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Fair Use need for rationale on Wikiversity
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We have been discussing the need for the Fair use rationale with Fair use images on wikiversity. Here's the url=https://en.wikiversity.org/wiki/Wikiversity:Community_Review/Fair_Use.

As Wikiversity is the only WMF project specifically dedicated to education, teaching, and research. (It's on our Main Page.) Here's the quote:

"Wikiversity is a Wikimedia Foundation project devoted to learning resources, learning projects, and research for use in all levels, types, and styles of education from pre-school to university, including professional training and informal learning. We invite teachers, students, and researchers to join us in creating open educational resources and collaborative learning communities."

Requiring the non-free media rationale for fair use images has already been met. Can we get WMF-Legal opinion on this?

US Copyright Law does not require such a rationale for education, teaching, or research uses. One of us is convinced that we must provide it. I'm convinced that en.Wikiversity as the WMFs only declared educational project, has already been provided for all such Fair use declared images.

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All of the other WMF projects do not use words like "education", "teaching", or "research" on their Main Pages. This means they must provide a Fair use rationale, or Non-free media rationale, for images so that re-users are aware how the images are fair use.

@Marshallsumter, we'll take a look and get back to you shortly.

Thanks for reaching out to WMF-Legal on this!

Content on en.Wikiversity (and all the other projects), of course has to comply with both official Wikimedia policies and the law. The licensing policy is designed to ensure as well as possible that if content complies with the policy’s requirements it will also comply with the legal requirements. That’s why the policy requires exemption rationales for each piece of media uploaded under an Exemption Doctrine Policy (or "EDP")—to make it clear why the media falls under an exemption, and therefore why it is legal for it to be hosted on the project.

Fair use content is indeed allowed under the licensing policy and en.Wikiversity’s EDP. However, the term “fair use” is less of a rationale in and of itself and more of a shorthand for a somewhat complex analysis. The rationale given for a piece of media should provide at least some of that analysis. The EDP makes that easier by outlining some of the most common or important considerations for fair use. For example, under the EDP, “[a]n entire copyrighted work is not used if a portion will suffice.” This corresponds to the “amount and substantiality” factor in fair use analysis—a use is more likely to be a fair use if it uses only a small portion of a copyrighted work.

Another factor in fair use analysis is “the purpose and character of the use”. This is the factor where it matters that Wikiversity is an educational project. The factor weighs heavily in favor of a use being a fair use if it is for “nonprofit educational purposes”. The “purpose and character” factor is but one of four, however, and the other factors can outweigh it. For example, consider if someone uploaded a high-quality scan of an entire textbook to Wikiversity. The “purpose and character” factor may point toward fair use, because the textbook was uploaded for “nonprofit educational purposes”. However, two other factors would weigh against fair use: “the amount and substantiality of the portion used” and “the effect of the use upon the potential market for or value of the copyrighted work.” Uploading the entire book makes a weaker case for fair use than uploading only a small portion would have, and having the entire book available for free on Wikiversity would probably have a substantial impact on the market value of the book (few people would buy it when they can get it for free). As a result, the scan of the textbook would probably not be covered by fair use.

I hope this explains why it’s important for non-free media, even on Wikiversity, to be accompanied by exemption rationales, and ones more detailed than simply “fair use”.

If you’re interested in reading more about fair use, there are some good resources from Stanford University Libraries and EFF.

Thank you for your comments!

Regarding the copy and upload of an entire textbook example: that has actually happened at Wikiversity and I either deleted it or put it up for deletion as it was a pdf copy of the entire textbook.

Images or pictures seem to be where our disagreement lies. Regarding the four points: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, is I believe we agree automatic for Wikiversity usage in resource space and does not need to be in the rationale; (2) the nature of the copyrighted work, is usually handled by our EDP which requests a description; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; usually images are from publications, so they are much less than the whole. Others are from the internet, say found by Google Image. These if verified as coming from a .edu or NASA, ESA, so we know they are real, are some unknown portion of the original unless we can find the original. Let's say it is an entire image from ESA. ESA usually only requires educational uses only. (4) the effect of the use upon the potential market for or value of the copyrighted work. With respect to the textbook, it's tougher to call because some who might see a full copy on Wikiversity might want an actual copy of the book themselves. But, we delete these anyway. The images are easier. As a scientist I can verify that having our images, even the whole image, show up here or any .edu increases the value of our work. I almost always received a grant from the US government (DoE, DoD, US Navy, e.g.) and we were fully compensated, so I'm very in favor of Congress passing the Public Domain classification of all our image and publications. But, that hasn't happened yet for those who also worked for a University. I worked for the University of Chicago for quite a while, yet the funding was from DoE. This info is usually in the url for the image. I've looked at the rationales for other sites like Wikipedia but these do not apply because of (1). Stating the work is unique doesn't really matter. Just FYI but I'm very sure unless you or someone knows of an example to the contrary that no case has gone against (1) for images. The whole textbook sure but not an image whether a stand alone piece of art or from a textbook. So beyond what we already add as included in the image I used as an example in our discussion, what would we add as the rationale?

