Talk:Fair use/Archive 3

Galleries
There is a proposal to allow galleries on Wikipedia provided they satisfy certain criteria at Wikipedia talk:What Wikipedia is not/galleries. The issue arises of the use of fair use images in galleries: in particular a gallery may be composed of a number of images that have fair use defences elsewhere on the gallery, but when aggregated together do not qualify for fair use. It seems appropriate to me that if the proposed change, or similar change is applied to WP:NOT, then this project page needs to discuss the issue. What kind of change would be appropriate? --- Charles Stewart 17:02, 3 January 2006 (UTC)


 * An interesting question Charles.

''In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include&mdash;


 * ''the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
 * ''the nature of the copyrighted work;
 * ''the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
 * ''the effect of the use upon the potential market for or value of the copyrighted work.


 * I would argue that the key question to be determined here is #3 - If the fair use image meets the various criteria for use in article space, that same individual image will meet those same criteria for use in a gallery if it is unchanged. The fact that there may be many fair use images gathered together in one place does not change each individual image's compliance with the requirements of fair use as it relates to US law. The amount and substantiality of the portion used is exactly the same as it is if that same image is in an article on its own. Otherwise, that same global aggregation argument could be applied to Wikipedia as a whole.


 * I don't see a problem in using fair use images in galleries, provided all the criteria required by our Fair Use Policy are met. -- Cactus.man ✍ 10:10, 9 January 2006 (UTC)

Avoid self-references
Most of the links to wikipedia and wikipedia policy shold be removed from here. But, I think there should be comments about it first. gren グレン 07:48, 4 January 2006 (UTC)


 * Agreed. Most of the discussion about wikipedia policy should be taken to the "Fair use" discussion for wikipedia-oriented assessment. This talk page should be about the parameters of this article on fair use: how to define it, how to organize it, and so on. LQ 17:27, 17 September 2006 (UTC)

I removed the self-reference section. Feel free to move it from the page's history to the proper Wikipedia page you spoke of. --71.169.129.75 01:03, 21 September 2006 (UTC)

Law Students
A group of Harvard Law School students are currently taking a class in Cyberlaw and contributing to this Wikipedia, coordinated through Wikiproject Cyberlaw and a Wiki at Harvard is being used to organize notes on what they are learning, of which one topic is Fair use. It may be of interest to some what is the latest interpretation of the laws they are learning. See here for one of these overviews of where this is appropriate. User:AlMac|(talk) 21:29, 13 January 2006 (UTC)

scanned book covers
The following discussion started as a copyright examination request, but I think it belongs here. --Easyas12c 22:32, 15 January 2006 (UTC)


 * This doesn't deal with one particular article, it's a general question I can't find the answer to on the Wikipedia fair use page. Can scanned covers of books published outside the United States, say, in Sweden, qualify as fair use? - Haukurth 1 July 2005 13:13 (UTC)
 * IANAL. In my view, yes, mainly because it qualifies under "amount and substaintiality".  You are taking only a very small part of the copyrighted work.  Furthermore, it has no "effect upon work's value" because you are not competing with the book and no one will look at the cover for free rather than buying the book.  If anything, you're encouraging a purchase.  As for it being Swedish, that's irrelevant.  The servers are in the US and hence only have to follow US law, and the U.S. allows fair use.  Superm401 | Talk July 2, 2005 19:01 (UTC)
 * Laws are evolving. Fair Use is a US concept not found in some other nations, especially Asia.  People in other nations can access the data that is on U.S. Servers.  Suppose they see something that is illegal in their nation, such as pornography.  The US e-server could be considered to be in violation of laws of other nations. User:AlMac|(talk) 04:24, 16 January 2006 (UTC)


 * As I understand it, Wikipedia operates under the assumption that U.S. copyright law is the relevant law. Our primary servers are, after all, based in the U.S. Clearly, significant portions of Wikipedia would violate the laws of, for example, Iran or Myanmar. Our use of illustrations in the articles related to Nazism probably violate some law in Germany. We do not restrict our content to only what is legal in every country of the world: that would make for a rather anemic encyclopedia. -- Jmabel | Talk 06:13, 18 January 2006 (UTC)


 * I concur with Jmabel's analysis. Also, there is a doctrine called fair dealing in Commonwealth law which is similar to fair use, though it is much narrower.  --Coolcaesar 17:01, 18 January 2006 (UTC)


 * These last two comments really appear to talk about what operating law for Wikipedia; not the "fair use" article at issue here. LQ 17:42, 17 September 2006 (UTC)

Wrong link - Henry Holt case - does not lead where it should
sorry if my 'contribution style' is incorrect! please make allowances for this once. i'm not quite au fait w/ wikipedia style guidelines (though i plan to be!). i thought i should point this out while i'm here (& studying for an exam in I&IP at McGill University, in Montréal, Canada). Peace, s. —The preceding unsigned comment was added by 142.157.152.161 (talk • contribs) 27 June 2006.

