Wikiversity talk:Community Review/Exemption Doctrine Policy

Source

According to s:United States Code/Title 17/Chapter 1/Section 107, creating multiple copies for classroom use requires that "C. Each copy includes a notice of copyright." According to http://www.copyright.gov/circs/circ01.pdf, notice of copyright "informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication." At a minimum, source is necessary to provide proper notice of copyright. Secondarily, everything that is done on a CC-BY-SA wiki project is based on source attribution. To suggest that a source is not required for fair use of content that would not be permitted without a source under any other circumstances violates both the spirit of open content and the source requirements for avoiding plagiarism in academic works. Source references should be a minimum requirement for Wikiversity's EDP. -- Dave Braunschweig (discuss • contribs) 03:32, 22 March 2016 (UTC)

"The use of a copyright notice is no longer required under U.S. law, although it is often beneficial. Because prior law did contain such a requirement, however, the use of notice is still relevant to the copyright status of older works. Notice was required under the 1976 Copyright Act. This requirement was eliminated when the United States adhered to the Berne Convention, effective March 1, 1989. [...] The Copyright Office does not take a position on whether copies of works first published with notice before March 1, 1989, which are distributed on or after March 1, 1989, must bear the copyright notice. [...] The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office." (Source: Copyright Basics, United States Copyright Office). Here's an example of a notice of copyright: "© 2011 John Doe" (Source: the circular you mentioned.)

I tend to agree that "everything that is done on a CC-BY-SA wiki project is based on source attribution." This is why I try to include a source for fair use files and attribution for quoted portions of texts. But, "requiring a source for a fair use file" isn't required because our {{fairuse}} contains "©". In addition a source for a file say on the web may be far away from the initial source carrying the notice of copyright. The whole letter and spirit of fair use is to allow educators, teachers, and researchers to further knowledge by this exemption to the copyright laws. I hope this helps. --Marshallsumter (discuss • contribs) 12:32, 23 March 2016 (UTC)

These are separate issues. Notice is no longer required to claim copyright. Fair Use still requires notice of copyright in order for the use to be fair. The owner of copyright must be included in the notice. The letter and spirit of Fair Use are strikingly similar to CC-BY-SA, in that each copy must provide attribution to the source. -- Dave Braunschweig (discuss • contribs) 13:23, 23 March 2016 (UTC)

There are three issues here: (1) notice of copyright, (2) owner of copyright, and attribution to source. That portion of the above "The use of a copyright notice is no longer required under U.S. law" means in any direction by the copyright holder and to the copyright holder, if known. Fair use section 107 has two points: "C. Each copy includes a notice of copyright." and the Prohibition "Copying without inclusion of the copyright notice which appears on the printed copy." Section 107 is a portion of the Copyright Act of 1976. "Notice was required under the 1976 Copyright Act. This requirement was eliminated when the United States adhered to the Berne Convention, effective March 1, 1989." Notice to the copyright holder is no longer required for fair use. I like to include it when I can find it for an intellectual property confirmation. That's why I like to include the author of a file (image) in the Template:Upload Information. It's not a matter any longer for "fair use" but it is a matter for plagiarism. Plagiarism is completely separate from fair use. It is likely an aspect of fraud. The use is considered fair because it is an exemption to copyright (now in all aspects), especially for education, teaching, research, and parody, for example. If we do not know who the copyright holders are we leave the author line blank but we can still use the file as fair use. If we find the file somewhere the appropriate thing to do is mention in the Template:Upload Information the source. By mentioning the source where we found it we are not claiming that we composed the file ourselves (which if we did not compose it would be plagiarism). I hope this helps. --Marshallsumter (discuss • contribs) 00:44, 24 March 2016 (UTC)

The Berne Convention document requires source and author for fair use. See https://www.law.cornell.edu/treaties/berne/10.html . -- Dave Braunschweig (discuss • contribs) 01:13, 24 March 2016 (UTC)

I checked through copyright.gov to see if anything was added or changed around 1989 and found this "There are no formal requirements in the Berne Convention." (Source: International Copyright). Here's the full text from Article 10:

