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The following request for comments is closed. Per commons:Commons:Massive_restoration_of_deleted_images_by_the_URAA#Close, this is now unnecessary. Despite many folks ignoring what is a request for comments (and some acting as troll on #wikimedia-commons days ago), this page have gathered valuable inputs. Many thanks for all those that helped us. Lugusto • ※ 00:21, 10 April 2014 (UTC)[reply]

Considering that the current discussion on Commons seems to gain no consensus in a near future and this kind of discussion should not be held on a vote basis IMHO;

Also considering that the reply from the Wikimedia Foundation Board of Trustees clearly says that the Wikimedia Foundation is comfortable in hosting contents with no copyright protection in the country of origin but USA ("We are not recommending that community members undertake mass deletion of existing content on URAA grounds, without such actual knowledge of infringement or takedown notices."; also, "So WMF does not see a reason to engage in mass deletions of content simply because of general concern about the URAA. If we receive a valid takedown notice or get actual knowledge of infringement, we will do a full legal analysis of the work based on all the relevant information that is presented in that notice and vigorously resist any invalid notices.", this time on Legal and Community Advocacy/Wikimedia Server Location and Free Knowledge);

Update 14 March 2014: "we don't see a need for any deletions – mass scale or otherwise – based solely on a general concern that the work may be infringing."[1]

Also considering that we need both a strictly project to fight for free content AND a project to host public domain works on our citizenship territory if we really wants to progress on GLAM partnerships, in a way that any media file can be easily embedded in a multiproject basis, without local uploads duplication accross wikis,

I'm openning this Request for Comment about creating a second media repository.

  • The current Wikimedia Commons should be keept hosting self-made free content, free licensed content taken from third party websites, content released in free licensing terms by negotiation (OTRS, GLAM etc) and content clearly with no copyright restrictions simultaneously in USA and the source of origin contry;
  • The Global Wikimedia Commons should hosts both content that certainly are in public domain in the source of origin contry but still protected in the USA and content that the uploader only can assure that is with no copyright protection in the source of origin contry without knowing the current copyright status on USA (this later in an attempt to keep media uploading a task compatible for those that aren't copyright research experts)

What this propose isn't about:

  • Creating a repository to fair-use media. Pretty please don't ever mention it on this RfC!
  • Legal risks on a USA based entity hosting such content (per above, the BoT is comfortable in doing it! What we have is the discordance if Wikimedia Commons should hosts such contents. And, in my personal view, if at any time anyone sues Wikimedia Foundation about it, we at least we'll have the chance to win a jurisprudence comparable to Bridgeman Art Library v. Corel Corp., that allow us to host PD-Art and PD-scan medias);
  • Changing local tolerance on each Wikisource subdomain to this kind of public domain works. As mentioned above, the BoT is comfortable on hosting such contents, but each subdomain is a unique community with full authority to determine the level of freedom they should adopt.

