, but come with a license that is compatible to the GNU Free Document Lincense.

Perhaps the disclaimer should read something like:

By uploading this file I declare not to violate any rights to this work, such as copyright.

And then an explanation following in which cases the uploader can truthfully state the above if

the copyright has expired;

the maker uploads the work and transfers copyright to Wikipedia; or

the work is distributed under a GNU Free Document Lincense compatible license.

(others)?

--branko

A few points:

The maker does not always have rights to a creative work. They can give or sell them. An example of this is the publishing industry. If I write a book and give it to a publisher, I can't upload it to Wikipedia. So just say 'copyright holder' instead.

Another possibility is if the upload constitutes fair use such as being a parody, short quote, etc.

Both correct, and all the more reason to have the uploaders state they are not violating property rights by uploading. Of course, if Wikipedia wants to own the rights it's a different thing, because a uploader cannot always give them away. Copyrights being what they are, I am not even sure you can give them away entirely or for ever (sometimes depending on the country the maker lives in).--branko

You misspelled 'license'.

No, I did not. License is the correct British English spelling.--branko

--Ellmist

Are the Congressional biographies at http://bioguide.congress.gov/ copyrighted? -- 165.121.117.xxx

No, they are not copyrighted, nor can they be as federal material is not eligible for copyright protection. (See: U.S. Copyright Act: TITLE 17 , CHAPTER 1 , Sec. 105. (Cite as 42 U.S.C., § 105).) However, the images of the U.S. representatives which are used in the biographies may or may not be copyrighted. (See: Copyright Information for the Biographical Directory of the U.S. Congress.)--NetEsq

I think there should be a page where articles with dodgy copyright status can be listed (and presumably fixed). Otherwise the information lies forgotten in Talk pages. Similar to the lists of pages for deletion, NPOVing etc.

There already exists: Wikipedia:Votes for deletion. Andre Engels

How about pages such as Cologne, which appear to be a mix of copied and original material?

Seems like Wikipedia: Pages needing attention is OK for this.

From en:User talk:Lee Daniel Crocker (unsigned posts are from Lee)

I'm suspicious of the validity of adding work to Wikipedia that's not coverable by the GFDL (as described in en:Wikipedia:copyrights). Isn't this a basic problem? -The Cunctator

Text would definitely be a problem, and I think we're pretty clear that we don't want text that isn't free. But images really are a different case; I think "fair use" images are OK, because it's an easy distinction to make, the utility of Wikipedia would suffer greatly if we couldn't use such images, and using such images does not detract from the goal of creating our own text.

I don't know that it would suffer greatly; there are a bunch of public domain images out there, and Wikipedia is a great opportunity to encourage people to generate more. But I can see both sides of the argument.

On the other hand, I'm extremely uncomfortable about contaminating the Wikipedia feed with content that can't be used by downstream licensees. If we didn't use any GFDL content ourselves, then we wouldn't be limited by the GFDL conditions, but we do (or at least would like to be able to).

Whatever the case, it's certainly not in the spirit of the GFDL to include non-free (the RMS def.) images.

I certainly think that it's crazy to imagine a legal setup in which image use as we do would be forbidden, but we live in a crazy world, with DRM around the corner.

Finally, "fair use" is, unfortunately, a defense. If someone challenges the use of their images, we would have to prove "fair use" in court, after the injunction. The fair use defense is sadly weak. --The Cunctator

In practice, if the copyright holder of an image complained, we would have to remove the image rather than attempt to defend our fair use rights. Just as it would be a very bad idea to have non-free text, I think it would be a bad idea to have articles that depend on non-free images, and if you find such an article, it would be appropriate to call attention to that problem. An image that's just an illustration to an otherwise complete article (like the video and album covers, for example) shouldn't be a problem, although you're right that it could be a problem for downstream use (although most such downstream uses will have the same fair use rights we do).

