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Blue tickThis page documents an English Misplaced Pages WP:NONFREE.
Editors should generally follow it, though exceptions may apply. Substantive edits to this page should reflect consensus. When in doubt, discuss first on this guideline's talk page.		Shortcuts
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As per the Wikimedia Foundation licensing policy this document serves as the Exemption Doctrine Policy for the English Misplaced Pages.

The mission of the Wikimedia Foundation is to develop educational content under a free content license or in the public domain. For content to be "free", it must have no significant legal restriction on the use, redistribution or modification of the content, for any purpose.

Because of this mission, the English Misplaced Pages usually accepts only material released under a license that meets the terms of the Definition of Free Cultural Works. Material that does not meet that definition, including works licensed for non-commercial use only, are considered non-free, and are permitted only if they meet the restrictions of this exemption policy and can be considered fair use under US law. This has been explicitly declared since May 2005.

There are some works, mostly historically important photographs and significant modern artworks, that we cannot realistically expect to be released under a free content license, but that are hard to discuss in an educational context without including examples from the media itself. Because the inability to include these examples limits scholarship and criticism, in many jurisdictions, people may use such works under limited conditions without license or permission.

These legal doctrines, called "fair use" and "fair dealing", permit the use of copyrighted material under a restricted set of criteria. They are not a blanket permission for the unlimited use of text, images, and other copyrighted materials. "Fair use" is a technical/legal notion that may not match what an individual thinks of as being "fair".

Content used under these doctrines on the English Misplaced Pages must meet US legal tests for "fair use". Significantly, Misplaced Pages places additional restrictions on material that is not available under a a free content license; the content can be used only if it is not replaceable with free content. See "Downstream use" for a more detailed explanation of the rationale for these additional restrictions. For example, Misplaced Pages might allow for the inclusion of a photo documenting a historical event such as the Hindenburg disaster, but a modern publicity still of a vehicle, building or living person would be subject to stricter criteria. See "Acceptable use" and "Examples of unacceptable use" below for further instances where fair use defenses may and may not be tenable on the English Misplaced Pages.

An editor uploading copyrighted material must provide a detailed "fair use" rationale, or the uploaded material will be deleted.

Policy

The following section of this page is an official policy on Misplaced Pages. It is considered a standard that all users should follow. Feel free to edit this section as needed, but please make sure that changes you make to this policy reflect consensus before you make them.
As per the Wikimedia Foundation Licensing policy resolution of March 23, 2007, this document serves as the Exemption Doctrine Policy for the English Misplaced Pages.

Rationale

  • To support Misplaced Pages's mission to produce perpetually free content for unlimited distribution, modification and application by all users in all media
  • To minimize legal exposure by limiting the amount of non-free content, using more narrowly defined criteria than apply under the fair use provisions in United States copyright law
  • To facilitate the judicious use of non-free content to support the development of a high-quality encyclopedia

Policy

Shortcut

There is no automatic entitlement to use non-free content in an article or elsewhere on Misplaced Pages. Articles and other Misplaced Pages pages may, in accordance with the guideline, use brief verbatim textual excerpts from copyrighted media, properly attributed or cited to its original source or author (as described by the citation guideline), and specifically indicated as direct quotations via quotation marks, <blockquote>, {{Quote}}, or a similar method. Other non-free content—including all copyrighted images, audio and video clips, and other media files that lack a free content license—may be used on the English Misplaced Pages only where all 10 of the following criteria are met.