Comments

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  • As proposer, I Support Support creating a second media repository in such terms.Lugusto• ※ 20:04, 3 March 2014 (UTC)[reply]
  • Oppose Oppose This is forum shopping after not getting the answer sought on Commons, by the same philosophy one can gain support for any proposal by taking a random walk from one Wikimedia project to another. This RfC opens with "this kind of discussion should not be held on a vote basis" which appears to be an attempt to undermine itself. --Fæ (talk) 20:28, 3 March 2014 (UTC)[reply]
    • You are partially right, despite your bad faith assumption. We really have an issue there that need to be solved. Please make proper comments, since this isn't a vote or poll.Lugusto • ※ 20:56, 3 March 2014 (UTC)[reply]
  • Oppose Oppose per Legal and Community Advocacy/Wikimedia Server Location and Free Knowledge --Jarekt (talk) 20:35, 3 March 2014 (UTC)[reply]
  • Oppose Oppose - Regardless of my position on the original issue behind this, I don't think that founding another Wikimedia commons is a realistic or practical solution.Ajraddatz (Talk) 20:37, 3 March 2014 (UTC)[reply]
  • Confused We already have a Global Wikimedia Commons. I was thinking of a place for the cases that can't reside there and which entail risk of judicial action against the WMF. Above you say not to mention the fair-use images. Since I think part of the point is to be able to reuse the fair use images now only available on the en.wiki, I am afraid you have lost me completely! Jane023 (talk) 22:05, 3 March 2014 (UTC)[reply]
    • Let's say we have 3 different types of media files, based on licensing terms:
      • Copyrighted but allowed on some Wikipedias as local upload with fair use claims;
      • Licensed on free terms or old enough to be with no copyrights (PD-old), that the best practices is to upload on Commons, allowing global usage on thousands of wikis at same time;
      • Old enough to be with no copyrights in the country of origin/production, but still protected by copyright on United States, due to United States non-acceptance of the rule of the shorter term and Uruguay Round Agreements Act. Wikimedia Commons don't accepts this kind of freedom, despite Wikimedia Foundation allowing this type of media on your servers (see my initial message). But we, volunteers from foreign countries, wants to host such files and make further usage on Wikipedia and it's sister projects (not to mention that is very hard to explain for those that aren't from the Wikimedia projects and owns hard copies of PD-old contents that a global online platform don't allow us to proper rescue and disseminate such contents).
    • Hope that this explanation helps you. Lugusto • ※22:20, 3 March 2014 (UTC)[reply]
Thanks for that clarification! So basically what you advocate is a place for the images and other files that fall between their country's "PD-old cut-off date" and the USRAA "PD-old cut-off date". I think that is a good idea, especialy if the WMF, rather than condoning the implicit hosting danger of "not massively deleting" these files on Commons, is willing to purchase some sort of central litigation insurance, as pretty much everyone I have spoken to about this issue finds it highly unlikely that litigation will take place, especially if the initial WMF response to such claims is just to take down the explicitly mentioned file in any individual complaint. Such tactics would not be new. The en:Public Catalog Foundation is able to keep copyrighted artworks on the BBC "Your Paintings" website in this way. For example, searching for the artist name "Elizabeth" reveals works by many artists born well after the Commons "PD-old cut-off date". See Elizabeth Rather than contact each of these Elizabeths or their heirs individually in OTRS-style, the PCF has bought off the risk of lawsuits with a general insurance policy. Here and there they have received take-down notices and then the works are removed from the website and replaced with a disclaimer, like this one: PCF placeholder. If we had such an extra hosting bit, we would also need such disclaimers, perhaps including extra text such as "This file became unavailable on <date>". If you are advocating something like this, then I would support it. Jane023 (talk) 08:30, 4 March 2014 (UTC)[reply]
  • Comment Comment The proposal in this RFC is based on some misunderstandings IMO. The WMF is speaking against mass deletion of all URAA-affected files in the two quotes given, not all deletions. A mass deletion was rejected by the Commons community two years ago, and no one seems to be in favour of it now. The WMF seems willing to continue hosting a file that may be affected by the URAA only until we identify clear evidence that the file is affected, at which point we should delete it. They have previously encouraged us to review the files to check on their status. "Ultimately, all Wikimedia projects are required to comply with the recent changes to US copyright law, but it remains unclear how these changes will affect individual works. The community should evaluate each potentially affected work using the guidelinesissued by the Legal and Community Advocacy Department, as well as thelanguage of the statute itself, and remove works that are clearly infringing." Note the "all Wikimedia projects" part; this is not just about Commons.
The idea of hosting such files on overseas servers has been raised before, as a way to avoid being subject to US jurisdiction, and WMF Legal seem to have ruled out Wikimedia doing this. "Members of the Wikimedia community, understandably upset and frustrated by this law, have proposed removing the affected works from Commons and forking them to third-party servers outside of the US. Unfortunately, these plans would violate Wikimedia Foundation policy and US law.[...] New proposals for solutions to this issue are welcome. However, US laws will apply to all Wikimedia projects and files, regardless of where the files are used, uploaded, or stored." (Legal and Community Advocacy/URAA Statement). But other people can still do so (e.g. Wikilivres). --Avenue (talk) 23:09, 3 March 2014 (UTC)[reply]
  • Many thanks for sharing your view, Avenue. I keep my view of creating a second repository to host such media files. Maybe I was unclear, but I'm proposing to host that second repository on the very same servers from all remaining WMF projects. This may allow to keep Commons folks on their very conservative view about what is really free to safely host, but also allows us to host those still copyrighted in USA. And, especially because it's on a external wiki, if at any time WMF receive any DMCA notices, the entire repository may be put in temporarily unavailable in the coming months until we win the legal dispute.
