Commons talk:Licensing

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This is the talk page for discussing improvements to Commons:Licensing.

For discussions of specific copyright questions, please go to Commons:Village pump/Copyright. Discussions that do not relate to changes to the page Commons:Licensing may be moved, with participants notified with the template {{subst:moved to VPC|Commons talk:Licensing}}.

For old discussions, see the Archives. Recent sections with no replies for 14 days may be archived.


Archived discussions[edit]

Seven 2006/2007 discussions organized as subpages, ignoringincl. comments added in 2014:

Template protection after review[edit]

There are many country specific copyright templates on commons that need review and should be protected thereafter. Many images on commons use these templates and changing something in the template like accidentally adding a hot cat category would affect all of these and would require mass purging for all images. We should have a review department reviewing each available template and after discussion protecting it. We should discuss the layout of PD templates: Should they include why they are PD in the USA or should this be handled in another template like {{PD-Egypt}} and {{PD-Egypt-1996}}. With the URAA laws the copyright laws of a country doesn't mean that much without an explanation on why they are PD in USA. Something like {{PD-China}} doesn't work for commons because it doesn't specify why it's PD USA. And should there be templates for country specific templates for each case like found in Category:Egypt-related tags? — Preceding unsigned comment added by Diaa abdelmoneim (talk • contribs) 14:06, 2009 April 23 (UTC)

File:Tharau.jpeg[edit]

Unfortunately, the example we give of a free image is not free. The sculpture in the photo is from 1989 and there is no FOP in Lithuania. .     Jim . . . . (Jameslwoodward) (talk to me) 09:55, 10 October 2016 (UTC)

நான் சொந்தமாக எடுத்து இணைக்கும் படங்கள் எந்த வகையில் Copyright violations ஆகிறது?[edit]

நான் சொந்தமாக எடுத்து இணைக்கும் படங்களை ஏன் நீங்கள் நீக்குகிறீர்கள். அவை எந்த வகையில் Copyright violations ஆகிறது. புதிதாக யாரும் கட்டுரையோ படங்களையோ இணைக்கூடாது என்று நினைக்கிறீர்களா? எங்களுக்கு வேறு வேலை வெட்டி இல்லை என்றா நினைத்துக்கொண்டு இருக்கிறீர்கள்.... நீங்கள் அனுப்பிய இந்த செய்திக்கு என்ன பொருள். எதற்க்காக last warning. உடன் பதிலை சொல்லுங்கள் திரு. ஆலன்O.

"Hello Velu66. It has come to our attention that you have uploaded several files that are copyright violations. You have done so despite requests from editors not to do so, and despite their instructions. See Commons:Licensing for the copyright policy on Wikimedia Commons. You may also find Commons:Copyright rules by subject matter useful.

This is your last warning. Continuing to upload copyright violations will result in your account being blocked. Please leave me a message if you have further questions."

Free license only for lower quality version[edit]

This paragraph (previous edit summary refers to this section on VP/C) needs to be discussed again, judging by the arguments on COM:AN. Oliv0 (talk) 09:39, 9 November 2016 (UTC)

1/ The formulation was poor, but the legal aspect is clear.
An author can license both his work and its derivatives. In that case, if a photographer takes a photograph, publishes a high resolution and licenses only "copies under 300px in any direction" as being free, then only copies under 300px in any direction are free under that condition. Nobody can say that because the author has (1) allowed low-quality copies, and (2) published a high quality version, that (3) he has lost author's rights on the high quality version, which would allow it to be freely copied. For author's right, anything that is not formally released is retained (this is an author's right problem, not a "lack of copyright mention").
But the formulation "Even if higher resolution file of a work is available in a different source, Commons (as a matter of courtesy/ethics) will not host such files if they are not explicitly tagged with a free license." is misleading, since for instance a museum may state this kind of restriction on photographs of paintings that are PD in the first place. You must own the author's right in order to be able to state restrictions. And anyway, it is not a matter of courtesy, it is a legal point: if you go beyond the author's will you are outside the law (and may be punished for that).
I would suggest :
  • A free license associated to a published file applies only to that specific publication, not to the work it represents. As long as the work itself is protected, the published license cannot be extended to a higher resolution file of the same work, that would for instance be available in a different source, even when the higher resolution publication is made without any explicit restriction.
The phrasing could probably be fine-tuned, but the idea is correctly stated. Michelet-密是力 (talk) 11:10, 11 November 2016 (UTC)
2/ As for the meaning of "CC-BY-SA-3.0 with some restrictions: "exact citation (year of publication, picture number), and size under 300 px in both directions"" : the author authorizes a CC-BY-SA-3 on 300x300 versions of his file, not on the file itself. You may therefore make (by yourself) a 300x300px version, and tag it with the CC-BY-SA-3, conforming to the author's will.
On your file, you may remove the ", and size under 300 px in both directions" clause, since your file is conform to that. After that, you may even legally enlarge the picture to a 3000x3000, as long as you can prove that it is a derivative from the 300x300, not from the original file, but this would be awkward and is best avoided, of course.
The part "exact citation (year of publication, picture number)" is to be respected anyway, whatever the license.
Michelet-密是力 (talk) 11:17, 11 November 2016 (UTC)

Discussion[edit]

