Wikipedia:Non-free content: Difference between revisions

This page documents an English Wikipedia WP:NFC. Editors should generally follow it, though exceptions may apply. Substantive edits to this page should reflect consensus. When in doubt, discuss first on this guideline's talk page.

As per the Wikimedia Foundation licensing policy^[1] this document serves as the Exemption Doctrine Policy for the English Wikipedia.

The mission of the Wikimedia Foundation is to develop educational content under a free content license or in the public domain. For content to be "free", there must be no significant legal restriction on its use, redistribution or modification, for any purpose.^[2]

Because of this mission, the English Wikipedia usually accepts only material released under a license that meets the terms of the Definition of Free Cultural Works. Material that does not meet that definition, including works licensed for non-commercial use only, are considered non-free, and are permitted only if they meet the restrictions of this exemption policy and can be considered fair use under U.S. law. This has been explicitly declared since May 2005.^[3]

There are some works, mostly historically important photographs and significant modern artworks, that we cannot realistically expect to be released under a free content license, but that are hard to discuss in an educational context without including examples from the media itself. Because the inability to include these examples limits scholarship and criticism, in many jurisdictions, people may use such works under limited conditions without license or permission.^[4]

These legal doctrines, called "fair use" and "fair dealing", permit the use of copyrighted material under a restricted set of criteria. They are not a blanket permission for the unlimited use of text, images, and other copyrighted materials. "Fair use" is a technical/legal notion that may not match what an individual thinks of as being "fair".

Content used under these doctrines on the English Wikipedia must meet U.S. legal tests for fair use. Significantly, Wikipedia places additional restrictions on material that is not available under a free content license; the content can be used only if it is not replaceable with free content. See "Downstream use" for a more detailed explanation of the rationale for these additional restrictions. For example, Wikipedia might allow for the inclusion of a photo documenting a historical event such as the Hindenburg disaster, but a modern publicity still of a vehicle, building or living person would be subject to stricter criteria. See "Acceptable use" and "Examples of unacceptable use" below for further instances where fair use defenses may and may not be tenable on the English Wikipedia.

An editor uploading copyrighted material must provide a detailed "fair use" rationale, or the uploaded material will be deleted.

Transcluded from Wikipedia:Non-free content criteria; this is the part of the current page that is official policy

The following section of this page is an official policy on Wikipedia. It is considered a standard that all users should follow. Feel free to edit this section as needed, but please make sure that changes you make to this policy reflect consensus before you make them.

As per the Wikimedia Foundation Licensing policy resolution of March 23, 2007, this document serves as the Exemption Doctrine Policy for the English Wikipedia.^[5]

• To support Wikipedia's mission to produce perpetually free content for unlimited distribution, modification and application by all users in all media
• To minimize legal exposure by limiting the amount of non-free content, using more narrowly defined criteria than apply under the fair use provisions in United States copyright law
• To facilitate the judicious use of non-free content to support the development of a high-quality encyclopedia

There is no automatic entitlement to use non-free content in an article or elsewhere on Wikipedia. Articles and other Wikipedia pages may, in accordance with the guideline, use brief verbatim textual excerpts from copyrighted media, properly attributed or cited to its original source or author (as described by the citation guideline), and specifically indicated as direct quotations via quotation marks, <blockquote>, {{Quote}}, or a similar method. Other non-free content—including all copyrighted images, audio and video clips, and other media files that lack a free content license—may be used on the English Wikipedia only where all 10 of the following criteria are met.

1. No free equivalent. Non-free content is used only where no free equivalent is available, or could be created, that would serve the same encyclopedic purpose.
2. Respect for commercial opportunities. Non-free content is not used in a manner that is likely to replace the original market role of the original copyrighted material.
3. Minimal usage:
   1. Minimal number of items. Multiple items of non-free content are not used if one item can convey equivalent significant information.
   2. Minimal extent of use. An entire work is not used if a portion will suffice. Low-resolution, rather than high-resolution/fidelity/bit rate is used (especially where the original could be used for deliberate copyright infringement). This rule also applies to the copy in the File: namespace.
4. Previous publication. Non-free content must be a work which has been published or publicly displayed outside Wikipedia by (or with permission from) the copyright holder, or a derivative of such a work created by a Wikipedia editor.
5. Content. Non-free content meets general Wikipedia content standards and is encyclopedic.
6. Media-specific policy. Non-free content meets Wikipedia's media-specific policy. For example, images must meet Wikipedia:Image use policy.
7. One-article minimum. Non-free content is used in at least one article.
8. Contextual significance. Non-free content is used only if its presence would significantly increase readers' understanding of the article topic, and its omission would be detrimental to that understanding.
9. Restrictions on location. Non-free content is allowed only in articles (not disambiguation pages), and only in the article namespace, subject to exemptions. (To prevent an image category from displaying thumbnails, add __NOGALLERY__ to it; images are linked, not inlined, from talk pages when they are a topic of discussion.)
10. Image description page. The image or media description page contains the following:
    1. Identification of the source of the original copyrighted material, supplemented, where possible, with information about the artist, publisher and copyright holder, and year of copyright; this is to help determine the material's potential market value. See: Wikipedia:Citing sources § Multimedia.
    2. A copyright tag that indicates which Wikipedia policy provision is claimed to permit the use. For a list of image copyright tags, see Wikipedia:Image copyright tags/Non-free content.
    3. The name of each article (a link to each article is also recommended) in which fair use is claimed for the item, and a separate, specific non-free use rationale for each use of the item, as explained at Wikipedia:Non-free use rationale guideline.^[6] The rationale is presented in clear, plain language and is relevant to each use.

