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"the US is not the world, folks"

More discussion on the US "bias" in the fair use article is below in the "organizing this & related entries" section. --LQ 14:54, 15 November 2006 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2006-11-15T14:54:00.000Z","author":"Lquilter","type":"comment","level":1,"id":"c-Lquilter-2006-11-15T14:54:00.000Z-Discussion","replies":[],"displayName":"LQ"}}-->

- Couldn't agree more, however for what it's worth we need to remember that the Wikipedia is physically located in USA / USA jurisdiction (right?) and needs to conform to US laws on this.

This is a wikipedia-specific point; this discussion page is about discussing the article about the US fair use doctrine. --LQ 14:53, 15 November 2006 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2006-11-15T14:53:00.000Z","author":"Lquilter","type":"comment","level":1,"id":"c-Lquilter-2006-11-15T14:53:00.000Z-Discussion","replies":[],"displayName":"LQ"}}-->

http://us.news2.yimg.com/us.yimg.com/p/nm/20021105/mdf143864.jpg

is this pic fair use for THEL Lir 18:52 Nov 8, 2002 (UTC)

This is a wikipedia-specific point; this discussion page is about discussing the article about the US fair use doctrine. --LQ 14:53, 15 November 2006 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2006-11-15T14:53:00.000Z","author":"Lquilter","type":"comment","level":1,"id":"c-Lquilter-2006-11-15T14:53:00.000Z-Discussion-1","replies":[],"displayName":"LQ"}}-->

I've started trying to fix some of the US bias in the page (saying more about fair dealing, linking to the Berne three-step test, etc). But it's quite hard.

Perhaps the page should be split into:

• Limitations and exceptions to copyright
• Fair use (covering the US and any other countries with similar doctrines, I believe there are a few whose laws were modelled on the USCA)
• Fair dealing (the UK, Australia, etc)
• A page on the limitations and exceptions models found in civil law countries, which I know very little about.

Some of these links might be useful, although I'm sure I've seen a better summary of global limitations & exceptions, I just can't find it right now:

http://www.iprights.com/countrydata/index.asp http://www.unesco.org/culture/copy/index.shtml

Pde 00:22 Jan 30, 2003 (UTC)

More discussion on the US "bias" in the fair use article is below in the "organizing this & related entries" section.

It has been said that, with regard to images on Wikipedia, we are a non-commercial entity, granting us greater leeway in using images. Of course, others can use Wikipedia material for commercial purposes but it is those who choose to use Wikipedia material who are responsible for determining if their use is fair use. Is this correct? Tuf-Kat

Well, in a sense, but there are a whole lot of problems with this reasoning:

1. As this entry points out, "fair use" does not exist in all countries.
2. The fact that Wikipedia is non-commercial does not guarantee that a court would find all Wikipedian uses to be fair.
3. Occasionally, we may slip up and fail to label works for which we don't have GFDL license. If this happens, and someone takes material from the site, and makes an infringing use of it, we could be guilty of either misrepresentation or contributory infringement/authorisation of infringement, depending on the jurisdiction.

Maybe we should instead put up notices in entries saying "person or organisation BLAH has refused to provide us with an image which can be used in Wikipedia".

--Pde 04:44 Apr 16, 2003 (UTC)

This is a wikipedia-specific point; this discussion page is about discussing the article about the US fair use doctrine. --LQ 14:53, 15 November 2006 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2006-11-15T14:53:00.000Z","author":"Lquilter","type":"comment","level":1,"id":"c-Lquilter-2006-11-15T14:53:00.000Z-Discussion-2","replies":[],"displayName":"LQ"}}-->

Explaining a recent edit: fair use is respected by every Berne Convention signatory: that's a hundred and fifty something countries -- basically everywhere copyright law exists. -- Tim Starling 03:25 Apr 28, 2003 (UTC)

Hi Tim!

