Archive:Fair Use Policy, Media

THE FOLLOWING IS ONLY A DRAFT FOR A PROPOSED POLICY AND SHOULD NOT BE RELIED UPON IN ANY WAY.

DISCLAIMER: The following is not legal advise but Citizendium policy guidance. The onus of any fair use claim ultimately rests upon the uploader of such content, who is advised to make their own, independent evaluations of their fair use claims in consultation with appropriate legal counsel. For content uploaded by Citizendium contributors as fair use, the onus of their claims rest solely upon re-users of Citizendium content. Potential and actual re-users of Citizendium content are advised to make their own, independent evaluations of all Citizendium content prior re-use, in consultation with appropriate legal counsel.

Fair use is a necessarily difficult yet navigable area of Citizendium policy. It is often labor-intensive as well. Legal scholars have described the "fair use" doctrine as "a murky concept in which it is often difficult to separate the lawful from the unlawful." Confounding this, there is only one sure way to tell whether the particular use you claim to use as "fair" really is: by having the matter resolved in federal court.

Citizendium's policy on fair use is designed to steer contributors toward the "clear" side of these murky waters, to try to avoid the precarious situation of fair use challenges, to not prohibit fair use media altogether, and to make the whole area as straightforward as possible. The policy basically follows that of reputable scholarly journals, while balancing and incorporating into the mix Citizendium's ideals of providing libre content to re-users.

Test 1: Libre Substitute

The most straightforward way to avoid troubles over fair use is to avoid invoking the doctrine at all. To this end you should apply Test 1 before even considering whether to make a fair use claim.

Does libre media exist, or could it be reasonably created within the next year or so, that would substantially convey the same information contained in copyrighted media over which you are considering making a fair use claim?

If Yes, then your upload does not qualify for a fair use claim on Citizendium.

If No, then proceed to Test 2, below.

Test 2: Is it one of the following types of fair use?

All articles in which fair use images appear must strictly adhere to Citizendium's Neutrality Policy. Anyone may remove fair use images from articles if they believe this is an issue. No fair use images may be uploaded in SVG format.

Coats of Arms, Flags, Seals, etc. of administrative entities, political authorities and institutions

Given the following condition:

• The image must be good quality, i.e., not blurry and preferably in PNG format, yet only in size and resolution sufficient for adequate displaying of information, and should appear in a box with text stating it is the official [flag, seal, etc.] of [entity].

Currency and Stamps

Given the following two conditions:

• The images must be low in resolution and of a size only sufficient for adequate displaying of information.
• The images must be watermarked with "Sample", "Example", or comparable, e.g., the image of a stamp must have already been canceled.

Company Logos and trademarks

Given the following three conditions:

• The image may only appear in an article specifically about the company or product whose trademark is being used.
• A disclaimer must be placed at the top of the top of the article stating, This is not an official page of [http://www.companydomain.com|Company name]. For companies without a web presence, simply place the company name.
• The image must be good quality, i.e., not blurry and preferably in PNG format, yet only in size and resolution sufficient for adequate displaying of information, and should appear in a box with text stating it is the official [logo, trademark] of [company].

Software Screenshots

Given the following three conditions:

• The screen capture must illustrate a specific point within the article.
• Partial screen captures must be used whenever possible.
• The image must be no more than about 10% of the original pixel size as might be displayed on a typical 15 inch (38 cm) computer screen.

If Yes, then your upload does qualify for a fair use claim on Citizendium.

If No, then proceed to Test 3, below.

Test 3: Permissions Diligence

Authorities are unanimous that fair use claims are bolstered when they were preceded by documented diligent seeking of permission. To this end you should apply Test 3 before even considering whether to make a fair use claim.

Have you diligently but unsuccessfully attempted to contact the copyright owner to ask permission, and are you prepared to document those attempts on a subpage of the image's talk page?

(For an example of a thus far unsuccessful attempt see Talk:Tux/lin64; for an example of a thus far probably successful but as yet inconclusive attempt see Talk:Tux/ccpenguin.jpg; for examples of successful attempts see Image talk:Wessel 1954 fig1.png/Permission and Image talk:Gilad Atzmon - for Citizendium.jpg/Permission).

If No, then your upload does not qualify for a fair use claim on Citizendium. See documenting permissions for help on the next steps to take.

If Yes, then proceed to "Test 4: Fair use or not?" below.

Test 4: Fair use or not?

Overview of legal doctrine

The law of fair use, having developed by courts since the 1800s, has since been codified in the United States Copyright Act, 17 USC § 107:

§ 107. Limitations on exclusive rights: Fair use

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.

Because the statute is based on the doctrine developed by the courts, the cases establishing that doctrine are particularly important in interpreting the statute.

The Electronic Frontier Foundation helpfully expounds:

There are no hard and fast rules for fair use (and anyone who tells you that a set number of words or percentage of a work is "fair" is talking about guidelines, not the law). The Copyright Act sets out four factors for courts to look at (17 U.S.C. § 107):

1. The purpose and character of the use. Transformative uses are favored over mere copying. Non-commercial uses are also more likely fair.
2. The nature of the copyrighted work. Is the original factual in nature or fiction? Published or unpublished? Creative and unpublished works get more protection under copyright, while using factual material is more often fair use.
3. The amount and substantiality of the portion used. Copying nearly all of a work, or copying its "heart" is less likely to be fair.
4. The effect on the market or potential market. This factor is often held to be the most important in the analysis, and it applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, it's unlikely to be a fair use; uses that serve a different audience or purpose are more likely fair. Linking to the original may also help to diminish the substitution effect. Note that criticism or parody that has the side effect of reducing a market may be fair because of its transformative character. In other words, if your criticism of a product is so powerful that people stop buying the product, that doesn't count as having an "effect on the market for the work" under copyright law.

Additional guidance

Thus, Test 3 is:

If after carefully reviewing Test 3: Fair use or not?, are you convinced your claim of fair use is fair use indeed?

If No, then your upload does not qualify for a fair use claim on Citizendium.

If Yes, then proceed to Making a strong fair use claim, below.

Is it copyrighted or not?

Works are copyrighted as soon as they are "fixed in a tangible medium of expression," but some legal rights and remedies are available only if the work's copyright is registered. To find a copyright registration, you may search copyright records at the Copyright Office website, but be aware that not finding a match does not mean the work is uncopyrighted.

Making a strong fair use claim

If after you have documented diligent yet failed permission efforts and you are convinced you have a clear fair use claim, you should carefully and in detail document your reasons for believing in your claim with the following format:

Additional reading

• Digital History: A Guide to gathering, Preserving, and Presenting the Past on the Web — by the Center for History and New Media, George Mason University