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Fair Use and Free Content at Wikimania 2012

At the second annual Wikipedia conference to be held in the U.S., copyright issues pervaded the discussions among folks from 83 (!) countries. Of course it did: Wikipedia is a reader-built encyclopedia that promises free content world-wide. And it’s doing that job in the middle of a sea of copyrighted content.

Wikimedians love to make and use, and re-use, content. And they really don’t like having to mix into all that free content some copyrighted material that can’t be remixed. So their standards are quite strict—far stricter than U.S. law at least would permit. Often they can find free content, including the pictures that turn a Wikipedia page into a page you love to stay on.

When you need it…

But what happens when you really need a copyrighted item that the owner doesn’t want to put a Creative Commons license on? Say you’re illustrating an article on characters in animated cartoons. Or you are discussing a controversial photograph. Or you’re quoting a famous document.

What happens next, in practice, depends both on where you are in the world, and what your own Wikipedia project has decided is its policy. There are projects and Wikipedias that simply don’t use any copyrighted work. In others, copyrighted work is judiciously used.

The issue took center stage on Friday afternoon, with a sizzling debate.

For fair use.

Arguing for fair use were Brandon Butler, in-house counsel at the Association of Research Libraries, and Stephen LaPorte, counsel for Wikipedia. Butler argued that Wikipedia’s mission was in the fair use “sweet spot,” that people who took many other reasonable risks in a day could take this one, and that Wikimedians could reduce their perceived risk very dramatically by creating a code of best practices in fair use like librarians had. “Is it your mission to offer the world’s knowledge to the world, or is it to offer just the free content to the world?,” he asked. He believed it was the first, and that mission would require fair use. “If you don’t want to employ fair use, you should get out of the culture business,” he said.

LaPorte argued that Wikimedians shouldn’t settle for producing less than high-quality content for copyright reasons, and that as supporters of freedom of expression they should prize the part of copyright law that encourages free speech. “We can’t ignore fair use without hurting our own expression,” he said. “And when we employ fair use, we’re standing up for all the other institutions that need fair use too, like libraries and archives and museums.”

Against fair use.

Arguing against fair use were Creative Commonser Jessica Coates and Swedish Wikimedian Lennart Guldbrandsson. Coates argued that since fair use was only U.S. law, it privileged a culturally imperialist power, put users in other countries at potential risk, and made it harder for re-users to repurpose material. Gulbrandsson argued that including encumbered material on Wikipedia pages was a contradiction of the promise to offer free content, and hypocritical. He also argued that having missing content was a bold and instructive example to readers of the limitations of copyright, and an incentive to them to create free work to improve sites. “We are talking about stealing,” he said.

In rebuttals, LaPorte suggested that it would be possible to map the range of exceptions and limitations to copyright law and find relevant overlaps. Butler suggested that accepting some limitations to re-use might at times be an acceptable trade-off for high-quality content.

Although neither side persuaded the other, the pro side did persuade enough people in the audience to change the vote from an initial anti-fair use vote to a pro-fair use majority at the end.

Wikimedians may be able to learn from two other pro-free content communities that have shaped codes of best practices. Makers of Open CourseWare have created a Code of Best Practices in Fair Use that vastly improved their ability to make high-quality educational materials available worldwide. Research librarians, a group profoundly dedicated to open access strategies to serve their patrons, also created a Code of Best Practices that is enabling their digital practice.