Fair use isn't respected by every Berne signatory. The Berne convention places restrictions on what kinds of "limitations and exceptions" signatories can enact in their national laws (see Berne three-step test), but it doesn't require members to provide "fair use", or any other kind of exceptions. As I mentioned above, I believe there may be a handful of developing countries outside the US which actually have "fair use" rules (as opposed to "fair dealing" rules, or other kinds of exceptions), most likely because their copyright laws were modelled on those of the United States, but I don't have examples at hand. -- Pde 04:37 Apr 28, 2003 (UTC)

I see. I must have been mislead by this:

It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

Hmmm. Interesting. I've never noticed (nor come across discussion) of Article 10(1), but it does seem to be quite different to all the other Berne Articles covering limitations and exceptions. While it certainly isn't as extensive as "fair use", or even "fair dealing", it does appear to be a small, international, exception. I'm going to do some further research on it. —Preceding unsigned comment added by Pde (talk • contribs) 04:18, 29 April 2003 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2003-04-29T04:18:00.000Z","author":"Pde","type":"comment","level":1,"id":"c-Pde-2003-04-29T04:18:00.000Z-Discussion","replies":[]}}-->

I read that as a requirement but I guess I was mistaken. Anyway, since you haven't reverted my change to the article I take it you're happy with the current intro? -- Tim Starling 05:01 Apr 28, 2003 (UTC)

I've decided you're right and I'm wrong so I reverted my change. It's unfortunate that the US calls it "fair use" and various other places call it "fair dealing". The naming of the article (and the redirect from fair dealing) makes it hard to discuss the international common law concept, at least in the intro paragraph. -- Tim Starling 06:47 Apr 28, 2003 (UTC)

Well, the names being different is actually helpful, because there is an important difference in construction between "fair use" and "fair dealing" (the former being open-ended). The redirect will have to go, and sooner or later I'll get round to creating a new structure for this article (split into "limitations and exceptions to copyright", "fair use" and "fair dealing"). -- Pde 04:18 Apr 29, 2003 (UTC)

We really do not understand the following passage for translation

I will try to clarify it for you. Alex756

"In regards to the digital reproduction of images it may be argued that a lower resolution sample of the image (i.e. thumbnails) is a lesser sample of the image (the sound recording sample is not analogous here) and thus the whole image is only being approximated by the lower resolution sample (limiting futher reproduction outside an informational context)."

Digital reproduction : reproduction of digital images ?

No. It is a digital version of an image, i.e. you scan a photograph. --Alex756

lower resolution sample (ie thumbnails) : does that mean that part of the image is extracted, resulting in a sample of the original image, of a smaller size, but same quality. Or does that mean the whole image is downsized, and subsequently may lose some quality ? Or does that combine both point ? extraction, and reduction of size ?

A thumbnail is a small copy of the image. If you do a search on http://images.google.com/ you will get a list of thumbnails. Some people may call any smalller copy of an image a thumbnail, i.e. the digital reproduction is a thumbnail. Or it may be a reduced resolution version of a digital image, i.e. the original is 1200px x 800px and the reduced thumbnail is 300x200px. --Alex756

the sound recording sample is not analogous here : is it sample as "a little piece of" or sample as an "electronic extraction" ? And is analogous here means "similar" or is it to be compared to "digital" ?

"sampling" has been litigated in the context of musical sounds. Any sample, no matter how low the resolution (i.e. sampling rate in digital sound technology) of the sound, if it is a copy of a live sound. --Alex756

Anthère 23:41, 15 September 2003

Hope that helps. I will look over the French version and see if it is inaccurate. Alex756 00:06, 16 Sep 2003 (UTC)

Hopefully, that is correct. What do you think ? I fear the french wiki is too slow to end up the translation today. Anthère

fr:Fair use translates "fair" as "loyal", meaning "accurate" as in a "fair copy". Is this the correct meaning? I assumed it was "fair" as in "reasonable". Does anyone know? -- Tarquin 15:09, 7 Dec 2003 (UTC)

this has been discussed in length on fr Tarquin, and the conclusion was that there was not any translation for that word and notion of fair use. This is also why we kept the mention "fair use" instead of translating it. ant (User:Anthere 21:31, 7 December 2003 (UTC)

Anthere, I don't think you understand my question. fr:Fair use says: "Aux États-Unis, le fair use, (usage loyal)....". It IS translating! -- Tarquin 23:39, 7 Dec 2003 (UTC)

Nod. on devrait supprimer ce qui est entre parenthèse. C'était une version initiale. Avec Alex, on avait conclu -> pas de traduction... --Anthere 23:47, 7 December 2003

Ah! Compris. Je pense cependant que les anglophones ici pourraient repondre a la question, ce qui nous permettrai une traduction vague au moins. -- Tarquin 23:50, 7 Dec 2003 (UTC)

I'm thinking that the third paragraph under "fair use: a defense" should be deleted. This discussion of frivolous lawsuits is nothing specific to copyright but instead relates to any instance of litigation. Unless someone can point to a law that specifically singles out frivolous lawsuits filed by those who know that the defendant has a valid fair use defense, none of this is really appropriate here.