Maybe I misunderstood what the legal team said related to keeping such files not being an issue to WMF, but anyway creating such second repository in a civil disobedience fashion still is the best approach than doing nothing than writing yearly random blog posts on every year start (the congressman must read those posts LOLing on our innocence, if they found that posts).
Re-reading the 2014 statment I've found the legal team saying However, at this point, we don't expect those numbers to be high for the URAA specifically. Well, I don't known how much the legal team says to be high for a repository containing20,350,247 files, but I must remember him that we are talking about subjects and titles, not on numbers. And mostly of us, aware of this issue since 2007, simply don't uploaded stuff we known to not being free in country of origin+USA, but knows a large amount of those (I wrote this line while checking 450 .MP3 files containing PD-old songs by Noel Rosa among others).
Hosting such files in a fork like wikilivres isn't a solution, as some Wikisource folks already pointed out, mostly because those who do digital curation of old stuff still are few, making very counterproductive those few people also trying to maintain external projects without any kind of support from WMF. Lugusto • ※ 01:29, 4 March 2014 (UTC)[reply]
  • Oppose Oppose Just no. -FASTILY 08:33, 4 March 2014 (UTC)[reply]
  • Oppose Oppose Bad idea. Confusing and makes things much more unclear if you have to look for your mediafiles in diffrent places. Natuur12 (talk) 11:30, 4 March 2014 (UTC)[reply]
  • I applaud this discussion, and those that have responded to it in the manner the initiator asked. Comments such as "Just no" get nobody anywhere. If this happens, undoubtedly there will be technical issues to resolve (avoiding file name clashes is the first that comes time mind) but it is not worth worrying about such detail unless and until there is agreement to actually implement a solution along these lines. The crux as I see it is the disconnect between the desire to host only works that are guaranteed free for all circumstances in all locations and the desire to host those works that are not quite that free. There are four classes of works that I am thinking of here, and for simplicity of discussion I'll give them short names
work is free in: shorthand name notes
All circumstances in all locations Globally Free e.g. Creator died more than 100 years ago
All circumstances in most locations Locally Free e.g. out of copyright everywhere that implements the rule of the shorter term
Most circumstances in all locations Practically Free e.g. Free everywhere except the USA and Free in the USA except in the event of a very unlikely litigation or takedown request
Most circumstances in most locations Mostly Free e.g. Free except in the event of very unlikely litigation
Commons as we know it today would continue to host only Globally Free works. A second project ("SharedFiles", for the sake of argument) would host media from one or more of the other categories. SharedFiles would not "pollute" the Globally Free nature of Commons because there would be a clear division between them, although transwiki would be possible (e.g. for each years files that become compatible with the stricter PD-old requirements and media uploaded to the wrong project). Each individual project (en.wikipedia, fr.wikibooks, ja.wiktionary, zh.wikisource, etc) would be free to decide which of those categories of works it wanted to accept.
The understanding of both the proposer and myself is that the Board of Trustees has said that, in principal, it would be prepared to host all four categories of works.
I don't know whether this is the right solution or not, but it is sufficiently possible that it is worth discussing the pros and cons. Voting for or against this without discussion is no more useful, and no more relevant, than saying "I (don't) like it" and actually hinders the discussion. Even if this is not the solution, the discussion is valuable because it will help clarify what the problems are (and despite the claims of some to the discussion, they do exist), why they are problems and what are and are not practical ways forward.
TL;DR: This proposal will not damage Commons. Discussion about this proposal is worth having. Supporting or opposing without discussing is harmful. Thryduulf (en.wikt,en.wp,commons) 12:26, 4 March 2014 (UTC)[reply]
  • Oppose Oppose the specific proposal and Oppose strongly oppose dragging Wikisource into this, both for the same reason: this is very illegal. It isn't a grey area like "fair use"; this proposal is very clearly, very really against the law. Fair use requires a de minimis usage, which cannot be the case with Wikisource and is against the purpose of a media repository like Commons (unless, maybe, it was actually constructed in a way to prevent reuse of those files, which I doubt would be the case). Wikilivres or projects like it are the only way to solve that particular problem. Knowingly ignoring the law opens the Foundation, and all its projects, to not only punitive legal action but reputational damage and loss of any moral standing it may have had; potentially undermining everything. - AdamBMorgan (talk) 13:08, 4 March 2014 (UTC)[reply]
    • Wikisource wasn't "dragged into this", but only mentioned exactly as what this request for comments isn't, in an attempt to keep a clear focus on this. Maybe you are in need to be remembered the two Wikimedia projects that most relies on PD-old stuff? This will be illegal er... "only" for the organization behind Wikimedia wikis, despite it still allowing us to get a great precedence in court if the Wikimedia wins (and to Wikimedia wins, firstly is necessary to someone prosecute him). I will be very pleased if you can point to me any historical change from any kind that no one ever needed to be in margins on what was allowed by laws. Instead, I can list only situations were was necessary to break the current laws to change their most damaging aspects, such on places with no free speech that persons needed to give speechs to gain attention and critical mass supporting him. Lugusto • ※ 23:42, 4 March 2014 (UTC)[reply]
