Does Commons have a policy of violating UK copyright?

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Does Commons have a policy of violating UK copyright?

Adam Cuerden
So, let me get this straight. Commons' argument is that a database of match schedules is, without any test of this argument in the courts, legally equivalent to a 8 to 50 hour restoration job on an artwork, which may include reconstructing missing parts of the image.

...Seriously.

That's your final word on the subject?

-Adam

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Re: Does Commons have a policy of violating UK copyright?

Fae-6
On 8 July 2012 15:31, Adam Cuerden <[hidden email]> wrote:
> So, let me get this straight. Commons' argument is that a database of match
> schedules is, without any test of this argument in the courts, legally
> equivalent to a 8 to 50 hour restoration job on an artwork, which may
> include reconstructing missing parts of the image.
>
> ...Seriously.
>
> That's your final word on the subject?

It is not intended as a value judgement. The law may change at any
time, but that's the way UK law stands at the moment. If you release
your work, you can ask for attribution as the restorer, and I suspect
most serious re-users would respect that attribution, but it is not
protected by law.

"Sweat of the brow" is a contentious area of regular discussion, so I
have no doubt that others have opinions that vary from mine. I'm not
pretending to speak of behalf of "Commons", this is just my
understanding from past cases. You might try raising a specific
example at <http://commons.wikimedia.org/wiki/Commons:Village_pump/Copyright>
to see how your desired attribution can be best expressed.

Thanks,
Fae

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Re: Does Commons have a policy of violating UK copyright?

Adam Cuerden
In reply to this post by Adam Cuerden
Well, I suppose I should thank you for letting me know before you downloaded my works. All my things are now not available for download in their full-size versions, until this is sorted. (and have told people exactly why: http://adamcuerden.deviantart.com/art/Oscar-Wilde-s-The-Duchess-of-Padua-restoration-304213563 ) If, at some point in the future, you decide people actually deserve credit for their work, do let me know.

-Adam.

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Re: Does Commons have a policy of violating UK copyright?

David Gerard-2
On 8 July 2012 15:46, Adam Cuerden <[hidden email]> wrote:

> Well, I suppose I should thank you for letting me know before you downloaded
> my works. All my things are now not available for download in their
> full-size versions, until this is sorted. (and have told people exactly why:
> http://adamcuerden.deviantart.com/art/Oscar-Wilde-s-The-Duchess-of-Padua-restoration-304213563
> ) If, at some point in the future, you decide people actually deserve credit
> for their work, do let me know.


Credit as a requirement of a copyright licence only applies when a
copyright in fact exists. Restorations intended to be fidelitous do
not create a new copyright in US law. They may or may not create one
in UK law, but the question is unlikely to be resolved without an
actual case - shouting at people on a mailing list is unlikely to
influence the situation one way or the other.

What you really want is credit, and it is true that reusers should
credit the restorer in order to properly note the provenance of an
image. But you can't enforce that with a copyright that doesn't exist.


- d.

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Re: Does Commons have a policy of violating UK copyright?

Adam Cuerden
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Got it. You're going to stick your fingers in your ears and pretend there's no possibility of sweat-of-the-brow copyright - because if you think a law *might* be invalid, you can break it with impunity. I'm sure that works really well, and never ends with you getting arrested.

-Adam.


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Re: Does Commons have a policy of violating UK copyright?

David Gerard-2
On 8 July 2012 16:10, Adam Cuerden <[hidden email]> wrote:

> Got it. You're going to stick your fingers in your ears and pretend there's
> no possibility of sweat-of-the-brow copyright - because if you think a law
> *might* be invalid, you can break it with impunity. I'm sure that works
> really well, and never ends with you getting arrested.


The law is not computer programming, and people can sue you for
anything or nothing. Per Fae's link, the sweat of the brow doctrine
has been *significantly weakened* in the UK in just the past few
months.

I appreciate that restoration is actually hard work and there's a
strong moral argument that credit is the right thing for it, but it's
not a matter of copyright unless and until you can make it stick.

In any case, your persuasive skills will definitely get you everything
you could ever want, and you should certainly continue in your present
manner. Remember: you catch more flies with napalm than honey.


- d.

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Re: Does Commons have a policy of violating UK copyright?

Adam Cuerden
In reply to this post by Adam Cuerden
David, you're basically arguing that, because it was weakened, you can
presume it doesn't apply at all. Commons supposedly operates under the
precautionary principle.   This really shouldn't go out the window
because you don't like the law in question, and, had you bothered to
read the link in question, you'll see that, long before I came here, I
was having extreme abuse hurled at me over simply asking for credit
for my work. I didn't decide to pull the images on a whim.

Perhaps you should review the original discussion I linked.