Re: US bias, "fair use" is a uniquely American concept, unless I'm mistaken in thinking that no other country uses the same term. There's a separate entry for "fair dealing," as there should be for any other differently named concept that is also different in substance. -- Postdlf 13:54, 31 Mar 2004 (EST)

Can someone explain, succinctly and to the point in the first few paragraphs, what exactly is fair use? This is a term used only in the US, yet one has to go through all the officialese rumblings without getting a fair idea of what it is. Essentially people who write this article knows what it is; people who don't in the first place would hardly benefit from reading the article. Mandel 12:56, Aug 14, 2004 (UTC)

It's tough to be succinct because fair use is deliberately non-specific. I'll try to make it clearer. Jamesday 16:59, 18 Aug 2004 (UTC)

Also: This page lists fair use as an affirmative defense. Only one court case I've found lists fair use as an affirmative defense, which has a specific legal meaning. The lawyers I have spoken to about this specific subject state that fair use is not an affirmative defense (putting the burden of proof on the defendent as this Wikipedia summary would suggest). Fair use, by definition, is not copyright infringement and thus does not have that same burden of proof as an affirmative defense might. —Preceding unsigned comment added by 146.6.168.25 (talk • contribs) 23:56, 19 October 2004 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2004-10-19T23:56:00.000Z","author":"146.6.168.25","type":"comment","level":1,"id":"c-146.6.168.25-2004-10-19T23:56:00.000Z-Affirmative_Defense","replies":["c-Lquilter-2006-09-17T17:25:00.000Z-146.6.168.25-2004-10-19T23:56:00.000Z"]}}-->

There really isn't a burden of proof, per se, but that's not determinative of whether or not something is an affirmative defense. What makes it an affirmative defense is that for it to become relevant, the conduct in question must have otherwise infringed one of the copyright holder's exclusive rights. First you must ask, does the plaintiff have a valid copyright, and did the defendant copy, distribute, etc, that copyrighted material so as to constitute infringement? If no, then you're done. But if yes...then pleading fair use is the same as any other affirmative defense, in which you basically say "well, yes, I did do that, BUT..." Put simply, the "yes" is the affirmative, and the "but" is the defense. And while it may not amount to a burden of proof, it is still the burden of the defendant to raise and argue it, and it typically will help if the defendant has supplied sufficient facts about his use to aid in the fair use analysis. Postdlf 00:15, 20 Oct 2004 (UTC)

I think the term might be misleading- fair use is neither a defense nor a right; it's an exemption to copyright. The link to the affirmative defense page in this section implies that fair use is an affirmative defense in the technical sense, which it's not.

Returning to this subject: I don't believe that fair use is an affirmative defense in a legal sense (in the US). Fair use does not imply a burden of proof on either the accuser or defendent. The statute does not read that fair use is brought up as a defense against infringement, but states that fair use is not an infringement of copyright.

RESPONSE:

The U.S. Supreme Court has expressly ruled in Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994), that fair use is an affirmative defense.

