Talk:Autopsy images of Ngatikaura Ngati

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Fair Use? Crown Copyright? Public Domain?[edit]

The issue of "Fair Use" keeps getting brought up on this page, and was even cited as the reason to close the RfC:  "the most pertinent [reason for exclusion] is that the image does not satisfy WP:NFCC." After further research, I will again state that Fair Use is not relevant, because the photos are ineligible for Crown Copyright. I'll state my case:

  1. Nobody has uncovered the actual text of High Court Judge Lang's ruling (I'd love to get a hold of it), but there is evidence to indicate that under that judge's order, the photos were "released by the High Court" and "allowed into the public realm". These statements are found in the text of the ruling from Dr. Kiro's complaint against TVNZ before the Broadcasting Standards Authority, a quasi-judicial body and reliable secondary source.
  2. In order for the BSA to rule, "The Authority also observes that TVNZ adhered to the stipulations made by the High Court judge", they have surely reviewed the text of the Judge's decision. Nevertheless, they recite the above assertions without challenging or contradicting them.
  3. To date, there has been one argument against declaring the photos to be in the public domain, and that is because Crown Copyright exists and persists indelibly. Stuartyeates argued: "Public domain doesn't exist in NZ copyright law, so the judge could not have been putting the images in the copyright public domain, he could have been moving them from the confidential domain to the public one, however." Sounds a bit self-contradictory, but nevertheless, he continued by saying, "as copyrightable material produced by crown agents, the images remain Crown copyright, as per the Copyright Act 1994."
  4. After reviewing that law, I disagreed, and tagged the license on the file's description page in the Commons as PD-ineligible. I also added the following justification to the description:

    "... As a result of that judge's order, and pursuant to New Zealand Copyright Act 1994, Section 27(1)(g) and Section 27(1A), this image is ineligible for Crown Copyright protection.

  5. Bilby reverted the licence, flagged the justification as "Dubious", and later removed it, without so much as a passing mention of the referenced law, and without any evidence to counter the claim.
  6. I therefore reproduce the relevant portions of that law here for further discussion:
    New Zealand's Copyright Act 1994 (Public Act: 1994 No 143):
    Sections 26-28: Crown Copyright
    27. No copyright in certain works.
        (1) No copyright exists in any of the following works, whenever those works were made:
            (g) judgments of any court or tribunal
        (1A) No Crown copyright exists in any work, whenever that work was made,—
            (a) in which the Crown copyright has not been assigned to another person; and
            (b) that is incorporated by reference in a work referred to in subsection (1).
  7. Now, in order for Judge Lang to have released the photos into "the public realm", or "public domain", or "OK for TV broadcast", or whatever you want to call it, he would have had to have incorporated it by reference into his ruling – else the ruling wouldn't be binding. Thus, subsection 27(1A)(b) of the Act is satisfied.
  8. No evidence has been presented to suggest that the judge assigned the Crown Copyright to a third party – nor would it make sense for him to have done so in this case. Thus, subsection 27(1A)(a) of the Act is satisfied, and no Crown copyright exists.
  9. Furthermore, please note that the English Wikipedia operates under U.S. jurisdiction. According to Wikipedia's Public Domain guidelines:

Under U.S. law, laws themselves and legal rulings also form a special class. All current or formerly binding laws, codes, and regulations produced by government at any level, including other countries’ governments, and the court opinions of any court case are in the public domain. [1] This applies even to the laws enacted in states and municipalities that ordinarily claim copyright over their work. The US Copyright Office has interpreted this as applying to all "edicts of government" both domestic and foreign. (emphasis added)[CC Note 1]

  1. ^ The Compendium of Copyright Office Practices (Compendium II) section 206.01 states, "Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments."

I'm not sure how many more reasons we need, but I continue to maintain that the image is ineligible for Crown Copyright, and must therefore be tagged PD-ineligible. I welcome any substantive discussion of the above on its merits.  Grollτech (talk) 21:33, 4 November 2012 (UTC)[reply]

