Archive:Fair Use Policy, Media

THE FOLLOWING IS ONLY A DRAFT FOR A PROPOSED POLICY AND SHOULD NOT BE RELIED UPON IN ANY WAY.

The following refers to fair use as understood within the U.S.

Fair use is a necessarily difficult yet navigable area of Citizendium policy. It is often labor-intensive as well. Legal scholars have described the "fair use" doctrine as "a murky concept in which it is often difficult to separate the lawful from the unlawful." Confounding this, there is only one sure way to tell whether the particular use you claim to use as "fair" really is: by having the matter resolved in federal court.

Citizendium's policy on fair use is designed to steer contributors toward the "clear" side of these murky waters, to try to avoid the precarious situation of fair use challenges, to not prohibit fair use media altogether, and to make the whole area as straightforward as possible. The policy basically follows that of reputable scholarly journals, while balancing and incorporating into the mix Citizendium's ideals of providing libre content to re-users.

What follows is is not legal advise but only an attempt at good faith guidance. The onus of any fair use claim ultimately rests upon the uploaders and re-users of content claimed as fair use by Citizendium contributors.

Test 1: Libre Substitute

The most straightforward way to avoid troubles over fair use is to avoid invoking the doctrine at all. To this end you should apply Test 1 before even considering whether to make a fair use claim.

Does libre media exist, or could it be reasonably created within the next year or so, that would substantially convey the same information contained in copyrighted media over which you are considering making a fair use claim?

If Yes, then your upload does not qualify for a fair use claim on Citizendium.

If No, then proceed to Test 2, below.

Test 2: Permissions Diligence

Authorities are unanimous that fair use claims are bolstered when they were preceded by documented diligent seeking of permission. To this end you should apply Test 2 before even considering whether to make a fair use claim.

Have you diligently but unsuccessfully attempted to contact the copyright owner to ask permission, and are you prepared to document those attempts on a subpage of the image's talk page?

(For an example of a thus far unsuccessful attempt see Talk:Tux/lin64; for an example of a thus far probably successful but as yet inconclusive attempt see Talk:Tux/ccpenguin.jpg; for examples of successful attempts see Image talk:Wessel 1954 fig1.png/Permission and Image talk:Gilad Atzmon - for Citizendium.jpg/Permission).

If No, then your upload does not qualify for a fair use claim on Citizendium. See documenting permissions for help on the next steps to take.

If Yes, then proceed to Test 3: Fair use of not?, below.

Test 3: Fair use or not?

Overview of legal doctrine

The law of fair use, having developed by courts since the 1800s, has since been codified in the United States Copyright Act, 17 USC § 107:

§ 107. Limitations on exclusive rights: Fair use

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.

Because the statute is based on the doctrine developed by the courts, that doctrine is particularly important in interpreting the statute.

Additional guidance

Thus, Test 3 is:

If after carefully reviewing Test 3: Fair use or not?, are you convinced your claim of fair use is fair use indeed?

If No, then your upload does not qualify for a fair use claim on Citizendium.

If Yes, then proceed to Making a strong fair use claim, below.

Making a strong fair use claim

If after you have documented diligent yet failed permission efforts and you are convinced you have a clear fair use claim, you should carefully and in detail document your reasons for believing in your claim with the following format: