Wikisource talk:Copyright policy

Discussion predating April 2006 rewrite

Discussion in this section refers to the pre-April 2006 revisions of the copyright policy (see changes).

Copyright law(s) used at Wikisource

What is the copyright law(s) relevant on Wikisource? Is it the American copyright law? The problem arises with works of authors from countries with different copyright law than the US. Is the date of publication or the death's date of the author which matters? Several cases I can see:

• Works of M. K. Gandhi (1869-1948) and of Indian authors who died after 1943 published before 1923. (public domain in India: death + 60 years)

• Works of Rabindranath Tagore (1861-1941)?

• Works of French authors who died after 1933 published before 1923. (public domain in France: death + 70 years). Examples: Raymond Boudon, Henri Duvernois, Maurice Leblanc, Henri Bergson, Ernest Pérochon, Romain Rolland, Jean Giraudoux, Pierre Drieu La Rochelle, Paul Valéry, Tristan Bernard, Georges Bernanos, André Gide, Colette...

• Works of French authors who died between 1923 and 1933. Examples: Albert Londres, Georges Courteline, Gaston Leroux.

Yann 11:46, 3 Dec 2003 (UTC)

Surely the cut-off date we quote should increment year on year. If its 70 years after the death of the writer, then the date ought to be 1925, not 1923 we are using. Apwoolrich 13:31, 22 September 2005 (UTC)

Here is some basic copyright info User:Zhaladshar/Copyright#Published_works. There is an interesting two paragraph discussion of international copyright law from a google lawyer regarding the google print project here. --CSN 22:33, 22 September 2005 (UTC)

I consider that we have to obey BOTH the American Copyright Act and the laws that apply to where works have been published.--Jusjih 00:12, 2 February 2006 (UTC)

I don't think I'm not sure what you're saying. Are you saying that in posting a text, we need to consider its copyright status in America and its copyright status in the country in which it was originally published?—Zhaladshar ^(Talk) 00:27, 2 February 2006 (UTC)

That is what I think. What I do is check the copyight law in the country in which it was originally published first. American Copyright Law applies especially in case of claiming fair use, but it is not preferred here.--Jusjih 08:08, 10 February 2006 (UTC)

Licence(s)

Which licence(s) to use for texts which I have written and I would like to publish on Wikisource? Apart from public domain and GFDL, is there any other possibility? Yann 12:06, 3 Dec 2003 (UTC)

Something compatible with the GNU Free Documentation License. The Wikinews community has decided that Creative Commons Attribution 2.5 is compatible with the GFDL. --Benn Newman 01:01, 10 November 2006 (UTC)

Please answer this question, and make it clear on the page. For example can a text tagged with "Verbatim copying and distribution of this entire article is permitted in any medium, provided this notice is preserved." be uploaded to Wikisource? --213.67.47.131 21:31, 31 August 2005 (UTC)

No, derivative works must be allowed per the GFDL. --Benn Newman 01:01, 10 November 2006 (UTC)

Possible copyright violations

It is inevitable that people will submit copyright materal. If you come across a text which you believe is a copyright violation please list it at Wikisource:Possible copyright violations.

Exceptions for copyrighted work?

I believe that some works might be appropriate on WikiSource despite their copyright. One such example would be music lyrics. These are undoubtedly copyrighted to the artist or producer, but are stil avaliable on thousands of web pages. The copyright owners don't seem to take the trouble to prevent their spread, quite the opposite in fact. Could these be posted on WS? (If you can think of other possible copyright exceptions, please post them here.) --Hymyly^TC 20:07, 25 November 2005 (UTC)

I would strongly advise not to post them here. Yes, while the copyright owners don't seem to care, it is still their copyright and we have no permission to post them. As Wikisource is a part of the Wikimedia Foundation, we must keep in mind that we are to operate at a level of professionalism that other sites might not feel the need to operate at. Unless we can get permission, the lyrics will most likely be marked as a copyvio and deleted soon thereafter.—Zhaladshar ^(Talk) 22:21, 30 November 2005 (UTC)

I agree Zhaladshar's opinion. Even if the copyright owners may not be caring, it does not automatically grant copyright. Fair use is extremely unlikely here.--Jusjih 00:15, 2 February 2006 (UTC)

No derivative works?

Hello, I need some advice. In el.wikisource some other user has received permission from a well-known greek author to publish in wikisource all texts that are already published in the author's website (about 350 texts) but with some restrictions. He wrote: "The texts that I have in my website are free for anyone for redistribution, as long as there is attribution to the author and source - and as long as there are no abridgments and changes. So you can in any way add these in Wikisource. N.D."

That means the texts are not public domain, and not free to the spirit of GFDL, but instead are on a license like Creative Commons-Attribution-No Derivative Works cc-by-nd. Of course wikisource is just a collection of texts and in fact any changes to original texts should be avoided, but if we put these texts with this license notice, would this break the GFDL notice on the pages? --62.1.129.95 00:12, 10 February 2006 (UTC)

Please see the Foundation-I mailing list. This has actually come up over there. It seems that all submissions to WS must be either public domain, GFDL, or GFDL-compatible. I'm not familiar in the slightest with CC licenses, but if the CC-by-nd is GFDL-compatible, then feel free to add it. If not, you might want to rethink it. Again, read up on what's going on over there; this is a bit confusing--especially since WS is getting different opinions from different people who know what they're talking about.—Zhaladshar ^(Talk) 21:38, 22 February 2006 (UTC)

Fair use

Would anyone mind me changing this page around to reflect our policy of not accepting fair use documents?—Zhaladshar ^(Talk) 21:33, 22 February 2006 (UTC)

I cannot think of any reason not to make that clear. Jkelly 22:30, 22 February 2006 (UTC)

The project page says: "Fair use will not apply to most Wikisource material. Fair use depends on using no more of the text than is required for the purpose; our efforts to include whole texts is what usually makes it less likely to apply here." Therefore, fair use is already discouraged here. As I have reviewed the project page, I have not found notations expressly forbidding non-commercial licenses, including Template:UNCopyright. Has the Wikimedia Foundation concluded its copyright debate?--Jusjih 00:48, 7 March 2006 (UTC)

