Wikiversity:Community Review/Exemption Doctrine Policy

The WikiMedia Foundation (WMF) licensing policy requires that projects such as Wikiversity host only content available under a free license, or have an Exemption Doctrine Policy in place to permit hosting of non-free content.

Background
The following resources provide background and examples regarding the EDP.
 * wmf:Resolution:Licensing policy
 * EDP
 * Wikipedia:Wikipedia:EDP
 * Fair use

Definitions
Def. "A project-specific policy, in accordance with United States law and the law of countries where the project content is predominantly accessed (if any), that recognizes the limitations of copyright law (including case law) as applicable to the project, and permits the upload of copyrighted materials that can be legally used in the context of the project, regardless of their licensing status." is called Exemption Doctrine Policy (EDP).

WMF Resolution:Licensing policy
Applicable points of the Resolution:Licensing policy are
 * 1) Each "project community may develop and adopt an EDP. Non-free content used under an EDP must be identified in a machine-readable format so that it can be easily identified by users of the site as well as re-users."
 * 2) "Such EDPs must be minimal. Their use, with limited exception, should be to illustrate historically significant events, to include identifying protected works such as logos, or to complement (within narrow limits) articles about copyrighted contemporary works. An EDP may not allow material where we can reasonably expect someone to upload a freely licensed file for the same purpose, such as is the case for almost all portraits of living notable individuals. Any content used under an EDP must be replaced with a freely licensed work whenever one is available which will serve the same educational purpose."
 * 3) "Media used under EDPs are subject to deletion if they lack an applicable rationale. They must be used only in the context of other freely licensed content."
 * 4) "As of March 23, 2007, all new media uploaded under unacceptable licenses ([no machine-readable license]) and lacking an exemption rationale should be deleted, and existing media under such licenses should go through a discussion process where it is determined whether such a rationale exists; if not, they should be deleted as well."
 * 5) "As of March 23, 2007, any newly uploaded files under an unacceptable license ([no machine-readable license]) shall be deleted."
 * 6) "By March 23, 2008, all existing files under an unacceptable license ([no machine-readable license]) must either be accepted under an EDP, or shall be deleted."

Marshallsumter

 * 1) Non-free files must be identified by a machine-readable license.
 * 2) Non-free content must be minimal (much less than the whole), with limited exception, to illustrate historically significant events, identify protected works such as logos or personal portraits, or to complement (within narrow limits) articles about copyrighted contemporary works. Any non-free content must be replaced with a freely licensed work whenever one is available which will serve the same educational purpose.
 * 3) As is the case for almost all portraits of living notable individuals, where a readily available freely licensed file exists, for example, on Commons, a non-free file is not allowed.
 * 4) Requests from copyright holders that copyrighted content be removed from Wikiversity are honored.
 * 5) Non-free media must have a rationale on the image page that other users would find most helpful to answer the questions: What do they need to know about why the image is allowed to be here? What information would best inform them about whether and how they can use the image elsewhere?
 * 6) Non-free media and/or non-free minimal (much less than the whole) content must be used only in the context of other freely licensed content: "Text is available under the Creative Commons Attribution-ShareAlike License; additional terms may apply."

Exemption Doctrine Policy (Marshallsumter)
I have proposed what is in the above section based on what I've experienced (and read) here and on Commons so far (both with content and with files) and more importantly based on the reality that I may have to defend or prosecute in a US District Court. I'm not a lawyer or an attorney, but I can read successfully the legal journals and have more than 3 years of active court room experience on both sides of the bench at the federal level (patent interferences, administrative proceedings, hearings in district courts). Comments, criticisms, questions, requests for examples, are welcome!

Issues existing with the current policy (Marshallsumter)
Disclaimer: I've used our search engine with several different concepts to find consensus approvals so if I've missed any, they may not be readily available per the reasonable person standard or readily recognizable.

Here's a partial list so far.