1. "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."
2. "It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice." and
3. "Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon." (Source: BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS (Paris Text 1971). This is not quite "requires source and author for fair use." but the wording chosen in 1971 appears to be accepted today. This means that a file licensed as fair use without source or author can remain as such (no need for deletion unless unused), but a source if found by anyone should be added and if or when an author is found should be added. While a great many changes to other sections of US Code Title 17 were performed prior to 1989, in preparation for accepting the Berne Convention, no changes except for the "notice of copyright" were made to Section 107. There is a disclaimer that the Berne Convention does not supercede local law but it doesn't appear that Article 10 does that. I'll add portions of this discussion to my list of concerns regarding the current EDP. --Marshallsumter (discuss • contribs) 17:22, 24 March 2016 (UTC)

On what basis are you interpreting "Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon." as not requiring a source? -- Dave Braunschweig (discuss • contribs) 18:26, 24 March 2016 (UTC)

Here's an example: many of the files from North Carolina World War I that are/were up for deletion do not mention their source, yet their source is now known thanks to the instructors. Rather than delete them for not having stated their source I'm removing them from Category:Files with no machine-readable license by declaring them fair use and as I curate the resource adding in the source. "There are no formal requirements in the Berne Convention." (Source: International Copyright). Section 107 makes no mention of "source". There is a disclaimer that the Berne Convention does not supercede local law but it doesn't appear that Article 10 does that. I can dig back through my scanning of copyright.gov to include the citation if this will help. --Marshallsumter (discuss • contribs) 20:24, 24 March 2016 (UTC)

Here are the excerpts that suggest "There is a disclaimer that the Berne Convention does not supercede local law". "There is no such thing as an “international copyright” that will automatically protect an author’s writings throughout the world. Protection against unauthorized use in a particular country depends on the national laws of that country. [...] There are some countries that offer little or no copyright protection to any foreign works. For current information on the requirements and protection provided by other countries, it may be advisable to consult an expert familiar with foreign copyright laws." (Source: International Copyright).

I'm sorry, but my understanding of the various links provided is quite clear. A source is required for fair use of resources under applicable laws and agreements in one or more of the jurisdictions where Wikiversity content is published and available.

As per the current EDP, "Media files containing copyrighted material that do not comply with the intent and spirit of this policy can be deleted by custodians at any time." I'm willing to give the community time to provide sources for unsourced fair use content, and I'm willing to give the community time to alter the EDP if they wish, but I don't foresee any scenario in which WMF Legal is going to approve an EDP that does not require a source to be included with exempted works. -- Dave Braunschweig (discuss • contribs) 00:18, 25 March 2016 (UTC)

Here's an example, and not one I'm happy with regarding "Source": File:UBgWGbgSY2qCGhNxiiwxVoO G3Dh2eMd EV6eAc52WRQa!l8lPcdGVJSi89hhqiP.jpg. The file for the writer's project came from the Southern Historical Collection at the University of North Carolina, Chapel Hill. But, look at the source UNC Chapel Hill may have gotten the image from using fair use. I have a free account with Ancestry.com, but I cannot contact Deana Wilson Duvall about what she would like to do. Her note on the image page indicates her permission to use the photo was not asked. If WTP is some other abbreviation for the Federal Writer's Project, then Federal Writers' Project - Life Histories/2015/Fall/Section 018/Mary Louise Fickling may be what she's referring to with her final comment "I would appreciate being sited as the owner of the photograph and that it was not something attached to the WTP project written history online." This may constitute a take-down or deletion notice as the file has no other use. What do you think?

At Fair Use need for rationale on Wikiversity source of the file was not discussed. The current EDP has never had consensus approval by the community and is no more or less valid than the one I've proposed. CommonsHelper rolled the uploader into the Source location in their version of Template:Upload Information for the files I uploaded as free use when a source or author was not included. Per the letter and spirit of free use, so every fair use file has a source already included. Fair use is free use where it is the appropriate exemption such as here to copyright. Sorry! --Marshallsumter (discuss • contribs) 02:51, 25 March 2016 (UTC)

Unfortunately, I am unable to find any authoritative resource that supports this interpretation of fair use. Unless you have an authoritative resource that supports your position, I'll need to withdraw from this unproductive discussion. -- Dave Braunschweig (discuss • contribs) 03:50, 25 March 2016 (UTC)

This is not an interpretation! But, it is the law as indicated in the authoritative resources listed above and those I've mentioned in Wikiversity:Community Review/Exemption Doctrine Policy#Issues existing with the current policy (Marshallsumter). The uploader is always the first source! --Marshallsumter (discuss • contribs) 04:21, 25 March 2016 (UTC)