Part of the reason I'm asking for help with the Wikiversity rationale is that we may be able to use a bot to add something WMF believes is critical so that perhaps hundreds or thousands of images which are legally okay under Fair use do not get needlessly deleted. For example, a bot could add "This image is a portion of the original." This coupled with (1) and (2) should out weigh (4) under all circumstances even those hypothetical. What do you think?

One situation that has arisen concerns uploads by an author or creator of many images. The author has designated most as Public Domain (PD), uploaded them to Commons, but did not do so for one or a small number, less than 50 %. I believe it would be inappropriate for me or anyone other than the author to designate those he/she apparently forgot, as PD, but I believe it is legally okay to designate them as Fair use, attributed to the author/uploader, with the author's title or description, thereby complying with (1) and (2). Deleting these images are more than likely going to lower any potential market value. What do you think?

A second, more common situation has arisen due to deletions of NASA published images from Commons where no copyright has been stated beyond the usual of PD for NASA images. Here a rationale has been used on Commons that another entity say ESA has been involved in the collaboration and has not contacted anyone at OTRS to let a volunteer know that they consider their contribution as PD. Another section of the US copyright law requires government agencies to check beforehand. I've uploaded these as Fair use rather than PD because I don't want them transferred to Commons only to be deleted yet again. What do you think?

Just FYI, but all of the cases of "not Fair use" on [http://fairuse.stanford.edu/overview/fair-use/ Stanford University Libraries] and the [https://www.teachingcopyright.org/handout/fair-use-faq EFF] are for commercial uses, not, education, teaching, and research. On the second site, for (1) "Commercial uses can still be fair uses, but courts are more likely to find fair use where the use is for noncommercial purposes." such as Wikiversity, for (2) "A particular use is more likely to be considered fair when the copied work is factual rather than creative." such as Wikiversity, for (3) "Copying nearly all of the original work, or copying its "heart," may weigh against fair use. But "how much is too much" depends on the purpose of the second use." again see (1), for (4) "Uses of copyrighted material that serve a different audience or purpose are more likely to be considered fair. " again see (1). I hope this helps.

One often frustrating aspect of U.S. fair use law is that it is very difficult to make categorical conclusions about what is or is not a fair use. The statute lists four factors, but those factors are not necessarily exhaustive, nor do they provide clear guidance in all situations. Courts have subjected each factor to much discussion and further analysis, creating additional tests and sub-factors and so forth. As a result, I can't say with certainty that, for example, a strong argument against fair use based on one factor will never outweigh a strong case for fair use based on the other three.

The complexity of fair use analysis makes it very case-specific. In order for a bot to add accurate fair use rationales to images, it would probably need to run on fairly closely-defined categories of images. Categorization based on broad generalizations is likely to produce inaccurate fair use analysis.

That said, it is up to the en.Wikiversity community to enforce its own EDP. That includes determining how long to wait to delete a non-free image that doesn’t have a proper fair use rationale and deciding what fair use tagging bots to allow. We will take down images as required by law if we are asked to by the copyright holder, but we do not and cannot monitor all non-free content to make sure its rationale complies with the project’s EDP and the licensing policy.

I’m not sure I understand the questions about public domain designations and how they relate to the EDP issues. Could you perhaps provide some examples and further explanation?

Finally, a couple clarifying points:

  • The “work” at issue for an image will almost always be the image itself (as long as it meets the requirements for copyrightability), even if the image was published as part of a larger work. Images will usually be independently copyrightable and have a copyright separate from the copyright of a larger work that contains the image. So, an entire image taken from a larger work probably is not a “portion of the original” when it comes to fair use analysis.
  • In their evaluation of the effect of a use on the potential market for or value of a work, courts typically focus on monetary value and not reputational or scholarly value. It may be the case that scientists and academics gain reputational value or experience personal or professional satisfaction when images they create are used shared, even if they don’t get any money from it. However, there could still be a market for those images that places a monetary value on them if the authors chose to sell or license them.

