CZ:Proposals/Non-comprehensive fair use policy

This proposal has not yet been assigned to any decisionmaking group or decisionmaker(s).
The Proposals Manager will do so soon if and when the proposal or issue is "well formed" (including having a driver).
For now, the proposal record can be found in the new proposals queue.

Driver: Stephen Ewen

Complete explanation

This is a proposal to allow six categories of media to be used under U.S. fair use on Citizendium. The six categories of materials encompass the most commonly used materials under fair use and are widely considered fair use without controversy. Allowing these now will free contributors in a needed way related to both current and future articles. This is not a comprehensive fair use policy, which can be accomplished later, by adding categories to this proposal, for example.

Stephen Ewen is driver of this proposal, which has been carefully thought through for over a year. Please do not change the proposal text without the driver's agreement. The proposal will undergo some refinement before reaching the Editorial Council, and all along the way people will have opportunities to discuss things, make criticisms, counter-proposals, etc.

Category One: Coats of Arms, flags, emblems, seals, etc., of administrative entities, political authorities and institutions

With the following caveat:

1. The image as uploaded should be the minimum size needed to display the needed information. Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless.

Category Two: Currency, stamps, vehicle license tags, and closely similar

With the following caveat:

1. The image as uploaded should be the minimum size needed to display the needed information. Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless.

Category Three: Company logos, trademarks, copyrighted packaging, and closely similar

With the following two caveats:

1. For logos and trademarks and closely similar, the image should be of very good quality yet as uploaded should be the minimum size needed to display the needed information. Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless.
2. Copyrighted packaging and closely similar images as uploaded should be the minimum size needed to display the needed information. Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless

Category Four: Software, website, and video game screencaptures of the software, website, or game itself

With the following caveat:

1. The image as uploaded should be the minimum size needed to display the needed information. Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless.

Category Five: Book, periodical, and disc covers, and promotional posters, comics/cartoons, and closely similar

With the following caveat:

1. The image as uploaded should be the minimum size needed to display the needed information. Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless.

Category Six: Audio and video clips and video screen captures

With the following three caveats:

1. Audio clips should be as small as possible in both length and resolution to convey information. As rules of thumb, use "the 10% and not the heart rule", and don't use song clips over 100 kbbs. For example, in an article about a musical band, you could include approximately 10 second low resolution clips of songs, but if there is a certain section that is the main draw toward people purchasing a certain CD, its "heart", you should be extremely careful about including that clip
2. Video screen captures should be used instead of clips, whenever possible, and the image as uploaded should be the minimum size needed to display the needed information. Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless
3. No encryption mechanism may have been subverted to make audio and video clips (which is illegal in the U.S.)

Caveats

1. Items may appear in articles only for uses consistent with U.S. fair use doctrine
2. Items should be obtained from official sources (the originating entity), but may be obtained elsewhere if otherwise unavailable and faithful to the official items
3. Contributors are responsible to become familiar with U.S. fair use doctrine before uploading materials to use under fair use, and will be personally legally responsible for their own uses of fair use materials.
4. The laws of some countries regarding the equivalent of fair use are not consistent with U.S. laws. Contributors should first follow the laws in their own countries. Other contributors where this may not be an issue are probably willing to upload fair use materials for others, in that case
5. If an article is requested to be under dispute resolution, fair use materials should be commented out with <!-- [[Image:Fair use item.jpg]] --> tags until the issue(s) are resolved.
6. The resulting policy should in no way be construed as legal advice

Reasoning

We have current articles that are going to continue to be handicapped without this. Led Zeppelin is the most recent. As well, some contributors have expressed that they are off-put about writing because we lack a policy that permits them the uses stipulated in this proposal.

Q & A

Feel free to add questions directly to this section, or just ask them in the discussion area below. As issues are raised and addressed there, they will be summarized here in this format and the material incorporated in some way into the final policy page.

1. Why are there "very good quality" stipulations in some places but not others?

For instance: It's very important to befittingly depict entities, but publishers get bootleg-worry at high-resolution book cover images. That's the principle.

2. Why didn't you include "promotional photos"?

These are made available under an implied license. That's the point of them. Fair use is not needed. For commercial reusers of CZ content - that's a matter we need not consider, but they will.

3. What's this "and upload and use only materials they will be personally responsible for using" "and will be personally legally responsible for their own uses of fair use materials" all about?

The basic idea is that contributors are legally responsible for their own uses of materials uploaded under fair use, whether uploaded by themselves or another. The principle is no different with any other type of media, or the writing of text for that matter, it just bears stating here explicitly.