As I've said before I can't remember when this decision was made & I'd like to review the discussion before stating that we flat out won't take any fair use documents. AllanHainey 12:57, 7 March 2006 (UTC)

Fair use is "an aspect of United States copyright law that provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test" (w:Fair use). Fair use doesn't apply here under any circumstance. We're reproducing works in their entirety, not citing or incorporating them. Further, works on Wikisource are freely redistributed and our license allows users to use the content commercially if they so wish. If you think this should be discussed, I think the best place to do so would be on the Scriptorium. // Pathoschild (_admin / ^talk) 15:18, 7 March 2006 (UTC)

Hm, I can't remember if the discussion was on WS or on IRC. If we need to, we can get a general consensus from the community regarding fair use material so that we can definitively point to something showing our decision. Such a vote should be held on the Scriptorium, however. But the biggest reason fair use doesn't apply here is the reason Pathoschild just mentioned. Fair use was never meant to be a reproduction of a complete work, but only portions insofar as it helps newspapers/scholars/etc. with their daily/academic work.—Zhaladshar ^(Talk) 17:06, 7 March 2006 (UTC)

Discussion predating March 2007 rewrite

Discussion in this section refers to the pre-March 2007 revisions of the copyright policy (see changes).

Applicability of this policy at other Wikisource subdomains

Since this policy is now official here, shall we have the prohibition of fair use and non-commercial licenses apply to the multilingual Wikisource and other language subdomains? How shall we do this? is Template:UNESCOCopyright okay here while it is for educational and other non-commercial purposes?--Jusjih 17:01, 10 April 2006 (UTC)

It is my view, and the view of Jimbo Wales and at least one other elected trustee with whom I've discussed the issue, that the prohibition against noncommercial licenses is Foundation policy and applies equally to all Foundation wikis. Therefore, it should be codified into each Wikisource's copyright policy as soon as possible.

The UNESCO copyright statement prohibits noncommercial distribution, which our license explicitly allows. Therefore, we cannot host noncommercial works without changing the license with which the Wikimedia Foundation distributes its works.

The prohibition against fair use is a more local decision based on our judgement of the legal implications and requirements of fair use. I think that the application of fair use to complete texts is illegal and violates the spirit of the law. Perhaps we should have a centralised discussion about fair use on the multilingual Wikisource and come to a project-wide decision. // Pathoschild (_admin / ^talk) 19:15, 10 April 2006 (UTC)

I'd rather not have project-wide decisions on how we will treat fair use. While I think that the points here should be raised on the other WS domains (like maybe the French WS might need to delete some UN Security Council Resolutions) probably by going through the multi-WS, I think we should determine how this wiki will deal with fair use, and not go along with how everybody else is doing things.—Zhaladshar ^(Talk) 22:09, 10 April 2006 (UTC)

In this case, I consider that at ALL Wikisource sites, we should disallow fair use for being extremely inapplicable and noncommercial licenses for being incompactible with GFDL. We are not Project Gutenburg that can host permitted copyrighted works without automatically allowing downstream users to reuse them as they like.--Jusjih 14:29, 11 April 2006 (UTC)

Oh, I agree. I'll add a note to the multilingual Scriptorium today about it.—Zhaladshar ^(Talk) 16:47, 11 April 2006 (UTC)

Stated Copyright

Do pages need to state the reason they are Public Domain? For example, JonBenét Ramsey ransom note and A House-Boat on the Styx have no copyright info. -Reuvenk_[T][C] 05:10, 23 August 2006 (UTC)

Yes; works which do not assert a compatible copyright status should be noted at Possible copyright violations. I've tagged those pages with the correct copyright information. // [admin] Pathoschild (^talk/_map) 16:41, 23 August 2006 (UTC)

Unenforceable copyright/Presumed PD Without Release

Right now, a lot of people are saying"omg, the copyright policy sez that "unless somebody has specifically released their work into the public domain, it's not allowed to be here"" - which leaves us a distinct problem with items like Leopold and Loeb ransom note, the Zodiac Killer letters and Mohammad Atta's final instructions to the 9/11 hijackers. (not hosted yet, waiting on PD translation).

Now, there are two distinct factions, "These belong on Wikisource because even if they *were* copyrighted, it isn't enforceable in any real sense" (which isn't to say they *are* copyrighted) and "These don't belong on Wikisource because our policy says so" - so it seems to me, the 'best' solution is to find an amendment to the copyright policy that would allow such works to be hosted here.

Such an amendment would have to be carefully worded, so that we don't have new users pushing the envelope. Perhaps also making mention of some form of consensus, or are we too small a community for that?

It should be noted that many of these texts have been "ruled"/"considered"/"presumed" to be public domain dozens or hundreds of times by mass media and book publishers - who reproduce the works in whole (voiding any argument that "they must be using Fair Use!", because no, they aren't, they are presuming that the works are PD). Sherurcij ^{(talk) (CRIMINALS ARE MADE, NOT BORN)} 03:02, 9 November 2006 (UTC)

I strongly oppose such an amendment to the policy, which is currently worded to eliminate ambiguity and make Wikisource's repertoire as useful and unquestionable as possible. Ambiguity reduces that usefulness, since users are forced to doubt whether any work they download or view on Wikisource is really free, or copyrighted with little chance of enforcement. This is part of what makes the English Wikisource unique, that we very clearly specify works' licenses or public domain criteria. We should not host works that may be copyrighted simply because we probably won't get sued over them. We should respect all authors' and publishers' rights. This is particularly important for our redistributors, which may publish our works commercially and are thus subject to more scrutiny in regards to copyright.

Regarding legal challenges, it should be noted that an analogous situation occurred over illegal music downloading several years ago. It bloomed largely because, despite being illegal, it was highly unlikely that anyone would ever be sued over the violations. In fact, many were convinced that music copyright was unenforceable on the Internet due to the (false) anonymity the networks provided. The legal campaign undertaken by the Recording Industry Association of America disproved that.