      • I followed the link from the Wikisource mailing list; that involved the project. As to the rest: I don't want to try to force a change in American copyright laws, so I don't see why I should have to justify doing so. This isn't a grey area with no case history, the SCOTUS have decided that the URAA is valid and in force in the United States. The Foundation will most likely lose any court case, which will mean loss of money, reputation and potentially the moral high-ground (useful for the next version of SOPA), if not actual loss of freedom for some of those involved, which includes uploading volunteers and any down-stream re-users as well as "only" the Foundation. Incidentally, coming up with a plan that is '"only" [illegal] for the organization behind Wikimedia wikis' stands on dubious moral grounds; why are you being so free with other peoples lives? The Foundation also risks being made an example of (due to its visibility as the entity behind Wikipedia, the fifth biggest website on Earth). That risks the entire Foundation and all of its projects (Commons, Wikipedia, Wikisource et al) being taken down. At the most extreme, it might even lead to the end of the interpretation of "fair use" on which Wikipedia relies (which is a grey area in US law). The risks are not worht the gain. Even ignoring the practical objections, I do not believe it is morally acceptable to screw artists out of their rights just because some Wikimedians feel entitled to do so and think they can get away with it. There are copyright holders who make use of American copyrights even when they have expired in the work's own country (the Sherlock Holmes copyrights, for example). As such, I maintain my Oppose opposition. - AdamBMorgan (talk) 16:39, 5 March 2014 (UTC)[reply]
        • Many thanks for expanding your view of this situation. I will not argue further because it may sounds as I attempting to persuade you and it isn't my intend, if already looked as it being to you or someone's else on my replies to many opposers. Certainly I'm supporting my own propose behind this RfC, but I'm also provoking to collect as many data as possible (and you in your last message helped in such intend). So I must make a mea culpa here: I crossposted to wikisource-l my original announce without further contextualization. Anyway, your good example of what happened with Sherlock Holmes series winning the court because both country of origin and USA are native speakers of English and the original work was written in English. I doubt that a original work in another language and from a country that English isn't the official language would win with the same arguments, and the same to some artwork without cultural relevance to USA but strongly relevant outside, but this is only my view, I can't predict judgments results (of even some monetary lobby), but examples given by Jane023 also conduces to an opposite scenario than the one you explained here. Lugusto • ※ 17:40, 5 March 2014 (UTC)[reply]
  • Oppose Oppose on POTY images are classified per several nominations — let's create a separate repo for each… Whatsoever are reasons it would result in nothing more than a great mess. Also I doubt it's easy to use 2 shared repos technically. --Base (talk) 20:08, 4 March 2014 (UTC)[reply]
    • You've made a valid point in your opinion. But technical challenges doesn't looks as a barrier for me, since most interesting features (such FlaggedRevs and Wikidata code) have coded only after a great urging for communities for such features (i.e, IMHO on demand features for MediaWiki doesn't looks to be a real blocking issue). And on POTY contests, well, maybe keeping it only ath the current Commons level? In theory local free uploaded medias can also have good quality enough to be part in contests. Maybe making a small edition of POTY on those still protected on USA also helps to disseminate the need to change the laws Lugusto • ※ 01:07, 5 March 2014 (UTC)[reply]
  • Oppose Oppose Attending to where the servers are located in (the US) and having previously expressed my rejection to a massive restoration of files deleted due to URAA problems. I have been doing a very exhausting work since December, searching and nominating a lot of Argentine photos with URAA problems and now I feel that all that work was in vain. - 181.167.4.31 15:33, 5 March 2014 (UTC)[reply]
    • This proposal was never related to the project hosted at commons.wikimedia.org, but about creating a second one. Additionally, this isn't a vote or poll. Lugusto • ※ 22:39, 5 March 2014 (UTC)[reply]
  • Oppose Oppose Commons is already a global version by itself : it is intended to be multilingual and used by all projects. So its rules should be compatible with all of them, including the most restrictive ones (such as English Wikipedia), without creating legal issues (even if some wikis are also more liberal on some rules and have their own separate hosting such as "fair use" in US, but also more restrictive due to the reappropriation of copyright in US for contents that have NEVER be part of the US protection domain and NEVER been part of the US public domain but possibly in the legitimate public domain of other countries). Yes URAA is problematic in US because it goes too far (before it, it was not protective enough... US legislators have once again failed to honor the Berne convention and is once again abusing other countries: before it was abusing their copyright, now it is abusing their public domain !) verdy_p (talk) 16:50, 5 March 2014 (UTC)[reply]
    My opinion is that the reappropriation by US copyright of public domain originating from another country is completely illegal (and even uncinstitutional in US). US will never be able to enforce this reappropriation, but if it does, US courts will invalidate this invalid law. For this reason I also reject the deletion (in Commons) of contents initially in the copyright domain of another originating country and that has fallen legally in these countries in their public domain (valid worldwide under Berne Convention and even according to WIPO treaties today). And I support the open letters sent to the Foundation by Wikimedia chapters in Israel, Argentina, Uruguay (possibly others will follow). The valid public domain of a country msut remain public domain even in US (ignore that URAA law competely, let's not be pre-reactive and anticipate things that will never happen or that will need to be challenged country by country, content by content). Commons must then accept legally all contents that are in the public domain of any country from which the work was originately created and protected by copyright: The public domains or copyright of other countries (including US) should not matter, it is simply invalid and URAA validity has still not been challenged in US courts. We can expect appeals to the US Federal Supreme Court, and even trials in an international court where US may be condamned to rewrite the URAA to respect the international public domains (this will take several years, we don't need to anticipate these decisions). verdy_p (talk) 16:50, 5 March 2014 (UTC)[reply]