The statement "A free license associated to a published file applies only to that specific publication, not to the work it represents." is simply not true. The policy text does not need changing and the deletion did not actually affect that policy text.
Oliv0 you are confusing two things. The policy refers to "while applying stricter terms to higher quality versions" with the implicit assumption that those stricter terms are documented off-Commons along with this higher-quality version. For example, a higher quality version at a stock photo website with "All rights reserved" and very restrictive usage terms upon payment of a fee. What the policy does not describe is authors writing such terms onto the Commons File Description page in an attempt to make a previously free CC license no longer free. If the File Description page says, effectively, that high-resolution versions of this work-of-copyright are not free then that means the author hasn't actually released the work-of-copyright with a genuinely free license.
In other words, when you release a work with a free license we will document that free license. What you do with versions of that work on other websites is none of our business. You can try to charge for high-quality/resolution versions if you like. But what Commons won't do is to acquire that higher-quality/resolution version and upload it here unless it is clearly labeled with a free license. There are just too many legal doubts that two random files on the Internet are actually the same work-of-copyright. -- Colin (talk) 15:49, 16 November 2016 (UTC)
@Colin: "A free license associated to a published file applies only to that specific publication, not to the work it represents" can be wrong for CC but right in general for a non-CC free licence "BY-SA + low-res", that is why I said in that RFD that "allowing a file scanned at some size and not another file scanned at another size still seems to fit all of the definition of a "free license" for the file allowed" (link from COM:L), and that "the copyright holder's intentions" advocated by COM:L are "certainly better respected if the license is rephrased not to be contradictory [= to non-CC "BY-SA + low-res"] than if no freely distributable version is left.". Oliv0 (talk) 16:43, 16 November 2016 (UTC)
In general, a copyright owner should be able to license their own work (or a portion of their own work) however they like. In that case, the "work" would be the chunk of copyrightable expression that they own, that they wish to license, as identified by the copyright owner. So, I certainly feel that an author can license just a lower-resolution version (though they cannot mandate that nobody can enlarge that particular version -- just that they can't assume the same license on a higher-resolution version found elsewhere). However, Creative Commons came out with a very (*very*) odd decision on that matter, where they say they "encourage" this lower-res licensing but say that it may not be legally enforceable everywhere -- that a copyright owner can only license the entire, full work. That may be based on the wording of the Creative Commons license, but I have never understood their interpretation -- to me, a copyright owner can partition a work however they like, so long as there is copyrightable expression they own in the result, and just license that. However, given the CC statement, we have chosen to be ambiguous as well, thus the edit. Now, if someone worded their restriction such that you are not allowed to enlarge the lower-res version that they license, well then that interferes with derivative works and would be a non-free addition to the license -- it is more than simply defining the "work", it is restricting what you can do with it, and would be a modified license. Carl Lindberg (talk) 21:24, 16 November 2016 (UTC)
@Clindberg: on this last point what I said in that RFD about "the copyright holder's intentions" advocated by COM:L was that "the aim of the [low-res restricted] license is a limit of quality so it refers to the original size scanned, which allows further derivation to bigger sizes since this does not improve the image quality". Oliv0 (talk) 07:32, 17 November 2016 (UTC)
I can also add here what I said on AN: contrary to the idea that COM:L implicitly means "stricter terms to higher quality versions" are given on an external site, so that giving on Commons a free license with such stricter terms can still be forbidden, I think COM:L explicitly says that "hosting only the lower quality version" is allowed, and that respecting a restriction made on an external site while forbidding the same restriction made explicitly on Commons makes no sense. Oliv0 (talk) 08:55, 17 November 2016 (UTC)
Wrt you last sentence, it isn't as daft as it sounds. An external site can say things we have no control over. Images can be licensed under different terms elsewhere. For example, a user could upload their image here with CC BY-SA and upload what appears to be the same image to Flickr with CC BY-SA-NC. It isn't straightforward for us to prove both images are the same work-of-copyright. The "respect the copyright holder's intentions" clause is more concerned with the fact that CC/WMF misled copyright owners for years, and it would seem particularly unkind if we were to take advantage of that and acquire these higher-resolution images based on a misunderstanding of WMF's own making. -- Colin (talk) 10:15, 17 November 2016 (UTC)
@Clindberg:, I don't understand your statement that CC "encourage" copyright owners to "licence just a lower-resolution version". I think both CC and WMF used to encourage this (there were links in the old discussion) and that's very poor of them, but their current FAQ does not encourage that or even claim it is possible. What they claim to "support" is releasing a lower-resolution version + making the "work" availble under CC, and then arranging quite separate contracts for the purchase/usage of any high-resolution file. CC made it quite clear to us that their licence applies to a "work of copyright" and also that the Definition of Free Cultural Works that Commons is built on similarly considers the "work of copyright", not individual files, photographs, recordings, etc. While I agree with you that a copyright owner may create a licence for a file, photograph, recording, etc, that is not the same as what CC and Commons are built upon. For example, when I buy a DVD then Disney licence me to play that recording in my home, but not to play it in public or to make copies of it, and I gain no permission to their master copy of the movie. It could be possible to design a file-based licence scheme for JPGs and such, perhaps using digital signatures, though that might be difficult without some kind of DRM which most free-culture advocates disaproove. So I think we are stuck with the "work of copyright" scope of any free licence that CC applies to or that can be used on Commons. I believe the image Oliv0 was concerned about comes from a book and that image can be scanned and uploaded here at whatever resolution the person scans it. But it turns out the photographer wanted to restrict that resolution to thumbnail size. Thus that restriction did not permit the "work of copyright" to be free. -- Colin (talk) 08:46, 17 November 2016 (UTC)
@Colin: -- OK, I guess "encourage" is a bit strong -- they say For example, you may publish a photograph on your website, but only distribute high-resolution copies to people who have paid for access. This is a practice CC supports. But, that does not explicitly say that the higher-resolution version would still not be covered under the free license once access is paid for, just that there could be an additional contractual restriction be put under the hi-res version at that point. I firmly believe that the author gets to choose the "work of copyright" and can license just that portion. If they make a painting, they can choose to only license the left half, or something like that. They are choosing the content which is being licensed, and that is the "work". I have seen some conjectures that uncropped versions of newspaper photos in archives may be an issue -- the portion originally published may be PD, but the uncropped portions may not be. When I think about what "work" means for photographs though, it could get messier for low vs high resolution versions, and maybe I understand CC's position a bit more. For a photograph, the copyrightable expression is typically in the angle, framing, timing, lighting, etc. -- aspects attributable to the photographer, and *not* the actual subject matter. So for snapshots, you may argue that all of those copyrightable aspects are present in the low-resolution version just as much as a high-resolution version, and as such the license on the low-resolution version gives you the same license to that same expression in the higher-resolution one. All of the extra detail in the hi-res version would not be copyrightable expression, thus all of the expression is still licensed. For a painting, I would firmly say a lower-res version license would be just fine -- a higher resolution version would contain a lot more of the original expression than a low-resolution one, and all that extra expression is still copyrightable, so I think an author would be OK there. And for a photographer who additionally controlled the subject matter -- they may have a stronger argument than a normal snapshot (though even then, if just selection and arrangement copyright, that may also be present in the lo-res version). So, that may be CC's caution there -- but it's an aspect not really tried in court so it may be hard to say. And subtle differences in wording can make a license non-free, versus wording which is just trying to define which expression is licensed vs that which is not. Carl Lindberg (talk) 15:56, 18 November 2016 (UTC)
Carl there were several analogies discussed in the years-ago debase about what makes a separate work of copyright. Such as cropping a photo or the chorus of a song or one episode of a series or the trailer of a movie. And there is the complication that different jurisdictions may treat things differently. I can see that if someone in Photoshop Lightroom does "Export at 4000px" and then "Export at 500px" then it is hard to argue the resulting JPGs are different works of copyright -- after all, media wiki and other web sites frequently resize and crop images automatically. But there is a complication for two apparently similar photos, that we don't know how they were made and even if they came from the same negative/raw file. Photographers may release to their clients proofs, early drafts, in low resolution for them to review and choose which to buy. They may then do more work on the chosen frames such as retouching skin blemishes, altering colours, etc, which is likely to be a creative act enough to generate a new work of copyright. Then the tiny proof and the finished high-resolution image are separate works. I don't think we get many paintings on Commons that are not themselves out-of-copyright. So the conclusion from the debate for us was that (a) photographers would be unwise to think that they can be confident to keep their high-resolution image safe from someone trying to apply a CC licence they thought only applied to the low resolution image -- that might not work everywhere and (b) Commons can't be confident that they are the same work-of-copyright so best to avoid upload and (c) photographers were historically misled by CC/WMF. My personal feeling is that using analogies is dangerous because it is an attempt to rationalise the law from one's own amateur understanding -- when all that matters is what judges somewhere have decided, even if you think it is irrational. And none of this gets tried in court. So the best we can do is take the "advice" from CC/WMF-legal. -- Colin (talk) 18:23, 18 November 2016 (UTC)
@Colin: Yes, but that is conflating what could be a derivative work (amount of copyrightable expression added to existing work) versus a partitioning of the work by the original author, and is not the same thing. I.e., is there a way the author can partition their work such that version B still contains copyrightable expression not found in version A -- in which case they can freely license version A as a "work", but still not license version B. Somebody else cropping a work would not create a new derivative work -- the license remains the same as the original. But the original author making a crop, then only licensing the crop, that can be OK -- the crop is licensed afterwards but the full original is not, presuming the original contains copyrightable expression not present in the crop. If it does not, then licensing the crop also has the effect of licensing the original. So, that is the key question -- where countries draw the line on what exactly is the copyrighted expression. For a painting, a crop would be no question -- the portions not seen in the crop are still separate copyrightable expression, so you cannot use the original based on a license of the crop. For a photograph, it may depend much more country-by-country -- a court could decide that the angle, framing, etc. was identical between the two, and thus all expression was licensed via the cropped version. I do think that could be a real issue now that I think about it, and we shouldn't be too sure -- but also, since it's possible a judge would allow that type of restriction, we should probably follow those wishes. But we probably should repeat the CC warning. I think I originally read their opinion as being based on what makes a derivative work, but now I think that interpretation is wrong -- it is more a matter if the author can actually make a version which contains only a subset of the copyrightable expression -- that may depend on the type of work, and is perhaps less likely for photographs. Carl Lindberg (talk) 21:48, 18 November 2016 (UTC)
A photographer often makes technical choices to get a sharper image, this is a subset of the copyrightable expression which is lost in low-res. Oliv0 (talk) 07:51, 19 November 2016 (UTC)
A possibility... but if there is only one aspect, that may not be enough. For the U.S. at least, it's not simply that a choice was made -- there has to be creativity involved. For similar reasons, the U.S. will generally not copyright based on a color -- the author was going to choose *some* color, and the choice is arbitrary (aesthetic attractiveness is not a copyrightable aspect), so that aspect is not copyrightable in a drawing -- it would be based on the actual lines drawn. And in this area, very small details matter, as I'm guessing the judge would be looking for a way to rule in the author's favor (the general trend in such cases), but there may be arguments in favor of all expression being licensed in certain cases. Carl Lindberg (talk) 00:37, 20 November 2016 (UTC)