In any case, Commons isn't getting my files while this policy is in
place. Maybe I'll contact some universities or something, because, you
know, if I didn't think I had a right to sweat of the brow copyright,
I'd have happily waived it. But if I'm supposedly evil for claiming
it, and no attempt to actually show that the fact that
sweat-of-the-brow has been fully overturned by the UK is being made,
just claims that AMERICA THE BEAUTIFUL SHOULD BE THE ONLY COPYRIGHT
THAT MATTERS! USA! USA! - then, frankly, I don't feel any need to help
you out.

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Re: Does Commons have a policy of violating UK copyright?

Adam Cuerden
And if you think that last line is inaccurate, go read the link I gave
at the start.

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Re: Does Commons have a policy of violating UK copyright?

David Gerard-2
On 8 July 2012 16:31, Adam Cuerden <[hidden email]> wrote:

> And if you think that last line is inaccurate, go read the link I gave
> at the start.


I did. If you're arguing here, it would sensibly be because you'd like
the policy changed. This may require actually convincing people. How
do you think you're doing on this so far?


- d.

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Re: Does Commons have a policy of violating UK copyright?

Adam Cuerden
In reply to this post by Adam Cuerden
Dear David,

I'm commenting here because I honestly didn't think Commons could be
acting in a manner that required them to actively ignore laws, and
thought it highly unlikely that Commons would be actively removing
mere requests for credit from works. That Commons apparently is doing
both of those is pretty much my limit for trying to engage with
Commons.

-Adam

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Re: Does Commons have a policy of violating UK copyright?

David Gerard-2
On 8 July 2012 16:44, Adam Cuerden <[hidden email]> wrote:

> I'm commenting here because I honestly didn't think Commons could be
> acting in a manner that required them to actively ignore laws, and
> thought it highly unlikely that Commons would be actively removing
> mere requests for credit from works. That Commons apparently is doing
> both of those is pretty much my limit for trying to engage with
> Commons.


That's a separate allegation. Removing credit is clearly incorrect -
that's the provenance of the image and it needs to be kept. However,
that's an entirely separate matter from (a) asserting a nonexistent
copyright (b) claiming said copyright as a reason to keep attribution
with it.

Do you have diffs showing removal of the correct provenance of images?
Not removal of dubious assertions of copyright, but of the thing
you've just actually claimed in this email.


- d.

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Re: Does Commons have a policy of violating UK copyright?

Adam Cuerden
In reply to this post by Adam Cuerden
And, seriously, David, the law, as it stands, recognises
sweat-of-the-brow. The idea that it doesn't is based on the idea that
the European Court *might*, at some point in the future, declare that
doctrine invalid.

That's not a legal argument, that's fortune telling.

On Sun, Jul 8, 2012 at 4:44 PM, Adam Cuerden <[hidden email]> wrote:

> Dear David,
>
> I'm commenting here because I honestly didn't think Commons could be
> acting in a manner that required them to actively ignore laws, and
> thought it highly unlikely that Commons would be actively removing
> mere requests for credit from works. That Commons apparently is doing
> both of those is pretty much my limit for trying to engage with
> Commons.
>
> -Adam

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Re: Does Commons have a policy of violating UK copyright?

geni
In reply to this post by Adam Cuerden
On 8 July 2012 16:44, Adam Cuerden <[hidden email]> wrote:

> Dear David,
>
> I'm commenting here because I honestly didn't think Commons could be
> acting in a manner that required them to actively ignore laws, and
> thought it highly unlikely that Commons would be actively removing
> mere requests for credit from works. That Commons apparently is doing
> both of those is pretty much my limit for trying to engage with
> Commons.
>
> -Adam
>

Well in this case the engraving is from 1872. Can you show that both
authors died before 1913? Otherwise you are ignoring the law of Ivory
Coast (life+99). I'm sure you see the problem.

Commons is based in the US which at the present time doesn't recognise
"sweat of the brow" as a valid mechanism to claim copyright. As a
result commons doesn't have to recognise it. Doing so creates an
extremely complicated situation as we would effectively have to set up
our own standards with little legal guidance something which never
ends well (see the de minimis mess)

I doubt for example that you would argue that the 15 mins or so I
spent messing around with:

http://en.wikipedia.org/wiki/File:Punch_sultan_visit_1867reduced.png

qualifies for copyright but depending on where you draw the sweat of
the brow line it could.

--
geni

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Re: Does Commons have a policy of violating UK copyright?

David Gerard-2
In reply to this post by Adam Cuerden
On 8 July 2012 16:54, Adam Cuerden <[hidden email]> wrote:

> And, seriously, David, the law, as it stands, recognises
> sweat-of-the-brow. The idea that it doesn't is based on the idea that
> the European Court *might*, at some point in the future, declare that
> doctrine invalid.
> That's not a legal argument, that's fortune telling.


commons-l isn't a place for legal arguments, a court is. Turns out you
can shout a lot on a list, but it comes down to an actual legal
decision.