  1. No free equivalent. Non-free content is used only where no free equivalent is available, or could be created, that would serve the same encyclopedic purpose.
  2. Respect for commercial opportunities. Non-free content is not used in a manner that is likely to replace the original market role of the original copyrighted material.
  3. Minimal usage:
    1. Minimal number of items. Multiple items of non-free content are not used if one item can convey equivalent significant information.
    2. Minimal extent of use. An entire work is not used if a portion will suffice. Low-resolution, rather than high-resolution/fidelity/bit rate is used (especially where the original could be used for deliberate copyright infringement). This rule also applies to the copy in the File: namespace.
  4. Previous publication. Non-free content must be a work which has been published or publicly displayed outside Misplaced Pages by (or with permission from) the copyright holder, or a derivative of such a work created by a Misplaced Pages editor.
  5. Content. Non-free content meets general Misplaced Pages content standards and is encyclopedic.
  6. Media-specific policy. Non-free content meets Misplaced Pages's media-specific policy. For example, images must meet Misplaced Pages:Image use policy.
  7. One-article minimum. Non-free content is used in at least one article.
  8. Contextual significance. Non-free content is used only if its presence would significantly increase readers' understanding of the article topic, and its omission would be detrimental to that understanding.
  9. Restrictions on location. Non-free content is allowed only in articles (not disambiguation pages), and only in the article namespace, subject to exemptions. (To prevent an image category from displaying thumbnails, add __NOGALLERY__ to it; images are linked, not inlined, from talk pages when they are a topic of discussion.)
  10. Image description page. The image or media description page contains the following:
    1. Identification of the source of the original copyrighted material, supplemented, where possible, with information about the artist, publisher and copyright holder, and year of copyright; this is to help determine the material's potential market value. See: Misplaced Pages:Citing sources § Multimedia.
    2. A copyright tag that indicates which Misplaced Pages policy provision is claimed to permit the use. For a list of image copyright tags, see Misplaced Pages:Image copyright tags/Non-free content.
    3. The name of each article (a link to each article is also recommended) in which fair use is claimed for the item, and a separate, specific non-free use rationale for each use of the item, as explained at Misplaced Pages:Non-free use rationale guideline. The rationale is presented in clear, plain language and is relevant to each use.

Enforcement

Shortcut
  • A file with a valid non-free-use rationale for some (but not all) articles it is used in will not be deleted. Instead, the file should be removed from the articles for which it lacks a non-free-use rationale, or a suitable rationale added.
  • A file on which non-free use is claimed that is not used in any article (NFCC 7) may be deleted after being tagged for seven days under speedy deletion criterion F5.
  • A non-free file lacking a non-free use rationale may be deleted after being tagged for seven days under speedy deletion criterion F6.
  • A file in use in an article that does not meet F5 or F6 may be deleted under speedy deletion criterion F7 as follows:
    • Media from a commercial source which are not the subject of sourced commentary may be deleted immediately under F7b.
    • Non-free media which fail NFCC 1 (no free equivalent) may be deleted after being tagged as such for two days under F7c.
    • Other media with invalid fair-use claims may be deleted after being tagged as such for seven days under F7d.

Note that it is the duty of users seeking to include or retain content to provide a valid rationale; those seeking to remove or delete it are not required to show that one cannot be created—see burden of proof.

Files for discussion is the central venue to discuss whether a particular image meets the non-free content criteria, regardless of whether the file should be deleted or not. For example, a discussion might be held about whether it is appropriate to use an image in ARTICLE1 even if it unquestionably meets the criteria for use in ARTICLE2.

Footnotes

  1. March 23rd, 2007 Wikimedia Foundation Licensing policy resolution
  2. Wikimedia Foundation mission statement
  3. May 19th, 2005 statement by Jimbo Wales
  4. February 8th, 2007 statement by Kat Walsh for the Wikimedia Foundation board of trustees
  5. At the time of the Resolution's issuance on March 23, 2007, the page WP:Non-free content served as the exemption doctrine policy and is referenced by the Resolution. Since then, the content has been moved around, specifically discussed the following May, and now WP:Non-free content criteria serves as the exemption doctrine policy, while WP:Non-free content serves as guidance for this.
  6. A redirect pointing to the page where the non-free content is intended to be used is acceptable as the article name in the non-free use rationale.

Downstream use

The mission of Misplaced Pages is to create a free content ("free" as in "free speech") encyclopedia under a free license, and to disseminate it effectively and globally. For this reason we do not accept material on the merits of a license exclusively for use on Misplaced Pages, or a license exclusively for non-commercial usage (which is not "free enough"). Such works may still be used on Misplaced Pages, provided they meet all of Misplaced Pages's strict criteria for inclusion of unfree material (see the policy section above), but then under a "fair use" defence rather than by virtue of an exclusive or limited permission. There are many conceivable circumstances in which the use of unfree materials would be "fair use" on the English Misplaced Pages (run by a non-profit organization), which might not be in other contexts (by a for-profit organization, for instance). Just because something is "fair use" on a Misplaced Pages article does not mean it is automatically "fair use" in any other context — content re-users must evaluate their own circumstances on an individual level. Furthermore, Misplaced Pages fair use standards are tailored for United States copyright laws, and though fair use/fair dealing laws exist in many other countries, they are often very different from those in the United States.

