Wikimedia/Exemption Doctrine Policy

Examining copyright infringement versus the Wikimedia Foundation Board-approved Exemption Doctrine Policy and their effects on Wikimedia wikis.

History
On January of 2012, the Wikimedia Foundation's Board of Trustees ratified a Resolution called the Licensing policy, which has wide effects and implications across all wiki projects hosted on Wikimedia Foundation servers. It introduced many specific legal concepts and topics relevant to the mission of Wikiversity and related sister projects, most notably the concept of the Exemption Doctrine Policy, which is needed in order to keep files of potential copyright infringements on Wikiversity in order to further its mission of distributing free knowledge and original research to the world. The mission and goals of the Wikimedia Foundation to disseminate knowledge to everyone freely and reliably, for reuse or for any other purpose, even commercially, naturally conflicts with the accessibility of that knowledge, which remains locked behind the closed bars of the prison hereby referred to as "copyright infringement".

Current situation
The WMF Resolution mandates that all Wikimedia projects must adhere to the Licensing Policy, and defines freedom as such: "A license which meets the terms of the Definition of Free Cultural Works specific to licenses." Again, an exemption doctrine policy is needed as an opt-out for projects to claim that some of the work they provide is not provided under a free license, but in order to counter the high legalistic barriers of Exemption Doctrine Policies and avoid too much bureaucracy, the Licensing Resolution asserts that EDPs must remain "minimal" in writing.

As noted at the bottom of every Wikiversity page, "text is available under the Creative Commons Attribution/Share-Alike License; additional terms may apply. By using this site, you agree to the Terms of Use and Privacy Policy." Now, not only does taking media files from other websites potentially violate copyrights in a legal sense, but as plagiarism it is also intellectually dishonest which goes against Wikiversity's mission of free academic resources for intellectually honest people and unfree content goes against the wider Wikimedia mission of disseminating free content for all. For these reasons, copyright-infringing content is automatically thrown out the window even as it provides information crucial to the mission of dissemination of information; therein is the conflict between Wikimedia Foundation goals. Sidenote: in a copyright infringement legal stance, Wikimedia Foundation provides what is known as "safe harbor" status under the Digital Millenium Copyright Act, however this is not a guarantee of legal pressure from outside forces and does not provide for the eventual possibility one of the content providers here (i.e. wiki editors) will be sued regardless.

Currently on most Wikimedia wikis, the practice for resolving the issue of non-free content has always been to place the onus of asserting fair use of certain media on the uploader/contributor of that media, as is required by law. The safe harbor provision allows other editors and site administrators to have a shoot-on-sight policy for copyright infringers should a legal or policy matter be brought to them, or a clear and easy way to demonstrate non-use of non-free content. In other words, the burden of proof is much higher for someone to prove something is in "fair use", and it is not Wikimedia's job to do that for them, but to swiftly remove without question infringing/plagiarized material which threatens its integrity. Ultimately speaking, the legal concept of fair use is a privilege, a tool: like any other tool, it has its place and function within each of the Wikimedia projects' domains, and like any other tool, it can be (ab/mis)used until it ceases to function properly or goes against Wikimedia Foundation goals too much which results in it being discarded. That being said though, asserting fair use rationales is not a difficult task on Wikiversity, even as the burden of proof remain high, and for the other media the site administrators have liberty to pick and choose which ones they deem relevant, forming an expedient process.

An assertion was also made that site administrators have a duty to replace fair use images with freely licensed equivalents, which might be true in the context of adhering to the greater Wikimedia movement towards free content, but they have no such responsibility in any sort of legal sense, nor in their capacity as volunteers should they be required to assert fair use on behalf of someone else. The quickest way of resolving any sort of legal culpability therefore is the simple deletion button, because of the above reasoning. Removing such material is not necessarily a sign that the site administrators do not care about Wikiversity's mission of original research, but that they care enough about its integrity as a free-content project that fair use and/or copyright infringing material ought to be summarily removed for the sake of the project. The question should be whether Wikiversity cares enough about itself to not shoot itself in the foot when a legal case comes around for copyright infringement, a publicity/press case comes around for toxic infringing material, or an academic case comes around for plagiarism.

Terms to know
An important point raised is the definition of "free" as outlined in the Wikimedia Foundation's mission; to take a page from the English Wikipedia, the confusion over the definition of "free" as containing two distinctly separate legal concepts is referred to as "Gratis versus libre".
 * Gratis refers to "for zero price", meaning "free of charge (FOC), complimentary, or on the house".
 * Libre refers to "with little or no restriction", meaning "the state of being free, as in having freedom or liberty".
 * Copyright infringement is defined as "the use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce, distribute, display or perform the copyrighted work, or to make derivative works, without permission from the copyright holder, which is typically a publisher or other business representing or assigned by the work's creator."
 * Plagiarism is defined as "wrongful appropriation and purloining and publication of another author's language, thoughts, ideas, or expressions, and the representation of them as one's own original work" and is often associated with the legal concept of "copyright infringement", but it is not the same.

Questions and comments

 * Is the goal of Wikiversity to create the best possible educational resources and learning opportunities? Should that content, currently hosted on and constricted by the servers and policies of the Wikimedia Foundation, if it infringes copyright despite the best of intentions be relocated elsewhere, perhaps on something like Wikia or a personal wiki website?