In my expert opinion, Cunctator's assumption that "we would have to prove 'fair use' in court, after the injunction" is mistaken: The three elements a movant has to show to get a preliminary injunction are probability of success on the merits, threat of irreparable harm, and equity (or the balancing of the harms) favors the movant. The movant bears the burden on all three elements and, before the court gets to them, bears the burden of showing there is no adequate remedy at law, or injunction will not lie. Since someone complaining of copyright infringement could not make any one of those showings (let alone all four of them), they're never going to get an injunction to start with. -- isis 07:25 Oct 30, 2002 (UTC)

We should probably move this debate to another page... I think it's vital that "fair use" images are marked as such. For example, if we later produce a paper snapshot of Wikipedia (the idea cropped up on the mailing list a while ago), we'd need to know which images we must omit. -- Tarquin

I don't understand the concept of "'fair use' image," either by itself or in the context it's used in here. The images we use under what we call the "fair use" doctrine are not copyrighted. Here's what Black's Law Dictionary (4th ed.) says, and see if this makes what I'm saying clearer (italics added for emphasis & citation omitted):

FAIR USAGE. The doctrine of "fair usage" means that the matter which was under copyright was neither copied nor adopted, but that the uncopyrightable underlying idea was used, since a theme or idea is not copyrightable.

What I don't understand is what "which images we must omit" is about -- I can't think of any situation in which any image in the 'pedia should be "omitted." Would someone please enlighten me? -- isis 11:26 Oct 30, 2002 (UTC)

I was thinking of album cover thumbnails & sound clips -- wiouldn't a a CD or paper version of Wikipedia, even if sold at-cost, have to omit those? -- Tarquin

No, no way, never, huh-uh. -- isis 11:40 Oct 30, 2002 (UTC)

The only possible time such an image might have to be omitted is in a commercially sold reproduction of Wikipedia (that weakens our "fair use" position but probably wouldn't destroy it), and since we don't plan on ever doing that, it shouldn't be a problem. If we made a paper reproduction distributed in accordance with our educational purposes, the same fair use rights would apply to that.

With all due respect, I must dissent from that opinion: Under Fed.R.Evid. 1001, for example, any copy of the 'pedia is interchangeable with any other (and/or the "original" -- whatever that means in this context), so whether we charge for our efforts in producing a particular copy or not is immaterial.

I've just realized what's been bothering some Users about the videotape covers: They don't understand what a copyright on the packaging means. I should have caught on sooner and told them the fact they were missing to ease their minds: A copyright on a videotape cover design prohibits anyone else's making a videotape cover/box/package with that same (or too much like it) design, but it does not prohibit anyone's taking a picture of it to show to anyone (commercially or not) when talking about the content of the tape in that box. If it did, the copyright laws would be unconstitutional, and those statutes are intended to further the 1st Amendment, not violate it. -- isis 20:20 Oct 30, 2002 (UTC)

Sounds like the matter is resolved (but Isis, note that we're dealing internationally here -- 1st amendment is a local thing) -- Tarquin

I don't understand your point. International copyright law is a matter of treaty, and in the hierarchy of authority, the Constitution is at the top, above treaties, and the copyright treaties don't change the "local" law in the various countries, anyway, they just make other countries recognize each others' "local" laws. The videotape covers are copyrighted under U.S. law (either by statute or by treaty), and Wikipedia is in the U.S., so how do you imagine international law is some kind of issue? Or is this another trolling expedition that I've mistaken for a pertinent comment? -- Isis 21:33 Oct 30, 2002 (UTC)

It is counter-productive to imply that another contributor is a troll just because they are posting an opinion. --Maveric149

I didn't imply that he is, I asked him whether he is. It's certainly one of the possible explanations for his condescending implication that he knows more about intellectual property law than I do, and one of the nicer ones, too. -- Isis 23:05 Oct 30, 2002 (UTC)

Isis, in matter of copyright & legal stuff in general you know far more than I do. I think the matter of which countries copyright law applies has cropped up on the mailing list, but I can't remember what was said. Is there international copyright law? -- Tarquin 20:27 Oct 31, 2002 (UTC)