Probably it would be helpful to clarify what an affirmative defense is and is not. It is a procedural classification; so "fair use is an affirmative defense" has a procedural meaning. It should *not* be confused with rights-based narratives although it often is ("Fair use is a defense not a right"). LQ 17:25, 17 September 2006 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2006-09-17T17:25:00.000Z","author":"Lquilter","type":"comment","level":2,"id":"c-Lquilter-2006-09-17T17:25:00.000Z-146.6.168.25-2004-10-19T23:56:00.000Z","replies":[],"displayName":"LQ"}}-->

I have a question, might as well be asked here: do photographs of say a piece of art, or a scientific museum exhibit, fall into fair use? see: [Images from Smithsonian] for a bunch of pics of dino bones at the Smithsonian Museum. Does Smiths own the rights to those photos, or does the photographer? Mackinaw 06:41, 2004 Nov 24 (UTC)

Mackinaw, yes. Photographs of copyrighted works are the owner of the photographer. See 17 USC 102 (b) which says

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Copyright protection doesn't extend to the idea but does extend to the expression of the idea. This is called the idea-expression dichotomy. For example, let's say I drew a picture of a happy face. The idea of my painting is a happy face. The epxression is the exact way I've painted it. I don't own a copyright in a happy face; if someone else draws a picture of a happy face, he hasn't infringed on my copyright _unless_ he has copied my expression of the idea (unless his happy face looks pretty much like a copy of mine). The comment below about a photo of a copyrighted work being a derivative work is correct. So, I think in most cases a photo of a copyrighted work is not automatically fair use. Of course, an analysis of the fair use factors may lead to a determination that a specific photo is fair use. Reubgr 06:42, 24 January 2006 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2006-01-24T06:42:00.000Z","author":"Reubgr","type":"comment","level":1,"id":"c-Reubgr-2006-01-24T06:42:00.000Z-Fair_Use_Photos","replies":[]}}-->

So anything copyrighted embedded within a photograph is not under copyright protection. So you can take a picture of a logo and the owner of the logo can't claim copyright ownership of the picture. As the creator of the photograph you are entitled to copyright protection. I'm not a lawyer, but that's how I read it.

I'm not a lawyer either, but I'm certain you're reading it wrong. If what you say is true, then I could produce mass copies of a book, film, or other work with impunity simply by photographing its pages/film cells and reassembling said photos into a new book or film reel. Psychonaut 14:44, 30 Nov 2004 (UTC)

Except your work becomes a derivative work, then section 102 (2) steps into play. The above quote relies on fair use. Taking a picture of a book is fine, but taking a picture of every page is reproduction. Just because one picture is valid doesn't mean taking thousands of pictures and putting them together is valid as well. Cburnett 16:22, 30 Nov 2004 (UTC)

In addition to this, how about a screenshot of a tv show or movie? Presumably it would be fair use considering it's one frame out of 10s of thousands of frames (32,000 frames for 22 minutes @ 24 fps). Cburnett 04:16, 30 Nov 2004 (UTC)

And to answer my own question: yes. 17 USC 109 (c) or under fair use.

Actually, Lawrence Lessig talks about a documentary film-maker who had to get clearance because at one point the simpsons were playing in the background. It took a year and $10,000 (I think). While in court "Fair Use" might win here, the cost of using the courts makes it impossible. But in the case of my question(re: photos of museum exhibits), I guess it is fair use.

I just received a message from the user Jaranda, saying not to replace "free use images" with "fair use images", as it "isn't allowed". Why is this so? Why does Wikipedia even have fair use items, then?

--71.119.29.143 18:23, 16 September 2006 (UTC)--Carnyfoke__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2006-09-16T18:23:00.000Z","author":"71.119.29.143","type":"comment","level":1,"id":"c-71.119.29.143-2006-09-16T18:23:00.000Z-Fair_Use_Photos","replies":["c-Jmabel-2006-10-05T05:58:00.000Z-71.119.29.143-2006-09-16T18:23:00.000Z"]}}-->

The short of it is: images are allowed on a fair use basis only when there is no appropriate free use image. And, in fact, it is even more restrictive than that, in that sometimes we'd rather have nothing at all than fall back to "fair use". Beyond that, though, the present talk page is really for working on this article. This discussion about Wikipedia policy would be better pursued at Wikipedia talk:Fair use. - Jmabel | Talk 05:58, 5 October 2006 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2006-10-05T05:58:00.000Z","author":"Jmabel","type":"comment","level":6,"id":"c-Jmabel-2006-10-05T05:58:00.000Z-71.119.29.143-2006-09-16T18:23:00.000Z","replies":[]}}-->

This might be a bit off topic, but would it be legal to download Amazon's music samples, convert them to OGG, and upload them to WikiMedia? -Archagon 23:16, 31 Dec 2004 (UTC)