Discussion of AN & RFD requests ?[edit]

@Jcb, Steinsplitter, Jameslwoodward, King of Hearts, Fauvirt: it is about time to ping users who contributed to the AN request or the RFD but not here. Oliv0 (talk) 08:51, 20 November 2016 (UTC)

I am by no means expert in the very fine points of US copyright law, but as I understand it, a photograph is a "work" as that term in used in the law - that is to say, when you expose the film or the digital film, you create a "work" and it is that work that is licensed. You can create a separate work by, for example, colorizing the image, but simply printing it (on paper) at 8x10 inches would not create a different work from a 16x20. Thus, I see no way that you can license an image one way at one size and another at a different size.

In fact, the whole question of what resolution means is ambiguous. Thirty years ago, I was one of the founders of Iris Graphics which made the first high quality ink jet printer. Our first model could print only one of the three primary colors or black to each pixel. We achieved a range of colors by dithering, so it took a block of four pixels on a side to produce a range of colors and although our first printer put down 300 pixels per inch in each direction, the image was not very good. The breakthrough for the company came when we were able to control the size of the dots, so that we could achieve any color on any single pixel. The same thing happened in laser printers. Originally they were 300 dpi, but each dot was either on or off. Now, the dot size can be controlled and 300 dpi is a much higher quality print.