4. What's the point of removing fair use images from articles requested to be under dispute resolution?

In the legal world, offense at use is always the precursor to challenged fair use. This helps avoid both.

5. What about contributors writing a "fair use rationale" for each upload, as they do at Wikipedia?

It's superfluous and the rationales are redundant. The Upload Wizard will automate a brief, standardized fair use rationale with each upload.

6. What's with the "closely similar" part?

It's not reasonable to try to list every possible item that would closely fit into each of the categories where that appears. This doesn't mean there will be very many "closely similar" items, just that we cannot come up with a comprehensive list ahead of time.

7. What if there is a dispute about whether something is "closely similar"?

Something closely similar will appear so on its face. For example, it is immediately evident that a VHS video cover fits into "Category Five: Book, periodical, and disc covers, and promotional posters, comics/cartoons, and closely similar". If something is not closely similar, it will be clear common sense to other contributors. In this case, you should place the {{speedydelete}} on your own upload. Any editor or the Media Assets lead may request a fair image be deleted, Constables may delete them on their own recognizance if it would be uncontroversial to nearly all constables that the image is not of the category it is said to represent, and the benefit of the doubt should generally defer to the uploader. All deletions may be appealed.

8. Add question here.

9. Add question here.

Implementation

Implementation will be done via a new fair use section of the CZ:Upload-Wizard, and simple, accompanying templates corresponding to the above six categories.

Illustrations and examples will be added to the final policy page.

Discussion

A discussion section, to which anyone may contribute.

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The "personal responsibility" line has to go, for all material on CZ is the responsibility of CZ, and not any one individual. (In other words, CZ is the legal person, not some author. -- CZ is not a service provider unde copyright law, it is the legal person responsible for all content here.. Richard Jensen 14:10, 18 February 2008 (CST)

This is just a personal statement: I for one will have nothing to do with images if I've got to agree to taking on personal responsibility. I'm not a solicitor and won't put myself in a position of being legally responsible for complicated issues the ramifications of which I can't possibly fully understand. Aleta Curry 15:44, 18 February 2008 (CST)

no fear, Aleta. CZ is a US federal-government-approved not-for-profit educational corporation and it is the "legal person" responsible for all the images and text. Steve misread the copyright law and believes CZ is a common carrier, like the cable company, that transmits private messages without altering them. Richard Jensen 16:04, 18 February 2008 (CST)

the rules say Please bear in mind that, merely because you are the driver of proposal or issue, you do not therefore have the exclusive right to determine the shape of the proposal/issue. That should be determined first by negotiation with other interested Citizens. Negotiation is required--this of course is how CZ does business, by collaboration not fiat. Richard Jensen 16:25, 18 February 2008 (CST)

Moving along to that negotiating, let me clarify the personal responsibility issue in the form of a simplified question. Does everyone want Citizendium to be a publisher and bear legal responsibility for images uploaded by contributors, or should Citizendium be providing contributors with a publishing service whereby they bear legal responsibility for their own contributions. If the former, I am against allowing fair use on CZ and withdraw the proposal. As to the contents of the DMCA, people can read it and research it and make up their own minds about what it says just fine, without any of us telling them what to think about it. A helpful way to view "personal responsibility" may be this: If Person X publishes a book with Publisher Y, responsibility for what is published does not transfer from Person X to Publisher Y. Person X is still responsible for what he or she published. That's really all this caveat is saying! Stephen Ewen 16:29, 18 February 2008 (CST)

the author of a book takes full credit and responsibility for it and no one can change the book without his permission. This in not how CZ operates at all. Anyone can change anything, and CZ as a legal person is the responsible party. (All encyclopedias work this way, and all authors sign legal contracts to that effect.)Richard Jensen 16:43, 18 February 2008 (CST)

I think the propsal is a good one (except for the two words) and if Steve does not want to be the driver of it I will volunteer to be the driver. Richard Jensen 16:33, 18 February 2008 (CST)

Let me again clarify. Let's say you upload the logo of the Coca-Cola company, and place it in Coca-Cola Company, which has developed into a nice and neutral article. Then you go on a two month vacation. The next day someone comes along and inserts libelous material into the article, including that the logo itself was stolen by the company. A Coca-Cola rep sees it and naturally reacts. You are not responsible for that other person. They are responsible for themselves, their use of it. You are responsible for YOUR use of it. I tweaked the wording of the section to avoid the interpretation that the uploader will be responsible for others' uses of the items. Does that clear up the intent here? Stephen Ewen 20:06, 18 February 2008 (CST)

