Wikipedia:Non-free content

[[Category:Wikipedia {{{1}}}s|Non-free content]]

Under U.S. copyright law, almost all work published after 1922 may have an active copyright (there are exceptions, however — see United States copyright law for details). In general, the use of copyrighted work without the permission of the copyright holder is copyright infringement, and is illegal. As such, on Wikipedia, which is hosted in the United States, we are normally only able to use material that is not under copyright or is available under a sufficiently free license.

An important exception to this rule exists, recognized in a clause in the copyright act that describes a limited right to use copyrighted material without permission of the copyright holder — what is known as fair use (or "fair dealing" in other countries, where standards may differ). This page is meant as a guideline for dealing with Fair Use materials on the English Wikipedia — it provides general guidance on what is or isn't likely to be fair use and how you can best assist editors when attempting to include material under fair use. However, it is not official policy. You, as the uploader, are legally responsible for determining whether your contributions are legal.

Acceptable uses

This section lists several categories of usage of copyrighted, unlicenced material that are generally approved as likely being fair use on the English-language Wikipedia when done in good faith and when their use is in accordance with the Policy and Law sections below. Material that does not fall under one of the designated categories listed below may or may not be fair use depending on what the material is and how it is used. If you want help in assessing whether a use is fair use, please ask at Wikipedia:Requested copyright examinations. Wikipedia talk:Copyrights, Wikipedia talk:Copyright problems, and Wikipedia talk:Fair use may also be useful. These are places where those who understand copyright law are likely to be watching.

General

In general four factors must be considered:

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

(Copyright Act of 1976, 17 U.S.C. § 107, [1])

Briefly, these indicate that 1. The use must not attempt to "supersede the objects" of the original but rather be educational or critical. 3. The less of the original that is used in relation to the whole the more likely that use is fair, though the importance of the specific portion is also considered (as the quoting the most important part may attempt to "supersede" the original). 4. The use must not infringe on the copyright owner's ability to exploit his original work for instance by acting as a direct market substitute for the original work though not through criticism or parody.

Text

Brief, attributed quotations of copyrighted text used to illustrate a point, establish context, or attribute a point of view or idea may be used under fair use. Text must be used verbatim: any alterations must be clearly marked as an elipsis ([...]) or insertion ([added text]) or change of emphasis ([emphasis added]). All copyrighted text must be attributed.

In general, extensive quotation of copyrighted news materials (such as newspapers and wire services), movie scripts, or any other copyrighted text is not fair use and is prohibited by Wikipedia policy.

Audio clips

Brief song clips may be used for identification of a musical style, group, or iconic piece of music when accompanied by critical or historical commentary and when attributed to the copyright holder.

Spoken word audio clips of historical events, such as speeches by public figures, may be used when accompanied by critical or historical commentary and when attributed to the speaker.

Spoken word audio clips of Wikipedia articles that incorporate copyrighted text pose legal problems (since the resulting audio file cannot be GFDL'ed) and should be avoided.

Images

There are a few blanket categories of copyrighted images whose use on Wikipedia has been generally approved as likely being fair use when done in good faith. These include:

• Cover art. Cover art from various items, for identification and critical commentary (not for identification without critical commentary).
• Team and corporate logos. For identification. See Wikipedia:Logos.
• Stamps and currency. For identification.
• Other promotional material. Posters, programs, billboards, ads. For critical commentary.
• Film and television stills. For critical commentary and discussion of cinematic and televisual history.
• Screen shots from software products. For critical commentary.
• Paintings and other works of visual art. For critical commentary, including images illustrative of a particular technique or school.
• Publicity photos. For identification. See Wikipedia:Publicity photos.

Counterexamples

Some people find it easier to understand the concept of fair use from what is not fair use. Here are a few examples of uses that would almost certainly not be acceptable as fair use:

• An article containing one or more unattributed pieces of text from a copyrighted source.
• An image of a rose, cropped from an image of a record album jacket, used to illustrate an article on roses.
• A detailed map, scanned from a copyrighted atlas, used in an article about the region depicted. The only context in which this might be fair use is if the map itself was a topic of a passage in the article: for example, a controversial map of a disputed territory might be fair use.
• A work of art, not so famous as to be iconic, whose theme happens to be the Spanish Civil War, used without permission to illustrate an article on the war. (However, because of its iconic status, it is presumably Fair Use where we have a small image of Picasso's Guernica in the article Bombing of Guernica.)

Tagging fair use image files (under revision)

The system of fair use tags is presently under revision. The old tags may still be used while the new tags are being developed, unless the old tags explicitly state they should not be used. If you wish to discuss the new Fair Use tags, please see Wikipedia:WikiProject Fair use.

Labeling images as fair use can be done with the fair use copyright tags. If you have found a file that appears to be Fair Use, you can add a tag corresponding to the type of material to the image description page. For example:

• Cover art – {{albumcover}}, {{dvdcover}}, {{bookcover}}, and others.
• Team and corporate logos – {{logo}}.
• Stamps and currency – {{money}}, {{stamp}}.
• Other promotional material – {{promotional}}, {{movieposter}}, and others.
• Film and television stills – {{film-screenshot}}, {{tv-screenshot}}.
• Screen shots from software products – {{software-screenshot}}.
• Paintings and other works of visual art – {{art}}.
• Publicity photos – {{promophoto}}.
• Music samples – {{music sample}}.