Therefore the effective meaning of "300 pixels per inch" or a "three megapixel image" has changed dramatically over the last thirty years, from low quality to good quality. It will certainly change again in the future. Offset printing, by far the most common means of printing on paper for newspapers, magazines, books, and almost everything else, uses a halftone screen to control the look of images. The most common screen size for good quality magazines and books is 135 (holes per inch). The very best quality is 180. It is possible that computer printer makers will find a way to use screen technology to make better prints and then 135 per inch would become a good quality image.

Copyright takes a very long view of things -- after all, a copyright may easily last 120 years -- so that trying to license something using today's terms is little like someone in 1960 saying that he will license a postcard one way and a 16x20 inch print of the same image another way -- those restrictions are more or less meaningless today. Similarly, trying to license a digital image by using today's language will undoubtedly be meaningless in the future.

So, my bottom line is one exposure, one image, one work, one copyright, one license for all sizes and qualities. .     Jim . . . . (Jameslwoodward) (talk to me) 13:53, 20 November 2016 (UTC)

Jim, I think your description is useful to explain why resolution/size restrictions are hard to apply to one's concept of what a "work of copyright" is. However, as Carl says above, a copyright owner can choose to licence and sell their work in any way they wish. The purchase of a postcard gives one rights that are rather restricted to the little piece of card. A broadcaster may transmit a piece of music that is free for anyone with a radio to enjoy, but only (legally) at that time and only once. And so on. When one makes a purchase of an image from a stock photo agency, very often there are different fees for different sized JPGs, and paying for the low-resolution copy does not give one a licence for the high-resolution copy (assuming one found a way to get hold of it).
I think the important thing is that The Definition of Free Cultural Works which underpins Commons, requires the "work of copyright" to be free. It isn't about giving away "free copies" such as playing a recording free, distributing prints for free or offering fixed-resolution JPGs or low-quality MP3s for download for free. Additionally, for Creative Commons licences to satisfy our Definition, they also apply the licence to the "work of copyright". That's the scope of the licence and we choose not to accept a smaller scope just as we choose not to permit -NC or -ND files.
In the past, quite a lot of us thought that the CC licence applies only to the file being uploaded to Commons or Flickr, and some material from CC/WMF also mislead people in the past, as it encouraged artists to upload low-quality images/sound/video while thinking the CC licence did not extend to their higher-quality copies. Even today, the Upload Wizard is unhelpful: "This file is my own work. I __ the copyright holder of this work, irrevocably grant anyone the right to use this work under the Creative Commons Attribution ShareAlike 4.0 license" seems to define the work in terms of the file. It would be better if it contained a link to a definition of "work". -- Colin (talk) 17:38, 20 November 2016 (UTC)
Jim, I don't think that is quite correct. You seem to also be conflating a "derivative work" with "work". Take, for example, a painting. That is one work. If an author wants to license just the top right corner, that portion is also a "work" -- it contains original expression by the author, so that author can license that. But the rest of the painting would not be licensed in that situation -- as there is separate expression in the rest of the painting. The crop would not be a derivative work, of course, but they are still both "works", where the expression is owned by the original author, by law. CC cannot prevent such partitioning (nor would they want to) -- the author gets to define the "work" in question. For a painting, I think a high-resolution version would likely contain expression not seen in a lower-resolution version -- in which case, the license on the lower-res version would not license *all* of the expression in the original, thus the author can still claim full copyright on that original. I would agree that specific "300 pixel" wording can be nonsensical -- but if they provided an image file, than that is the work which is licensed. We should only upload another version of the file only if it does not contain additional expression not present in the licensed version. Now, when it comes to a photograph... that is where the definition of "expression" in law gets more problematic. For a photo, that is elements like the angle, framing, etc. -- and most of the time, those same elements are equally present in a lo-res version. So, it's very possible that all of the original expression is licensed even in a lo-res version, meaning there is no unlicensed expression for the author to fall back on, and that is a danger that authors should be aware of when licensing such works (and I think is the basis for CC's wording -- it comes down to what the relevant law defines as the "work", and if the law would consider the hi-res version as containing additional copyrightable expression). But it would be a risk without actual court judgements to assume that this is always the case for photographs, so per COM:PRP I would not assume there is definitely no additional expression in a higher-res version. There should not be any restrictions on what we can do with a file once licensed, so if the wording could be construed as a restriction on usage, that would make it non-free to me. But I think a lot of people (myself included) originally read CC's wording as relating to what defines a "derivative work", which is why it made little sense to me at first, but thinking about in terms of what exactly constitutes the copyrightable expression -- i.e. a "work" -- it does make more sense. Carl Lindberg (talk) 06:12, 21 November 2016 (UTC)
Of course a creator can license a work in many different ways. I have done that myself as the creator. In a different context on Commons, I have pointed out that that it is typical for a novel's first serial rights to be licensed to magazine A, US hardback rights to publisher B, paperback rights to publisher C, UK rights to publisher D, audio book rights to E and movie rights to studio F. This is done with a separate agreement for each. And yes, of course, chapters from a book or a crop from an image can also be licensed separately from the whole work. You probably can even license a Large Print Edition to publisher G. Seven licenses and I haven't mentioned Australia, or translations.
The issue here, though, is different. The same image in two different resolutions is not two different works and the CC licenses cover the "work" as the USCO and its counterparts around the world define it. I doubt very much that the USCO would register a copyright for the same image at two different resolutions. This assumes, of course, that they are the same work -- that if you resampled the high res version down that they would be identical (ignoring compression artifacts). If the photographer makes a copy of the file at low res and then goes in and creatively Photoshops (even if it is subtle) a high res version, then they are, indeed, different works, but that is not what we are discussing here. .     Jim . . . . (Jameslwoodward) (talk to me) 14:53, 21 November 2016 (UTC)
Yes, a larger resolution version can be a separate "work". It cannot be a "derivative work". The USCO, when it comes to registrations, will just based on "derivative work" status. If you register a painting, you can then license half the painting -- but keep full copyright on the other half. It does not matter that the USCO would not register the half work separately (since the original was registered) since all of the expression has already been registered -- but since the full painting contains expression not licensed in the one half, you can still have a perfectly valid free license on half the painting. Again, this is the difference between "derivative work" and "work", which are defined differently in the law. CC is referring to "work"; USCO registrations will register based on "derivative work". It comes down to the question of does version A of the work contain copyrightable expression not found in version B -- and if so, then a license for version B cannot be valid for version A, since there is additional expression which must be licensed. This is a question the USCO does not have to deal with, so none of their decisions are helpful. Not sure there has been a court case, either. Carl Lindberg (talk) 17:25, 21 November 2016 (UTC)