Steve, the reasoning section does not provide any reasoning for the details of the various rules. That's all right, I suppose--although I like everything to be spelled out and defended, myself, as I do myself perhaps to a fault--but at the very least it would be good if you would offer to defend, in that reasoning section, any particular point that anyone has a question about. Another good item to put in the reasoning section would be any general principles or rules or patterns you had when producing the details of the policy (and why those principles are correct). Go on into this in the section titled, "Let me head-off some possible questions"--why isn't that stated in the reasoning section? --Larry Sanger 21:43, 18 February 2008 (CST)

the new revision and will be personally responsible for their own uses of fair use materials satisfies me and I am now ok with the whole proposal. Richard Jensen 23:07, 18 February 2008 (CST)

Under "General Caveat 1". replace "Contributors are responsible to become familiar with U.S. fair use doctrine before uploading materials to use under fair use, for example, by reading http://www.copyright.gov/fls/fl102.html" with "Contributors are responsible to become familiar with U.S. fair use doctrine before uploading materials to use under fair use, for example, by reading Fair use" CZ has a clear summary. The government document mentioned is not useful for individuals or CZ authors. Richard Jensen 15:53, 19 February 2008 (CST)

We really should give four or five links there. We need not set them in stone. The point is to facilitate people to self-educate some. Stephen Ewen 16:08, 19 February 2008 (CST)

Resizing of images is a separate question from fair use. It depends more on the format and content of an article. For example the same image of Obama may be reduced smaller in the overview 2008 election article and be larger in his bio article.Richard Jensen 23:33, 19 February 2008 (CST)

Well, it is not at all a separate issue, but for the reason you stated we don't want images as uploaded to be resized too small. I'll adjust the wording to account for this issue - tomorrow, though. Stephen Ewen 23:54, 19 February 2008 (CST)

It is not reasonable to ask individual contributors to know the copyright law of possibly three countries -- the one they live in, the one from which they are accessing the internet at the point of contributing, and the USA. Therefore General Caveat 2 has either to become BASIC PRINCIPLE 1, or go completely. This is not a US publication, and many Citizens are from many difficult countries with ghastly copyright laws. I suggest that it is better for CZ to assure compliance with US law. In a way, the real-names policy is a hazard here, because people can be traced. CZ has to protect its contributors, not ask them to accept liability for their free labour! Martin Baldwin-Edwards 03:33, 20 February 2008 (CST)

Sounds like semantics, to me; thus, they are all just "caveats" now. and its entirely reasonable to expect people to know the laws of their country, obviously, and it is entirely reasonable to expect them become familiar with U.S. fair use doctrine. Welcome to the Internet, although it is not different than if I travel to, say, Canada, where I am expected to know and obey the laws there. And since CZ's servers are in the U.S. and a certain state, CZ is under jurisdiction of the laws both. And whatever we do in life (alright, there are a few exceptions, like doing things under force and obeying an order of a superior officer in good faith) we are legally responsible for it, so how is CZ different? Its not and cannot be. There is no diplomatic immunity for contributors to an Internet site. Stephen Ewen 04:17, 20 February 2008 (CST)

Stephen: this is not semantics. I repeat: it is not reasonable to expect people to know complex copyright laws in two or more countries. IT has nothing to do with diplomatic immunity: here you show your own lack of knowledge. It is a matter of applicable law, and since this is not resolved on the internet [after all, nobody even bothered to try] there are possible serious vulnerablities for CZ contibutors with real names. It is not like WP, where everything is anonymous: the realnames policy of CZ requires CZ itself to accept some responsibility for protecting its unpaid contributors. At the very least, we should put the General Caveat 2 as a Basic Warning for those people who do not live in the USA. I realise that those of you residing in the USA do not care, but the rest of us do. Martin Baldwin-Edwards 04:33, 20 February 2008 (CST)

Well, if I lacked of knowledge on this matter and didn't care, then why is this caveat already in the proposal? You are arguing about placement of the material. Sure, we can preface the entire final policy page with a small warning notice up top. Stephen Ewen 10:13, 20 February 2008 (CST)

Only US law applies to CZ, whose servers are in the USA. The law of Canada or France etc does not apply here. All the legal responsibility is born by CZ, and not by any individual, and there are no legal opinions or court cases otherwise. Let's not scare people, please, with false legal arguments. Richard Jensen 11:10, 20 February 2008 (CST)

When someone does an activity in their country, they are under the jurisdiction of that country's laws, and no where does legal responsibility for one's online activities transfer to the website of those activities--very, very obviously. Caveats #3 and #4 are accurate and needed. Stephen Ewen 11:28, 20 February 2008 (CST)

I wish it were so, Richard. As things stand, there are multiple applicable laws for all internet activities. These are not "false legal arguments" at all, and Richard's comment highlights the need to explain this VERY carefully to everyone. So, to explain it to Richard: a citizen of country A, who is normally resident in country B, but is on holiday in country C and wishes to add something to CZ, is conceivably bound by at least two legal jurisdictions [ie country C and the USA], but might also be held to account in countries A or B. Very messy.