Regardless of how unenforceable some copyrights may be, regardless of how much we like or dislike the authors, they nonetheless have rights—both legal and intellectual—that the Wikimedia Foundation, in its mission to encourage "the growth, development and distribution of free, multilingual content" (from the Foundation wiki), can neither afford nor allow. I've already mentioned my general opposition to hosting these ambiguously copyrighted works; explicitly allowing them is, in my opinion, out of the question. —[admin] Pathoschild 03:37, 9 November 2006 (UTC)

Responding to your subsequent addition, the fact that these works are published or displayed in the mass media does not automatically make them public domain. Such publication is often allowed under fair use, which some legal experts believe can cover the entirety of smaller texts, though this is controversial (RAWBLOG, Case Western Reserve University). That does not apply here; fair use is not free. —[admin] Pathoschild 19:01, 9 November 2006 (UTC)

There is nothing about the copyright for these works that makes it unenforceable. For the murder/ransom notes: the copyright holder (preferring, most likely, not to go to prison) has chosen to not enforce the copyright, there is no reason why they could not have it enforced. Regarding works by terrorists: Wikipedia:Template:IEEPA sanctions, which Sherurcij has used as a reason for allowing works by a "person, organization or state subject to U.S. sanctions" (in short, terrorists), is not public domain either — if anything, it is fair use. I do not know how any of this works can be compatible with the GNU Free Documentation License or with the Wikisource's mission of being "The Free Library." --Benn Newman 00:11, 10 November 2006 (UTC)

If we do not believe these to be PD they do not belong here. There is no reason to host things be believe to copyrighted. Ambiguity over what is PD, is the problem. Not our copyright policy. --\ 01:57, 10 November 2006 (UTC) --BirgitteSB 02:15, 10 November 2006 (UTC)

Which is how come you'll notice I support removing the statement "Unless the author has written an explicit release of their copyright, then anything that exists is copyrighted", since it furthers the ambiguity and misinformation of Public Domain vs. Copyrighted Material. Sherurcij ^{(talk) (CRIMINALS ARE MADE, NOT BORN)} 02:10, 10 November 2006 (UTC)

Misinformation? I think that is a very good, safe definition of public domain (excluding works are in the public domain because of time et cetera). The author reserves all rights unless they explicitly say they do not. --Benn Newman 02:21, 10 November 2006 (UTC)

You can hardly exclude such a large amount of public domain material from a definition of public domain. Only an very, very small portion of public domain material is explicitly released as such. There is another small portion which has case law, in some jurisdictions, confirming it is in the public domain. There is a large chunk of material where the author died over a 100 years ago which can be asserted as public domain without question. The rest of it is just varying degrees of guesswork depending on age, date of author(s)' death, where it was first published, what country(ies) the author maintained citizenship in, the type of work, as well as any laws now applying to any person wanting to use the work downstream. Some areas are on firmer ground than others, but there is nothing "explicit" about public domain. --BirgitteSB 01:40, 11 November 2006 (UTC)

For the record, just received a response from BradPatrick - the person most able to dispel armchair legal theories on both sides - and he pretty much confirms that the texts I refer to are not copyrighted...or public domain. It's basically just a grey area that world never made rules for. Unlike homocide, copyright law is full of loopholes, ignored dusty corners, etcetera. It basically comes down to whether WS wants to only host "only US Gov't and 100-year old documents" - or to take the effort to actually rewrite our inclusion policy (which would still be based on copyright status) to cover all the nuances, decide which grey areas to adopt and which to ignore, and actually form a comprehensive strategy for becoming a free library...not just a collection of books written at least a century ago. Personally, I strongly believe it is worth the effort to rewrite our inclusion policy to be more specific, instead of making sweeping (untrue) claims. —unsigned comment by Sherurcij (talk) 2006-11-10T20:12:34.

There's a vast repertoire of public domain texts written throughout the thousands of years of humanity's intellectual history that is explicitly, unquestionably free. I see no reason to dip into the much smaller repertoire available through grey areas and questionable loopholes, particularly since Wikisource defines itself as 'the free library'. These works are not free, much like music is not free just because nobody is going to come knocking on your door if you download it; you can download it, but you are violating the author's intellectual rights and are sacrificing any presence to it being free. If we do accept this, we may as well change our motto to 'yet another ambiguously copyrighted online library'. —[admin] Pathoschild 04:52, 11 November 2006 (UTC)

What you are offering here is known as a Straw man argument, as there is no real similiarity between an anonymous death threat, per se, and Britney Spears' latest album. One has an author who is tied to the work, the other was written by somebody who purposely eschewed any connection to their work. One was written for commercial gain, the other was not. One registered its copyright, the other did not. One was freely released by the government with no restrictions on what could be done on reproducing or distributing it, the other is released by the record label for $21.99 to play in your CD player, with very strict restrictions on whether you may reproduce or redistribute it. I'm not saying that a non-registered copyright makes something PD, I'm saying that you're doing a poor job of representing your argument. You can argue there are "thousands of years of human civilization", but unless you foresee the mass PD transcription and translation of ancient papyrus or Mayan symbology, again that's not really a very strong case. We're basically working from a small number of Medieval authors, and then 85% of what we host is Victorian, Gothic and Classical British/American authors, and the remaining 15% is US Government publications. Great for your second-year British Literature course reading list at University - but Poe, Swift and Twain do not a library make. Libraries have microfilm caches in the basement for a reason...that's where the good stuff is kept ;) Sherurcij ^{(talk) (CRIMINALS ARE MADE, NOT BORN)} 07:23, 11 November 2006 (UTC)

Your above argument about my points being straw men is, ironically, a straw man argument. ;) Your representation of my argument is not accurate. I'm not referring to Britney Spears' latest album, any more than you are referring to the latest Harry Potter books. The analogy referred to the successful undertaking of legal action where it was previously believed that the copyrights were technically unenforceable. It wasn't a perfect analogy, though, so I may as well drop analogies now.