This seems pretty clear-cut to me. Per The Definition of Free Cultural Works includes "the freedom to make and redistribute copies" and "There must be no limit on the amount of information that can be copied." Given that the Definition talks about works, and different resolutions of the same image are considered the same work, any license that does not allow free copying and reuse of instances of the work which are in high resolution, is not a free license and inappropriate for using on Commons. What the CC license does or does not say is irrelevant; this is a more fundamental issue.

Thus, yes, the policy should be changed to say that Commons does not accept images with low-resolution restrictions. (Or it should be changed to make it clear that we do not fully adhere The Definition of Free Cultural Works.) Such images should be deleted (presumably after giving time for wiki projects with a compatible EDP to copy them). --Tgr (talk) 00:45, 21 November 2016 (UTC)

An author can define the "work" being licensed -- always. If they take a portion, they can license that freely, and that should be OK. They should not be able to restrict what you do with that work once licensed. So, sloppy wording can change something from the first situation (simply defining the work being licensed) into the second (trying to restrict what you do with it). If, by law, a lo-res version contains all of the expression -- then yes that would also license the hi-res version. But if, by law, there is additional unlicensed expression in the hi-res version, then we cannot. It is a very complicated determination, and given the lack of court precedents, it's one that we should not make. You are assuming that "different resolutions of the same image are considered the same work" but that is absolutely not always the case. Carl Lindberg (talk) 06:16, 21 November 2016 (UTC)

Issues[edit]

There is a lot of misreadings in this argumentation. When discussing a legal point you can't just pull out a sentence out of a reference text and make inferences on it, disregarding the rest. A legal discussion must always take into account all the available text(s). Otherwise you come out with a statement that indeed is literally true in its context, but is heavily context dependent. And usually the basic error of "armchair lawyers" is to extend that partial statement as a general rule, use it outside of its context, and try to solve another context with a radically unfit tool. The legal meaning is what a judge says it is, not only a matter of inferences on literal formulations, but essentially a matter of meaning, taking into account the whole context.

  • "A free license associated to a published file applies only to that specific publication, not to the work it represents".

If a thumbnail version of a professional photograph is released with a CC license, and a poster version of the same photograph is published under "all rights reserved", the two published files are derivatives from the professional photograph, but the right holder has only released the thumbnail file under a CC license, AND he can do whatever he pleases with his rights, AND if you do not respect his will then you infringe his rights, pay the fine and go to jail. But when it comes in front of a judge, "respect his will" does not necessarily means respect the literal formulation he has used.

You may use the thumbnail CC file and do whatever you want with it, including changing the picture format to a poster size - the point is that in that case, whatever you do, you will not have the same level of details as the "all right reserved" version. What you cannot do is take the poster version, and pretend that since the thumbnail has been released under a CC license, the CC is transferred from the thumbnail to the poster version, because it is "the same work". No. If you want to use the thumbnail file under CC license, all you have to do is to be able to prove, that what you are using is indeed the thumbnail version - not the poster one. In that case, the legal discussion will boil down to a proof of origin. If you can prove that your file can be derived from the thumbnail version, you win. If the right owner can prove your file must be derived from the poster version, he wins, you pay and you go to jail. Easy enough.

The whole point is about being able to prove the link from your derivative to the thumbnail, and/or disprove any link from your derivative to the poster. This may be theoretically impossible to do in some cases: is someone is perverse enough to release a 1000x1000 thumbnail version under a CC license and reserve all rights on a 1001x1001, logically there is no way you can prove that your poster-size photoshopping comes from the 1000x1000 version, not the other one. But the cases we are discussing are usually clear-cut : if both a thumbnail (low resolution) and a poster (high resolution) have been published, then examining the small details will easily show which version has been used in a derivative work. "Resolution", in that case, does not mean the number of pixels, but the level of details - a thumbnail increased to a poster size will never look like the published poster. And if the difference can't be made, then basically the low resolution may be assumed by the judge - and that is all that matters.

  • "Can I apply a CC license to low-resolution copies of a licensed work and reserve more rights in high-resolution copies?" : this FAQ discusses the case where a file is associated to a "CC but low-res only", and simply says that the additional restriction is not part of the CC, and if you do not respect that restriction, "you may be breaking the terms of use of the site, but you are not infringing the CC license". If a poster is published with a "CC for 300x300 thumbnail versions", all you have to do is make such 300x300 version, store it (for instance, publish on Commons) under CC for reference, and do whatever you want with it - including increase it to a poster size. (1) Your CC thumbnail respects what the license owner has stated, and (2) you will be able to prove that whatever derivative has been made with the thumbnail version.
  • What makes a separate work of copyright ? Indeed, "releasing a photograph under a CC license will give the public permission to reuse the photograph in a different resolution" - but be careful, what can be reused in that case is the same file. As stated in the FAQ, the point is "digitally enhancing or changing the format of a work" : you can increase the resolution and make some pĥotoshop improvement on it, and the question discussed by the FAQ is whether the result is "the same work" or a "derivative work" with respect to copyrights law - the point is irrelevant for our discussion. And what "resolution" means at that point of the FAQ is not "level of detail", but "number of pixels".
  • "permission under a CC license is not limited to a particular copy" - true enough in the general case, but don't forget the rest of the sentence : "someone who receives a copy in high resolution may use it under the terms of the CC license applied to the low-resolution copy". The reverse is not true: someone who receives a copy in low resolution under the terms of the CC license may not apply it to the high-resolution copy.