As I said three messages above yours, we're bound by U.S. copyright law -- that's all we have to comply with. Other countries' laws are not valid/effective/applicable/binding within the U.S. (and vice versa), and there is no higher authority (like the U.N. or something) that can make laws binding on any country, either. Yes, there is conceptually such a thing as "international copyright law," but not in the sense that there are statutes separate from the U.S. Code (which is the statutes passed by Congress). The principles of international copyright law are laid out in the treaties between the various countries, and then each country makes its own statutes conform to what they've agreed to in the treaties. That's why Congress made such drastic changes to our copyright laws in (I think it was) the 1980s, to bring the U.S. statutes into agreement with what our treaties promised. So all we have to do is comply with the U.S. copyright laws, and we're automatically in compliance with international copyright law. I can tell you some more about the hierarchy of legal authority in the U.S., but that's a side issue, and I can expand on what I've said here, if you want, but the bottom line is all we have to do is comply with the U.S. copyright law, and we're okay. -- isis 22:50 Oct 31, 2002 (UTC)

We might in the future publish parts of Wikipedia in other countries, so we have to ensure that what we do is "portable". It should also be made clear somewhere that the other language Wikipedias are also covered by US copyright law (since it is physically on the same sever -- is the location of the server the key point?). Jimbo has just said on the mailing list that he will write to Richard Stallman to ask about Fair Use. -- Tarquin

I may be misunderstanding what you're asking, but Wikipedia has the right to do whatever it wants to with itself, including translating any or all of its articles and publishing them any which way/where it wants to. So what is the concern about "portability"? It can't be somebody else's infringing Wikipedia's copyright, and Wikipedia can't infringe its own copyright, so I'm sorry, but I don't understand what the potential problem is. And whether the location of the server is crucial or immaterial depends on what kind of a problem it is, because the key location is where the rock injures someone, not where you were standing when you threw it. -- isis 00:52 Nov 1, 2002 (UTC)

If we publish a CD-ROM or paper edition of wikipedia (for example), in a country other than the US then won't that country's copyright laws apply? What if Bomis, our Gracious Hosts, went out of business for some reason and we found a new sponsor in another country? -- that's what I meant by "portable". (And Cunc makes an interesting point in "However, since local copyrights are granted to authors in their respective nations" -- Tarquin 17:05 Nov 1, 2002 (UTC)

If we publish a CD-ROM or paper edition of wikipedia (for example), in a country other than the US then won't that country's copyright laws apply?

Probably. So what? That's like saying, "What if I get up Tuesday morning and it's raining?" You have to give me some more hypothetical facts for me to understand what bad thing you're worried about happening in this scenario.

What if Bomis, our Gracious Hosts, went out of business for some reason and we found a new sponsor in another country? -- that's what I meant by "portable".

Again, so what? Give me some more hypotheses: What would keep us from moving the 'pedia from Bomis's computer to the new sponsor's? What bad thing are you worried might happen to us?

(And Cunc makes an interesting point in "However, since local copyrights are granted to authors in their respective nations"

I'm sorry, I took that as a premise, not a point. Could you please explain to me what point was made? Authors copyright their text in the country where they are -- so what? What do you find "interesting" about that? It seems axiomatic to me. --isis 20:21 Nov 1, 2002 (UTC)

Well, I'm not a lawyer, so I'm going by very vague ideas here, but my point was: is it possible that US copyright laws allow us to do something which another country's does not (which would presumably cause problems were we to publish in that country). As a non-lawyer, I'm baffled by the interlational implications (if there are any): I write an article in the UK, and hold a copyright under UK law, but I license it to the US Wikipedia, which publishes under the GFDL in the US -- have I got that right at least? -- Tarquin 22:33 Nov 1, 2002 (UTC)

You're probably right about what you're doing licensing your U.K. copyright to Wikipedia, because that's the way such things are usually arranged. So why are you so worried about international implications, when you're in the middle of an international copyright situation that you see isn't any problem? In fact, can you conceive of a regulatory system for protecting intellectual property rights that would make your situation easier for you than it is?

Yes, it's possible that U.S. copyright laws allow us to do something another country's laws wouldn't, but if we were going to publish in another country, we'd find out what its laws were first. If its laws were unacceptable to us and we had a choice, we wouldn't publish there; if we didn't have a choice, we'd have to publish there despite any less favorable terms in their laws. (That's facetiously referred to as "the common-law rule of 'tough'", as in "That's tough.") Either way, there's no sense in speculating about it now.