The image was protected by crown copyright presumably as a work made by a person engaged by the crown[2]. So based on that alone, the assumption is that the image is non-free, and will remain so for quite some time.
Therefore the question is whether or not the judge removed that copyright. I'm not comfortable with your argument - you, as far as I am aware, are not a NZ copyright lawyer, so relying on your interpretation of the law, as it applies to a legal ruling which you have not seen, based on your reading of a third party's statement, is insufficient for me to accept that crown copyright has been removed. - Bilby (talk) 22:46, 4 November 2012 (UTC)[reply]
I have changed my bullets to numbers above (and below) by request... Bilby,
  1. You're right – no, I am not a lawyer, nor do I play one on TV, nor did I stay at a Holiday Inn Express last night. Nor am I asking you to believe "my reading" of anything. I have provided links for everything – and encourage you to read it for yourself.
  2. The only "evidence" which you had cited previously as to the "dubious" nature of "my readings" was that you couldn't find explicit confirmation by a newspaper reporter, so I thank you for including a link to Section 26 of the Crown Copyright Act.
  3. Since you referenced it, I hope you noticed Section 26 paragraph (7), which states,

    "This section is subject to section 27."

  4. Do you disagree that Section 27 excludes from Crown Copyright certain works, even if the Queen herself created it? Can I ask how you would interpret Section 27?
  5. "the question is whether or not the judge removed that copyright" – No, actually, the question is whether the judge incorporated the photos by reference into his ruling, and how he could have released the photos into the public realm without doing so.
  6. The "third-party" to which we refer is an "independent Crown Entity" as defined by the Crown Entities Act 2004, and was established under the Broadcasting Act 1989. This "third party" has powers resembling those of a court of law or judge, and is empowered to issue legally-binding orders so as to remedy situations, and is authorized to impose legal penalties (fines) of up to $100,000 (plus the costs of the prevailing party's legal expenses) against a person or organization who is in violation. Also, anyone who provides false testimony to this "third-party" is guilty of perjury under the Crimes Act 1961, and it's safe to say that nobody went to jail as a result of the formal hearing that this "third-party" held over the matter. The Chairperson of this "third-party" is required by law to be a barrister or solicitor – indeed, Chairperson Morris signed her name to the ruling. I have every bit of faith that they know how to read a judge's decision, and how to accurately report on it.
They're certainly more reliable than a newspaper. Grollτech (talk) 03:38, 5 November 2012 (UTC)[reply]
Do you have access to the judges ruling to show that it was incorporated as a reference? What we know is that the judge allowed the images to be broadcast by the media. We don't know that he released them into the public domain, or incorporated them into his ruling as a reference, or that the law would necessarily mean, in this particular case, that the images would now be public domain if they were incorporated as a reference. There are too many uncertainties here to read it as a public domain image, especially given that we also know that the judge placed conditions on the use of the image, and that a website which published those images was reported to the NZ police and internal affairs by the Children's Commissioner.[3] - Bilby (talk) 03:56, 5 November 2012 (UTC)[reply]
(edit conflict) Responding to your points:
  1. Someone in New Zealand would have a better chance of getting a hold of the judge's ruling, which is public information, and I know that someone in New Zealand is paying attention to this discussion who would be more than happy to produce it, if it will prove me wrong. In fact, I would love it if someone were to acquire it and post a photo of it to Wikimedia Commons. Even if it proves me wrong, it would certainly add to the encyclopedic value of this article, and I would welcome that.
  2. But exactly what is the required burden of proof in this case? Since when has a judge's ruling been required to settle a dispute in Wikipedia? What's wrong with overwhelming evidence and logic? Why would you have accepted a newspaper report of that judge's decision, but you won't accept a quasi-judicial Crown Entity's report of the same? Do you really believe everything you read in the paper, or only when it fits your position?
  3. "We don't know ... that the law would necessarily mean, in this particular case, that the images would now be public domain if they were incorporated as a reference." C'mon, that's like President Clinton saying, "It depends on what the meaning of the word 'is' is." If you can parse wikitext markup – and I know that you can – then you can properly parse the meaning of Section 27(1A).
  4. Thanks also for mentioning Commissioner Wills, I forgot about him. Given the media hype over the websites' use of the images, and in light of the fiasco that was his predecessor's predecessor, Commissioner Wills had no choice but to refer the matter to the police. What is more telling is that absolutely nothing has happened in the last year of their "monitoring the situation". Surely, if the Crown was in possession of a legitimate claim to copyright, the Crown would have had those images taken down, right? Or maybe at least asserted their "copyright" and removed from Google's search results? That's real easy to do, even I have successfully done that with about 15 minutes of effort. But no, nothing has been done. That speaks volumes. The sites in question are both based in the United States, not on some pirate ship in the middle of the ocean... yet Google continues to list both sites in their search results – proving that the Commissioner's police referral was groundless P.R.
Please, point out the failure in my logic, and I will come around and acquiesce – I know you don't believe that, but really, I will.  Grollτech (talk) 06:31, 5 November 2012 (UTC)[reply]
In response to "Surely, if the Crown was in possession of a legitimate claim to copyright, the Crown would have had those images taken down, right?" I've got to say that I've never heard of legal action to enforce Crown copyright in New Zealand (informal action I've seen). It seems unlike that the crown would launch action is this case due to the difficulty of enforcement, muddied jurisdictional waters and the power of the Streisand effect. Certainly lack of legal court action can't be taken to imply lack of copyright. Stuartyeates (talk) 06:41, 5 November 2012 (UTC)[reply]
Further to this, searching the legal database I have access to, I'm failing to find a single case report that discusses "crown copyright", suggesting that there have no been any significant cases dealing with it in New Zealand in the last two decades (before that fewer cases are digital). Stuartyeates (talk) 08:54, 5 November 2012 (UTC)[reply]
You keep returning to the Broadcasting Standards Authority ruling, as if the authority found that the images were public domain. The authority did not state this.
The core problem is that the Broadcasting Tribunal's ruling had nothing to do with copyright - it had to do with whether or not TVNZ had permission to screen the photos (they did), whether or not TVNZ provided sufficient warnings (mostly, yes), and issues related to the interests of the child and public standards. All the Broadcasting Standards Authority ruling tells us in relation to copyright is that the images were used with the judge's permission, who made the unusual decision to allow the photographs to be publicly viewed. That's not enough to assume that the images are no longer protected by copyright. - Bilby (talk) 07:01, 5 November 2012 (UTC)[reply]
The judge didn't give copyright permission, he gave privacy permission. Stuartyeates (talk) 08:49, 5 November 2012 (UTC)[reply]