    As said above, the legal point boils down to being able to prove the origin of your derivative. If you use a poster-size non-free file to make a 300x300 derivative thumbnail, and a thumbnail is elsewhere available under CC, then you can pretend your derivative is the thumbnail and use it as CC. Theoretically that is illegal, but since nobody can make the difference, the judge won't make any difference, so nobody cares - that's what the FAQ states. But then, what's the point of doing that? if the thumbnail is available under CC, just use it and forget the poster-sized version.

  • "the image comes from a book and that image can be scanned and uploaded here at whatever resolution the person scans it" - no. Unless the book releases the image under a CC license, that specific version is not free and you may not use it. If the book specifically states that 300x300 scans are CC but other rights are reserved, then you may do exacly that : a 300x300 scan, and place it under CC, and then make any derivative you want as long as you can keep the proof it comes from your 300x300 version. If the book says nothing and a thumbnail version is available somewhere under CC licence, use the thumbnail - you won't be able to prove your scan version does not come from the book.

Michelet-密是力 (talk) 08:42, 21 November 2016 (UTC)

I don't buy your interpretations. Certainly you say ""someone who receives a copy in high resolution may use it under the terms of the CC license applied to the low-resolution copy". The reverse is not true: someone who receives a copy in low resolution under the terms of the CC license may not apply it to the high-resolution copy." but in fact that's exactly how I read that sentence; if there is a copy of the low-resolution version under the CC license, you may use the copy of the high resolution work under that license.--Prosfilaes (talk) 23:27, 22 November 2016 (UTC)

Don't we need an official professional advice here? I believe the WMF has money for things like hiring a lawyer if they need it, now what is the right place to require such a thing? Oliv0 (talk) 09:27, 29 November 2016 (UTC)

PD-old-100[edit]

If as stated in {{PD-old-100}} the author has been dead for more than 100 years, and assuming this is the correct reason, it must has been published before 1916 (posthumous publications follow different rules, but the point will be essentially the same). Thus, the work is PD in the US, since "Copyrights prior to 1923 have expired" (see Cornell reference) - so why is there a warning saying "You must also include a United States public domain tag to indicate why this work is in the public domain in the United States." ? Michelet-密是力 (talk) 13:06, 10 November 2016 (UTC)

If it was never published until the 1900s, it could still have a U.S. copyright. Before 1978, in the U.S. there was no copyright limit on unpublished works (they were common-law copyright -- U.S. federal copyright protection started upon publication). So while really unlikely, it is possible for a very old work to still be under copyright protection. If first published after 1922 and before 2003, it is theoretically possible at least. The Cornell link goes over those possibilities. Carl Lindberg (talk) 14:01, 10 November 2016 (UTC)
Indeed, same thing in France for example, and everywhere under the Berne convention : works are protected only insofar as they are published, be it by the author or after his death. And the protection of posthumous works (if any) always start at the publication date. But that is not the point:
  • If the template is relevant, then its statement is true : "This work is in the public domain in its country of origin and other countries and areas where the copyright term is the author's life plus 100 years or less." And that is the reason of its being PD.
  • In this "PD because Death>100", this reference to the author's life is only relevant if the work has been published while the author was living. Otherwise the formulation would be incorrect, you would have to mention the publication date irrespective of the author's date.
  • Therefore, as long as the template states the correct reason, the file is PD in the US. And if it is incorrect in the US, it is incorrect elsewhere as well.
Posthumous publications need special treatments whatever the country. So, why bother mention anything about the US ? Michelet-密是力 (talk) 10:32, 11 November 2016 (UTC)
The term of protection of posthumous works under the Berne Convention is life+50. Last I checked, Canada, for one, gave posthumous works no longer protection. It's possible the template needs specification to non-posthumous works and maybe a list of countries that don't give extra time to posthumous works, but it shouldn't say nothing about the fact it doesn't always apply in the US and many other countries.--Prosfilaes (talk) 02:16, 12 November 2016 (UTC)
Agreed with Prosfilaes... I don't think there is anything in the Berne Convention which automatically has unlimited copyright for unpublished works. It mandates 50pma, but that would seem to be it, regardless of being published (or the distinction of "making available to the public", which can be different than publication, which is used for anonymous works -- but even then there is a limit based on date of creation). Even the EU no longer has any infinite limits, really -- other than the 25-year publication right, which is not owned by the author but rather the publisher, and it's not clear that would be recognized outside the EU (nothing in the Berne Convention about that). The U.S. no longer has infinite limits -- only the special case of pre-1978 works published between 1978 and the end of 2002 could have a longer term than the normal 70 pma or (for corporate works) 120 years from creation. If works were still unpublished as of 2003, their copyright went poof unless still within 70pma. Carl Lindberg (talk) 05:50, 12 November 2016 (UTC)

Chartres - Coronation of the Virgin - ca. 1215.

{{PD-old-100}} obviously.

Surprise - Why in the world would Commons tell me "You must also include a United States public domain tag to indicate why this work is in the public domain in the United States" 12pt??? It's been hanging there for eight centuries...

Context : My concern comes from my using {{PD-old-100}} on the Chartres stained windows, where the comment "You must also include a United States public domain tag to indicate why this work is in the public domain in the United States" is ludicrous : when America was discovered, these windows were two and a half centuries old ! Obviously there is no need to add anything, and the comment is irrelevant - at least in that case. There is nothing else I "must include".

  • My point is that the remark ""You must also include a United States public domain tag to indicate why this work is in the public domain in the United States"" is irrelevant in all cases, as long as the {{PD-old-100}} is correctly used.