Here's an ongoing example of debate about an apparent public domain image, url=https://commons.wikimedia.org/wiki/Commons:Deletion_requests/File:Rcw86_420.jpg. The image was initially uploaded as PD because it is on a NASA site that does not indicate a copyright other than the usual NASA PD. One of the reviewers at Commons noticed that a portion of the image is from the ESA (European Space Agency) X-ray telescope XMM-Newton. I am using the image on Wikiversity. To prevent loss from an educational and research resource, I uploaded a copy to Wikiversity and labeled it Fair use, url=https://en.wikiversity.org/wiki/File:Rcw86_420-1.jpg. NASA posts images as PD after checking with all parties involved. But commons operates under the precautionary principle. If someone from ESA doesn't contact a Commons OTRS volunteer to confirm their portion is PD then Commons deletes the image. If the whole image, including the portion from ESA really is PD then Fair use is unneeded. But, without some confirmation of this Commons will delete the image. The problem with the Fair use rationale is what to say. When I have checked with individual scientists such as Jacco Vink, they have always confirmed by email that their image is PD, but they usually have no idea how to get this information to an OTRS volunteer at commons, so their images get deleted anyway. If I upload the image to Wikiversity as PD which it likely is, it gets transferred to Commons and they delete it again. To prevent its loss and continue to have it for my resources here on Wikiversity I designate it as Fair use. I hope this helps with "I’m not sure I understand the questions about public domain designations and how they relate to the EDP issues. Could you perhaps provide some examples and further explanation?".

Keeping in mind the limitations you've indicated, here's a possible general all-in-one rationale that will likely fit nearly all current fair use images at Wikiversity: To serve the noncommercial different purposes of education, teaching and research, the copied image, at least the "heart" of the image as needed, is for factual presentation only. What do you think?

Those experiences with keeping up content that you believe to be public domain do indeed sound frustrating. Thank you for providing more specific examples.

When you’re deciding what to include in a non-free content rationale, I’d recommend thinking about it in terms of what other users would find most helpful. When someone is just looking at the image page (and not necessarily at other pages that use the image), what do they need to know about why the image is allowed to be there? What information would best inform them about whether and how they can use the image elsewhere? I think those are some of the more important considerations behind the rationale requirement—the legal issues are somewhat secondary.

Unfortunately, I can’t give approval for any specific rationale language for you to use. I would hope, though, that others in the en.Wikiversity community (or other Wikimedians who have an interest in copyright) would be interested in working with you to craft the language for templates and such.

Thank you for your kind comments and help with these matters!

I've put an announcement on our colloquium about this matter at url=https://en.wikiversity.org/wiki/Wikiversity:Colloquium#Rationales_for_Fair_use_images so I'd like to keep this task open for additional questions should there be any.

We appear to have a template, here's the url=https://en.wikiversity.org/wiki/Template:Non-free_media_rationale, that allows us to place a fair use rationale on the file page. While one of us has stated this is official Wikiversity policy, I can find no community review of this until now nor any voting or consensus agreement that this is our community agreed-upon policy. I may have missed where this has been archived.

The template contains two lines that may satisfy the "why" of the fair use rationale:

  1. not free; i.e., "Why free licensed or public domain alternatives cannot be used or created" and
  2. rationale; i.e., "Why a book or module requires the use of this media".

These two can be easily combined into something like

Rationale = No free licensed or public domain alternatives to show flooding caused by the melting of Drift Glacier on Mount Redoubt during 2009 eruption.

The image referred to here is one of our fair use ones. Does this type of wording or a combination of these two parts appear to satisfy the why?

Another possibility would be "No free licensed or public domain alternatives are known to exist to show ... at some historical event in the past.", where the details need to be filled in per the image as in the above example.

The author of this apparent or suggested policy used the username of [[User:ViperSnake151|ViperSnake151]]. Is/was this person a representative of WMF-Legal around 12 August 2008‎?

Thank you in advance for your kind consideration of these alternatives and whether they come close to satisfying the "why" of the fair use rationale.

Nemo_bis added a subscriber: Nemo_bis.

The licensing policy is a policy matter, not mainly a legal matter. If something in the interpretation of the policy is unclear to you, please ask at https://meta.wikimedia.org/wiki/Talk:Non-free_content
As this seems to be an issue specific to a single subdomain, or perhaps some users of it, I advise to open a discussion only after having drafted an alternative EDP that you need opinions on.

Actually, the words and text supplied by WMF-Legal adequately addressed both concerns. Based on their comments, I was about to ask that this task be closed as complete. The task is not invalid.