- File:Ben Roberts-Smith VC 19-01-2011 fair use claimed.jpg (talk|edit|history|logs|links|watch) (article|XfD|restore)
No consensus to delete. 6 keeps and no deletes other than the nominator. Image cannot legally be replaced due to subjects protected identity and image officially released by Australian Department of Defence for use by media organisations without requirement for further permission so there is no question of copyright infringement. Image had an extensive fair use rationale which was supported by a number of experienced editors. Anotherclown (talk) 10:13, 1 February 2011 (UTC)[reply]
A wide-ranging discussion after which S Marshall changed position from "undelete" to "endorse"
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- There's quite a subtle issue to be considered here, that occasionally surfaces at DRV: there's a problem with Wikipedia's non-free content criteria in that they don't address Crown Copyright. Clearly NFCC should address Crown Copyright, because images subject to Crown Copyright are supposed to be available for the purposes of non-commercial research or private study. (See, for example, the MOD website here.) Setting aside concerns about the exact wording of the NFCC for a moment, there is absolutely no copyright-related reason or non-free-content-related reason why Wikipedia shouldn't use these images. This means that the "keep" consensus was objectively correct.
However, when we take into account the exact wording of the NFCC, it becomes clear that our own rules do require this image to be deleted, because it is copyrighted material. Thus it would be overly harsh to say that SchuminWeb should be overturned. Please would the closer of this DRV consider not using the word "overturn" in connection with this debate. My recommendation is that we refer the question of crown copyright to the copyright noticeboard so that editors interested in copyright can consider how best to allow for it in the NFCC. I also think that without prejudice to the outcome of the discussion on the copyright noticeboard, we should undelete the image for the moment.—S Marshall T/C 12:13, 1 February 2011 (UTC)[reply]
- "are supposed to be available for the purposes of non-commercial research or private study" well that's the rub, we are the free encyclopedia in the expansive sense, the images should be forward usable by commercial interests also in much the same way we don't accept the NC variants of creative commons. --82.7.40.7 (talk) 19:57, 1 February 2011 (UTC)[reply]
- No, mate, that's Wikimedia Commons' mission, not ours. Wikimedia Commons are trying to build a library of content that's both gratis and libre for anyone to use, even for commercial purposes. It's a very admirable goal, of course, but here on Wikipedia we're not doing that. What we're building is an encyclopaedia. And that's why we have the facility to host images directly as well as use Wikimedia Commons ones: because sometimes, it's in the encyclopaedia's interest to use images that are gratis but not libre.—S Marshall T/C 20:40, 1 February 2011 (UTC)[reply]
- You seem somewhat confused, take a look at Wikipedia:About - "Wikipedia is a multilingual, web-based, free-content encyclopedia project", free content being the key point here.
- Take a look at Wikipedia:Copyright#Contributors' rights and obligations - "Non-text media may be contributed under a variety of different licenses that support the general goal of allowing unrestricted re-use and re-distribution."
- Take another look at Wikipedia:Non-free_content "Wikipedia's goal is to be a free content encyclopedia, with free content defined as content that does not bear copyright restrictions on the right to redistribute, study, modify and improve, or otherwise use works for any purpose in any medium, even commercially." .. "Any content not satisfying criteria, such as "non-commercial use only" images, images with permission for use on Wikipedia only, or images fully copyrighted are therefore classified as non-free." and "The licensing policy of the Wikimedia Foundation requires all content hosted on Wikipedia to be free content. However, there are exceptions."
- We do not accept images licensed under Non-Commercial licenses only, we do not accept images licensed for use on wikipedia only. Sure we accept that in some restricted circumstances no free image will be available, at which point we apply our non-free content policy which imposes a higher standard than simple fair use.