 * 1) Section 107 Limitations on exclusive rights: Fair use does not require a rationale, nor has any case law subsequently required one.
 * 2) Failure to gain more than two supporters regarding using File Upload Wizard to get files properly licensed initially.
 * 3) "a file was taken from a commercial website or Google image search - the ones that could be a possible copyvio.", source Community_Review/Fair_Use. Files carrying  are not copyright violations per section 107 of US copyright law. Like Public Domain, Fair Use is a legal exemption to copyright. Wikiversity is by declaration an education, teaching, and research .org. No case law per copyright suit has ever won against such a use. All case law examples won against fair use have been against commercial claimants such as book publishers.
 * 4) Our  has never had a consensus approval.
 * 5) "I would like to see public domain on the dropdown menu redirect to commons." (same source as above) Commons will delete PD files if out of scope, unused in a resource, or that trigger their precautionary criteria.
 * 6) Our current Exemption Doctrine Policy (EDP) has never had a consensus approval.
 * 7) Our current Exemption Doctrine Policy (EDP) makes no mention of source.
 * 8) The wmf:Resolution:Licensing policy makes no mention of source.
 * 9) "we created . I see many files in Category:Fair use images that lack this rationale." (same source as above). See WMF-Legal's response paraphrased in my proposal and their questions. Also, the rationale may depend on the file source. See File:Iya logo.jpg for example.
 * 10) "WMF projects need to comply with numerous jurisdictions." (Same source as above). First and foremost the WMF sits inside the US, not Sri Lanka, for example, where one book publisher is/was.
 * 11) "[F]oundation:Resolution:Licensing policy [is a legally binding document] which we are obligated to follow per the instructions of the WMF lawyers." (Same source as above). See paraphrases and quotes in the above proposal from WMF-Legal. WMF policy cannot nor even give the impression of usurping the US Constitution or its constitutional approved legislative laws.
 * 12) A rationale can be supplied as a separate line in the Template:Upload Information, but this proposal was defeated by a consensus of three to one.
 * 13) A rationale may also exist as part of the Permission line in the Template:Upload Information.
 * 14) If WMF-Legal receives a take-down order for any File, they will delete or take down the file.
 * 15) "Files in user space do not quality for fair use, because they are not in use on an academic resource page. See wv:EDP item 7." Source Community_Review/Fair_Use.
 * 16) "We need a community decision on whether Fair Use is allowed in user space or only in main space. There's nothing about Fair Use itself that would require main space, only our current EDP." Source: Community_Review/Fair_Use.
 * 17) "As Single Use is a subset of Fair Use albeit more restrictive, it may be free of our EDP or not. A sub-issue that could need a community decision. My tendency is to try a short, limited modification to the EDP per community consensus if we can get one. I'll check to see if the EDP ever had a consensus in the first place." (Same source as just above).
 * 18) "The only wording that may have been interpreted as article or resource space only in the RLP might have been "They [non-free content] must be used only in the context of other freely licensed content." Directly, there's nothing in the RLP restricting Fair Use to resource space only." (Same source as just above).
 * 19) ""Revision as of 19:33, 5 August 2010 by Geoff Plourde". User:Geoff Plourde added the check mark declaring the EDP as official policy." (Same source as just above).
 * 20) "There's an extensive discussion of the EDP and some of our concerns on Wikiversity talk:Uploading files. While I haven't made a head count, I'm not sure they agreed on anything. Unfortunately, most or all of these contributors are no longer active." (Same source as just above).
 * 21) "WMF-Legal made a comment through their intermediary, "They suggest that if contributors are uncomfortable releasing their own images, they may wish to use alternate images that are free. --Mdennis (WMF) 17:59, 20 October 2011 (UTC)"." (Same source as just above).
 * 22) Portrait files on user pages: File:Crpeiris.png, no license initially supplied.
 * 23) A policy of enforcement for any EDP that may require any individual to perform an act against their will or against US Code, the US constitution, or constitutionally approved legislative laws may be a federal crime of duress.
 * 24) "With no source and no way to identify a source, I'm not sure how Fair Use could be claimed." (Source: Colloquium).
 * 25) Section 107 Fair Use "does not require that the source be known." Same source as just above.
 * 26) "According to United States Code/Title 17/Chapter 1/Section 107, creating multiple copies for classroom use requires that "C. Each copy includes a notice of copyright." According to http://www.copyright.gov/circs/circ01.pdf, notice of copyright "informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication." At a minimum, source is necessary to provide proper notice of copyright. Secondarily, everything that is done on a CC-BY-SA wiki project is based on source attribution. To suggest that a source is not required for fair use of content that would not be permitted without a source under any other circumstances violates both the spirit of open content and the source requirements for avoiding plagiarism in academic works. Source references should be a minimum requirement for Wikiversity's EDP." (Source: Wikiversity talk: Community Review/Exemption Doctrine Policy.