    @Verdy p: I agree with your initial opinion, but en:Golan v. Holder is the law of the land. PS Spellcheck is your friend.--Elvey (talk) 18:52, 6 March 2014 (UTC)[reply]
    I do use spellchecking, but in my browser it checks only French and underlines everything in English. So it's unusable. So my best spellchecker is just rereading, and I think I make enough efforts (in a language that is not my primary one), to avoid most faults. But I do not take a lot of attention after rereading messages twice, I need to pass to something else. A discussion page like this one does not merit corrections for just things that are extremely minor, and that do not create confusion. I avoid abbreviations, I think I don't use slang words, I use reasonnable punctuation and capitalization only where needed. It there remains just a few missing "s" or minor typos with inverted letters or mistyped letters, you should not care about that. My level is reasonnably good in this discussion when I compare it to what others are writing in their own native primary English language !
    I won't excuse myself for not being British or American here (and I absolutely don't care about the differences between US and GB English, when English is itself very inconsistant in its own orthography and tolerates many more abuses of language than what I will ever use here !). verdy_p (talk) 00:57, 7 March 2014 (UTC)[reply]
    So instead of nominating public domain contents for deletion according to US-only (invalid) URAA, we should instead mark the country of origin of the initial copyright. The URAA may be used ONLY for contents that were copyrighted in US (these contents may have been created initially in another country, and protected by the copytight of these countries, but some legal reeditions in US of copies of these contents were protected by US copyright but this does not apply to other legal editions in other countries. We can choose the edition. Contents that are just facsimiles of books stored in US libraries but edited initially in other countries (such as France) continue to be under the laws of these originating countries.
    For this reason I propose instead to deprecate the blank "public domain" template, and instead use per-country public domain indications (we can accept them only if the country indicated is either' the originating country of the initial copyright, or, the country where the content was legally published, or, US, and in fact we should preferably use the country of creation of the original content, i.e. the country of its first (registered) publication : many contents such as books have a cover page showing the initial editor and its location : this cover page is decisive, not the page showing a stamp of the library where a copy of the book was applied, unless this is an official deposit for copyright protection (e.g. a legal deposit in BnF, in Paris), this deposit being a legal proof of the original copyright (and also the proof that the work is now in public domain in that country). In case of conflict between mutliple legal deposits in different countries, with different durations of copyright protection, we should consider the oldest deposit as being the first legal publication. verdy_p (talk) 17:05, 5 March 2014 (UTC)[reply]
  • Qualified Support Support - I see the problem as a gulf between the deletions made on commons and deletions the WMF and LCA feel are necessary. Far more is being deleted than is necessary. Numerous attempts to change that have failed. Therefore an alternative is needed. One avenue I believe LCA should FURTHER explore is a common location to store works that can be shared among wikis that serve countries not subject to the URAA that are PD except where the URAA applies. I find the LCA arguments that the Israel, Argentina, Venezuela, etc. wikimedias shouldn't be able to do so, and be supported to be broad brush and far from airtight. This is what's called for in Venezuela's letter: "a solution that allows [maintenance of] the highest possible amount of free content without risk of legal backlash." I've read this but wonder whether it's been thought through enough - Why exactly couldn't il.wikipedia.org and es.wikipedia.org, for example, include, the same way they currently include from commons.wikimedia.org, include stuff from commonsURAA.wikimedia.org, hosted in, say, Argentina? en.wikipedia.org would not be configured to allow this, since the URAA does apply in a major English-speaking country - the US. I want to hear what Deror avi said. It would be no major technical feat to have the wikis do with another wiki what is already done with commons, because all the hard work has already been done and is working now to support use of commons. My support is qualified because I suspect it would be better if content that is clearly "still protected in the USA" was hosted on a commons-like server NOT in the USA. But I'm open to reconsidering that view. --Elvey (talk) 18:52, 6 March 2014 (UTC)[reply]
  • I note that the "WMF does not see a reason to engage in mass deletions of content simply because of general concern about the URAA," I see setting up such inclusions as not merely toeing the law in terms of considering the rights of copyright holders, but going above and beyond. OTOH, given the way US courts lean toward copyright owners, how I or other reasonable people see things isn't terribly important; biased courts could see the Napster decision as on point. But they haven't; Google still caches thumbnails of billions of images on the public web, including, of course, a fraction that are not on the public web legally. And they don't' get in trouble, because they aren't doing anything wrong.--Elvey (talk) 18:52, 6 March 2014 (UTC)[reply]
  • Support Support, something similar to the Flickr Commons, where the images are tagged with "No known restrictions" and given to people to use, without providing any further advice. We use many of those images here, and some likely aren't in the public domain in the USA. Most I've seen from the European libraries and archives are PD after 70 yrs, but likely wouldn't be PD in the USA. Can't we provide a similar statement as the PD-flickr commons tag used now, saying it's free of copyright as identified by the institution? Or each local Wikimedia chapter sets up their own Commons, images there are PD in that country. Oaktree b (talk) 06:15, 7 March 2014 (UTC)[reply]
From Flickr commons: "However, in many instances, a cultural institution will not be the rights holder under copyright law. Therefore, it can neither grant permission to others who wish to use a photograph nor provide a guarantee that the photograph is in the public domain.

