The following discussion is archived. Please do not modify it. Subsequent comments should be made in a new section.A summary of the conclusions reached follows.
After being open for 1 year, there is evident lack of interest or community consensus for this matter. ~riley(talk) 23:30, 26 February 2018 (UTC)
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The discussion is now closed, please do not modify it.
Should videos where a speaker can be seen referring to notes be deleted, unless in addition to the video license, the notes are released on a license per COM:Licenses, or should the verifiable license of the video be considered sufficient for Commons, unless evidence of text copyright has been verified, or the speaker has asserted that the text is copyrighted?
The question arises after several educationally important videos were deleted from Commons, without a complainant or take-down and without any evidence that a pre-existing text is independently copyrighted or still exists, even though the video itself has a source with a credible public domain license release. The implication is that all past and future videos of presentations, interviews and speeches where it is reasonable to suspect that one of the parties filmed is referring to notes, will require at least two copyright releases. Namely the person filming who has copyright of the film, and the person who wrote the notes or speech text being referenced. Where a video includes presentation materials, such as at Wikimania presentations, there would be three copyright releases required, the person filming/recording, the writer of any notes/texts being referenced and the creator of the presentation materials visible during the film. Even where these parties are the same person, explicit releases would be needed.
In terms of existing policies and practice, the COM:Precautionary principle may be interpreted by the understanding of what constitutes "significant doubt". It is a matter of community consensus that can drive that interpretation. In terms of U.S. copyright law, there have been no copyright cases discovered to date where a speech maker has gone to court to challenge the copyright of a film-maker, without first publishing their version of the pre-prepared text. It may be a reasonable interpretation of significant doubt to ask that evidence of a challenge or copyright of a speech text exists, before overruling a verifiable public domain release of a video, such as one might find for a video from NARA or the White House.
Only one relevant copyright case has been referenced in past discussions, refer to I Have a Dream. In that case the notes for the speech were required to be presented in court before a claim could proceed.
The WMF has produced a summary essay at m:Copyright of Political Speeches, from which we may deduce that a speech's copyright cannot be based on the video alone, there must be a prepared text. The WMF has given no instruction to Wikimedia Commons as to whether a public domain video of a speech should always be deleted if a pre-existing text is suspected, or whether in the absence of any evidence or challenge from the speech maker, we can presume correctly licensed videos are under the significant doubt threshold even when nothing is confirmed about a speech text.
In terms of any risk for the volunteer uploader, there is none, if the video was demonstrably on a suitably free license on a credible source site, as the uploader can validly claim that they made a reasonable effort to determine copyright. In terms of risk for the WMF, again there is none, as there is no systematic bypassing of copyright claims and they follow the DMCA requirements. --Fæ (talk) 18:45, 8 February 2017 (UTC)
I agree that we should relax our understanding of the copyright surrounding speeches going forward per Fae's explanation. Unless a speech is clearly just a recitation of a written text (referring to written notes does not count), we should assume it not to be copyrighted in the future. Sebari– aka Srittau (talk) 19:40, 8 February 2017 (UTC)
This conversation and related discussions elsewhere have used examples about women speaking about US political issues. I wish for the politics to not be a distraction to the copyright discussion, but also I appreciate that interests beyond copyright have made people interested enough in the issue to think about copyright and comment. I have another example here which might be easier to consider because it is a transcript instead of a video, and because we already have some examples of how other media houses have treated the speech.
I am presenting this so that we have an example of a prominent person giving a speech broadcast under the oversight of every media lawyer in the United States. The speech itself was the subject of media attention. There is no sign of a copyright release anywhere, and competing media outlets all seem comfortable publishing the speech in its entirety for its own sake and not as part of any fair use commentary. In fair use of copyrighted works critics might publish parts of a movie or book, but not duplicate the entire work in a way that replaces the original. This speech - and many others like it published in hundreds of events over decades - is distributed in the manner of public domain works and not in the manner of fair use.
Note the additional complication - Streep brought a prepared speech to the stage, held her notes in her hands, said that she intended to read it, then she started talking. Even in these circumstances the media houses recognized this as public domain speech. I lifted some of the below text from 74th Golden Globe Awards.
Actor and talk-show host Jimmy Fallon was announced as the host of the ceremony on August 2, 2016.Meryl Streep was announced as the Cecil B. DeMille Lifetime Achievement Award honoree on November 3, 2016.
Meryl Streep used her acceptance speech to criticise, without stating names, President-elect Donald Trump's alleged imitation of the disabled New York Times journalist, Serge F. Kovaleski, stating: "Disrespect invites disrespect. Violence incites violence. When powerful people use their position to bully we all lose."
Media sources which published the transcript of this speech in entirety include the following:
Just because the media can do (in some cases, get away) with something does not mean that it conforms to our guidelines. In this case, Streep would have a hard time arguing that a media outlet did not have permission ("a license", implied) to publish the speech or parts of the speech, as it was obviously meant for the public. But what if someone took the speech or her performance of it, and used parts of it in a music video? This is a use case that files hosted on Commons must support (ignoring non-copyright restrictions). I honestly have no idea how that would be judged by a court. Sebari– aka Srittau (talk) 17:09, 9 February 2017 (UTC)
I believe it's interesting but slightly irrelevant. As there is no evidence that the transcript of the film matches a prepared text, or that the prepared text exists and could be produced in court, the fact that the transcript of the film has been published by others does not set a useful precedent. It would be more useful to find a case where either (a) someone attempted to claim damages but could not produce the claimed pre-prepared text, but used the film itself as evidence they were prompted by a prepared text (b) someone recently (i.e. within the last decade) attempted to claim damages against a website hosting a public domain video of their speech, and could produce the text. Nobody has yet produced evidence of legal precedent based on case histories, rather than theory and the, now ancient, 'I have a dream' case which is so old it was pre-internet publishing. --Fæ (talk) 17:26, 9 February 2017 (UTC)
legal precedent has never stopped the deletionists here. they are right and everyone else is wrong. they will relist until they get the result they want. the precautionary cynicism is a septic road to delete everything that does not have a written release, and a supreme court decision. commons is a walled garden where you can only host insider how-to videos. they do not do nuance. there is no risk assessment. we need a culture change, but no sign of that. Slowking4 § Sander.v.Ginkel's revenge 19:50, 9 February 2017 (UTC)
Hi, I agree that the issue is much wider than a simple copyright issue. What happened with these videos also happened in other borderline cases (FOP, threshold of originality, old documents, etc.). We need a much better risk assessment than what we currently do. Regards, Yann (talk) 22:07, 9 February 2017 (UTC)