My main concern is that the usefulness of a "free library" is directly affected by the degree to which it is actually free. Unenforceable copyright is not free— it is, at best, unfree without legal problems arising from copyright violation. IEEPA sanctions are very poorly defined, for example, and I presume they are not eternal. They are at best controversial and arbitrary. Similarly, orphaned works are not free. They have an unknown status which is traditionally assumed to mean likely copyright; see the leading introduction for w:Orphaned work: "An orphaned work is a copyrighted work where it is difficult or impossible to contact the copyright holder." The United States has not yet passed legislation recognizing orphaned works, so normal copyright laws still apply.

My biggest concern, then, is this: Wikisource, as the free library, should not host unfree works, even if it can get away with it. —[admin] Pathoschild 10:10, 11 November 2006 (UTC)

I wish that others would agree with Pathoschild, it would make things a lot simpler and the project a lot more effective. At the moment, I can see many conflicting arguments about copyright, with different standards being applied to different works and some obvious copyvios being advertised on the main page. Wikisource copyright policy is clear—free use or nothing—yet it appears not to be enforced. If someone wishes to host works under U.S. fair use rules, or under the presumption that nobody will sue them, there are plenty of free web hosts available. Wikisource should not give up its reputation for such documents, as to do so would seriously affect its abilty to attract (and maybe even to host) documents in the future. Physchim62 17:04, 11 November 2006 (UTC)

I understand Pathoschild's reasoning, however he is being less than clear on how he would like to apply it. Personally I do not think we can guarantee anything is completely free unless the author has been dead 100 years or it is explictly released PD (US govt works, etc.) without major research being done for each work. This strict of an interprataion has never been the approach taken by this project. Recent deletion discussions have shown many people think we should host whatever we believe to be legal in the US. That includes alot of "unfree" works. I can see where Pathoschild is coming from, but I do not believe consensus is possible for such dramatic change in the project. If you guys want to get rid of speeches et al; you need to come up with reasoning for it that won't include a third of the project. I do not see people agreeing to get rid of a full third. You seem to be trying to avoid a real disscusion on this by either talking about broad missons or someone's father's suicide note. I will not pretend the above reasoning only applies to suicide notes because it does not. It applies to {{PD-1923}} and a great deal more. I don't see people agreeing to half so much as that.--BirgitteSB 18:14, 11 November 2006 (UTC)

No, we cannot guarantee it. It is not clear that the works I think you are referencing are in the public domain, in the United States or otherwise. --Benn Newman 18:38, 11 November 2006 (UTC)

For the record, I have quite explicitly not mentioned suicide notes in this particular suggestion - they are a separate, albeit thorny, issue. Right now I'm just strongly in favour of rewriting the Copyright Policy so that it doesn't include the phrase "anything that somebody has written, is copyrighted, unless they explictly released it", because that is not true - but it's getting quoted a lot. No matter what stance we take on Orphan Works, we have to expand the copyright policy, and hammer out specific details on what we're willing to host, and what we're not, based on death dates, publication dates, what country the person wrote the work in, what country it was first published in, manifestos, speeches - are the Nixon Tapes copyrighted? They're transcriptions of conversation, they weren't fixed in a tangible form by the author (Nixon), but they were by an anonymous whistleblower who released them to the public. What about leaked documents that have never been declassified, which includes large portions of the Pentagon Papers? By US Law, they obviously can't be published...but they're also not copyrighted...where does that leave us? We are growing at an exponential rate, and we need to actually hammer out a workable, yet legal, inclusion policy that allows more than "Poe, Swift, Twain and US Fed'l Government" authors. Sherurcij ^{(talk) (CRIMINALS ARE MADE, NOT BORN)} 19:20, 11 November 2006 (UTC)

Okay, perhaps it needs to be modified to allow speeches (and be more specific on being in the public domain because of time, which could be said to be explicitly in the public domain if you can figure ), but I have yet to be convinced that orphaned works should be allowed (why not, then, anonymous work?). --Benn Newman 20:05, 11 November 2006 (UTC)

There is a very important distinction, as pointed out by BirgitteSB, that can be drawn between works that are unfree and those that are free in the United States. I see no problem hosting works that are free in the US but not elsewhere, assuming they are properly categorised. That includes most speeches, government works, thousands of years of literature, et cetera. However, that does not include to orphaned works or IEEA sanctions, which are not free even in the United States however much we might get away with hosting them.

Sherurcij's main concern seems to be with the quote about works being copyrighted unless explicitly stated otherwise. Note that the sentence before it states that "Most recent written works are subject to copyright", which implies that the following line about explicit release applies to those works that are copyright. Perhaps that could be reworded to say, "Works should be assumed to be copyrighted unless they are explicitly licensed, or there is a specific and verifiable reason they are not (see Help:Public domain)." —[admin] Pathoschild 20:19, 11 November 2006 (UTC)

Some contributors seem to think that the question should be ignored simply because there is no "certainty". The main uncertainty arises from people trying to slip in provisos along the lines that "this is a Nazi publication so it can't be under copyright" (wrong, many of them are, including virtually all images): in other words, they try to slip in exceptions to copyright law without any justification. Copyright exists in a literary work from the moment of its creation (which for most countries means the point at which it is written down or otherwise "fixed"), and subsists until 70 years after the death of the author (some exceptions to that one, but none which is important for these discussions). The copyright status of the work can change if it is published with the consent of the author. Copyright may also be transferred, and works may be released into the public domain (which is the equivalent of a non-exclusive licese of all rights in the work). None of that is particularly difficult. It is the responsability of the uploader to show why the work is not copyrighted (too old, ineleigible, released, etc.), not for us to prove that it is copyrighted (although I am steadily uploading U.S. materials on copyright which may help). Physchim62 09:58, 13 November 2006 (UTC)