For reusers, particularly commercial reusers, the most important part of a "fair use "description is good information on the original source of the image. This is essential to allow them to make their own determination of whether their own use is legal. They can't just rely on our judgement, since they are legally liable for their own actions, regardless of what we say. Identifying the original source is good practice in general, as it bolsters our claim that we are not trying to defraud the original copyright holder.

Acceptable use

Content which meets all the tests given in Policy but does not also fall under one of the designated categories listed below may or may not be "fair use" depending on what the material is and how it is used. If you want help in assessing whether a use is "fair use", please ask at Misplaced Pages:Requested copyright examinations. Misplaced Pages talk:Copyrights, Misplaced Pages talk:Copyright problems, and Misplaced Pages talk:Non-free content may also be useful. These are places where those who understand copyright law are likely to be watching.

Text

Inclusion of brief attributed quotations of copyrighted text, used to illustrate a point, establish context, or attribute a point of view or idea is acceptable under "fair use". Text must be used verbatim: any alterations must be clearly marked. Removed text is marked by an ellipsis (...), insertions or alterations are put in brackets (). A change of emphasis is noted after the quotation with (emphasis added), while if the emphasis was in the original, it may be noted by (emphasis in original). All copyrighted text must be attributed.

In general, extensive quotation of copyrighted news materials (such as newspapers and wire services), movie scripts, or any other copyrighted text is not "fair use" and is prohibited by Misplaced Pages policy.

Example

Original text:

"The threshold for inclusion in Misplaced Pages is verifiability, not truth. "Verifiable" in this context means that any reader should be able to check that material added to Misplaced Pages has already been published by a reliable source. Editors should provide a reliable source for material that is challenged or likely to be challenged, or it may be removed." (Misplaced Pages:Verifiability, 2007)

Quote:

"The threshold for inclusion in Misplaced Pages is verifiability, not truth. (...) Editors should provide a reliable source for or it may be removed." (Misplaced Pages:Verifiability, 2007; emphasis in original)

Audio clips

Brief song clips (under 30 seconds) may be used for identification of a musical style, group, or iconic piece of music when accompanied by critical or historical commentary and when attributed to the copyright holder.

Spoken word audio clips of historical events, such as speeches by public figures, may be used when accompanied by critical or historical commentary and when attributed to the speaker.

Spoken word audio clips of Misplaced Pages articles that incorporate copyrighted text pose legal problems (since the resulting audio file cannot be licensed under the GFDL) and should be avoided.

For further clarification, please see: Misplaced Pages:Music samples

Images

Some copyrighted images may be used on Misplaced Pages, providing they meet both the legal criteria for fair use, and Misplaced Pages's own guidelines for non-free content. Copyrighted images that reasonably can be replaced by free/libre images are not suitable for Misplaced Pages.

  • Cover art: Cover art from various items, for identification and critical commentary (not for identification without critical commentary).
  • Team and corporate logos: For identification. See Misplaced Pages:Logos.
  • Stamps and currency: For identification of the stamp or currency, not its subject.
  • Other promotional material: Posters, programs, billboards, ads. For critical commentary.
  • Film and television screen shots: For critical commentary and discussion of the cinema and television.
  • Screenshots from software products: For critical commentary.
  • Paintings and other works of visual art: For critical commentary, including images illustrative of a particular technique or school.
  • Publicity photos: For identification and critical commentary. See Misplaced Pages:Publicity photos.

Examples of unacceptable use

Here are examples of uses that would almost certainly not be fair use under the policy.