Taking a simple case: I have absolutely no idea what [if any] fair use provision applies in Greek law. It is possible that there is no fair use provision. Existing copyright law here is an arcane mess, and at this moment rarely enforced in Greece. This does not mean that I cannot be sued for breach of copyright: it just means that I have no idea what my obligations and rights are. Under such terms, I will not contemplate claiming "fair use" rights in uploads to CZ.Martin Baldwin-Edwards 11:49, 20 February 2008 (CST)

Martin clearly understands this issue. Fair use doctrine is supposed to cause one to pause and consider. In the resulting policy page, I will add clear, cautionary verbige atop the page. Stephen Ewen 14:35, 20 February 2008 (CST)

Only CZ is legally responsible for the content of CZ's website. This bugaboo about "lawsuits" is silly....there are no lawsuits against 501-c3 corporations like CZ -- or like Wikipedia which has had no lawsuits re copyright at all and is vastly bigger than CZ. Richard Jensen 11:56, 20 February 2008 (CST)

Richard: all of my comments were about the legal duties of individual contributors. The legal position of CZ is an entirely different matter. As I mentioned above, it would be rather difficult to take legal action against uknown persons placing material on WP: this patently is not the case on CZ, and is potentially a problem. Please do not pooh pooh this whole issue just because you live in the USA, which makes it much simpler. Martin Baldwin-Edwards 12:11, 20 February 2008 (CST)

please give one real example of the "legal action" you are talking about. That we we can talk about something real. Richard Jensen 12:12, 20 February 2008 (CST)

The way I see it is that we are all volunteer employees to Citizendium. If I choose to write an article on Coca-Cola, and upload the company logo in good faith, believing that it is a fair use, the ultimate responsibility should fall to CZ, the legal entity, if it feels confident that the usage is fair use and it wants to maintain the image on it's website. Perhaps set up some sort of legal team to make decisions on this sort of thing. Personally, even if I am confident that something is acceptable under fair use, it is absolutely not worth it to me to run any sort of risk of litigation - and I believe your average citizen will feel the same way.

Also, perhaps this is showing my ignorance, but if say, Coke is upset about the usage of it's logo and contacts CZ about it - it just gets taken down and we don't worry about any kind of legal ramifications, correct? --Todd Coles 12:32, 20 February 2008 (CST)

Richard: you fail to understand law, if you think the only "real" things have already happened. This is particularly true with the internet. If you want an example, there are several cases of people imprisoned for posting to the internet in contravention of national laws. Will that do?

Todd: I agree with you completely, but there is no way at this time to transfer your legal obligations under national laws to become those of CZ. I think it could only be done with CZ as a publisher, therefore operating completely differently from WP. As things stand, those outside of well-understood legal juridictions (such as the USA or Canada) need to be very careful.Martin Baldwin-Edwards 12:39, 20 February 2008 (CST)

Martin suggests there are "people imprisoned" for various crimes. no doubt there are people in jail for many reasons. Can anyone name one involved in a fair use case? Answer: there are none. it's a myth. The less myth the better in serious discussions.Richard Jensen 13:16, 20 February 2008 (CST)

Gentlemen, "you fail to understand law" and "it's a myth" are indications that this discussion is verging on impolite exchanges of epithets...please keep it polite. Also, for my benefit if no one else's, can you please identify the exact line of the proposal that you are disagreeing about, and clarify how you would like your version to read? --Larry Sanger 13:21, 20 February 2008 (CST)

the proposal is OK with me as it now stands, (I do recommend we drop the needless statement Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless.) As for legal arguments, I think CZ-quality discussions require people to cite specific examples, with citations, rather than rumors or folk legends when dealing with serious isues.Richard Jensen 13:38, 20 February 2008 (CST)

The issue, Larry, is Caveats #3 and #4.

Richard, I've already said I will adjust that wording - will do so later today.

Stephen Ewen 13:57, 20 February 2008 (CST)

re caveat: Contributors should first follow the laws in their own countries. I can't see how it's controversial to recommend that people obey the laws of their country.

