Wikiversity:Uploading files/Resolution:Licensing policy

This is copied from Resolution:Licensing policy permanent link, which does not allow viewing of wikitext source, so this is just what is displayed, except where links have been added or formatting revised for clarity.

Comments on the policy here should be in italics, and signed, and indented with, at least ::*, to clearly distinguish comments from the policy

Applicable definitions

Project

A specific Wikimedia Foundation project in a certain language or a multilingual project, such as English Wikipedia, French Wikisource, or Meta.

Free Content License

A license which meets the terms of the Definition of Free Cultural Works specific to licenses, as can be found at http://freedomdefined.org/Definition version 1.0.

Exemption Doctrine Policy (EDP)

A project-specific policy, in accordance with United States law and the law of countries where the project content is predominantly accessed (if any), that recognizes the limitations of copyright law (including case law) as applicable to the project, and permits the upload of copyrighted materials that can be legally used in the context of the project, regardless of their licensing status. Examples include: http://en.wikipedia.org/wiki/Wikipedia:Non-free_content and http://pl.wikinews.org/wiki/Wikinews:Dozwolony_u%C5%BCytek.

The description of the EDP appears to have been crafted mostly with Fair Use in mind, as distinct from permitted use. --Abd (discuss • contribs) 00:07, 24 February 2014 (UTC)[reply]

Resolution

Whereas the mission of the Wikimedia Foundation is to "empower and engage people around the world to collect and develop educational content under a free content license,"

Somehow I imagined that the original goal was to create an "encyclopedia anyone can edit." The difference between "free use" -- i.e., with no restriction at all, and "free use for study and learning" was no apparent to me, and, I'm sure not to many others. When we see "free use," we think, "may be used for free," and we don't think about "may be sold, but the free use policy explicitly wants to make the content maximally safe for those who will sell it. For whatever reason, the WMF has been dominated by this purpose. It makes some sense. However, the problem is when this goal conflicts with project quality and, with Wikiversity in particular, project function, particularly as Wikiversity incorporates "learning by doing" and is not solely devoted to content, i.e., "educational materials." The process of collaboration, of debate, discussion, all this, is important to Wikiversity, whereas, on Wikipedia, as an example, it is often prohibited.
The Wikipedia home page says, "Welcome to Wikipedia, the free encyclopedia that anyone can edit." When I read that, I think, "I don't have to pay to read it." However, that may not be what is meant. The word "free" there -- this is only visible if I hover a mouse over it -- is a separate link, pointing to w:Free content, that makes it clear that the content is, supposedly, that which has

has no significant legal restriction on people's freedom:

to use the content and benefit from using it,

to study the content and apply what is learned,

to make and distribute copies of the content,

to change and improve the content and distribute these derivative works.

Again, reading this, if I haven't been sensitized to the issue, I don't see "for profit" in there. However, distinguishing free content from permitted content, with certain common licenses, hinges entirely on whether or not the re-use is "commercial." I.e., benefiting the re-user through profit or commercial benefit.
Great idea. But the Resolution appears to require significant labor to be expended to find or create free content, as distinct from permitted or fair use content. The problem for Wikiversity -- and for the other WMF sites, in fact -- is that this labor does not improve the project, in itself. Most users couldn't care a fig about this policy, and aren't going to spend their days researching file licenses, just to benefit some for-profit user in the future, who may never appear. As to permitted use, generally, and fair use, a nonprofit re-user can assert the same reasons for hosting. Some users do care, apparently, but these few are faced with a flood of violating files, entangled with pages where the files are in actual usage, since uploaders are not copyright experts. --Abd (discuss • contribs) 00:07, 24 February 2014 (UTC)[reply]

All projects are expected to host only content which is under a Free Content License, or which is otherwise free as recognized by the 'Definition of Free Cultural Works' as referenced above.

As stated, this is an expectation that is commonly not met, because of what follows, which is stated as "in addition," but which is actually an exception. Further, it is inevitable that all the projects will host non-free content, because uploads are allowed, ad hoc, with no review required. Commons is represented, today, as "a database of 20,289,655 freely usable media files to which anyone can contribute." That's an oxymoron, as Commons is actually implemented. We have no way of knowing how many of the 20 million files are actually free content. We only know that there is constant review of files, many are deleted every day because of real or even merely suspected license issues, often after long delays. We can do better than this. --Abd (discuss • contribs) 00:07, 24 February 2014 (UTC)[reply]

In addition, with the exception of Wikimedia Commons, each project community may develop and adopt an EDP. Non-free content used under an EDP must be identified in a machine-readable format so that it can be easily identified by users of the site as well as re-users.

There should be no difficulty with this, if we adopt certain standard procedures and make it easy for uploaders to follow them. One of the problems is expecting uploaders to be able to make fairly complex choices about licensing. We should simplify the process, fully documenting what users can do to facilitate approval of their files. A user should be, reading readily accessible instructions, able to expect how the community will respond. It is in reliably providing a machine readable format tagging any non-free content that we can do better than Commons. We can do this by setting our procedures and settings to tag all files as non-free by default, then allowing specific time limits for hosting such files. The tags may then be changed by any user to reflect free content, if that is confirmed. If the content is used under our EDP, the non-free tag remains. It may be specific as to whether or not the usage is Fair Use or Permitted use, with categories that are specific being used. --Abd (discuss • contribs) 00:07, 24 February 2014 (UTC)[reply]

Such EDPs must be minimal.