- Back to this image - does it fit "does not bear copyright restrictions on the right to redistribute, study, modify and improve, or otherwise use works for any purpose in any medium, even commercially." No. Does it fit ""Any content not satisfying criteria, such as "non-commercial use only" images, images with permission for use on Wikipedia only, or images fully copyrighted are therefore classified as non-free."" . Yes. So we classify it as non-free and we apply the non-free content criteria which are purposely designed to restrict our use of non-free content, since our goal is to write a free encyclopedia. --82.7.40.7 (talk) 22:12, 1 February 2011 (UTC)[reply]
- No, I don't think I'm confused. I'm afraid I rather think you're misunderstanding the point in two respects. First, you seem to be talking about the rules as written; but my point is that there's a lacuna in the rules because they fail to grok how Crown Copyright works. They mistakenly put Crown Copyright into the same category as a commercially copyrighted image, and that's the wrong way to deal with it. Second, you're conflating the ideal situation—which is for users to submit content that's both gratis and libre—with the reality, which is that sometimes it's in the best interests of the encyclopaedia to use content that's gratis but not libre. And that's why we have NFCC at all.
In this case I think it's common ground that the image is not replaceable. That was certainly the consensus at the FfD. So to me, the questions are, (1) is it ethical to use it, and (2) if so, will it enhance the encyclopaedia? I see the answers to both questions as a clear yes.—S Marshall T/C 22:33, 1 February 2011 (UTC)[reply]
- If crown copyright is not free for use, then it falls under under [[Wikipedia:Non-free_content]. If its not free the wikimedia foundation don't permit it unless it falls under an exemption doctrine policy. Images released solely for wikipedia use may enhance the encyclopedia and of course there is no ethical issue, we don't permit them because they are at odds with our goal, NC licensed the same no ethical issue but at odds with our goals. There is no ethical question in it, non-free is at odds with our project goal which is what my original statement says.
Does it enhance our encyclopedia? well if our goal is to create a free-content encyclopedia (as it is) then the answer has to contemplate the benefit of the image vs it introducing non-free content to our encyclopedia. (WP:NFCC rationale - "To support Wikipedia's mission to produce perpetually free content for unlimited distribution, modification and application by all users in all media.") Our exemption doctrine policy is WP:NFCC so that's the sole question which has to be resolved, if it's crown copyright, licensed for use by wikipedia only, a commerical image or licensed NC only, the question is still the same. So your original call "Clearly NFCC should address Crown Copyright, because images subject to Crown Copyright are supposed to be available for the purposes of non-commercial research or private study." the rationale qutoe I give above addresses that, simply those still aren't without our mission. --82.7.40.7 (talk) 07:35, 2 February 2011 (UTC)[reply]
- I'm sorry, but I'm afraid I still think you're confused. Crown copyright is not "released solely for Wikipedia". In this case the image is available for use for the purposes of non-commercial research and private study. It is not available for commercial use.
Her Majesty is not going to licence her property under any terms except Crown Copyright. The mountain will not come to Mohammed. And I read the FfD discussion we're considering as a consensus that the image is not replaceable. Your view seems to be that "if it's not free content we don't want it", and I think by "free" you mean "libre". But that's not how things are. The reason why we have non-free content criteria for images at all is because it's established custom and practice that there are times when it really is both ethical and in the best interests of the encyclopaedia for us to use content that's gratis but not libre. I see it as essentially idealism -vs- pragmatism. Of course, ideally we'd have a free content equivalent, but we don't. No free content equivalent could exist. So in these circumstances we have to decide whether we can use the content that's gratis but not libre, and the first question is whether it's ethical to do so. In this case it is. The second question is whether it enhances the encyclopaedia to do it. In this case the answer is yes. See?—S Marshall T/C 12:59, 2 February 2011 (UTC)[reply]