  1. An article containing one or more unattributed pieces of text from a copyrighted source.
  2. An image of a rose, cropped from an image of a record album jacket, used to illustrate an article on roses.
  3. A detailed map, scanned from a copyrighted atlas, used in an article about the region depicted. The only context in which this might be fair use is if the map itself was a topic of a passage in the article: for example, a controversial map of a disputed territory might be "fair use", if this controversy is discussed in the article. Note that simply "tracing" copyrighted material does not make it free.
  4. A work of art, not so famous as to be iconic, whose theme happens to be the Spanish Civil War, to illustrate an article on the war. (However, because of its iconic status, it is presumably "fair use" where there is a small image of Picasso's Guernica in the article Bombing of Guernica.)
  5. A photo from a press agency (e.g., Reuters, AP), not so famous as to be iconic, to illustrate an article on the subject of the photo. If photos are themselves newsworthy (e.g., a photo of equivalent notoriety as the Muhammad cartoons newspaper scan), low-resolution versions of the photos may be "fair use" in related articles.
  6. An image of a Barry Bonds baseball card, to illustrate the article on Barry Bonds. A sports card image is a legitimate fair use if it is used only to illustrate an article (or article section) on the card itself; see the Billy Ripken article.
  7. An image of a magazine cover, used only to illustrate the article on the person whose photograph is on the cover. However, if that magazine issue itself is notable enough to be a topic within the article, then "fair use" may apply.
  8. An image of a living person that merely shows what s/he looks like. The rationale is that this is potentially replaceable with a freshly produced free photograph.
  9. An image found on the Internet where the original source is unknown or not verifiable.
  10. A chart or graph. These can almost always be recreated from the original data.
  11. An image of a contemporary newspaper article, when the information it contains could easily be used as the basis of an original article and cited as a reference.
  12. A large copyrighted commercial photograph, where its use might undermine the ability of the copyright holder to profit from her work.
  13. Seventeen short audio clips of a contemporary pop-music group in a single article. A fair use defense might be tenable for a smaller number if each is accompanied by critical analysis or scholastic commentary in the surrounding text.
  14. An audio excerpt of one minute's duration, used to illustrate a stylistic feature of a contemporary band; 30 seconds is the recognized limit.
  15. A short video excerpt from a contemporary film, used without comment or analysis in the surrounding text.

Tagging non-free image files

Labeling images as fair use can be done with the non-free content tags. If you have found a file that appears to be non-free, you can add a tag corresponding to the type of material to the image description page.

Please also add the source from which the image has been reproduced. Remember there is no "general rule" about "fair use", each "fair use" must be explained and a rationale must be established for that specific use (in other words every page that uses the image will have a distinct rationale for using the image on that page even though "fair use" is claimed on the image page).

Tagging for review

The following is currently a proposed addition to the review process examining the fair use of images. It is not official policy or guideline, but is a suggestion being discussed.

There are several tags that you can use in addition to the fair use tag to help for review purposes.

If you would like an image to be reviewed by another user as to whether or not it is fair use, you can add the tag {{fairusereview}} to it, which will flag it for an informal review by other editors.

If you believe an image that is tagged as fair use is definitely not fair use, you can add {{non-free use disputed}} to it, and it will be eventually nominated for deletion at Misplaced Pages:Possibly unfree images or Misplaced Pages:Copyright problems.

Images which have been deleted as not meeting the Misplaced Pages criteria for "fair use", ie. the 'repeatability' criterion, should be listed at Misplaced Pages:Deleted fair use image replacement.

If you have reviewed a non-free image (whether it is tagged as {{fairusereview}} or not) and are quite confident that the image does qualify as "fair use" on the listed pages, add {{reviewedfairuse|pages=]|user=~~~|date=~~~~~}} to the page. Do not review an image for "fair use" in an article if you either uploaded the image or made the decision to include it in the article where it is being used.

The reviewer may choose to accept a reasonably presented rationale in good faith without necessarily agreeing with each point asserted, as long as it does not contain information that the reviewer believes to be incorrect or misleading. If incorrect or misleading information is removed, and the reviewer believes that the remaining information is sufficient to provide a reasonable "fair use" rationale, then the rationale should be accepted. If the reviewer considers that the rationale is incomplete or does not provide sufficient detail to make a determination, then the reviewer should consider that the criterion has not been met.

Reviewers are urged to consider that some discretion and personal judgement is required in assessing whether certain of these requirements are met, and in these cases may choose to assume good faith, unless there is reason to doubt. Other users may be invited to review or comment if a clear determination can not be made.

If the image is used in more than one article, it is preferable that individual articles are assessed individually with a separate template box used for each article reviewed, as future edits to a particular article may render "fair use" claims as void.

