Commons talk:Project scope/Precautionary principle

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Update needed for Commons:Sexual Content[edit]

This Principal should be updated to include other possible legal liabilities, such as child pornography, bestiality, and certain typed of extreme pornography that could be prosecuted under various obscenity laws. I think we should limit all extreme pornography as defined by UK's W:Section 63 of the Criminal Justice and Immigration Act 2008. - Stillwaterising (talk) 13:09, 22 May 2010 (UTC)

Limits Clarification: Files should NOT be deleted for licensing reasons if "to the best of our knowledge" they are free.[edit]

Note that when our General Counsel, Mike Godwin was asked about images that are PD in their country of origin but not in US, which might be due to URAA or some other reason on an IRC office hour, he said "my view is that if material is understood to be in the public domain in its country of origin, then it's probably okay for someone to risk posting it to a wikimedia project, provided that, if the copyright holder complains, invoking rights under US law, in a properly crafted DMCA takedown notice, we'll probably take it down". (09:15:34). He's said similar things before (about cosplay photos, IIRC.) So files do NOT to be deleted if there's but a small chance that they're not free. So our policy should state explicitly that files should NOT be deleted for licensing reasons if "to the best of our knowledge" they are free. Perhaps "based on a preponderance of the evidence" is the best way to say that; it's a well-defined legal term and arguably draws the same line. Because we want to "build and maintain in good faith a repository of media files" on the one hand, but only of that "which to the best of our knowledge are free or freely-licensed", "to the best of our knowledge" is the appropriate line to draw. Wikipedia's General Counsel is in a much better position to indicate an appropriate balance among the goals of the project (including managing liability risk, being ethical, doing important work, and using limited resources efficiently) than perhaps anyone else - as foundation staff, and the attorney tasked with advising the organisation as a whole on legal issues. --Elvey (talk) 19:10, 13 April 2012 (UTC)

I totally agree here. I have on a number of cases run into the issue where an Admin uses this "Precautionary principle" in order to avoid making a call on a silly and minor issue. Then that call become "Law". This principle was never meant to be used that way. I would make the change myself, but I'm in the middle of a debate and that could be seen as a conflict of interest.--ARTEST4ECHO talk 13:52, 15 June 2012 (UTC)
For the record, I think this policy is good as it currently stands. Please don't make a significant change to this long-standing policy without gathering a wide consensus. --99of9 (talk) 14:06, 15 June 2012 (UTC)
99of9 is absolutely right. No changes based on personal opinions of a small user-"group". This precautionary principle is a basic Commons principle. It is a basic requirement for this free file host. --High Contrast (talk) 14:55, 15 June 2012 (UTC)
The lead has said for some time:
"Commons’ users aim to build and maintain in good faith a repository of media files which to the best of our knowledge are free or freely-licensed. The precautionary principle is that where there is significant doubt about the freedom of a particular file it should be deleted." [emphasis added]
It seems to me that that is exactly what is being discussed above. We keep files that to the best of our knowledge are free, and delete files where there is a significant doubt. I don't understand what change Elvey and ARTEST4ECHO are requesting. Suggested wording would be helpful, I think. And yes, of course, this is policy, so any significant change will require a broad consensus.     Jim . . . . Jameslwoodward (talk to me) 16:19, 15 June 2012 (UTC)
That's because you're confused, Jim/James. Please reread the title of this section that I created. It is: "Limits Clarification: Files should NOT be deleted for licensing reasons if "to the best of our knowledge" they are free." I have clarified what our policy IS (and the discussion my clarification has prompted confirms that it's valid). I did not propose a change to what the policy is. --Elvey (talk) 01:59, 9 July 2012 (UTC)
I do not think that we should change this policy. There might not be any legal risk for the Wikimedia Foundation, true, but other people are reusing Commons images and are depending on them being legal. We need to act responsibly to avoid any unnecessary risks for reusers. For example, a few months ago, there was a thread on the English village pump (I think) where someone had been sued by Getty for using a Commons image claimed (by Commons) to be a US government image. In that case, it seemed that Commons listed a wrong licence, and we need to prevent that similar problems occur in the future. --Stefan4 (talk) 23:17, 17 June 2012 (UTC)
I think Elvey leads with an interesting point, that Mike Godwin felt that our requirement that files be PD (or freely licensed) in the US as well as in the source country need not be strictly enforced (at least until the copyright holder complains). But I don't see that as very relevant to COM:PRP, since that requirement is not listed here. Perhaps it would be worth broaching that issue at Commons talk:Licensing. I agree with Jameslwoodward that COM:PRP already says exactly what Elvey argues for in the rest of his post. --Avenue (talk) 23:45, 17 June 2012 (UTC)
I agree with Stefan4. While a lower standard might not put WMF in any legal jeopardy (they could rely on take-down notices), it would put reusers in a difficult spot. Ideally, of course, the US would adopt the rule of the shorter term and this would no longer be a problem, but that seems exceedingly unlikely; for the forseeable future we, and reusers, must contend with works being PD in other countries but still copyrighted in the US. cmadler (talk) 18:41, 21 June 2012 (UTC)
  • Pictogram voting comment.svg Comment . Could we create a new template for some files that could warn re-users that the image usage policy may change in the future? They may think twice before using it in print material then and possibly seek another image or contact the creator about usage.--Canoe1967 (talk) 13:57, 18 June 2012 (UTC)
Is your suggestion referring to my comment about possibly moderating enforcement of our PD-US requirement for files from other countries? If so, I think this should be discussed elsewhere, since it is not especially relevant to COM:PRP. If not, can you please explain further what changes you are expecting, and why they would be relevant to re-users? --Avenue (talk) 14:40, 18 June 2012 (UTC)
No. pump/copyright is discussing a well established site that has a CC licence on images that are copyright elsewhere. The company is a multi-national media outlet. Seems no one has bothered to send an email to those involved to see if the licences are valid CC, which many assume they are.--Canoe1967 (talk) 17:08, 18 June 2012 (UTC)
  • Pictogram voting comment.svg Comment . I'm not sure what changes need to be make, However, my issue with this page is two fold:
    1. "best of our knowledge are free" is often completely ignored while "significant doubt" has become "Any doubt at all". I have been involved in a number of discussion where this "Precautionary principle" is used to delete images that even the United States Government says are free, but a single user comes up with a theory as to why it not true, and then the image is deleted. In a nut shell, this principle has become "All images should be deleted if there is any theory as to why the image might in any way be unfree, despite any evidence to the contrary".
    2. This principle is used to often to "Avoid" making a call, leading to bad precedents being set. When a Administrator doesn't want to spend the time to figure out what to do, he will deleted the image instead of spending the time to figure it out saying "Precautionary principle". Then the nominator goes on to tag many more images saying "See this example says my idea is right so all these other image should be deleted." Then images that shouldn't be deleted are, based on one bad call. An image is either free or not. This "Precautionary principle" shouldn't be the "First" choice in deleting an image, but a "Last Choice". It should be a "When all else fails" situation. I think an image should no be deleted based solely on this "Precautionary principle", unless everything else has been exhausted first.
I guess in a nutshell, this Precautionary principle is not being applied correctly in my eyes. It's become the type of "Legal Technicality" that would be used to lets criminals go free despite the cfact that they are in fact guilty. It is being used to deleted images, that are free, based on one nominators fringe theory about how, giving a huge number of assumptions and variables falling into place, an image might not be free. Again, it's not "No Doubt" but "Significant" doubt.--ARTEST4ECHO talk 15:14, 18 June 2012 (UTC)
It seems to me that although you disagree with the way some editors implement it, you are agreeing with the precautionary principle as written? cmadler (talk) 18:45, 21 June 2012 (UTC)
Perhaps a solution might be to write an essay elaborating on this policy. Take the example of the English Wikipedia policy Wikipedia:Non-free content criteria and the supporting guideline Wikipedia:Non-free content. cmadler (talk) 19:07, 21 June 2012 (UTC)
  • http://en.wiktionary.org/wiki/significance_level - definition, if anyone wants it handy.--Canoe1967 (talk) 17:18, 18 June 2012 (UTC)
    • Statistical significance is completely irrelevant here. --Avenue (talk) 17:52, 18 June 2012 (UTC)
      • Indeed. Again, it is current policy that files should NOT be deleted for licensing reasons if "to the best of our knowledge" they are free." I have clarified what our policy IS. That fact does not rely on an interpretation of what is or is not "significant doubt", or what the term means. Come to think of it, it's an extremely vague term (much like "material", as in "material adverse effect on earnings") that doesn't really have a generally agreed upon definition and doesn't really belong in policy. It's exactly that vagueness that is causing much of the common, and problematic friction. So come to think of it, I do think a policy change is needed. The "significant doubt" term needs to be removed, defined, or replaced with something with some precision to it, e.g. "where the balance of the evidence indicates that the work is likely (as in 50%+ odds) non-free, or there is equally strong but conflicting evidence, it should be deleted." But I'm getting off topic now... --Elvey (talk) 01:59, 9 July 2012 (UTC)