 * 27) "The use of a copyright notice is no longer required under U.S. law, although it is often beneficial. Because prior law did contain such a requirement, however, the use of notice is still relevant to the copyright status of older works. Notice was required under the 1976 Copyright Act. This requirement was eliminated when the United States adhered to the Berne Convention, effective March 1, 1989. [...] The Copyright Office does not take a position on whether copies of works first published with notice before March 1, 1989, which are distributed on or after March 1, 1989, must bear the copyright notice. [...] The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office." (Source: Copyright Basics, United States Copyright Office).
 * 28) "I tend to agree that "everything that is done on a CC-BY-SA wiki project is based on source attribution." This is why I try to include a source for fair use files and attribution for quoted portions of texts. But, "requiring a source for a fair use file" isn't required because our  contains "©". In addition a source for a file say on the web may be far away from the initial source carrying the notice of copyright. The whole letter and spirit of fair use is to allow educators, teachers, and researchers to further knowledge by this exemption to the copyright laws." (Source: Wikiversity talk: Community Review/Exemption Doctrine Policy.
 * 29) "These are separate issues. Notice is no longer required to claim copyright. Fair Use still requires notice of copyright in order for the use to be fair. The owner of copyright must be included in the notice. The letter and spirit of Fair Use are strikingly similar to CC-BY-SA, in that each copy must provide attribution to the source." (Source: same source as just above).
 * 30) "There are three issues here: (1) notice of copyright, (2) owner of copyright, and attribution to source. That portion of the above "The use of a copyright notice is no longer required under U.S. law" means in any direction by the copyright holder and to the copyright holder, if known. Fair use section 107 has two points: "C. Each copy includes a notice of copyright." and the Prohibition "Copying without inclusion of the copyright notice which appears on the printed copy." Section 107 is a portion of the Copyright Act of 1976. "Notice was required under the 1976 Copyright Act. This requirement was eliminated when the United States adhered to the Berne Convention, effective March 1, 1989." Notice to the copyright holder is no longer required for fair use. I like to include it when I can find it for an intellectual property confirmation. That's why I like to include the author of a file (image) in the Template:Upload Information. It's not a matter any longer for "fair use" but it is a matter for plagiarism. Plagiarism is completely separate from fair use. It is likely an aspect of fraud. The use is considered fair because it is an exemption to copyright (now in all aspects), especially for education, teaching, research, and parody, for example. If we do not know who the copyright holders are we leave the author line blank but we can still use the file as fair use. If we find the file somewhere the appropriate thing to do is mention in the Template:Upload Information the source. By mentioning the source where we found it we are not claiming that we composed the file ourselves (which if we did not compose it would be plagiarism)." (Source: (Source: same source as just above).
 * 31) "The Berne Convention document requires source and author for fair use. See https://www.law.cornell.edu/treaties/berne/10.html." (Source: same source as just above).
 * 32) "I checked through copyright.gov to see if anything was added or changed around 1989 and found this "There are no formal requirements in the Berne Convention." (Source: International Copyright). Here's the full text from Article 10:" (Source: (Source: same source as just above).
 * 33) "It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries." (Source: (Source: same source as just above).
 * 34) "It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice." (Source: same source as just above). And
 * 35) "Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon." (Source: BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS (Paris Text 1971)." (Source: same source as just above).
 * 36) This is not quite "requires source and author for fair use." but the wording chosen in 1971 appears to be accepted today. This means that a file licensed as fair use without source or author can remain as such (no need for deletion unless unused), but a source if found by anyone should be added and if or when an author is found should be added. While a great many changes to other sections of US Code Title 17 were performed prior to 1989, in preparation for accepting the Berne Convention, no changes except for the "notice of copyright" were made to Section 107." (Source: same source as just above).
 * 37) "On what basis are you interpreting "Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon." as not requiring a source?" (Source: same source as just above).
 * 38) "Here's an example: many of the files from North Carolina World War I that are/were up for deletion do not mention their source, yet their source is now known thanks to the instructors. Rather than delete them for not having stated their source I'm removing them from Category:Files with no machine-readable license by declaring them fair use and as I curate the resource adding in the source. "There are no formal requirements in the Berne Convention." (Source: International Copyright). Section 107 makes no mention of "source"." (Source: same source as just above).
 * 39) ""There is no such thing as an “international copyright” that will automatically protect an author’s writings throughout the world. Protection against unauthorized use in a particular country depends on the national laws of that country. [...] There are some countries that offer little or no copyright protection to any foreign works. For current information on the requirements and protection provided by other countries, it may be advisable to consult an expert familiar with foreign copyright laws." (Source: International Copyright)." (Source: same source as just above).