I don't think that summary is at all accurate. We are having difficulty establishing the copyright staus of some works. If we find they are copyrighted they will be deleted. The idea that most things can be clearly established as PD and we should delete everything else is incorrect. It is all degrees of certainty. The problem with this disscussion is no one is able to keep this on one issue at a time. You tend to lump a great many of areas together and say they are all equally obvious copyright violations in your eyes. You need to accept that this is not obvious. If it were obvious; they would be deleted. There have been other people who came here in the past who sounding just like you do now. They spoke with great authority and certainty while admitting they were not actually lawyers. And we listened to them; and they were wrong. I don't wish to go back and restore all this material in a few months and lose contributors here over nothing. Show me things similar to the works you are concerned with being treated as a copyrighted work. Define the area you wish to address, stay on subject, and assume good faith. Watching an issue and waiting for better information is not the same as ignoring an issue. If we wanted to ignore this we would not ensure they are all labeled with a self-categorizing template stating the problamtic copyright status. Go through random pages and look at how many non-problamatic works actually have license templates on them. I agree that the uploaders should do their own research and provide the reasoning etc, but the problem in the cases you have concerned yourself in is not any lack of information but the fact that you disagree with the uploader. I do not know who is correct but, after all my experience here, I cannot so easily believe copyright is as airtight as you wish me to. I hope we soon learn a definitive way to handle manifestos and the component parts of the Warren Commission Report. I really hope one day Wikisource can be a gold standard of copyright on the web in line with Scared Texts. That is goal I will continue to aim for. But the realization of that goal does not mean we give in to paranoia. It means we recruit lawyers and residents of Wahington DC to volunteer to address these issues. It means we develop FAQ's on the grey areas. It means we are open to discovering the complete story on copyright not shutting our ears to the parts that won't fit in the pretty box we first imagined.--BirgitteSB 18:41, 13 November 2006 (UTC)

I could be mistaken, but I don't think I've seen a single person on Wikisource claim "omg, Nazis can't have copyrighted things!" - that arena is rife with emotion and irrational logic on WP, but I haven't yet seen it appear on WS. I, as one of the primary 'villains' in this dispute, certainly haven't claimed it - I claim that certain other considerations can make a 1940s work viable for WS, but certainly not the fact "they were Nazis". Anyhow, I again echo Birgitte (It's happening too often) that this is about firmly defining our inclusion policy, noting that there are degrees of certainty, and that an open letter from w:Tito to w:Charlie Chaplin in 1937 requesting that the latter build him a nuclear bomb is likely to be treated on a slightly different scale (not neccessarily included) than say, w:Michael Eisner's resignation letter to the CEOs of Disney, which we deleted a few days ago. Sherurcij ^{(talk) (CRIMINALS ARE MADE, NOT BORN)} 22:24, 13 November 2006 (UTC)

I disagree with BirgitteSB's statement that "The idea that most things can be clearly established as PD and we should delete everything else is incorrect." The vast majority of works are clearly in the public domain or explicitly licensed in a manner that is clearly compatible with the project's license. Of what is not clearly compatible, much of it can be safely presumed to be compatible based on well established laws and precedents (such as speeches and manifestos). Of the tiny unfree fraction that remains, I see no need to break away from the Foundation's mission to host them. Let the other libraries (such as Wikilivres) have them and make them accessible. Wikisource is not just another online library, it's a free library— and not just free as in beer.

Sherurcij's argument above is misrepresentative; What we're discussing here is not manifestos (which I see no problem hosting), but unenforceable copyright, presumption of public domain on any unlicensed work published in the mass media, or likely copyrighted orphaned works. —[admin] Pathoschild 23:44, 13 November 2006 (UTC)

I disagree with the certainty you have about public domain. But I guess it depends on how you define public domain or more exactly whose public domain. I don't think Sherurcij's argument is misrepresentative as it what we are discussing has not been outlined at all and Physchim62 is arguing for the deletion of many of these things as well. However since I actually agree with all your conclusions about what we should or should not actually host I probably should stop arguing with you. :) --BirgitteSB 00:00, 14 November 2006 (UTC)

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I too have no particular qualm's with Pathoschild's analysis (except on foreign copyrights, but that is another argument). Neither do I have any problems with Wikisource:Copyright policy, except for the fact that it is not enforced as it is described. I have been careful to argue for the retention of works works where I disagree with their description as copyvio. The fact remains that copyrighted works are not only hosted here, but advertised on the main page: somewhere, there is a major problem of interpretation. Does Wikisource host "what it can get away with" or does it host "public domain and other freely licensed works"? Physchim62 08:38, 14 November 2006 (UTC)

Does Wikisource host "what it can get away with"? No. Does it host "public domain and other freely licensed works"? Yes this is the idea, however there is great variety of opinion on how to define free. If you want to discuss orphan works, please go to the Scriptorium dissucussion on the matter. Outside of that I am unsure of what you think we hosting just because we can get away with it. I do not support hosting anything that believe is likely to be unfree although there are things I think are most likely free but I cannot be 100% certain about. I am very conservative on what I will say is 100% free.--BirgitteSB 16:59, 14 November 2006 (UTC)

Orphan Works

I really think we need to specifiacally deal with one issue at a time. I would like to first examine the issue of orphan works, which I do not have a settled opinion on it as start this examination. A very useful reasource is Report on Orphan Works by the US Register on Copyrights. An important definition is found here:

• "orphan works" - works for which no copyright owner can be found, and thus for which permission to use or adapt these works cannot be obtained.

Other useful info:

• In spite of this uncertainty [where authorship of a specific work cannot be determined], however, users occasionally exploit works having indeterminate ownership. This typically occurs only when the user perceives an acceptable risk based on the facts surrounding the work and the use at issue, and almost always after the user has performed some degree of due diligence in attempting to locate copyright owner based on the limited contextual information available. This appears to be the case for both experienced users of copyrighted works,³⁷ as well as for members of the public generally.³⁸
  • 37 See, e.g., National Institutes of Health, National Library of Medicine (654) (describing a policy for conducting a search for copyright owners; if unsuccessful, materials are web-published with a disclaimer).
  • 38 See, e.g., Earnest (78) (describing the use of an aerial photograph of a building on the campus of Stanford University in a “historical exhibit at Stanford’s Computer Science Department”; first a search of local aerial photography companies was conducted, but all denied ownership; the user remains “uneasy about its ambiguous status”).