As the aim of this process is to improve Misplaced Pages, reviewers should, where possible, attempt to elevate the standard of the "fair use" of the image, by making any edits they consider appropriate, where possible. For example rewording an inadequately written Fair Use rationale, or deleting unnecessary information, is a far more constructive action than simply deeming that a criterion has not been met.

If you see an image tagged as fair use that could be replaced with a free alternative, add {{subst:rfu2}} to the image description page (add {{subst:rfu}} if the image was uploaded before July 13, 2006). Be sure to notify the uploader! The image will be added to today's subcategory of Category:Replaceable fair use images so that it can be deleted. Large images that should be scaled down to qualify as fair use may be tagged with {{fairusereduce}}.

Legal position

Under U.S. copyright law, almost all work published after 1922 has an active copyright (there are exceptions, however — see United States copyright law for details). In general, the use of copyrighted work without the permission of the copyright holder is copyright infringement, and is illegal. As such, on Misplaced Pages, which is hosted in the United States, we are normally only able to use material that is not under copyright or is available under a sufficiently free license.

An important exception to this rule exists, recognized in a clause in the copyright act that describes a limited right to use copyrighted material without permission of the copyright holder — what is known as fair use (or "fair dealing" in other countries, where standards may differ). This clause exists to protect criticism and commentary; to prevent copyright holders from restricting free speech. This page is meant as a guideline for dealing with fair use materials on the English Misplaced Pages — it provides general guidance on what is or is not likely to be fair use and how you can best assist editors when attempting to include material under fair use. However, it is not official policy. You, as the uploader, are legally responsible for determining whether your contributions are legal.

If you use part of a copyrighted work under "fair use" (except for short inline quotations), you must make a note of that fact (along with names and dates). It is our goal to be able to freely redistribute as much of Misplaced Pages's material as possible, so original images and media files licensed under a free content license or in the public domain are greatly preferred to fair use of copyrighted files. See Misplaced Pages:Boilerplate request for permission for form letters asking a copyright holder to grant us a license to use their work under the terms of the GFDL.

Never use materials that infringe the copyrights of others. This could create legal liabilities and seriously hurt the project. If in doubt, write it yourself. The Wikimedia Foundation reserves the right to remove unfree copyrighted content at any time.

Note that copyright law governs the creative expression of ideas, not the ideas or information themselves. Therefore, it is perfectly legal to read an encyclopedia article or other work, reformulate it in your own words, and submit it to Misplaced Pages. (See plagiarism and fair use for discussions of how much reformulation is necessary in a general context.)

Law

The Copyright Act of 1976 sets out four factors to consider when deciding if the copying of a copyrighted work is fair and allowable without the consent of the copyright holder (17 U.S.C. § 107):

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of Fair Use if such finding is made upon consideration of all the above factors.

Briefly, these indicate that

  1. The use must not attempt to "supersede the objects" of the original, but rather, must be scholarly or critical.
  2. The less of the original that is used in relation to the whole, the more likely that use is fair, though the importance of the specific portion is also considered (as quoting the most important part may attempt to "supersede" the original).
  3. The use must not infringe on the copyright holder's ability to exploit his original work (for instance, by acting as a direct market substitute for the original work), though not through criticism or parody.

To these, Misplaced Pages adds that if the media could be repeated by an editor then 'fair use' is not sufficient criteria for inclusion. Editors are asked to upload a free equivalent instead.

There is also a substantial body of case law which can be consulted, and is useful for determining what some of the vague terms in these factors (such as "substantiality" and "purpose") have translated to previously in a court of law. Stanford University Libraries has put together a summary of some of the most relevant cases on the subject.

On Misplaced Pages, copyrighted, unlicensed material may be used under fair use if we firmly believe that the use would be judged to be fair if we were taken to court. Whenever possible, however, "free" material should be used instead of fair use material to avoid compromising the goal of a 💕 and to avoid unnecessary legal exposures.

Other Wikimedia projects

The above guidelines are specific to the English language edition of Misplaced Pages, at http://en.wikipedia.org. Other Wikimedia projects, including Wikipedias in other languages, may have different policies towards non-free content. Please check the policy of each project as certain projects never accept fair use.

See also

References


External links

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