 * 40) "A source is required for fair use of resources under applicable laws and agreements in one or more of the jurisdictions where Wikiversity content is published and available." (Source: same source as just above).
 * 41) ""Media files containing copyrighted material that do not comply with the intent and spirit of this policy [EDP] can be deleted by custodians at any time." I'm willing to give the community time to provide sources for unsourced fair use content, and I'm willing to give the community time to alter the EDP if they wish, but I don't foresee any scenario in which WMF Legal is going to approve an EDP that does not require a source to be included with exempted works." (Source: same source as just above).
 * 42) "At Fair Use need for rationale on Wikiversity source of the file was not discussed. The current EDP has never had consensus approval by the community and is no more or less valid than the one I've proposed. CommonsHelper rolled the uploader into the Source location in their version of Template:Upload Information for the files I uploaded as free use when a source or author was not included. Per the letter and spirit of free use, so every fair use file has a source already included. Fair use is free use where it is the appropriate exemption such as here to copyright." (Source: same source as just above).
 * 43) "File:UBgWGbgSY2qCGhNxiiwxVoO G3Dh2eMd EV6eAc52WRQa!l8lPcdGVJSi89hhqiP.jpg [...] for the writer's project came from the Southern Historical Collection at the University of North Carolina, Chapel Hill. But, look at the source UNC Chapel Hill may have gotten the image from using fair use." (Source: same source as just above). UNC Chapel Hill made no attribution to this source either because the photo was taken as part of the Federal Writers’ Collection during the Great Depression or was later added from the source indicated with the current photograph owner.
 * 44) "The uploader is always the first source!" (Source: same source as just above). See for example: File:115 PM Systemic Manager.png.
 * 45) "In the Category:Fair use images we have [...] 139 files, authors uploaded their files for fair use; i.e., designated them as fair use". (Source: Community Review/Fair Use/Archive 1.)
 * 46) "In the Category:Fair use images we have [...] 1 author taking part in Upper Limb Orthotics designated the other files as PD and uploaded them to Commons but perhaps forgot this one. I designated it as Fair use, for me to designate as PD could be illegal," (Source: same as just above).
 * 47) "The permission line can be used to include comments like "author stated that his files are free for educational uses", for example." (Source: same as just above).
 * 48) "Please keep in mind that Wikipedia, Wikisource, and all the other WMF projects have the added burden in their rationales of not being a noncommercial, education, teaching and research website. We are the only site that has all four."
 * 49) "This is a question of meeting the legal requirements of our own EDP, which states, "Wikiversity content that is used under the fair use doctrine must be properly attributed to the copyright holder."" (Source: Community Review/Fair Use/Archive 1).
 * 50) "Unless you are proposing a change to the EDP, I recommend that everyone begin tagging any files they want to keep and have proper attribution information for." (Source: same as just above).
 * 51) "I would hope, though, that others in the en.Wikiversity community (or other Wikimedians who have an interest in copyright) would be interested in working with you to craft the language for templates and such." (Source: WMF-Legal quoted in same as just above).
 * 52) "Please keep in mind that some 2,000 to 2,100 of our fair use files were uploaded by their authors in good faith that declaring them as fair use was apparently all they needed to do. The recent addition of "This template must be accompanied by a  justifying the assertion of fair use." occurred after all these files were uploaded." (Source: same as just above).
 * 53) "According to Wikipedia: Fair use, there are four factors: how it is used, the nature of the work itself, how much of it is used, and the effect on the work's value." (Source: same as just above).
 * 54) "The issues are the EDP, which hasn't changed since September 2011, and the community's lack of oversight in addressing content that is not consistent with the EDP since then. We can either work on changing the EDP, or we can work on appropriately tagging or removing the images, or some combination of the two." (Source: same as just above).
 * 55) "The four factors are what courts are using to decide if a commercial use of fair use images is justified or not." (Source: same as just above).
 * 56) "Usually, images are presumed to be all or the "heart" regarding how much. Our descriptions in the information template answers "the nature of the work itself". The effect on the work's value is nothing when it's used on an educational, teaching, and research website by the copyright law section 107." (Source: same as just above).
 * 57) "The details of US copyright law are wholly irrelevant. Wikiversity, like all WMF projects, is required and obligated to follow Resolution:Licensing policy which is more restrictive than what would be allowed on a personal web server." (Source: same as just above).
 * 58) "Regarding the Resolution:Licensing policy, I'm pretty sure WMF-Legal was keeping that in mind when they made their comments. So deleting images uploaded as Fair use was not specifically endorsed. But, trying to work together to formulate the "why" for these images was." (Source: same as just above).
 * 59) "Legal has already said that one-size-fits-all is not an adequate solution. More specific information will need to be filled in for each file." (Source: same as just above).
 * 60) "Template:Non-free use rationale, so far as I can find, was imported from Wikipedia." (Source: Community Review/Fair Use/Archive 1).