New sources[edit]

I would encourage everyone involved in the discussions around this page to spend a non-trivial proportion of time on the article looking for more sources.

Less directly related:

Still no luck with the order releasing the images. Stuartyeates (talk) 05:16, 5 November 2012 (UTC)[reply]

Excellent work, I will do that now. Even if it proves me wrong, I thank you. Grollτech (talk) 06:31, 5 November 2012 (UTC)[reply]
I'll try to have a further look too. Thanks. -- Trevj (talk) 06:50, 5 November 2012 (UTC)[reply]
Hope I'm not sticking my nose where it's not wanted -I was asked to contribute to the RFC -but I note a similar discussion about morgue images has been held at Talk:Benito_Mussolini#Photo_of_body_in_morgue. That image tells me nothing as I already know the guy was shot. This photo shows sustained beating. JRPG (talk) 20:11, 6 November 2012 (UTC)[reply]

What did the judge rule on?[edit]

Some of the comments above appear to suggest that the commenter believes that the High Court judge's ruling (discussed in the BSA ruling, search for references to 'judge') was concerned with the copyright on the autopsy images. I do not believe this to be the case. My reasons are:

  1. The only reference we have the discusses the BSA ruling in detail doesn't mention copyright at all, but mentions "judge’s stipulations" around the "child’s genitals and face not be shown" to "to preserve the child’s dignity" (i.e. not obviously copyright-related terminology).
  2. It is common practise in New Zealand for coroners to suppress all details of autopsies as a matter of course, but the Section 75 of the Coroners Act 2006 see here allows for applications to the High Court to make them accessible and further allows for the ruling judge mek them public "subject to conditions the Judge thinks fit". To these seem to be the stipulations mentioned in the source.

Note that in New Zealand inquests are open by default (those ruled suicides can't be reported on though), but autopsies are not. My understanding is that this is similar to the British system. The Coroners Act 2006 does not mention copyright at all. Stuartyeates (talk) 05:00, 6 November 2012 (UTC)[reply]

This ruling is likely to be similar to the ruling that we can't find; again, copyright is not mentioned; a non-issue. Another ruling from the High Court on autopsy information, again no mention of copyright. Stuartyeates (talk) 01:41, 7 November 2012 (UTC)[reply]
I doubt a judge has the ability to remove the copyright on an image, and we're not lawyers, without expert legal advice on what the implications of the judges release of the image is to the copyright we have to assume it to still be copyrighted. We always take the side of caution when it comes to copyright. — raekyt 00:46, 9 November 2012 (UTC)[reply]

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