Please also add the source from which the image has been reproduced. Remember there is no "general rule" about fair use, each fair use must be explained and a rationale must be established for that specific use (in other words every page that uses the image will have a distinct rationale for using the image on that page even though Fair Use is claimed on the image page).

Tagging for review

The following is currently a proposed addition to the review process examining the Fair Use of images. It is not official policy or guideline, but is a suggestion being discussed.

There are several tags that you can use in addition to the Fair Use tag to help for review purposes.

If you would like an image to be reviewed by another user as to whether or not it is Fair Use, you can add the tag {{fairusereview}} to it, which will flag it for an informal review by other editors.

If you believe an image that is tagged as Fair Use is definitely not Fair Use, you can add {{fairusedisputed}} to it, and it will be eventually nominated for deletion at Wikipedia:Possibly unfree images or Wikipedia:Copyright problems.

If you have reviewed a fair use image (whether it is tagged as {{fairusereview}} or not) and are quite confident that the image does qualify as Fair Use on the listed pages, add {{reviewedfairuse|pages=[[names of pages]]|user=~~~|date=~~~~~}} to the page. Do not review an image for Fair Use in an article if you either uploaded the image or made the decision to include it in the article where it is being used.

The reviewer may choose to accept a reasonably presented rationale in good faith without necessarily agreeing with each point asserted, as long as it does not contain information that the reviewer believes to be incorrect or misleading. If incorrect or misleading information is removed, and the reviewer believes that the remaining information is sufficient to provide a reasonable Fair Use rationale, then the rationale should be accepted. If the reviewer considers that the rationale is incomplete or does not provide sufficient detail to make a determination, then the reviewer should consider that the criterion has not been met.

Reviewers are urged to consider that some discretion and personal judgement is required in assessing whether certain of these requirements are met, and in these cases may choose to assume good faith, unless there is reason to doubt. Other users may be invited to review or comment if a clear determination can not be made.

If the image is used in more than one article, it is preferable that individual articles are assessed individually with a seperate template box used for each article reviewed, as future edits to a particular article may render Fair Use claims as void.

As the aim of this process is to improve Wikipedia, reviewers should, where possible, attempt to elevate the standard of the Fair Use of the image, by making any edits they consider appropriate, where possible. For example rewording an inadequately written Fair Use rationale, or deleting unnecessary information, is a far more constructive action than simply deeming that a criterion has not been met.

If you see an image tagged as fair use that would appear to be quite easy to replace with a free alternative, add {{fairusereplace}} to the image description page. The image will be added to Category:Fair use image replacement request so that others are aware of the problem and can create a replacement if possible.

Law

The Copyright Act of 1976 sets out four factors to consider when deciding if the copying of a copyrighted work is fair and allowable without the consent of the copyright holder (17 U.S.C. § 107)

Notwithstanding the provisions of sections 106 and 106A, the Fair Use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a Fair Use the factors to be considered shall include—

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

The fact that a work is unpublished shall not itself bar a finding of Fair Use if such finding is made upon consideration of all the above factors.[2]

There is also a substantial body of case law which can be consulted, and is useful for determining what some of the vague terms in these factors (such as "substantiality" and "purpose") have translated to previously in a court of law. Stanford University Libraries has put together a summary of some of the most relevant cases on the subject.

On Wikipedia, copyrighted, unlicenced material may be used under Fair Use if we firmly believe that the use would be judged to be fair if we were taken to court. Where possible, "free" material should be used instead of Fair Use material to avoid compromising the goal of a free encyclopedia and to avoid unnecessary legal exposures.

Fair use policy

The following section of this page is an official policy on Wikipedia. It has wide acceptance among editors and is considered a standard that all users should follow. Feel free to edit this section as needed, but please make sure that changes you make to this policy reflect consensus before you make them.

As per the Wikimedia Foundation Licensing policy resolution of March 23, 2007, this document serves as the Exemption Doctrine Policy for the English Wikipedia.

Rationale

• To support Wikipedia's mission to produce perpetually free content for unlimited distribution, modification and application by all users in all media
• To minimize legal exposure by limiting the amount of non-free content, using more narrowly defined criteria than apply under the fair use provisions in United States copyright law
• To facilitate the judicious use of non-free content to support the development of a high-quality encyclopedia

Policy

There is no automatic entitlement to use non-free content in an article or elsewhere on Wikipedia. Articles and other Wikipedia pages may, in accordance with the guideline, use brief verbatim textual excerpts from copyrighted media, properly attributed or cited to its original source or author (as described by the citation guideline), and specifically indicated as direct quotations via quotation marks, <blockquote>, {{Quote}}, or a similar method. Other non-free content—including all copyrighted images, audio and video clips, and other media files that lack a free content license—may be used on the English Wikipedia only where all 10 of the following criteria are met.