- I'm afraid the discussion about Crown Copyright and the fundamentals of NFCC is a red herring. Our non-free content rules are deliberately designed in such a way as to restrict our use even of totally legal "gratis" images such as these, as long as they are not "libre". Crown Copyright / non-commercial permission / "permission for Wikipedia" and other similar situations only mean that one of our eight NFC criteria is safely met (NFCC#2, commercial damage). All other criteria must still be applied with exactly the same strictness as everywhere else. In the present case, the crux is replaceability. The review nomination misstates its case, by repeating the mistaken premise that new free pictures would be impossible. They clearly are not, as was conclusively proven in the parallel cases of Mark Donaldson and Willie Apiata, where third-party photography at public events has been frequent and evidently unhindered. Fut.Perf. ☼ 15:51, 2 February 2011 (UTC)[reply]
- As I said before, I read the FfD as a consensus that it's not replaceable. In the discussion we're considering, Mattinbgn's very cogent point was that there are potentially serious implications of harm to living people when one takes a photograph of a member of the special forces. This view was eloquently and patiently supported by pdfpdf. Only you disagreed with it, and I don't find your responses were sufficient to refute the point because the man may well have taken steps to alter his appearance since this photograph was taken. Therefore, a current photograph potentially includes different ethical issues compared to one that's already been released by the MOD.—S Marshall T/C 16:53, 2 February 2011 (UTC)[reply]
- "Steps to alter his appearance since"? Now, that is a new argument. The photograph was taken just the other day. We will know whether he will "change his appearance" once he will begin to appear on public occasions during his promotional publicity tour (which has been officially confirmed is going to take place.) I'm not talking about taking candid shots of him at the front in Afghanistan or stalking him to his home. I'm talking about taking photos like this, this, this, this, this, this, this, this, this, this, this, this, this, and this. Fut.Perf. ☼ 17:10, 2 February 2011 (UTC)[reply]
- You're right to say the picture was taken very recently, and in fact I believe the date was 19th January 2011. But members of the special forces can change their appearance fairly rapidly.—S Marshall T/C 17:20, 2 February 2011 (UTC)[reply]
- Still a red herring – whenever he will be appearing in public, then whatever his appearance is at that time will evidently not be secret. We're talking public appearances in front of dozens or hundreds of private citizens, who possess mobile phones and cameras. Fut.Perf. ☼ 17:27, 2 February 2011 (UTC)[reply]
- You're saying this because of public appearances that haven't actually happened yet, though. As far as I can see, you're arguing that the image isn't replaceable now, but you think it will probably be replaceable in the future. Am I right?—S Marshall T/C 17:58, 2 February 2011 (UTC)[reply]
- No, they haven't happened yet. But we can expect them to happen in the immediate, near future, i.e. during the next few months [1]. That's enough for NFCC#1, which is deliberately designed so as to bar non-free images not merely from the moment a free equivalent has actually become available, but from the moment the possibility of such a replacement has become foreseeable. Fut.Perf. ☼ 18:06, 2 February 2011 (UTC)[reply]
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- undelete image.Oceansummer87 (talk) 19:23, 1 February 2011 (UTC)[reply]
- overturn #1 there was no consensus for deletion--the closer should have !voted rather than closed if he felt he needed to override it. #2 The arguments that the picture is irreplaceable (and thus that he lives is irrelevant) are strong and #3 per S. Marshall. Hobit (talk) 21:57, 1 February 2011 (UTC)[reply]
- Are we asking for the undeletion of a file talk page or the file page? If the latter, can someone please correct the listing? Stifle (talk) 09:43, 2 February 2011 (UTC)[reply]
- To be clear I'm requesting the undeletion of the both the image and the talkpage. Anotherclown (talk) 12:21, 2 February 2011 (UTC)[reply]
- endorse (as original nominator) – all "keep" votes were based on a faulty premise, i.e. that creating new, free images would be not merely difficult, but illegal. That would have been a valid argument if it were true, but the premise was conclusively shown to have been factually mistaken during the nomination. In two earlier, exactly parallel cases, it was clearly demonstrated that photographs created at public events by third-party authors (i.e. not controlled and released by the subject's military employers, but by independent journalists or private citizens) did in fact exist, and that there is evidently no legal or practical hindrance to the creation of such photographs. The keep votes, being based on a factually mistaken premise, were therefore validly discounted. Fut.Perf. ☼ 15:24, 2 February 2011 (UTC)[reply]