Fair use and toy boxes
On a lighter side of fair use, sometimes there is a wikipedia entry for a toy. People will quote the several sentences of the description on the front or back of the toy box, saying it's fair use since it's openly printed to the general public. Others point out the copyright notice on the box bottom and remove the toy description from the wikipedia entry. Is there any official call on this? Is it fair to quote the words on a toy box in a Wikipedia entry for a toy. user:mathewignash


 * ''Copying above to Wikipedia talk:Fair use. __meco 08:31, 7 July 2006 (UTC)

Required or provided
Text currently reads: "Some commentators have also suggested that some form of fair use defense is required by the First Amendment's protection of free speech, because without some amount of copying, some things simply cannot be said." I find this a little hard to grasp. Shouldn't the word required be replaced with provided here?


 * Seems fine to me. First Amendment protection of free speech necessitates ("requires") the existence of a fair use defense. It'd be clearer without the passive voice though, let me go fix that. Jerry Kindall 23:19, 12 July 2006 (UTC)

Always unfair?
Is commercial use invariably unfair? --84.61.37.241 13:11, 14 July 2006 (UTC)
 * No. Otherwise no movie ad could ever quote a review! - Jmabel | Talk 06:09, 18 July 2006 (UTC)

"Low Resolution"
I don't know if this is the place to ask or not, but what is the consensus on "Low Resolution"? I read "thumnails" earlier, but what specific resolution? I ask because http://en.wikipedia.org/wiki/Image:Honda_WOW.jpg seems to me to be too high of resolution to be considered fair use. I was going to resize it, but was unsure as to what size to target. Thanks. --Douglas Whitaker 04:53, 20 July 2006 (UTC)
 * Douglas, you'd do better to take that kind of question to Wikipedia talk:Fair use, the talk page of a project in community space rather than a talk page discussing an encyclopedia article. I'll copy it there for you. - Jmabel | Talk 17:02, 24 July 2006 (UTC)

"Fair use in Wikipedia"
I have no idea why a section is here on fair use in Wikipedia. Why, for example, should that be more important than fair use in Britannica, or The New York Times? I think this smacks of navel-gazing.

Furthermore, the section starts out with a statement that is uncited and probably wrong: "Fair use is used in Wikipedia, mainly for screenshots, persons and significant pictures." This seems to assume that the majority of fair use in Wikipedia is visual. I suspect that, in fact, the majority of instances of fair use in Wikipedia comes in the form of quoting a short passage, or simply using a choice phrase, from a copyrighted work. - Jmabel | Talk 02:49, 21 August 2006 (UTC)


 * Totally agree. (And it looks like User:FidelFair did, too, since they got rid of the section.) LQ 12:37, 3 October 2006 (UTC)


 * By the way, why do pictures have to be low-resolution in order to qualify for fair use on Wikipedia? (If this is the wrong place to ask that question, then please direct me to the proper talk page.)  --Luigifan 17:59, 17 May 2007 (UTC)

"fair use" - organizing this & related entries
We may need a disambiguation page, or some other page that sets forth the related and similar doctrines of "fair dealing", "fair use (copyright law), "fair use (trademark law)", and so on. The "fair use" defense in trademark law, while it shares free expression principles with the fair use defense / right in copyright law, is really a distinctive doctrine. "Fair dealing", similarly, is a distinctive doctrine.  (And as User:Pde suggests above those pages can appropriately have their own entries. The disambiguation page, if it is ultimately to be more than merely a disambiguation page, I would suggest be not just "exceptions and limitations in copyright" but something that targets more "free expression limitations in intellectual property"--because neighboring rights, moral rights, etc., may be treated as distinctive legal regimes or as part of copyright. Exceptions to these categories of rights, sui generis property rights, and rights that straddle various legal regimes ("right of publicity") would all be related.)

This entry, then, could be reorganized along these more international and holistic lines as "fair use (copyright)":
 * 1) the general concept;
 * 2) its historical development (largely in the US, first through case law and then codified in 1976 Copyright Act);
 * 3) influence on "fair use (copyright)" on and from related doctrines internationally ("fair dealing" in the UK; the Berne test; etc.);
 * 4) the most common formulations, including the 1976 Act four-factor formulation;
 * 5) specific important applications (e.g., parody; quotation; some personal use); and
 * 6) common confusions or doctrinal ambiguities ("defense or right").

Thoughts?

-- LQ 17:42, 17 September 2006 (UTC)


 * I like the concept for the general page, but should have some snappier and more positive title than "free expression limitations in intellectual property." Fair use is a limit to the IP holder's right, and is so treated in the code: "107. Limitations on exclusive rights: Fair use." But it is a right for the user (etc), and most of us probably use the term that way. Suggestions?
 * In the meantime, should this page be retitled "Fair use (US Copyright)"? (It should still have an explicit comparison with "fair dealing" unless we make a special page for such comparisons, which might avoid some confusion.) I think it would be appropriate now, and also if there's a more complicated structure as proposed by LQuilter Objections to the changed title?.DGG 02:33, 21 September 2006 (UTC)


 * I think "Fair use (US Copyright)" would more accurately reflect the majority of content in the article than the current title "Fair use". Although there have been some attempts to "internationalize" the article, they're sporadic & inconsistent, and I think this is largely because the doctrine is a US doctrine. We would need to clean up the text though, too, as in the Philippines reference. LQ 12:31, 3 October 2006 (UTC)


 * There's actually an article called Limitations and exceptions to copyright which needs to be fleshed out, but works as the general article. Then I agree that "Fair use (US Copyright)" should be the title here.  (Or is it "Fair use (US copyright)", with the lower-case "c"?)  I'm loath to do the "move" though because I think a lot of things probably link here.  I will start by moving the trademark material to its own fair use trademark page. --LQ 17:41, 12 November 2006 (UTC)


 * The article should not be "internationalized." As you conceded, fair use is primarily a U.S. doctrine (actually, a defense). I agree that a split into trademark and copyright is appropriate because although related, fair use in trademark and fair use in copyright are quite distinct.  What we should do is keep this about the U.S. doctrine and then have See also links to all other related legal doctrines.  For example, that's how I successfully handled the mess with cat's eyes and raised pavement markers.  They were merged for a long time, which created incessant fighting among British and U.S. Wikipedia editors, and after I split them up, everyone gets along fine (most of the time).  --Coolcaesar 08:05, 15 November 2006 (UTC)


 * I moved the trademark section to its own page (Fair use (US trademark law) the other day with no ill effects . Just now I moved the Philippines reference to a section titled "influence" in the fair use article. It's accurate that the US fair use doctrine has proven to be a model or influenced other nations' development of their exceptions, and this section could grow. That contextualizes the point properly within the US doctrine of fair use, which is what this article is about. It would then be worth making a separate article that encompassingly discusses free expression defenses in copyright law, and includes fair dealing in UK, fair use in Philippines, fair use in US, and so on. I'm going to hold out just a bit longer for more commentary or objections, then move the main article to "Fair use (US copyright law)".--LQ 14:53, 15 November 2006 (UTC)

Common misunderstandings section
The Common misunderstandings section seems like original research to me. If it isn't, then it need citations, and if it is then it should be replaced with a non-original research. I'll see what I can find, but if anyone knows of an sites that specifically cover this topic that would be great. Koweja 01:25, 9 October 2006 (UTC)


 * These are indeed common misconceptions, and not original research. (And each of the points within it are well documented elsewhere, as well as in the article itself.) However, a "common misconceptions" section seems, itself, a little non-encyclopedic in tone; list-ish, rather than encyclopedic-essayish. I think it's probably better to include the material within the relevant sub-parts.  Or, to flesh out this section, and explain that because of the growth of copyright and the related increase in reliance on the doctrine of fair use, a lot of misconceptions and confusion have arisen over time; e.g., X, Y, and Z.  Still shouldn't be list-ish, though. -- LQ 19:24, 9 October 2006 (UTC)

"However, binding agreements such as contracts or license agreements may take precedence over fair use rights.[21]" -- having just skimmed the Wall Data opinion from the 9th Circuit Court of Appeals, I'm not convinced that the reference actually supports the statement. Instead it seems to me that the L. A. County Sheriff's Department use of Wall Data's software simply didn't qualify as fair use under the law. There was one point on which the license terms did come into play, but even without that, it seems doubtful to me that the Sheriff Department's use would have been considered fair. IANAL however. Jerry Kindall 08:13, 27 November 2006 (UTC)

Additionally, the use of the phrase "fair use right" should be supported. The last paragraph of the "Fair use as a defense" section implies that there is disagreement on the subject, and rightfully so. Frankly, you will be hard pressed to find the statement "[f]air use is a right granted to the public on all copyrighted work" in an opinion letter. Further the statement, "[t]he First Amendment, for instance, is generally raised as an affirmative defense in litigation, but is clearly a 'right'", is misleading. First off, the First Amendment is not a "right". The First Amendment contains several rights but is not itself a right (Free Exercise, Freedom of Speech, etc.). Does one have a right to non-establishment? Secondly, Fair Use is statutory not constitutional. Comparing the two like they are the same is disingenuous. There are plenty of cases that use the term "fair use right", maybe there should be some discussion on the "fair use as a right" debate because this treatment really isn't fair to the music teacher making copies of pop songs or the kid e-mailing songs to friends. People need the full story. Not that I'd recommend getting a legal education from Wikipedia. Mkshbeck 21:24, 22 March 2007 (UTC)

External Links section
The external links section is getting outta hand! There are 20 links right now. -- LQ 15:01, 20 October 2006 (UTC)

Also, someone keeps adding in Section 121, a Braille exception. 107 is fair use; all the many other exceptions and defenses of 108 onwards are not "fair use". There should, instead, be a "see also" to "other exceptions and defenses". -- LQ 15:01, 20 October 2006 (UTC)

Tone
"Third, although normally making a "full" replication of a copyrighted work looks really bad…": surely, the judge did not say "looks really bad". - Jmabel | Talk 08:26, 24 December 2006 (UTC)