BY ASSERTING "NO KNOWN COPYRIGHT RESTRICTIONS," PARTICIPATING INSTITUTIONS ARE SHARING THE BENEFIT OF THEIR RESEARCH WITHOUT PROVIDING AN EXPRESSED OR IMPLIED WARRANTY TO OTHERS WHO WOULD LIKE TO USE OR REPRODUCE THE PHOTOGRAPH. IF YOU MAKE USE OF A PHOTO FROM THE COMMONS, YOU ARE REMINDED TO CONDUCT AN INDEPENDENT ANALYSIS OF APPLICABLE LAW BEFORE PROCEEDING WITH A PARTICULAR NEW USE. TO REVIEW THE EXPLICIT RIGHTS STATEMENT FOR ANY IMAGE, PLEASE CLICK ON THE RELEVANT LINK UNDER "PARTICIPATING INSTITUTIONS," OR ON THE "NO KNOWN COPYRIGHT RESTRICTIONS" LINK ASSOCIATED WITH THE IMAGE IN THE COMMONS." Oaktree b (talk) 06:07, 7 March 2014 (UTC)[reply]

Comment Comment A common mistake when drafting a RFC is presenting an idea and asking for feedback. Where the idea is presented poorly, it gets little support. Instead, it may be desirable to describe a problem and ask multiple questions. Discuss what the problem impact is, what means to solve it the community would like to see (potentially from a list). I, for example, might suggest a new category, or a new namespace in addition to File:*. However I can't say what is best as I don't know some answers. Questions follow. Gryllida 12:48, 7 March 2014 (UTC)[reply]