- Note: list of pertinent examples from the parallel cases of Mark Donaldson and Willie Apiata, moved here from out of the collapsed thread above for easier reference: free photo; various photos that, though not free, demonstrate that third-party photography is possible: [2], [3], [4], [5], [6], [7], [8], [9], [10], [11], [12], [13], [14]. Fut.Perf. ☼ 22:21, 2 February 2011 (UTC)[reply]
- Endorse. NFCC implements Wikimedia Foundation policy, and exceptions to it can't be created by a local consensus. Therefore, it was particularly important for the closing admin to carefully weigh the arguments against the texts of policies involved. This was an infobox image, used for general identification of the article subject in a BLP, creating a strong presumption that another identifying image can be created and used. The keep !voters never refuted this presumption. The probability that such an image can't readily be created in the near future, or without difficulty, isn't enough to establish an exception under the NFCC exemption doctrine. There wasn't anything about the medal presentation ceremony itself which was particularly notable. If the photo had been taken during the even for which the subject received the medal, with the same copyright status, I think the outcome would be different. But a picture of a soldier who is receiving, or has just received, a medal, however much it may add to the attractiveness of the article, does not add to a reader's understanding in the same way that an image of the underlying event itself might. Hullaballoo Wolfowitz (talk) 17:35, 2 February 2011 (UTC)[reply]
- Endorse. In my view, closing admins at FFD are more than anywhere else entitled to go "against the numbers" and it was correct to do so here in light of the repeated points that Fut.Perf. raised regarding replaceability. His/her arguments were, objectively viewed, overwhelmingly strong. I also note that no-one seems to have attempted to ask the Commonwealth Copyright Administration for permission to use the photo. In my experience off-wiki, the Commonwealth frequently gives permission to use its copyrighted works with attribution. I'm not sure why S Marshall is linking the UK MOD website though, UK and Australia copyright law is of course different. The Australian Copyright Act vests all copyright of Crown works with the Crown and makes absolutely no special provision for the fair use of Crown copyrighted works, save only for reproductions of court judgments and legislation. At least in Australia, the position is very clear and very much contrary to the position that S Marshall asserts. Happy to take anyone through the relevant provisions. The Australian government may, as a matter of policy, be more liberal in giving permission to use copyrighted works for non-commercial purposes, but the law does not require them to be so. Like any other copyright holder, the Commonwealth of Australia has to be asked to give permission for use, or we need a firm fair-use rationale. Neither exist here. --Mkativerata (talk) 19:58, 2 February 2011 (UTC)[reply]
- Now that's a good point. I knew that there were mild differences between Australian copyright and copyright under the Law of England and Wales, but I didn't realise Crown Copyright worked differently in different realms. I withdraw my objection and now endorse the deletion.—S Marshall T/C 20:26, 2 February 2011 (UTC)[reply]
- I should note, though, that the "research or study" concept that you mentioned above is a fair use exception in Australian law: both for Crown copyright and general copyright: [15]. But I doubt placement on a wikipedia article is "for the purposes of research or study"; I assume that's why we demand "licensed for commercial use" for Creative Commons-licensed images. And the factors in subsection 40(2), which are quite similar to our own NFCC, would be a hurdle if we're looking to reproduce a whole photo.--Mkativerata (talk) 01:45, 3 February 2011 (UTC)[reply]
- Comment - the Australian Department of Defence has released the image under the following specific terms: "This work is copyright. You may download, display, print and reproduce this material in unaltered form only (retaining this notice and imagery metadata) for your personal, non-commercial use or use within your family or organisation. Apart from any use as permitted under the Copyright Act 1968 (for example, "fair dealing" for the purposes of reporting news under section 103B of the Copyright Act), all other rights are reserved."