It's also possible that Congress will change U.S. copyright laws (again) to not allow us to do something we can do now. But since you can't know what's going to happen, you have to deal NOW with the situation as it is now and simply build in as much flexibility as you can so you can deal THEN with whatever happens then.

Most "problems" in international copyright law have to do with enforcing copyrights across national borders. Is Wikipedia ever going to try to enforce a copyright? ("No," I hear you answer.) Then we're never going to have a problem doing so, are we? So, since you can't even articulate what kind of a problem you're worried about, let's make a deal: If you'll promise me to quit worrying about imaginary copyright issues and just concentrate on making the 'pedia as good as it can be, I'll promise to tell you if and when there is an actual copyright issue you should worry about on behalf of the 'pedia -- okay? -- isis 00:37 Nov 2, 2002 (UTC)

which also means internationals just need to quit having any worries on cp too. We don't even have a page about cp ourselves, and what sense would it have to have one ? Do I understand well we are supposed to only respect US copyrights, not our country ones for now ? So it just make sense just to redirect our own policy on copyrights to the english one. None of us really know what your copyrights rules are anyway.

3 questions (since they presented themselves):1)if one of us basically copy a text in a book in our language, is it an infringement in the US ? 2) If one of us translate (a good translation, not a rewording) a - say english - text, is our text an infringement in the US ? If our text is later translated back in english (so necessary different from the original, but similar enough that it can be made obvious where the new text come from), is that in infringement in the US ? 3)When somebody takes a text from a web site in our language, where nowhere appears the copyright word, what is the line we should follow ? Boldy delete, or rewrite ? If somebody is doing it frequently, claims the site not be copyrighted, and nobody cares about the rewrite, what should we do ? Just hope or delete ? If this text is translated in english, is it a copyright issue for the us ?

You say we should not worry about imaginary cp issues that could happen later in other countries. You may be right it is a loss of time and energy right now. But, honestly, how can we just set aside cp issues in the countries where our language is spoken? Ours wikis are more likely to be published in our countries. Not necessarily in the US.

all this said with all due respect : none of us know much about law, so we can't imagine what is implied. But, still, we feel "a bit" concerned anyway. user:anthere

NO, as a rule, people in other countries can NOT "only respect US copyrights," and neither can Americans. I never said anything in this discussion about U.S. copyrights -- if you look back over the discussion, you'll see that I referred always to U.S. copyright law (not to U.S. copyrights) and, near the beginning of the discussion, I said, "The videotape covers are copyrighted under U.S. law (either by statute or by treaty)."

Under U.S. copyright law, violating a (legally valid) copyright is violating a copyright, no matter where it was granted, and under the usual "conflict of laws" principles, whether there was a violation would probably be determined under the law of the country where the violation took place (which is sometimes difficult to determine with computerized information). So the bottom line is that contributors from outside the U.S. must follow their own country's copyright laws (which in many cases will be substantially the same as the U.S.'s because of treaties), and if the license or fair use of copyrighted materials is lawful under the law of the country that granted the copyright, then it will be lawful, under U.S. copyright law, for the Wikipedia to include that material.

I don't know what any other country's copyright law is, but in the instances you mentioned U.S. law is to the effect that:

(1) Use of copyrighted text in any language IS copyright infringement.
(2) Use of a translation of copyrighted text IS copyright infringement, no matter how many times it's translated.
(3) Text created during the past about 20 years (and, thus, virtually everything that appears on the Internet) is copyrighted whether it says so or not, so you must assume that it IS copyright infringement to use it unless it specifically says it is not copyrighted.

Point taken. However, I am confused here. Does a text stay protected for only 20 years. Or are you just making the asumption what we mostly have to fear would come from the internet, so likely to be less than 20 years. I thought the copyright lasted for a much longuer time, no ? When can we consider safe to pick up a text from an old book ? how old does it need to be for safety in most countries ?