The present situation is that fidelitous restorations just don't
generate a new copyright in the US, and that's where the WMF servers
are. If you want to fight this, on the basis that you're in the UK,
the place to fight it is in court. This may or may not work out for
you.

Look, you're starting from a bottom line and trying to construct an
argument, any argument, that gets you to that bottom line. But your
arguments aren't actually good enough to make anyone want to go to bat
for you, and nor is your frothing tone going to convince anyone
either. And, fundamentally, no-one's going to change Commons policy
for the sake of getting your restorations in particular, and I think
you realise this. So you need to actually make convincing arguments,
because you just aren't right now.


- d.

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Re: Does Commons have a policy of violating UK copyright?

Adam Cuerden
In reply to this post by Adam Cuerden
Geni, I am a UK citizen. I don't live in Côte d'Ivoire. The UK is thus
a relevant country, and if I may point you tio the actual Commons
policy,
http://commons.wikimedia.org/wiki/Commons:Licensing

"For example, if a person in the UK uploads a picture that has been
saved off a French website to the Commons server, the upload must be
covered by UK, French and US copyright law."

The actual commons *policy* is that UK law applies. It even says it
applies if the only interaction with the UK is that someone from the
UK uploaded the thing.

To argue anything else is to rewrite Commons policy.

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Re: Does Commons have a policy of violating UK copyright?

geni
On 8 July 2012 17:05, Adam Cuerden <[hidden email]> wrote:
> Geni, I am a UK citizen. I don't live in Côte d'Ivoire.

So you accept that it is okey to ignore a countries copyright law if
you are outside its jurisdiction?

>The UK is thus
> a relevant country, and if I may point you tio the actual Commons
> policy,
> http://commons.wikimedia.org/wiki/Commons:Licensing
>
> "For example, if a person in the UK uploads a picture that has been
> saved off a French website to the Commons server, the upload must be
> covered by UK, French and US copyright law."
>
> The actual commons *policy* is that UK law applies. It even says it
> applies if the only interaction with the UK is that someone from the
> UK uploaded the thing.
>
> To argue anything else is to rewrite Commons policy.


No it isn't. Commons has a specific policy that covers this area:

http://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-Art_tag

--
geni

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Re: Does Commons have a policy of violating UK copyright?

Seth Woodworth
In reply to this post by Adam Cuerden
It is also worth noting that Deviant art, the website in question, is a US based company [0], and the engraving in question is hosted on a server in germany [1].

[0] http://deviantart.theresumator.com/apply/ "deviantart is based in Hollywood CA"
     th09.deviantart.net >> 94.127.76.130

Seth Woodworth
Lead Developer, finalsclub.org

On Sun, Jul 8, 2012 at 12:05 PM, Adam Cuerden <[hidden email]> wrote:
Geni, I am a UK citizen. I don't live in Côte d'Ivoire. The UK is thus
a relevant country, and if I may point you tio the actual Commons
policy,
http://commons.wikimedia.org/wiki/Commons:Licensing

"For example, if a person in the UK uploads a picture that has been
saved off a French website to the Commons server, the upload must be
covered by UK, French and US copyright law."

The actual commons *policy* is that UK law applies. It even says it
applies if the only interaction with the UK is that someone from the
UK uploaded the thing.

To argue anything else is to rewrite Commons policy.

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Re: Does Commons have a policy of violating UK copyright?

Adam Cuerden
In reply to this post by Adam Cuerden
Can you please reread
http://commons.wikimedia.org/wiki/Commons:Licensing#Interaction_of_United_States_copyright_law_and_non-US_copyright_law
? PD-Art never once talks about anything more than a simple photograph
of the art in question, and is thus inapplicable. Further, I don't
live in Cote d'Ivoire. If I did, the section I just linked says that
Côte d'Ivoirian law would apply.

It would seem that you're ignoring the relevant policy:

"When uploading material from a country outside the U.S., the
copyright laws of that country and the U.S. normally apply."
(Commons:Licensing)

I did the restoration work in the UK, and am a UK citizen. I don't see
how you can claim that UK law is *less* relevant than "the country of
residence of the uploader, and the country of location of the web
servers of the website", both of which *explicitly* must be satisfied.

So, let's look at "Commons:When to use the PD-Art tag"

It doesn't apply. It says right at the top: "This page relates to
photographs taken from a distance only. For scans/photocopies, see
Commons:When to use the PD-scan tag."