• While U.S. copyright law does not contain an omnibus provision addressing all orphan works as such, it does contain a few provisions that permit certain users to make certain uses of certain classes of orphan works, and other provisions that reduce the risk in using an orphan work. There are thus already some “orphan works provisions” in U.S. copyright law, although they are not labeled as such. These provisions include section 108(h), section 115(b), section 504(c)(2), and the termination provisions (sections 203, 304(c), and 304(d)).⁹⁹
  • 99 Other provisions in the Copyright Act can permit use of orphan works. For example, statutory licenses other than section 115 (such as the licenses available under sections 112, 114, and 118) can permit
  • section 108(h) allows a library or archives to make use of a work n the last 20 years of it's copyright term (this is not limited to orphan works) provided it has made a reasonable investigation to detrmine:
    • 1) It not subject to normal commercial exploitation (I believe this translates into "out of print")
    • 2)A copy or phonorecord of the work cannot be obtained at a reasonable price
    • 3)the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights #1 or #2 apply
    • The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.
    • Section 108 relies expressly on the concept of reasonableness: the terms “reasonable investigation” and “reasonable price” are central to its operation. However, section 108(h) defines neither of these terms. Similarly, it does not define the important term “normal commercial exploitation.” We could find no case interpreting these terms in section 108(h) to date.
  • Section 115(b); Section 504(c); Sections 203, 304(c), and 304(d) does not apply to us
• The fact that Canada does have an oprhan works provision was mentioned in passing this should be looked into

The orphan work provision suggested by this report would eliminate any possible monetary damages from WS if a copyright holder resurfaced however it does not "free" the orphan work in a meaningful way. Basically it is more similar to Fair Use than PD. After reading a good portion of this report I do not think we should consider hosting any orphan works which are not of a certain age. Anything published before 1923 would have {{PD-1923}}. However we have an issue with unpublished works which must in theroy enter the public domain after some amount of time even if the authors death date is unknown. So it would be silly to outlaw them completely. I would like to suggest we only accepts orphan works when are at least 150 years old. What does everyone else think? --BirgitteSB 01:09, 13 November 2006 (UTC)

If the orphan work has to be more than 150 years old, that seems to be even more restrictive than the actual law which says anything published pre-1923 is PD - so no, I can't really see that being an appropriate response to the issue. Having read the entire report, I'm also not seeing how it offers evidence linking use of Orphan Works to fair use. The "uncertain" users of orphan works as given in the examples (NIHM, Aerial photos) are not said to be claiming "fair use" on their documents, but to be claiming "We believe this to be public domain".

In fact the report very clearly states "For purposes of developing a legislative solution we have defined the “orphan works” situation to be one where the use goes beyond any limitation or exemption tocopyright, such as fair use."

As Birgitte mentioned, the report suggests that there is no way WMF/WS could be held liable for monetary damages (assuming we used "reasonable attempts" to located a copyright holder), without broaching anything like "fair use of copyrighted material", which we shun. This leaves us struggling with what a "free library" really means. Clearly we are not going to be like the libraries you find in the city that have books by Michael Crichton or Chuck Palahnuik, we're focusing on texts that are free. But "free" and "public domain" do not mean identical things. Sherurcij ^{(talk) (CRIMINALS ARE MADE, NOT BORN)} 01:42, 13 November 2006 (UTC)

I think you misunderstand me. The oprhan works reports suggest allowing things to be used simlar to how fair use is allowed. It would allow people to use works as if they granted permission not as if there were not a claim of copyright. This is unacceptable for the same reasons fair use is unacceptable and it is useless for people downstream who would liable for monetary damages unlike WS. Therefore I do not believe we show allow something because it is an orphan.

New paragraph. Since I don't wish to allow orphan works we have one problem. There is material which is certainly PD despite the fact that it is orphaned, however we can not say exactly when the author died etc. Things published pre-1923 are already covered. This leaves really old diaries, letters, etc. which are PD through their age yet we cannot say exactly when they went PD (because we don't know info about the author). I think we should come up with a way to handle these somehow. I was thinking we generally have an idea how old they are and we can say the author must be dead by some period of time after their creation. So we should pick something like 150 or 200 years so we are not being stupid in forever excluding a work just because it is orphaned. This paragraph is me trying to use commonsence and has nothing to do with the Orphan Work Report. --BirgitteSB 02:08, 13 November 2006 (UTC)

Responding only to the latter paragraph, I would assume that we could whittle down a few years - nobody lives past 120, and nobody writes works before the age of 5. So 115 years would seem "just as reasonable" as 150, which still isn't really addressing any issues, since there will be no documents "published post-1923, plus 115 years" until 2038, or "published post-1923, plus 150 years" until 2073. Sherurcij ^{(talk) (CRIMINALS ARE MADE, NOT BORN)} 02:15, 13 November 2006 (UTC)

I agree with BirgitteSB that orphaned works seem much more like fair use than public domain, and I think my previous argument—that a free library should only contain free works—applies. The fact that we can get away with violating likely copyright does not make the work free in any meaningful sense, any more than the fact that fair use lets us get away with violating known copyright means we should.

There is no reason to allow unfree works that can override the Wikimedia Foundation's primary goal of offering free content. There are public domain criteria that cover approximately 4880–5930 years of entirely free writing, and those numbers increase to 5000–6000 of mostly free works when we include free licenses. Surely there are enough free works to fill our library that we don't have to turn to unfree works within the last 70 years, particularly with many free works even within those 70 years.