You're right that a copyright lasts a lot longer than 20 years, but that's not what I was talking about. Back in the 1980s the U.S. changed its copyright law (to bring it in line with other treaty countries' laws) so that it was no longer necessary for copyrighted material to have a notice of copyright on it. (Before that, if it didn't say it was copyrighted, it wasn't. This is one of the main reasons I agree with you that the various countries' laws' getting more alike is often bad news.) So for anything published in the U.S. since then, you have to assume it's under copyright unless it says it isn't, and that means virtually everything on the Internet. -- isis 07:17 Nov 3, 2002 (UTC)

The practice in the U.S. Wikipedia when one of us discovers an article (or part of one) that has been copied from a webpage (or printed source, for that matter, although that's rare) is to remove that material immediately, post a notice in its place that it has been removed for suspicion of copyright infringement (and include the URL for the website), and let the contributor show either proof it is not copyrighted or proof of permission from the copyright holder to include it in the 'pedia -- and that does not apply only to webpages in English or originating in the U.S. If the contributor does not do so, the material stays out; if a contributor keeps posting suspicious material without proving it's not infringing a copyright, that contributor is blocked. This is an issue on which there is no room for negotiation: When in doubt, leave it out.

Can copyrighted text stay in the history?

OK. Is it necessary that the copyrighted text entirely disappear whenever possible (for example, in a new article, which can be deleted) or can it stay in the history ?

This is a point on which reasonable minds could differ, and if I were representing a client, I could argue the other side with a clear conscience, but my own opinion is that the copyright text need not be removed from the article's 'history' page but should be removed from its 'talk' page. I base this on primarily two factors. The first is the definition of "published," and I don't consider that we're "publishing" the history although we're publishing the 'pedia (and I really hope the history is not included in any paper, CD, or commercial on-line versions); I see the history as something the authors need to prepare the work, like any other editing tool, but that is not part of the published work. (The 'talk' may be in the same category or may be considered (foot)notes and thus part of the "published" work -- that's not my decision.)

My second reason is that having a record of everything we've deleted for possible copyright infringement proves we've been doing our best to comply with the applicable law. That kind of evidence would prove all a copyright holder had to do was tell us, and we'd remove the material immediately, so making a federal case out of it was totally unnecessary. -- isis 07:17 Nov 3, 2002 (UTC)

Of course you can be interested in what changes there may be in the copyright laws of your own country and/or other countries (and good for you if you are), but that should not interfere with your working on the Wikipedia. All you need do is comply with what the law is now where you are -- you don't need to comply with what it may be in the future (or what it was in the past, or what you wish it would be in the future). The good news is: (1) copyright laws all over the world are getting more alike all the time; and (2) when there is a change, works that complied with the law when they were created, but do not satisfy the new law, are usually "grandfathered," which means they are given permission to continue as they are, without having to change to comply with the new law. -- isis 07:25 Nov 2, 2002 (UTC)

I personnaly don't find it a good new that copyrights are getting more and more alike :-), but that's only my opinion, and as such, of no interest for wikipedia cp issues. But, I understand the "grandfathering" point. Though I would not be surprised that the "tolerance" is different depending on the country.

As much as I've enjoyed participating in this discussion, some work I have to do has just dropped on my desk, and I'm not going to have time to do much else until after 12 November, so please carry on without me in the meantime. I suggest anyone who's interested read the first section (§101) of the U.S. copyright law, which is the definitions of the terms used in it (and then any other of its provisions you care to, of course). The copyright statutes are Title 17 of the U.S. Code, and you can find it on-line at http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=17&sec=1 from FindLaw http://www.findlaw.com/ or at any number of other sites. -- isis 07:17 Nov 3, 2002 (UTC)

thank you very much for your answers, Isis User:anthere

Wikipedia is a derivative work

[ N.B.: Under 17 U.S.C. §101 http://caselaw.lp.findlaw.com/casecode/uscodes/17/chapters/1/sections/section_101.html , Wikipedia is NOT a "derivative work" but a "collective work" or "compilation." -- isis 09:06 Dec 5, 2002 (UTC) ]

An important consideration that Isis may be overlooking is that Wikipedia is bound by the strictures the GFDL places on derivative works. We want to be able to include material from other GFDL sources in Wikipedia.

We can only do that if Wikipedia satisfies the conditions the GFDL places on derivative works.