  • Comment Comment: Canadian Wikilivres already transcludes files from Wikimedia Commons. If something may be kept on Wikilivres but not Wikimedia Commons when still copyright-restricted in the USA, just allow wikis to transclude files from Canadian Wikilivres and write in the fair use rationales for the USA on wikis using them. Using bots to check the usage may be desirable.--Jusjih (talk) 06:09, 24 March 2014 (UTC)[reply]
  • Oppose Oppose--Per Steinsplitter..The Herald 15:14, 4 April 2014 (UTC)[reply]

Impact question

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What projects does the described problem affect an how? Gryllida 12:48, 7 March 2014 (UTC)[reply]

Who offers different servers, where in the world are these servers, and can they really protect the WMF from uninvited visits by US marshalls? –Be..anyone (talk) 11:54, 9 March 2014 (UTC)[reply]

Wikimedia has many Local chapters. While I do not support the idea of a separate project, it's actually very much possible to have commons host such images on different servers based on existing tags such as {{PD-XXX}} that would put them in the appropriate "Category:Files hosted in XXX". The rest should be mostly transparent to the user (albeit there are a bunch of technical challenges that must be overcome). As for is it legal, the answer is yes with the possible loss of some US protection laws, but many of those counties have their own protection laws that are neglected to be mentioned anywhere in these discussions. (See Legal and Community Advocacy/Wikimedia Server Location and Free Knowledge) --CyberXRef☎ 16:06, 9 March 2014 (UTC)[reply]
Tnx for the link. The WMF has a legal team or something in this direction, hopefully they'll add some expert guess whether this RfC is a lethally stupid or really good idea. –Be..anyone (talk) 14:27, 11 March 2014 (UTC)[reply]

Existing solution (and existing overheads)

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How is the problem currently handled? Gryllida 12:48, 7 March 2014 (UTC)[reply]