- As such how is the use of this image by wikipedia in contravention of these terms? Indeed it explicity covers the use of this image under "fair dealing" for the reporting of news which is exactly what this article did with the image. As such the copyright holder has ALREADY GIVEN THEIR PERMISSION. I also continue to dispute any assertion that we are allowed to photograph this individual, and anyone who asserts otherwise is simply ignorant of the law. Have people done so anyway - yes, and in all liklihood anyone who did so in the future would probably get away with it. So yes third party photography is possible, but that doesn't mean its legal. Protection of the identities of SASR personnel is a fact that has been clearly established and references for this were provided in the previous debate. Anotherclown (talk) 11:44, 6 February 2011 (UTC)[reply]
- A license "for your personal, non-commercial use" is worthless under WP:NFCC. It needs to be a Free cultural work, which it isn't. And as for the legality, no, nothing of the sort has been established. The only thing that's been established is that the government normally doesn't volunteer certain information. Nothing has been cited that would constitute a legal restriction on what private citizens may or may not do, once information has been voluntarily released by the government. You claim there is a law, so cite that law, at last. Fut.Perf. ☼ 14:09, 6 February 2011 (UTC)[reply]
- You have completly ignored my point, which was about the explicit permission under "fair dealing", and not a license "for your personal, non-commercial use". I'm no lawyer so no I don't have the legislation in front of me but I would assume either the Defence Act or Crimes Act. That said this media release on the Australian Department of Defence website is fairly clear, and I quote: "Soldiers of the Special Operations Command are given protected identity status due to the nature of the work they undertake for the Australian Defence Force and the wider Australian public." [16] Anotherclown (talk) 09:44, 7 February 2011 (UTC)[reply]
- What accepted claim of "fair dealing" are you arguing? --Mkativerata (talk) 09:57, 7 February 2011 (UTC)[reply]
- As I wrote above the Australian DoD released the image under the specific terms listed above, which includes this statement: "Apart from any use as permitted under the Copyright Act 1968 (for example, "fair dealing" for the purposes of reporting news under section 103B of the Copyright Act), all other rights are reserved." As such I am arguing, that the copyright holder has EXPLICITLY accepted the use of this image under "fair dealing" for the purposes of reporting news under section 103B of the Copyright Act." This image was used to do exactly what the copyright holder released it to do and as such it does not infringe that copyright IMO. As I also established above, and in the Ifd, it cannot legally be replaced either. Anotherclown (talk) 10:15, 7 February 2011 (UTC)[reply]
- But: (1) Wikipedia does not report news; and (2) reporting the news isn't automatically a fair dealing. It's only fair if it doesn't unduly limit commercial opportunities, the image isn't replaceable, etc. etc. So to make use of that exception, the image has to (a) be used to report the news; and (b) be "fair use". Neither is satisfied here. --Mkativerata (talk) 10:19, 7 February 2011 (UTC)[reply]
- Wrong - you continue to ignore the point: there is no legal replacement. Also if the Australian DoD didn't allow the image's use under "fair dealing" then how else did ever media organisation in the country get to use it? Anotherclown (talk) 10:23, 7 February 2011 (UTC)[reply]
- And quoting WP:NOTNEWS is irrelevant. How about actually discusing the points I raised rather than deflecting the issue? Anotherclown (talk) 10:25, 7 February 2011 (UTC)[reply]
- Look, people have been discussing the points you've raised for two weeks now and nothing seems to be getting through to you. I don't see much point in continuing. --Mkativerata (talk) 10:33, 7 February 2011 (UTC)[reply]
- No they haven't. I have made two points above that have not been properly discussed. AFAIK neither have been raised previously in their current form. Fut.Perf. asked me to clarify my point, I did. You asked me to clarify it further, I did. As such I await your responses. If you choose not to participate in the discussion that is your choice however. Anotherclown (talk) 11:05, 7 February 2011 (UTC)[reply]
About the law: I did what you ought to have done, and looked up the laws you cited. Nothing, of course. The defence act only mentions a prohibition of unauthorized depiction of military installations (forts etc.). In the criminal code the only article that could possibly be relevant is that about espionage, but it of course contains an explicit disclaimer about information that has already been communicated to the public by the authorities, which is of course the case here. Ball is in your court. – About the fair dealing argument: it doesn't matter whether you appeal to the "for non-commercial use" clause or the "fair dealing for reporting news" clause. Their status in terms of WP policy is the same: they are non-free licenses. And Mkativerata is also correct about the point that we are not a news medium, so the "reporting news" clause in the fair dealings rules is irrelevant to us. (But even if it wasn't, it wouldn't make a difference, as stated before.) Fut.Perf. ☼ 11:26, 7 February 2011 (UTC)[reply]
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