Whereas accusing someone of not understanding law is a polite expression, accusing me and others of expressing folk legends is insulting. There are serious issues here, and a dismissive attitude is not appropriate. The point, Larry, is that it must be expressed very clearly to people with limited comprehension of law that CZ does not carry the sole burden of legal compliance. Furthermore, in many countries it is not really clear what the law is on "fair use", therefore it is risky to guess what the law might turn out to be. The fact that some of the commentators on this page do not understand this is a problem. The solution is to warn, very starkly, everybody outside of the jurisdiction of the USA that there may be a problem with legal issues and "fair use".. Stephen has agreed this in principle. Martin Baldwin-Edwards 14:39, 20 February 2008 (CST)

I'm sorry if I insulted anyone, but Martin did repeat the false folk legend that people are in jail on the fair use issue. There are no such people and there are no lawsuits that Martin has cited, no law articles, no court cases. I have searched and not found them. If he has searched and found some, please tell us. So I challenge him on where he gets his ideas. All this warning/"risky"/"very starkly" is a gross exaggeration, I suggest, and wholly based on folk legend. what exactly is the risk, and has it every come into being anywhere? Examples please--names, dates, cases.Richard Jensen 16:14, 20 February 2008 (CST)

Let me suggest this issue just die right here. Richard, you have agreed to caveats #3 and #4, and it is reasonable to incorporate them more prominently atop the article to accommodate Martin's concern. Any other issues now? Stephen Ewen 16:27, 20 February 2008 (CST)

It was actually still-born, Stephen, but I agree. Martin Baldwin-Edwards 16:31, 20 February 2008 (CST)

New section

Personal legal responsibility

Well, maybe the grey matter is not ticking over properly here, because I'm still waking up, but I cannot believe that some of you fellows are treating serious and complicated legal matters as though they are a non-issue.

This is complex intellectual property law, Stephen, it is NOT the same thing as saying that it is my responsibility to find out that it's illegal to steal in Pittsburgh, should I choose to travel there.

Todd said:

The way I see it is that we are all volunteer employees to Citizendium. If I choose to write an article on Coca-Cola, and upload the company logo in good faith, believing that it is a fair use, the ultimate responsibility should fall to CZ, the legal entity, if it feels confident that the usage is fair use and it wants to maintain the image on it's website. Perhaps set up some sort of legal team to make decisions on this sort of thing. Personally, even if I am confident that something is acceptable under fair use, it is absolutely not worth it to me to run any sort of risk of litigation - and I believe your average citizen will feel the same way.[emphasis added]

D* straight, mate!

Look, the proposal says

1. Contributors are responsible to become familiar with U.S. fair use doctrine before uploading materials to use under fair use, and will be personally legally responsible for their own uses of fair use materials.
2. The laws of some countries regarding the equivalent of fair use are not consistent with U.S. laws. Contributors should first follow the laws in their own countries. Other contributors where this may not be an issue are probably willing to upload fair use materials for others, in that case

"will become personally legally responsible" blah blah. Are you kidding? Richard says, if I understand you correctly, that this is fine because it's based on US law, which, the caveat says, we should all know. Really? How many pages of arguable legal mumbo jumbo at umpteen hundred dollars per hour is that?

Martin is quite right when he points out that we are not working in the anonymous environment of Wikipedia. Our responsibilities and personal accountability come clearly into focus.

"other contributors where this may (note "may", you're not even willing to take a stand on whether it is or it isn't, but the individual contributors are supposed to) not be an issue are probably willing to upload fair use materials for others," blah blah

Not unless they're b* idiots, they won't be.

Look, what this in essence says to me, is that I can be sued by ACME Inc. and risk losing the farm (literally, in my case) over uploading what appears to be a perfectly innocent and legitmate use of fair use material, it's my lookout, not CZ's. Risk my entire life savings over a volunteer contribution to a hobby project? Not in this lifetime, I won't. I've got animals to feed and a child to put through university.

Well if you all agree that this is worth the risk, there is little I can say: you can all outvote me and proceed accordingly, but I won't be uploading anything. Ever.

Now, I'm sure someone will tell me if I've completely misinterpreted what they've said. Go slowly. Use small words. I'm putting the kettle on.

Aleta Curry 17:06, 20 February 2008 (CST)

The solution is never to claim "fair use" unless you know full well that you are legally safe doing so. I will not be claiming it. (Those who are not concerned about it seem to be residents of the USA, where it is not a big deal) Probably Oz law is close to UK law, but you would have to check it out thoroughly. And maybe your time would be better spent doing other things:-) Martin Baldwin-Edwards 17:39, 20 February 2008 (CST)

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