By being deleted. Period. --CyberXRef☎ 15:39, 9 March 2014 (UTC)[reply]
No, they are not just being deleted. Many have also been transferred to Wikilivres, and Japanese Wikipedia is experimenting with hosting PD-Japan (and not PD-US) files directly under their EDP (as noted here). --Avenue (talk) 00:31, 10 March 2014 (UTC)[reply]
How was it wrong? They are still being deleted from commons, that's how they are being handled in there... As I commented in there, the Japanese wiki (which only has 23 images after being created 4 months ago) is totally useless to any other wiki, I am pretty sure we can all agree this is not really a long-term solution; however at least it's legal under Japanese law. Wikilivres is a different story, since Canada is part of the NAFTA, The Jan 1, 1996 Provision (17 U.S.C §104A) introduces URAA into NAFTA and TRIPS. So both Canada and Mexico are not immune. As far as I can see Wikilivres is totally illegal. ([2], [3]). --CyberXRef☎ 06:59, 10 March 2014 (UTC)[reply]
I took your "Period." sentence to mean that nothing else was being done, besides deletion. I think the Japanese solution (including similar EDPs for other projects) seems the safest approach legally (under US law), but it would be cumbersome compared to a centralised "commons" for such files. The idea behind Wikilivres is that some things are protected by copyright in the US, but not under Canadian law, so Wikilivres can host some things that Commons and other Wikimedia sites cannot. I think you have things backwards about 17 U.S.C §104A; it incorporates trade agreement requirements into US law, not vice versa. I see nothing in your links that suggests that URAA-affected files would necessarily be protected under Canadian law, and I believe Wikilivres should be able to host many of these files. Wikilivres is not "totally illegal" IMO. --Avenue (talk) 13:10, 10 March 2014 (UTC)[reply]
It's "totally illegal" to host URAA problematic photos there. Quote from the Law Journal Press (linked to above): "43 Under NAFTA, TRIPS, and WIPO Treaty implementations, copyright has been restored in non-U.S. works that fell into the public domain due to unnnoticed publication." --CyberXRef☎ 17:22, 10 March 2014 (UTC)[reply]
No, that is clearly talking about US copyright law. Wikilivres is based in Canada, so it is not subject to US law. It can freely host works that are not protected by copyright under Canadian law, including many works that have had their US copyright restored under the URAA. It's probably illegal for a US resident to upload or download URAA-affected files from Wikilivres, since they would be subject to US law, but that's different from Wiklivres itself being illegal. Of course IANAL. --Avenue (talk) 21:11, 10 March 2014 (UTC)[reply]
It's illegal for Canadians to do that as well... The provision was added to NAFTA, NAFTA is an agreement signed by Canada, Mexico, and the United States. It's therefore copyrighted in Canada as well. --CyberXRef☎ 22:49, 10 March 2014 (UTC)[reply]
First, I believe NAFTA and earlier treaties bind governments, but do not directly restrict what individuals can do. (Of course individuals in turn can be affected when their government enacts laws to put those treaty obligations into effect, and courts may consider the treaty's language when intepreting such laws.) So I think there is a big gap in your argument, which you could only save by pointing to the relevant Canadian law.
Second, the main copyright issue addressed by the URAA (besides bootlegging) was that US copyright law was effectively on a different planet from the rest of the world, in its requirements that various formalities must be observed for a work to be protected by copyright. NAFTA required the signatories to abide by the Berne Convention, which provides for "copyright protection free from any condition, including formalities such as notice and registration".[4] Canada already complied with this, so it had no need to amend its laws similarly (although NAFTA did have some other effects on Canadian copyright).[5]
But maybe this is all a bit abstract. Let's look at an example: this file was deleted on Commons on URAA grounds, but is out of copyright in the source country (New Zealand) because the photographer died more than 50 years ago (in 1955). I believe it's also out of copyright in Canada for the same reason. Why do you think it's illegal for Wikilivres to host this file? --Avenue (talk) 03:13, 11 March 2014 (UTC)[reply]
I believe the current solution is to upload the file to the local Wikipedias that allow fair use. The downfalls of this system (multiple copies of each image) already have a proposed solution in NonFreeWiki, which proposes creating a repository for "fair use" images that are used in Wikipedia. Since the files on this proposed wiki would be "Fair Use" in at least one country (the United States), the files intended for this wiki could be uploaded there. The proposal includes a way to label images that are fair use only in some countries. As long as commentary is made on the images, they would be legal, even in the U.S. Trlkly (talk) 19:42, 11 March 2014 (UTC)[reply]
We aren't talking here about fair use media, but media that is 100% in public domain on it's country of production. We aren't talking only about Wikipedia, but all Wikimedia projects and the possibility to embebed the same media across all wikis in a given language (in the language most spoken on the home country or even in all relevant wikis in a portion of languages). We are also talking on features such as InstantCommons, that allows any media currently hosted in the current unique media repository (commons.wikimedia.org) to be embebed on any MediaWiki wiki with no need of file duplicating. So, local upload isn't the solution here. Lugusto • ※ 00:14, 12 March 2014 (UTC)[reply]
But it is the current solution (along with uploading to Wikilivres), which is what I understood this section was supposed to be about. --Avenue (talk) 03:01, 12 March 2014 (UTC)[reply]
Hosting URAA-affected files to Wikilivres is a perfectly legal, even if it is not a substitute for using them on Wikimedia projects. Canada uses the rule of shorter term, if a work is in the public domain in its original country, it is also in Canada. There is a clear majority of opinions for stopping the deletion of URAA-affected files on Commons. Adapting Commons policy is the way to go, IMO. Regards, Yann (talk) 04:22, 18 March 2014 (UTC)[reply]

Potential solutions

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What solutions would we like to see? Gryllida 12:48, 7 March 2014 (UTC)[reply]

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