The Berne Convention (BC) only protects published works, and says little about posthumous works (which are not "works published with the consent of their authors", -BC§3(3)- ). Indeed, since it is of general interest to have posthumous unpublished works both published and protected, laws will give some protection to the "discoverer", but it is not directly related to the BC. And anyway, that protection never exceeds that of works published by their authors (Prosfilaes's remark).

  • Your consideration of posthumous works is relevant as far as PD is concerned for Commons, but (1) the problem is not limited to the US, and (2) if there actually is such a problem, the tag states an incorrect reason for the work to be PD, so the tag is incorrect in the first place. Unless posthumous works are given no protection at all (and that by itself is dubious and worth mentioning), the publication date should at least be mentioned as the reason why the work is PD in its country of origin. Repeat : in those cases where an additional tag is actually needed, the {{PD-old-100}} alone is incorrect, and should be changed or completed even in the country of origin.

In my opinion the US warning is irrelevant and can altogether be suppressed, without changing the accuracy of Commons licensing tags - if it's truly {{PD-old-100}} anywhere, "why this work is in the public domain in the United States" is that the author has died more than a hundred years ago, so the "US tag" called for should be {{PD-old-100}} as well - it's already there.

To take into account your concern about posthumous works, and state the correct reason why such a work is PD, the tag can be rephrased so as to include such concern :

“For more than a hundred years, both the work has been published, and its author(s) has died. This work is therefore in the public domain in its country of origin, and any other countries where the copyright term is under those limits.”

It wouldn't change anything substantial in the Commons database : if the author has died more than 100 years ago, but the work is posthumous and was published less than 100 years ago, then its PD status should be separately checked and asserted anyway - which is already the case, due to that warning. The "worst case" would be that the statement is false and the work is PD anyway. But in that case, once you've checked and found that the tag is incorrect, the hard work is done and you know how to correct the tag anyway (just do it).

Michelet-密是力 (talk) 08:25, 12 November 2016 (UTC)

Yes, if a work was actually published that long ago, it's fine for the U.S. It's just that PD-Old-XXX does not definitively say that the work was actually published -- in many countries it can become PD without being published -- so that tag alone is not necessarily enough. That is why there are combined tags like {{PD-old-100-1923}}, {{PD-old-70-1923}}, etc., which also indicate publication before 1923, and the better one of {{PD-old-auto-1923}} where you can supply the year the author died and the number will adjust as appropriate. Commons policy is that works must be public domain in the country of origin and the United States, which is why the U.S. tag is more necessary than those of other countries. In virtually all cases, PD-old-100-1923 would also be valid, but you can find a theoretical case where PD-old-100 was valid but PD-1923 was not. That is all the tag is saying (and the wording is copied from all other PD-old-XXX tags). U.S. law has a particularly convoluted definition of "publication", especially before 1978 when it was defined by case law, so it is prudent to still have the separate tag.
The Berne Convention protects all works, published and unpublished. There are several clauses in there which deal with unpublished works. The term is 50pma regardless. It just considers the right of first publication particularly important, so it uses that definition in some clauses. But there is nothing in the Berne Convention regarding publication which changes the term of the copyright (outside of anonymous/pseudonymous works), whereas it does in United States law. Some countries may additionally have longer protection for unpublished works -- but that would mean the PD-old-100 tag is incorrect in the first place, as it would not serve for the country of origin. You seem to be saying that is true for all countries, but it is not (far from it) and is definitely not mandated by the Berne Convention. Carl Lindberg (talk) 16:19, 13 November 2016 (UTC)
"You seem to be saying that is true for all countries" : no, I'm saying that in no country the term is >100years after publication in the case of posthumous works (A => B dos not mean B => A). Michelet-密是力 (talk) 10:18, 19 November 2016 (UTC)

OK. Given the argumentation above, is it OK to make that change on the {{PD-old-100}} text?

“For more than a hundred years, both the work has been published, and its author(s) has died. This work is therefore in the public domain in its country of origin, and any other countries where the copyright term is under those limits.”
The template is 100pma (100 years after the author's death), which is (nominally) the term in Mexico. The template does not indicate anything at all about publication -- in many countries, unpublished works expire at 70pma etc. regardless. A separate U.S. tag is technically needed to indicate publication. If you want to indicate publication as well, just use {{PD-old-100-1923}} and don't use this tag. But using PD-old-100 and {{PD-US-unpublished}} together may also be a somewhat common pairing. I would not agree to any change in the wording. Carl Lindberg (talk) 22:35, 19 November 2016 (UTC)

Template:PD-old-warning-text[edit]

OK, given the previous discussion, the problem probably lies in the {{PD-old-warning-text}} :

You must also include a United States public domain tag to indicate why this work is in the public domain in the United States.

  • An additional tag is needed only if the work was published after 1923.
  • If the work was published after 1923, there may be a problem in the US, but also in the publication country.

So it seems to me the real warning should be :

If this work was published after 1923, you must also include a public domain tag to indicate why this work is in the public domain both in the United States and in its country of publication.