 * 61) "Template:Non-free media rationale, does not have an attribution, has never received a Community Review, see Past Community Reviews, and has never been discussed in the Colloquium (not apparently in the Archives) until now so far as I can find. (Source: Same as just above).
 * 62) "Template:Fairuse rationale, seems to have an attribution by hyperlink, to Wikibooks: later was blanked and a redirect inserted to Template:Non-free media rationale. (Source: Same as just above).
 * 63) "Unfortunately, I can’t give approval for any specific rationale language for you to use." WMF-Legal in (Source: Same as just above).
 * 64) "User Mu301 has recently added "This template must be accompanied by a  justifying the assertion of fair use." to the  template."
 * 65) "On our Main Page it states "Wikiversity is a Wikimedia Foundation project devoted to learning resources, learning projects, and research for use in all levels, types, and styles of education from pre-school to university, including professional training and informal learning. We invite teachers, students, and researchers to join us in creating open educational resources and collaborative learning communities. To learn more about Wikiversity, try a guided tour, learn about adding content, or start editing now." This meets the requirement of the WMF regarding the non-free media rationale and complies with US Copyright Law section 107 which does not require a "non-free media rationale" on any educational (non-commercial use only) image." (Source: Template talk:Fairuse).
 * 66) "BTW all of the other WMF projects do not include words like "research", "education", "training", and "educational" on their Main Pages because they are not. They have to include a Fair use rationale in order to clarify what the fair use is being used for. If they do not it is a copyright violation. Here at Wikiversity it is clear to anyone that we alone of the WMF projects meet and comply with the fair use exemption as long as we declare the file as Fair use." (Source: same as just above).
 * 67) The EDP on Uploading_files has no more consensus approval than this one.
 * 68) The only Fair Use or Single Use files that need to be deleted are the unused ones.
 * 69) To help inform potential users of one of our fair use files who may not have looked at out Main Page we could include the sentence "Wikiversity is an education, teaching and research .org." in the  template.
 * 70) "If you are uncertain about applicability of the requirements that I'm describing I could invite the WMF lawyers to review our EDP policy and procedures as we've been implementing them. I've been very hesitant to do that as I am concerned that they might shutdown the upload feature on our project due to our lack of diligence in complying with required policy." (Source: Community Review/Fair Use).
 * 71) "The licensing policy is designed to ensure as well as possible that if content complies with the policy’s requirements it will also comply with the legal requirements. That’s why the policy requires exemption rationales for each piece of media uploaded under an Exemption Doctrine Policy (or "EDP")—to make it clear why the media falls under an exemption, and therefore why it is legal for it to be hosted on the project." (Source: WMF-Legal of T126418 at the Phabricator).
 * 72) "Another factor in fair use analysis is “the purpose and character of the use”. This is the factor where it matters that Wikiversity is an educational project. The factor weighs heavily in favor of a use being a fair use if it is for “nonprofit educational purposes”. The “purpose and character” factor is but one of four, however, and the other factors can outweigh it. For example, consider if someone uploaded a high-quality scan of an entire textbook to Wikiversity. The “purpose and character” factor may point toward fair use, because the textbook was uploaded for “nonprofit educational purposes”. However, two other factors would weigh against fair use: “the amount and substantiality of the portion used” and “the effect of the use upon the potential market for or value of the copyrighted work.” Uploading the entire book makes a weaker case for fair use than uploading only a small portion would have, and having the entire book available for free on Wikiversity would probably have a substantial impact on the market value of the book (few people would buy it when they can get it for free). As a result, the scan of the textbook would probably not be covered by fair use." (Source: same as just above).
 * 73) "If you’re interested in reading more about fair use, there are some good resources from Stanford University Libraries and EFF." (Source: same as just above).
 * 74) "Regarding the copy and upload of an entire textbook example: that has actually happened at Wikiversity and I either deleted it or put it up for deletion as it was a pdf copy of the entire textbook." (Source: same as just above).
 * 75) "The complexity of fair use analysis makes it very case-specific. In order for a bot to add accurate fair use rationales to images, it would probably need to run on fairly closely-defined categories of images. Categorization based on broad generalizations is likely to produce inaccurate fair use analysis." (Source: same as just above).
 * 76) "That said, it is up to the en.Wikiversity community to enforce its own EDP. That includes determining how long to wait to delete a non-free image that doesn’t have a proper fair use rationale and deciding what fair use tagging bots to allow. We will take down images as required by law if we are asked to by the copyright holder, but we do not and cannot monitor all non-free content to make sure its rationale complies with the project’s EDP and the licensing policy." (Source: same as just above).
 * 77) The adding of "This template must be accompanied by a  justifying the assertion of fair use." to the  template, has never had a consensus approval.
 * 78) Def. a "principle of behaviour, conduct etc. thought to be desirable or necessary, especially as formally expressed by a government or other authoritative body" is called a policy.