Unfortunately, this is not well defined. The material that follows appeared, to some, to be describing the limitation. In fact, it is a list of permitted uses, and it also creates what would legally be a "finding of fact" without regard to actual situations.

Their use, with limited exception, should be to illustrate historically significant events, to include identifying protected works such as logos, or to complement (within narrow limits) articles about copyrighted contemporary works. An EDP may not allow material where we can reasonably expect someone to upload a freely licensed file for the same purpose, such as is the case for almost all portraits of living notable individuals. Any content used under an EDP must be replaced with a freely licensed work whenever one is available which will serve the same educational purpose.

That is, there are several explicitly permitted usages:

to illustrate...
to include identifying protected works...
to complement articles about copyrighted contemporary works.

But what does "limited exception" mean? Normally that phrase would limit the application of the sentence it is within. However, it seems that the intent here was simply to restate that the EDP should not open floodgates for massive and unrestricted use of non-free content.
Again, "reasonably expect" implies an understanding of what the user can do. A user uploading a file has chosen that file as suitable for use. Now, how much work should the user be "reasonably expected" to do to find a "freely licensed file"? The user is here for educational purpose, not to engage in what can be quite tedious, checking the licensing on files that might come up in a search. Have tools been provided to simplify this? A user may spend hours trying to find such a file and come up with nothing as suitable as the file they already have.
We had a case here where a resource was illustrated with a photo of a professor, very notable for the page. The photo was hosted on the professor's university web site. It was a low-res version, easily usable as Fair Use, if it wasn't actually free. A living person. The person was not necessarily "notable" in the Wikipedia sense. Again, the WMF Resolution seems to have been adopted, thinking almost entirely about Wikipedia. Wikiversity existed, then, but was just a blip in the massive Wikipedia phenomenona. --Abd (discuss • contribs) 00:07, 24 February 2014 (UTC)[reply]

Media used under EDPs are subject to deletion if they lack an applicable rationale. They must be used only in the context of other freely licensed content.

Every file hosted on Wikiversity exists in its own context. One may see it, alone. If this provision is interpreted literally, there could be no fair use images. Rather, what is meant here is that a page, consisting of free use content (created by our users and released under the site license, or otherwise placed here as free use content), contains the image. This is the requirement that non-free use files must actually be used in some resource for educational purpose, beyond the mere hosting of the file.

"Subject to deletion" does not mean, necessarily, immediate deletion. No project does this, rather, time limits are set that allow discussion, etc. We may set these limits according to our own needs. However, these time limits we will set, I suggest, according to a fair balance between the goal of "free use," and the goal of facilitating education and learning by doing.
Further, we can ensure that, in the mean time, all non-free files -- including all those pending review -- are tagged, machine-readably, so that the purpose of this requirement is more effectively fulfilled than is, at present, the case. --Abd (discuss • contribs) 00:07, 24 February 2014 (UTC)[reply]

For the projects which currently have an EDP in place, the following action shall be taken:

As of March 23, 2007, all new media uploaded under unacceptable licenses (as defined above) and lacking an exemption rationale should be deleted, and existing media under such licenses should go through a discussion process where it is determined whether such a rationale exists; if not, they should be deleted as well.

This has been read by some as demanding immediate deletion. It does not appear to have been consistently interpreted that way, on projects with an EDP. It certainly has not been interpreted that way here. --Abd (discuss • contribs) 00:07, 24 February 2014 (UTC)[reply]

For the projects which currently do not have an EDP in place, the following action shall be taken:

As of March 23, 2007, any newly uploaded files under an unacceptable license shall be deleted.

The Foundation resolves to assist all project communities who wish to develop an EDP with their process of developing it.

We will welcome assistance. --Abd (discuss • contribs) 00:07, 24 February 2014 (UTC)[reply]

By March 23, 2008, all existing files under an unacceptable license as per the above must either be accepted under an EDP, or shall be deleted.

Passed with 7 supporting, 23 March 2007.

"Shall be deleted" does not state who deletes them, and how. It is obvious that the WMF never implemented a procedure for doing this. The software continues to allow unlicensed files to be uploaded. There is a procedure for deleting content where a copyright owner has objected. That's legally mandated, so the WMF ensures that it happens. It still uses volunteers for this, through OTRS. However, if the flow of volunteers were to dry up, the WMF would still do it, through staff.
It is clear that the WMF has not assigned a high priority to the enforcement of the Resolution licensing policy, or it would have been enforced.
Various initiatives on Wikiversity to enforce the policy have not been at the request of the WMF, with responsible users who will balance "free use" vs. "educational value," having been chosen. Instead, they have been ad hoc.
We will support the Resolution policy, but the practical reality is that regular Wikiversity users are here for education and communication, not the "free content" goal of the WMF. So policy must respect both sides of this issue, or else it will not be self-enforcing. The "reasonable expectation" on users must not create an onerous burden, neither on uploaders nor on Wikiversity administrative (volunteer) staff. If it is actually easy to find an equivalent file, then anyone can surely do it. --Abd (discuss • contribs) 00:07, 24 February 2014 (UTC)[reply]