Regarding old orphaned works, note that unpublished works enter the public domain 120 years after creation. For works whose date of creation is unknown, we can pick a latest possible date and apply that criteria from that date. —[admin] Pathoschild 02:17, 13 November 2006 (UTC)

To Sherurcij: I was speaking of unpublished works only, like a diary from 1800 where the author was unknown. But nevermind I didn;t know about the 120 year PD rule for unpublished works. --BirgitteSB 02:22, 13 November 2006 (UTC)

The 120-year rule is for U.S. works: European anonymous (or collective) works created before 1926 are PD (but you have to be sure that they're really anonymous...). From 1926 onwards, the rules are as for the U.S., due to 17 U.S.C. 104A. Physchim62 10:05, 13 November 2006 (UTC)

Some orphan works can be legally reproduced in countries and areas not copyrighting them due to shorter terms. As I now consider 17 U.S.C. 104A impeding Wikisource and its sister projects, I would like to introduce m:American non-acceptance of the rule of the shorter term where I have proposed a petition to the United States Congress.--Jusjih 08:29, 1 February 2007 (UTC)

Another hole in the currenty policy

This page doesn't help me determine whether WS would host the w:Blinky Bill books, which are PD in Australia (where they were published), since the author died 50+ years ago. (And what if the case were different, and the author had died in 1947, meaning 50+ years ago...but as of 1996, it wasn't in the PD in its home country?) I'm not looking for an answer specific to Blinky Bill, I'm pointing out that the current copyright policy really needs an overhaul, so that it's a valid resource for members to turn to, rather than something to be quoted out of context when a dispute arises. Sherurcij ^{(talk) (CRIMINALS ARE MADE, NOT BORN)} 18:50, 15 November 2006 (UTC)

These aren't policy related questions. They are specific legal questions, which can only be answered by doing research/consulting with an intellectual property lawyer. Because the copyright policy doesn't address these kinds of questions doesn't mean it needs an overhaul: the policy was never meant to address such question, but merely dictate the broad framework that WS will take in matters of copyright. Our policy boils down to "If we have the right to redistribute, let others redistribute what we are redistributing, allow for modifications, and allow for commercial use, they we accept it." But the copyright policy is not a rubric for determining legal status of works, and should not be used that way (not that I see how it could, since the policy is far too broad to draw those kinds of specifics).—Zhaladshar ^(Talk) 19:48, 15 November 2006 (UTC)

I agree with Zhaladshar. The policy states what is or isn't acceptable, but it isn't a help page. For example, it states that we accept works that are in the public domain, but it doesn't list public domain criteria. There are various help pages (some of which are linked to from the policy page) which try address such questions; see Help:Copyright tags and User:Pathoschild/Help:Public domain, for example. —[admin] Pathoschild 01:45, 16 November 2006 (UTC)

Myself any some other editors are (slowly) working on the sort of problem which Sherurcij raised at w:Wikipedia:Non-U.S. copyrights. The Blinky Bill books would have had to have their copyright renewed in the U.S. if they are still to be under copyright there: otherwise, they are PD in Australia and New Zealand which would normally be sufficient for them to be PD outside the U.S. (which has different rules on this sort of thing). That leads to a policy question: to what extent does WS host works which might have had their U.S. copyright renewed. WP does not allow such works except as fair use, as it deals mostly with images (virtually impossible to know that an image has not had its copyright renewed somehow or another). It is easier to check for registration and renewal of texts. Physchim62 15:58, 16 November 2006 (UTC)

We currently host texts with reasonable claims of non-renewal. Of course it is very difficult to prove a negative but there are people doing reliable research into these matters. In a perfect world we would have some volunteers in DC who would being willing to visit the Copyright Office. Still there are reliable catalogs online for certain years and some research can be done towards this as it stands. --BirgitteSB 17:58, 16 November 2006 (UTC)

Link	Description
Copyright policy	[policy] Explains the legal rights and obligations of Wikisource editors in regards to copyright law.
Inclusion policy	[policy] Outlines the guidelines used to decide whether or not Wikisource accepts a work.

If after being here 6 months, with 2,500 edits, I still can't discern the difference between these, and why you're saying that "A" serves the same purpose of "B"...perhaps we really should merge/condense/whatever some of these. Help:Copyright and Wikisource, Help:Copyright tags, Wikisource:Copyright policyUser:Pathoschild/Help:Public domain (which looks fantastic, and should be moved off of userspace), Wikisource:What_is_Wikisource?#What_do_we_include_and_exclude_at_Wikisource.3F, Wikisource:What Wikisource includes - at least one or two of them could be merged into the others...which will also mean more "advertisimng" of the remaining, improved, works. Sherurcij ^{(talk) (CRIMINALS ARE MADE, NOT BORN)} 09:30, 16 November 2006 (UTC)

GPL

If I find a source work licensed under the GPL and no other licence, would copyright allow it on Wikisource? (GPL is incompatible with GFDL, but it's a copyleft licence without non-commercial or no-derivative restrictions, and Commons accepts it (grudgingly) for images.) Ais523 08:56, 17 November 2006 (UTC)

That's a difficult question. The only problematic requirement in the GNU General Public License is the provision of source code for all works. This is fine on Wikisource itself, where it is freely available in the edit view, but it's not available with our redistributors who don't allow editing. I'm don't think the HTML output visible in the page source would qualify as the work's 'source code'.

In general, it is more free than the GNU Free Documentation License, which contains all sorts of problematic clauses like 'Invariant Sections', 'Cover Texts', 'Acknowledgments', et cetera. This too is a problem, since that means that the licenses are not actually compatible. You cannot impose additional restrictions over the GPL or remove restrictions from the GFDL by placing a GPL work in a GFDL database.

The best solution would to be write our own license for Wikimedia projects, but that's not likely to happen. You could try asking the author if you can redistribute it under the GFDL, but that may or may not be likely. Failing that, I don't think we can host it without legal complications.