Michelet-密是力 (talk) 11:44, 21 November 2016 (UTC)

Any opinion? Michelet-密是力 (talk) 14:57, 29 November 2016 (UTC)


I'll make a new section but feel free to add something in that one if you feel those points need clarification. Michelet-密是力 (talk) 10:11, 4 December 2016 (UTC)

Reformulation[edit]

Of course I agree that if a {{PD-1923}} is added to a {{PD-old-100}} then we can be assured that there is no problem, or that a {{PD-old-70-1923}} tag implicitly shows that there is no problem in the publication country: As far as I know, the USA is the only country where posthumous works published less than 50 years ago can still not be PD. But that is not my point,

I'm concerned (1) by the {{PD-old-100}} tag used alone and (2) its warning formulation.
  • For virtually all PD files eligible for Commons that are labeled PD-old-100, the {{PD-old-100}} means the publication is old enough, and a {{PD-old-warning-text}} is unnecessary. So in that case, the warning should not be "You must also include a United States public domain tag" which is false 99.9% of the time, but a more friendly "If (though PD-old) this work was published after 1923 [then check further]". This being done, all "normal cases" can rest in peace, and the further checking is limited to recently published works.
  • The further checking should not be limited to the US, since a (recent) posthumous work may be not-PD under the publication country's legislation. So the warning should itself not be limited to the US, but also include the publication country.
You may be under the impression that if the US problem is cleared, then the publication country will cause no problem - that is dead wrong. If for instance an unpublished US geological survey photograph taken in 1903 is published in 2014 in the French publication "Pour la Science", then this photograph has no protection in the USA (since it is the production of a federal agency) BUT it is protected under French law until 01/01/2040 (the normal protection delay -be it collective or individual work- has expired without it being published, so the new protection after publication is publication date+25 years). In such a case, the {{PD-old-100}} would be legitimate, a {{PD-USGov}} would be fine, but an expected {{Posthumous-PD|France|2014}} tag would incorrectly state something like "Though published after the legal protection delay has expired, this work is PD in France, because it was published in 2014" - the template can easily check by itself that "France" is associated to a 25-years protection, or a bot can do the same thing.
Michelet-密是力 (talk) 10:11, 4 December 2016 (UTC)
Public domain

This work is in the public domain in its country of origin and other countries and areas where the copyright term is the author's life plus 100 years or less.


Dialog-warning.svg You must also include a United States public domain tag to indicate why this work is in the public domain in the United States.

This file has been identified as being free of known restrictions under copyright law, including all related and neighboring rights.

So, after (lengthy above) discussion :

  • For the {{PD-old-100}} tag, the warning should be something like "If (though PD-old) this work was published less than 100 years ago, you must also include a public domain tag to indicate why this work is in the public domain both in the United States, and in its country of publication."
  • A {{Posthumous-PD|Country|date}} tag can add "Though only published in '[Country]' in [date], this work is PD in [Country], because in this publication country, unpublished work is [protected nnn years]." (the "nnn" part can be automated).
  • A {{Posthumous-PD|Country}} tag can easely default to "Though only published in '[Country]' in [date], this work is PD in [Country], because in this publication country, unpublished work is not protected.".

Can there be an agreement on that? Michelet-密是力 (talk) 10:11, 4 December 2016 (UTC)

I just don't see the problem with the PD-old-XXX series. They are all treated identically; not sure what is special about the -100 version. If used, it is the "country of origin" tag, and it implies there is no publication issue in that country -- if there is, then the file should be straight-out deleted regardless of U.S. status. So, I don't see the need for the other posthumous tags. However, most tags are specific to one country's laws, and we have a completely separate set of tags for U.S. copyright status, since there is so little overlap. So in general, yes, most files should have two tags, given the "PD in the country of origin and the US" policy. For very old works (i.e. well beyond the 100 years, and ones that often predate copyright itself), the PD-old tags are often just given alone, since the distinctions are highly unlikely to matter, and people seem fine with that. So yes, the tag will still have that verbiage, since it's included in all the PD-old-XXX tags via templates, but realistically the U.S. portion would only have possible issues if it's still relatively close to that 100 years -- anything significantly older almost never would. If you are advocating a "PD-veryold" type of tag for works say before 1800, where all copyrights (including those based on publication) are presumed expired in all countries as they often predate copyright protection itself, maybe that would make more sense. Carl Lindberg (talk) 15:20, 5 December 2016 (UTC)
You don't see ?!?
  • Please read again and try to understand what has already been written above, after "I'm concerned (1) by the {{PD-old-100}} tag used alone and (2) its warning formulation." The problem is stated as clearly as possible. Is it too complicate for you? Is my English unclear? Can you single out the sentence(s) you fail to understand?
  • My concern is about the {{PD-old-100}} because this is the one that is used for "very old" works ; and that is the one for which " "You must also include a United States public domain tag" is false 99.9% of the time". That is not true for other tags. What happens to other tags is none of my problem. Please do not bring them into that discussion, you are complicating things without necessity.
Your statement "If used, it is the "country of origin" tag, and it implies there is no publication issue in that country -- if there is, then the file should be straight-out deleted regardless of U.S. status" is wishful thinking, unrealistic. The tag implies nothing of the sort. How would the uploader detect the previous example is problematic (unpublished US geological survey photograph taken in 1903 is published in 2014 in the French publication "Pour la Science") if he has always heard of the 70pma rule and never a thing about the <.01% exception: a potential publication problem? the file will be flagged by the {{PD-old-100}} licence tag in good faith, he will read the text, ascertain himself that the author died more than 100 years ago, and end his researches. A honest contributor would thereby be fooled, "unaware of the problem and in good faith", showing that the present warning is inefficient and incorrect. And once the mistake has been done, how would you know the tag is incorrect and the file should be "straight-out deleted"? With my proposed warning, he would have the missing indication that he must also check the publication date, and if he nevertheless leave things as is, it cannot be "unaware of the problem and in good faith". My proposition would help honest contributors to avoid mistakes, that would otherwise be nearly unavoidable. And the Posthumous-PD tag is neded since the warning has stated the rule that "If (though PD-old) this work was published less than 100 years ago, you must also include a public domain tag" - that's the one that allows the honest contributor to fulfill that obligation.
"in general, yes, most files should have two tags" may be true in general, yes, but not in the PD-100 case, and that's the one I'm dealing with (remember?) - don't mess up the cases.
"For very old works [...], the PD-old tags are often just given alone" is indeed true, and that shows that the warning ""You must also include a United States public domain tag"" is a false statement. My point exactly. The contributor is in no obligation to do anything of that sort, in the PD-100 case, and that's the one I'm dealing with (remember?). Then why does the present tag officially states that, as if it were a community rule (you must)?
Michelet-密是力 (talk) 15:34, 6 December 2016 (UTC)