1. No free equivalent. Non-free content is used only where no free equivalent is available, or could be created, that would serve the same encyclopedic purpose.
2. Respect for commercial opportunities. Non-free content is not used in a manner that is likely to replace the original market role of the original copyrighted material.
3. Minimal usage:
   1. Minimal number of items. Multiple items of non-free content are not used if one item can convey equivalent significant information.
   2. Minimal extent of use. An entire work is not used if a portion will suffice. Low-resolution, rather than high-resolution/fidelity/bit rate is used (especially where the original could be used for deliberate copyright infringement). This rule also applies to the copy in the File: namespace.
4. Previous publication. Non-free content must be a work which has been published or publicly displayed outside Wikipedia by (or with permission from) the copyright holder, or a derivative of such a work created by a Wikipedia editor.
5. Content. Non-free content meets general Wikipedia content standards and is encyclopedic.
6. Media-specific policy. Non-free content meets Wikipedia's media-specific policy. For example, images must meet Wikipedia:Image use policy.
7. One-article minimum. Non-free content is used in at least one article.
8. Contextual significance. Non-free content is used only if its presence would significantly increase readers' understanding of the article topic, and its omission would be detrimental to that understanding.
9. Restrictions on location. Non-free content is allowed only in articles (not disambiguation pages), and only in the article namespace, subject to exemptions. (To prevent an image category from displaying thumbnails, add __NOGALLERY__ to it; images are linked, not inlined, from talk pages when they are a topic of discussion.)
10. Image description page. The image or media description page contains the following:
    1. Identification of the source of the original copyrighted material, supplemented, where possible, with information about the artist, publisher and copyright holder, and year of copyright; this is to help determine the material's potential market value. See: Wikipedia:Citing sources § Multimedia.
    2. A copyright tag that indicates which Wikipedia policy provision is claimed to permit the use. For a list of image copyright tags, see Wikipedia:Image copyright tags/Non-free content.
    3. The name of each article (a link to each article is also recommended) in which fair use is claimed for the item, and a separate, specific non-free use rationale for each use of the item, as explained at Wikipedia:Non-free use rationale guideline. The rationale is presented in clear, plain language and is relevant to each use.

Enforcement

• A file with a valid non-free-use rationale for some (but not all) articles it is used in will not be deleted. Instead, the file should be removed from the articles for which it lacks a non-free-use rationale, or a suitable rationale added.
• A file on which non-free use is claimed that is not used in any article (NFCC 7) may be deleted after being tagged for seven days under speedy deletion criterion F5.
• A non-free file lacking a non-free use rationale may be deleted after being tagged for seven days under speedy deletion criterion F6.
• A file in use in an article that does not meet F5 or F6 may be deleted under speedy deletion criterion F7 as follows:
  • Media from a commercial source which are not the subject of sourced commentary may be deleted immediately under F7b.
  • Non-free media which fail NFCC 1 (no free equivalent) may be deleted after being tagged as such for two days under F7c.
  • Other media with invalid fair-use claims may be deleted after being tagged as such for seven days under F7d.

Note that it is the duty of users seeking to include or retain content to provide a valid rationale; those seeking to remove or delete it are not required to show that one cannot be created—see burden of proof.

Files for discussion is the central venue to discuss whether a particular image meets the non-free content criteria, regardless of whether the file should be deleted or not. For example, a discussion might be held about whether it is appropriate to use an image in ARTICLE1 even if it unquestionably meets the criteria for use in ARTICLE2.

Downstream use

The primary goal on Wikipedia is to create a free content ("free" as in "free speech") encyclopedia which can be used by downstream users. For this reason we do not accept images which are licensed exclusively for Wikipedia, or licensed exclusively for non-commercial usage (which is not "free enough"). The current policy towards fair use is a notable blurry area in regards to this, as there are many conceivable circumstances in which the use of copyrighted materials would be fair use on the English Wikipedia (run by a non-profit organization), which might not be in many other contexts (such as by a for-profit organization). Just because something is Fair Use on Wikipedia does not mean it is automatically Fair Use in any other context — content re-users must evaluate their own circumstances on an individual level. Furthermore, Wikipedia Fair Use standards are currently modeled around United States copyright laws, and though fair use/"fair dealing" laws exist in some other countries, they are often very different than those in the United States.

For reusers, particularly commercial reusers, the most important part of a Fair Use description is good information on the original source of the image. That is essential to allow them to make their own determination of whether their own use is fair use. They can't rely on our judgment because they have legal liability regardless of what we say. Identifying the original source is good practice in general, as it bolsters our claim that we are not trying to defraud the original copyright holder.

Other language Wikipedias

Most other language wikipedias are far more restrictive towards fair use images, such as the German and Polish wikipedia which do not allow any images without a free license. The above guidelines may only apply to the English Language edition of Wikipedia, at http://en.wikipedia.org.

See also

• Wikipedia:Copyrights
• Wikipedia:Copyright FAQ
• Wikipedia:Copyright problems
• Wikipedia:WikiProject Fair use

External links

• Excellent coverage of fair use law by Standford U.
• U.S. Copyright Office summary of fair use
• Guidance about fair use from .Edu site