One feasible solution would be to change the Foundation projects' footers to say something along the lines of "Content is available under the GNU Free Documentation License or the indicated free license". This would have to be a Foundation decision, though, so it won't happen very soon. —[admin] Pathoschild 19:50, 17 November 2006 (UTC)

The question depends as well on the nature of the source work: is this a hypothetical question or do you have a particular work in mind? The screen shots of Wikimedia projects used to be (may still be to a certain extent) covered by the GPL, you can still see the remains at w:Template:GPL. Releasing source code on Wikisource should not by a copyright problem, but may not fit in with inclusion criteria... Physchim62 17:52, 20 November 2006 (UTC)

UK/Canadian Legislation

Question 1: UK Legislation, while still under Crown Copyright, is freely reproducable with no commercial restrictions under a waiver of copyright. There used to be a copyright tag to this effect, but it seems to have been deleted. A similar policy applies to Canadian legislation, and the copyright tag for the Canadian documents has not been deleted. Is the legislation (post-1957) of Canada, the UK, or both reproducable under Wikisources copyright policy?

Question 2: The Canadian Constitution contains Acts that were originally enacted by the UK government, but since 1982 these acts have been modified by the Canadian legislation. Would the consolidated acts containing the original UK legislation and the subsequent Canadian modifications be covered under Canadian copyright law, UK copyright law, or both (or neither). Ex. if the original UK legislation is PD, and the Canadian Acts modifying the documents are post-1957, would the consolidated documents be PD, or Canadian Crown Copyright? If both documents are post-1957, what copyright applies? -T. Mazzei 22:18, 28 January 2007 (UTC)

We've previously discussed the topic of crown copyright & determined that documents under crown copyright can't be hosted here, even if there is a waiver. I don't know about Canada but UK legislation post 1957 can't unfortunately be reproduced here. AllanHainey 12:59, 29 January 2007 (UTC)

Just noticed there's been some discussion on the scriptorium about this Wikisource:Scriptorium#UK_legislation AllanHainey 13:02, 29 January 2007 (UTC)

The waivers for Canadian and UK Legislation do not violate Wikisource copyright policy for "prohibited licenses". It is not "fair use", and it is not a "non-commercial license". If it is to be the case that these waivers are not acceptable licenses, the copyright policy should be updated to reflect this, and an official reason for its exclusion given.

The restrictions placed on reproducing these documents are that reasonable attempts are made to ensure the accuracy of the document, and that it is not represented as an official version. I don't see that a requirement of reasonably accurate reproduction is detrimental to the goal of only posting articles that are freely reuseable, since beyond a prohibition against deliberate misrepresentation, there is no restriction on reproduction of the works. It must be noted that these waivers only applies to legislation/legal documents, where misrepresentation could have damaging consequences.

Also note that since it appears that the Canadian order applies to all Canadian legislation (and legal decisions), both crown copyright and public domain, a policy prohibiting works under such a license would prohibit all Canadian legal documents. --T. Mazzei 20:17, 10 February 2007 (UTC)

BirgitteSB's view on the draft policy

I had some issues with this draft and found it easier to redo it how I want than to give you a list of criticism. My draft is at User:BirgitteSB/Copyright policy with changes shown here. My suggestion in removing the non-commercial disscussion is to have a seperate page archive disscusion of particular licenses in one spot. I set a link up as a subpage call "Incompatible licenses" but as I think of it now I think we have it be more general and archive all past disscusion of licenses. I don't see why non-commercial should be singled out more than Crown Copyright or more than the back and forth of UN licensing. It would be really useful to keep links at hand to all these discussions without cluttering up a simple policy.--BirgitteSB 21:12, 8 March 2007 (UTC)

I think it is best to use the notes parameter to state the basis of the policy which everything below should simply be a more detailed explanation of. My idea is to say: "Wikisource, as The Free Library, is committed to developing a collection of free content works. This page outlines the policy used to determine whether or not content is compatible with the free content definition below." The rest of the policy is rooted in those two lines. The definition defines the concept of "free content" we are using to judge compatibility. The rights and obligations explains how to users are expected to assert this compatibility, and how Wikisource's license affects their rights in regard to copyright on their creative contribution. Copyright violations explains how we determine compatibility when we are in doubt. Though out the policy mentions how breaches of the policy will be handled by administrators to enforce the commitment to this issue. This idea came from an essay at Wikpedia where one suggestion was "try writing a one or two-sentence nutshell (with no comma clauses) that the whole process follows from. Make sure the nutshell follows as directly as possible from the core policies." I think it worked well in making WS:WWI more focused and think all of are policies can benefit from following such a suggestion. I also think the notes parameter is the perfect place for these lines.

Pathoschild's version of the notes (which I realize is not attempting to follow the same suggestion I did) reads: "This copyright policy codifies the licensing philosophy of the English Wikisource, which is binding. The copyright laws applicable to Wikisource are primarily those of the United States of America, where the physical Wikimedia servers are located. The United States is not obliged to extend copyright beyond what it would be in the author's own country, and virtually all countries have copyrights that last for the author's life plus some number of years." Even disregarding that I prefer using the above mentioned philosophy for this parameter, I have some problems with last two lines of this statement in this policy. The copyright policy needs to be about free-content and there are no copyright laws that says what is free content. There are plenty of texts (i.e. by permission) which perfectly follow all copyright laws and still we have deleted them. Whether something is compatible with the definition of free-content is what matters in describing the copyright policy. Laws have so far mainly come into play where we are determining if something is public domain or not. That is much larger discussion which is not even touched on in the rest of the policy so I find strange to mention copyright laws so vaguely in the notes. Also I believe it is false to say that " The United States is not obliged to extend copyright beyond what it would be in the author's own country". Jusjih has several times brought up that the US does not follow the the "rule of the shorter term" and no one has ever corrected him. Nor have I been corrected the few times I made comments based on the assumption that Jusjih's statements were correct. If he is correct than the above statement is at the least very misleading; although the US is not necessarily obliged to do extend copyright, it happens to actually do so.--BirgitteSB 20:36, 11 March 2007 (UTC)

I agree on all points; I've implemented all your changes in the proposal. —{admin} Pathoschild 22:18:14, 11 March 2007 (UTC)