So, let's look at that page.

http://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-scan_tag

"The situation is more complex where the original raw scan has been
enhanced on a selective basis, for example by means of some careful
work in Photoshop to bring out certain details. This type of
enhancement, although of course computer-assisted, may require a
significant level of personal creative input, and as a result may
generate a new copyright for the person doing the work.

"Clearly, where the work done is sufficiently extensive that the
result has to be treated as a new artistic work (eg where a black and
white original is ‘hand-coloured’), the image cannot be uploaded to
Commons without a licence from the new copyright owner."

So, in other words, I would appear to be right. If we agree that
http://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-scan_tag
applies, it would seem you need to give me credit.

Can we agree on this and end it?

>
> "For example, if a person in the UK uploads a picture that has been
> saved off a French website to the Commons server, the upload must be
> covered by UK, French and US copyright law."
>
> The actual commons *policy* is that UK law applies. It even says it
> applies if the only interaction with the UK is that someone from the
> UK uploaded the thing.
>
> To argue anything else is to rewrite Commons policy.

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Re: Does Commons have a policy of violating UK copyright?

geni
On 8 July 2012 17:59, Adam Cuerden <[hidden email]> wrote:

> So, let's look at that page.
>
> http://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-scan_tag
>
> "The situation is more complex where the original raw scan has been
> enhanced on a selective basis, for example by means of some careful
> work in Photoshop to bring out certain details. This type of
> enhancement, although of course computer-assisted, may require a
> significant level of personal creative input, and as a result may
> generate a new copyright for the person doing the work.
>
> "Clearly, where the work done is sufficiently extensive that the
> result has to be treated as a new artistic work (eg where a black and
> white original is ‘hand-coloured’), the image cannot be uploaded to
> Commons without a licence from the new copyright owner."


Not relevant unless you are going to take the position that you are
not in fact restoring the works but creating new works that do not
accurately depict the original works.

--
geni

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Re: Does Commons have a policy of violating UK copyright?

Adam Cuerden
In reply to this post by Adam Cuerden
With all respect, Geni, it's clear you've never done a restoration. In
cases where information is missing, it's necessary to fill it in.
While this may not have been the most major restoration I've done,
there were still many areas where information had to be recreated: one
man had a long scratch through his eye, which meant I had to recreate
the area in the scratch; there were blank areas on the legs of one
person, which meant fixing the wrinkles over them, and so on. It's a
lot of small, little artistic decisions, which are necessary in order
to make things look right. Would other decisions work just as well?
Possibly. But the very act of restoration necessarily means making
such decisions.

On Sun, Jul 8, 2012 at 5:59 PM, Adam Cuerden <[hidden email]> wrote:

> Can you please reread
> http://commons.wikimedia.org/wiki/Commons:Licensing#Interaction_of_United_States_copyright_law_and_non-US_copyright_law
> ? PD-Art never once talks about anything more than a simple photograph
> of the art in question, and is thus inapplicable. Further, I don't
> live in Cote d'Ivoire. If I did, the section I just linked says that
> Côte d'Ivoirian law would apply.
>
> It would seem that you're ignoring the relevant policy:
>
> "When uploading material from a country outside the U.S., the
> copyright laws of that country and the U.S. normally apply."
> (Commons:Licensing)
>
> I did the restoration work in the UK, and am a UK citizen. I don't see
> how you can claim that UK law is *less* relevant than "the country of
> residence of the uploader, and the country of location of the web
> servers of the website", both of which *explicitly* must be satisfied.
>
> So, let's look at "Commons:When to use the PD-Art tag"
>
> It doesn't apply. It says right at the top: "This page relates to
> photographs taken from a distance only. For scans/photocopies, see
> Commons:When to use the PD-scan tag."
>
> So, let's look at that page.
>
> http://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-scan_tag
>
> "The situation is more complex where the original raw scan has been
> enhanced on a selective basis, for example by means of some careful
> work in Photoshop to bring out certain details. This type of
> enhancement, although of course computer-assisted, may require a
> significant level of personal creative input, and as a result may
> generate a new copyright for the person doing the work.
>
> "Clearly, where the work done is sufficiently extensive that the
> result has to be treated as a new artistic work (eg where a black and
> white original is ‘hand-coloured’), the image cannot be uploaded to
> Commons without a licence from the new copyright owner."
>
> So, in other words, I would appear to be right. If we agree that
> http://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-scan_tag
> applies, it would seem you need to give me credit.
>
> Can we agree on this and end it?
>
>>
>> "For example, if a person in the UK uploads a picture that has been
>> saved off a French website to the Commons server, the upload must be
>> covered by UK, French and US copyright law."
>>
>> The actual commons *policy* is that UK law applies. It even says it
>> applies if the only interaction with the UK is that someone from the
>> UK uploaded the thing.
>>
>> To argue anything else is to rewrite Commons policy.

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