And the primary condition, even though it's not well-worded[1] is not to mix non-GFDL-licensible works with GFDL-licensed works.

I recognize that photographs that an individual takes of copyrighted images are not the same as the copyrighted images themselves. Of course, in this case we also but up against trademark, but that's another kettle of fish.

What, pray tell, is a "copyrighted image" in your phrase "photographs that an individual takes of copyrighted images"? -- isis 06:42 Nov 1, 2002 (UTC)

A painting, a photograph, etc. Art. As opposed to El Capitan, etc.

--The Cunctator [1] Since the GFDL makes the assumption it's talking about a printed work. To discern the intent of the GFDL, which we shouldn't suborn, that's the right mode of thinking.

If "the GFDL makes the assumption it's talking about a printed work," then it IS talking about a printed work. If you make the assumption that any writing means other than what it says it means, you're out of the field of law and into Wonderland. Courts get to "discern the intent" of a writing, if that's at issue in a case before them, but persons (including non-human entities like Wikipedia) must follow the "letter of the law" which is what is written, given its ordinary meaning. -- isis

Let me reword. The GFDL intends to cover any textual work, but is expressly designed to deal with the issues raised with printed works. Essentially, it's obvious with a textual work what the Document is and what it isn't. It's a bit vaguer with electronic text. Have you studied it?

International copyright issues

It's arguable that Wikipedia is only covered by U.S. copyright, inasmuch as the publisher is US. However, since local copyrights are granted to authors in their respective nations, and authors do not transfer their copyrights to Wikipedia (they grant an non-exclusive license), there are certainly potential issues there.

What "potential issues"? Saying there are issues without identifying them is like saying "the sky is falling" -- it may be so, but there's nothing in your posting that makes that more likely than not, since you haven't given even a hint of what kind of issues you want us to think there are. You say it's "arguable that Wikipedia is only covered by U.S. copyright"; everyone knows it is, because I've just argued that. Do you mean to imply it's arguable that Wikipedia is covered by any other copyright [law]? If so, make the argument; if not, knock off the alarmism -- it's naughty to go around upsetting Wikipedians who are trying to comport themselves in the way the applicable copyright law requires. -- isis 06:42 Nov 1, 2002 (UTC)

In "everyone knows it is, because I've just argued that", I assume you meant "everyone one knows it's arguable that Wikipedia is only covered by U.S. copyright", not "everyone knows Wikipedia is only covered by U.S. copyright".

Okay, I'll try not to worry about it.

Moreover, and this is the important problem, from the perspective of the trade reps and trade organizations that are building the current system of international law, First Amendment and other Constitutional limitations on the scope of intellectual property are considered trade barriers. And these trade barriers are vociferously attacked. It is not a wise strategy to assume that limitations on US copyright law will remain there over the long haul. All trends point otherwise.

Any problems of "trade reps and trade organizations" are, by definition, theirs, not ours. We don't need to worry now about what the applicable law will be in the future. We need only comply now with whatever it is now and comply then with whatever it is then. -- isis 06:50 Nov 1, 2002 (UTC)

I'm talking about U.S. trade reps, too. It's true that from a liability standpoint we only need to worry about current law, but we also want to design Wikipedia practices for the long haul.

In fact, the US has already exceeded the strictures of the w:Berne Convention in terms of time limits. And the w:DMCA,the w:WIPO Copyright Treaty, and w:DRM are downright scary (though their absurdity does actually invite methods of subversion). --The Cunctator

Even if that's true, how/why do you want us to think it's our problem and not Congress's, please? -- isis 07:23 Nov 1, 2002 (UTC)

Well, the SBCEA takes stuff out of the public domain, which is a problem for us, and the DMCA makes discussing certain ideas a problem (or just linking to them) (see DeCSS, Universal vs. Remeirdes), and Digital Rights Management systems eliminate fair use (see http://www.epic.org/privacy/drm/default.html).

So that's why I think it's our problem.