Pictogram voting comment.svg Comment For the record, this major policy change on 20 August 2012 was reverted as there was no consensus for it (in fact, no response of any kind had been made to the 9 July proposal here on this page). The policy wording had been stable before this since November 2008. Rd232 (talk) 00:18, 17 December 2012 (UTC)

Pictogram voting comment.svg Comment I had an idea a while ago to tag images with a new template if they are in dispute. 'Warning! This file may be proven as non-PD in the future. Avoid use in permanent/printed media etc in case the status changes in commons.'--Canoe1967 (talk) 18:09, 17 December 2012 (UTC)

Well we have some specific tags, like {{Not-PD-US-URAA}}, and of course deletion / speedy deletion tags. Any concerns should really be made as specific as possible, so I don't think a generic tag is going to be helpful. Do you have any specific examples you were thinking of? Rd232 (talk) 19:13, 17 December 2012 (UTC)
File:Bill Gates mugshot.png This one. I brought it up at pump/copyright. It seems to me to be a good example of the opposite. No evidence at all that it was published before 1977/1989, nor whether it had a copyright notice.--Canoe1967 (talk) 21:06, 17 December 2012 (UTC)
There seems to be a fairly thorough explanation of why it is PD on its description page, including that it was "published" in a technical sense, and does not bear a copyright notice. What do you think is lacking there? --Avenue (talk) 01:56, 18 December 2012 (UTC)
Never mind, it's more sensible to discuss this in one place (COM:VPC). --Avenue (talk) 02:03, 18 December 2012 (UTC)

Fact of the matter is that images can always become unfree by a new law retroactively extending copyright. This has happened quite a few times in quite a few countries. You can't guarantee that a file will always be PD, even if it is right now. Someone not using his real name (talk) 01:43, 10 August 2013 (UTC)

Orphan works in the EU[edit]

The EU has a recent directive [1] on "orphan works", meaning works who are still presumed in copyright, but whose copyright holder cannot be reasonably located. The directive has yet to enter national laws though [2], the deadline for that is in October 2014. Someone not using his real name (talk) 01:23, 13 December 2013 (UTC)

Review of Precautionary Principle[edit]

Seems this link has not been added here -- there is a major discussion going on about the future of the Precautionary Principle:

-Pete F (talk) 07:21, 15 April 2014 (UTC)