Wikilegal/Exemption doctrine policy for Hindi Wikipedia
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We were recently asked to interpret how to interpret the Foundation’s Resolution regarding the Licensing Policy ("Resolution") when creating an Exemption Doctrine Policy (“EDP”) for non-free media content on Hindi Wikipedia. Below we have provided our interpretation.
EDP Policy and Resolution Interpretation
First, under the Resolution, “[n]on-free content used under an EDP must be identified in a machine readable format.” The purpose of this requirement is to enable users and re-users of the site to easily identify non-free content without requiring a person to physically review every file. Copyright templates and categories are generally machine readable, so as long as they are used to identify non-free content as non-free, they should be sufficient to meet this requirement.
Second, the Resolution reads “[a]n EDP may not allow material where we can reasonably expect someone to upload a freely licensed file for the same purpose, such as is the case for almost all portraits of living notable individuals.” It is our view that what is reasonably expected is not dependent on the number of users on a particular wiki, but instead whether it’s reasonable to expect that a free alternative to non-free content is available or will become available for upload. Accordingly, an EDP should not allow the use of non-free files when it is reasonable to expect that freely licensed files are available, or will become available, that can serve the same purpose.
Third, the Resolution states that both United States law and “the law of the countries where the content of a project are predominantly accessed” must be considered in an EDP. Based on the statistics you provided and Resolution’s clear language, an EDP for Hindi Wikipedia must consider both the laws of the United States and the laws of India. Please be aware that other laws, copyright and otherwise, may apply to non-free work depending on the type of work and its use.
The doctrine of fair use under United States law provides a defense to infringement when certain copyrighted works are used for specific purposes. 17 USC § 107 is the fair use statute and lists the four factors to condiser when determining whether a use of copyrighted material is fair use. Section 52 of India’s 1957 Copyright Act contains a list of uses (“fair dealing”) for copyrighted material that do not require the copyright holder’s consent. Both fair use and fair dealing are fact-specific and look to the nature of the copyrighted material and the nature of the use. As with any law, the best way to determine whether a specific use is allowed under these exceptions is to compare the contemplated use to the statutory language. Additional information on “fair use” and “fair dealing” and the similarities and differences between the doctrines can be found here.
Fourth, government works are either free to use (in the Wikipedia sense of the word "free") or they are not. The government sites that you referenced do allow some content reproduction, but they also require that the material is “reproduced accurately” and not used “in a derogatory manner or in a misleading context.” Accordingly, it is unclear whether these works are actually free to use in the Wikipedia sense of "free" given these use restrictions and the accuracy requirement. It is worth noting that an EDP does not need to address works that are truly free to use because EDPs only apply to non-free works. Non-free government works should only be allowed when that particular use of a particular non-free government work comports with all relevant laws and the relevant EDP.
Finally, the Non-Free Content ("NFC") guidelines that "[t]here is no firm guideline on allowable resolutions for non-free content." The NFC guidelines also state the core philosophy that "images should be rescaled as small as possible to still be useful as identified by their rationale, and no larger." It is our view that flexible standards for resolution requirements that are technology-neutral (i.e. not tied to specific technology) are preferable to static or technologically bound standards. Accordingly, the image resolution standards you choose to adopt in any EDP should require that content is always re-scaled to its minimum useful size, and you may choose to provide guidance on that issue however you wish.