For any of you who haven't read Games People Play lately, I suggest you do so, with special attention to the section on "Why Don't You -- Yes But" in the chapter on "Party Games" -- you're being treated to a good example of it here. -- isis 07:23 Nov 1, 2002 (UTC)

This would be the case if I was being obstructionist and alarmist for the pleasure of it. But I'm not. However, it is a good thing to watch out for. Actually, this isn't even that good an example of the game. Who's supposed to be in the roles? --The Cunctator

"This would be the case if I was being obstructionist and alarmist for the pleasure of it. But I'm not."

Then why ARE you doing it? And I find your including "obstructionist" telling, in the sense of "Freudian," when all I said was "alarmist," and neither of those is part of the YDYB game.

Doing what? I'm looking for rational solutions to problems. How is being obstructionist not part of the YDYB game? I'm confused. Maybe you should define it for me, for the definition at, say, [2] makes it seem that it's basically a game of obstruction.

"However, it is a good thing to watch out for. Actually, this isn't even that good an example of the game. Who's supposed to be in the roles?"

No, you have apparently mistaken my meaning: I didn't mean I wanted an invitation to play, I meant I'm not going to play. I'm sorry for not making myself clear, but thanks for the invitation, although I'm declining it. -- isis 21:03 Nov 1, 2002 (UTC)

Apparently you have mistaken my meaning. You brought up YDYB, and I was asking you to justify your assertion that this is a good example of that. I was not inviting you to play, so there's no need to thank me, nor to decline it. --The Cunctator

I'm glad to see this is a hot topic. I need someone with a bigger gun than I have regarding copyright law to come look at the "Hitler_has_only_got_one_ball" entry on wikipedia and the associated talk page. I've tried explaining how this page violates the wikipedia policy on song lyrics, on copyrighted works, on original material, on source material, and so on, but I'm not getting the danger of using copyrighted work across.

I believe I'm as big a gun as Wikipedia has on issues of U.S. copyright (and I'm not too modest to say so), and this whole "Hitler's balls" commotion is what is called in the law a "frolic and detour." The lyrics are not copyrighted to start with, but if they were, Wikipedia could still quote them under the doctrine of fair use. Anyone who says differently is either honestly mistaken or motivated to create a controversy for their own reasons, and anyone who gets distracted from working on articles to participate in the discussion is facilitating that counter-productive conduct. -- isis 09:30 Dec 5, 2002 (UTC)

UNITED STATES CODE, TITLE 17, CHAPTER 1 HAS ALL THE EXPLANATION YOU NEED ABOUT THE USE OF US GOVERNMENT DOCUMENTS. IT IS AS FOLLOWS:

Sec. 105. - Subject matter of copyright: United States Government works

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

IF THAT IS NOT ENOUGH, PLEASE READ THE FOLLOWING FROM CHAPTER 4:

Sec. 401. - Notice of copyright: Visually perceptible copies

(a) General Provisions. -

Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device.

(b) Form of Notice. -

If a notice appears on the copies, it shall consist of the following three elements:

(1)

the symbol (AF) (the letter C in a circle), or the word Copyright, or the abbreviation Copr.; and

(2)

the year of first publication of the work; in the case of compilations, or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles; and

(3)

the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

(c) Position of Notice. -

The notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright. The Register of Copyrights shall prescribe by regulation, as examples, specific methods of affixation and positions of the notice on various types of works that will satisfy this requirement, but these specifications shall not be considered exhaustive.

(d) Evidentiary Weight of Notice. -

If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(c)(2).

Sec. 402. - Notice of copyright: Phonorecords of sound recordings

(a) General Provisions. -

Whenever a sound recording protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed phonorecords of the sound recording.

(b) Form of Notice. -

If a notice appears on the phonorecords, it shall consist of the following three elements:

(1)

the symbol P (the letter P in a circle); and

(2)

the year of first publication of the sound recording; and

(3)

the name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner; if the producer of the sound recording is named on the phonorecord labels or containers, and if no other name appears in conjunction with the notice, the producer's name shall be considered a part of the notice.

(c) Position of Notice. -

The notice shall be placed on the surface of the phonorecord, or on the phonorecord label or container, in such manner and location as to give reasonable notice of the claim of copyright.

(d) Evidentiary Weight of Notice. -

If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(c)(2).

Sec. 403. - Notice of copyright: Publications incorporating United States Government works

Sections 401(d) and 402(d) shall not apply to a work published in copies or phonorecords consisting predominantly of one or more works of the United States Government unless the notice of copyright appearing on the published copies or phonorecords to which a defendant in the copyright infringement suit had access includes a statement identifying, either affirmatively or negatively, those portions of the copies or phonorecords embodying any work or works protected under this title.

I HOPE THE ABOVE IS SUFFICIENT EXPLANATION ON THE TOPIC.

The USA has not honored the rule of the shorter term yet

s:en:United_States_Code/Title_17/Chapter_1/Section_104A(a) Automatic Protection and Term: (1) Term.—

(A) Copyright subsists, in accordance with this section, in restored works, and vests automatically on the date of restoration.

(B) Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States.

Based on this wording, the USA has not honored the rule of the shorter term of the Bern Convention. As I administer English and Chinese Wikipedia, Wiktionary, Wikisource, multilingual Wikisource, and Wikimedia Commons, I now find this section more and more painful because:

Once American law covers a non-American work for copyright restoration, it is legally copyrighted with American duration even if it is now in the public domain in its home country.
It is not always easy to ask the original copyright holders if they are willing to renounce American copyright while their home countries no longer copyright their works. They may become orphan works in the USA.
When a work is legally copyrighted in the USA even if it is orphaned, Wiki site users, even if outside the USA, cannot upload these works to Wiki sites unless they can claim fair use or prove that the original copyright holders have renounced American copyright to release these works into the public domain.

To make an example, if a work was originally published in China in 1930 by a Chinese author died in 1946, then based on Chinese copyright term of lifetime + 50 years, it would enter the public domain in 1997 in China, but as Chinese works are under American copyright restoration on 1 January 1996, such a Chinese work would be copyrighted in the USA through 2025. Since Wikisource cannot practically claim fair use on articles, the USA copyright law not honoring the rule of the shorter term is harming the development of Wiki sites. This is why as an admin of Chinese Wikisource, I have had to delete some Chinese public domain works while they are legally copyrighted in the USA.

For this problem, may I propose a petition, such as through http://www.petitiononline.com/ , to urge American Congressmembers to amend United_States_Code/Title_17/Chapter_1/Section_104A to accept the rule of the shorter term of the Bern Convention? Please understand that without American acceptance of the rule of the shorter term of the Bern Convention, all Wiki sites may suffer. In addition, we should also urge American Congressmembers to reconsider and pass the Public Domain Enhancement Act so more orphaned American works will enter the public domain in at least the USA.--Jusjih 14:57, 18 January 2007 (UTC)[reply]

US copyright law?

Are Wikipedias in all languages subject to American copyright law? Ausir 20:20, 8 Sep 2004 (UTC)

Yes, because Wikimedia Foundation is an American foundation and the United States have the fair-use law. -- 200.193.53.92 00:40, 22 September 2005 (UTC)[reply]

But unfortunately, the USA has not honored the rule of the shorter term yet, so please see American non-acceptance of the rule of the shorter term for more information.--Jusjih 08:14, 1 February 2007 (UTC)[reply]

Non-signatories

What is the legal ramification of using content from a country that has no copyright agreements with the US and is not signatory to any international treaties? Without copyright recognition, there can be no copyright violation, right? - KeithTyler 19:29, 8 November 2006 (UTC)[reply]

Even though works from these countries, such as Afghanistan, are not copyrighted in the USA yet, be aware that should any of them enters any copyright agreements with the USA bilaterally or multilaterally, their works could become suddenly copyrighted in the USA. I would suggest:

Unless works from these countries are too old to be copyrightable everywhere, such as by authors who have died for at least 100 years, it may become unwise to upload them to Wikimedia Commons should they enter any copyright agreements with the USA.
Whether they enter any copyright agreements with the USA or not, fair use is still possible in English Wikipedia. w:Template:PD-because allows users to write in reasons why something is in the public domain. While it is possible to write in that a work is PD in the USA due to lacking copyright agreement, should the work becomes copyrighted in the USA, the tag has to be changed to fair use with rationales.--Jusjih 14:29, 21 August 2007 (UTC)[reply]