• A file with a valid non-free-use rationale for some (but not all) articles it is used in will not be deleted. Instead, the file should be removed from the articles for which it lacks a non-free-use rationale, or a suitable rationale added.
• A file on which non-free use is claimed that is not used in any article (NFCC 7) may be deleted after being tagged for seven days under speedy deletion criterion F5.
• A non-free file lacking a non-free use rationale may be deleted after being tagged for seven days under speedy deletion criterion F6.
• A file in use in an article that does not meet F5 or F6 may be deleted under speedy deletion criterion F7 as follows:
  • Media from a commercial source which are not the subject of sourced commentary may be deleted immediately under F7b.
  • Non-free media which fail NFCC 1 (no free equivalent) may be deleted after being tagged as such for two days under F7c.
  • Other media with invalid fair-use claims may be deleted after being tagged as such for seven days under F7d.

Note that it is the duty of users seeking to include or retain content to provide a valid rationale; those seeking to remove or delete it are not required to show that one cannot be created—see burden of proof.

Files for discussion is the central venue to discuss whether a particular image meets the non-free content criteria, regardless of whether the file should be deleted or not. For example, a discussion might be held about whether it is appropriate to use an image in ARTICLE1 even if it unquestionably meets the criteria for use in ARTICLE2.

Non-free content that meets all of the policy criteria above but does not fall under one of the designated categories below may or may not be allowable, depending on what the material is and how it is used. These examples are not meant to be exhaustive, and depending on the situation there are exceptions. When in doubt as to whether non-free content may be included, please make a judgement based on the spirit of the policy, not necessarily the exact wording. If you want help in assessing whether a use is "fair use", please ask at Wikipedia:Requested copyright examinations. Wikipedia talk:Copyrights, Wikipedia talk:Copyright problems, and Wikipedia talk:Non-free content may also be useful. These are places where those who understand copyright law and Wikipedia policy are likely to be watching.

Inclusion of brief attributed quotations of copyrighted text, used to illustrate a point, establish context, or attribute a point of view or idea is acceptable under "fair use". Text must be used verbatim: any alterations must be clearly marked. Removed text is marked by an ellipsis (...), insertions or alterations are put in brackets ([added text]). A change of emphasis is noted after the quotation with (emphasis added), while if the emphasis was in the original, it may be noted by (emphasis in original). All copyrighted text must be attributed.

In general, extensive quotation of copyrighted news materials (such as newspapers and wire services), movie scripts, or any other copyrighted text is not "fair use" and is prohibited by Wikipedia policy.

Example

Original text:

"The threshold for inclusion in Wikipedia is verifiability, not truth. "Verifiable" in this context means that any reader should be able to check that material added to Wikipedia has already been published by a reliable source. Editors should provide a reliable source for material that is challenged or likely to be challenged, or it may be removed." (Wikipedia:Verifiability, 2007)

Quote:

"The threshold for inclusion in Wikipedia is verifiability, not truth. (...) Editors should provide a reliable source for [potentially controversial content] or it may be removed." (Wikipedia:Verifiability, 2007; emphasis in original)

Brief song clips (under 30 seconds) may be used for identification of a musical style, group, or iconic piece of music when accompanied by critical or historical commentary and when attributed to the copyright holder.

Spoken word audio clips of historical events, such as speeches by public figures, may be used when accompanied by critical or historical commentary and when attributed to the speaker.

Spoken word audio clips of Wikipedia articles that incorporate copyrighted text pose legal problems (since the resulting audio file cannot be licensed under the GFDL) and should be avoided.

For further clarification, please see: Wikipedia:Music samples

Some copyrighted images may be used on Wikipedia, providing they meet both the legal criteria for fair use, and Wikipedia's own guidelines for non-free content. Note that copyrighted images that reasonably can be replaced by free images are not suitable for Wikipedia in any event.

• Cover art: Cover art for items, when used to identify the items in question in articles or major article sections about the items.
• Logos: Logos, when used to identify products, brands, or companies in articles or major article sections about the same.
• Stamps and currency: For identification of the stamp or currency, not its subject.
• Other promotional material: Posters, programs, billboards, ads. For critical commentary.
• Film and television screen shots: For critical commentary and discussion of the cinema and television.
• Screenshots from software products: For critical commentary.
• Paintings and other works of visual art: For critical commentary, including images illustrative of a particular technique or school.

The use of non-free media in lists, galleries, discographies, and navigational and user-interface elements normally fails the test for significance (criterion #8), and is thus unacceptable.

Here are other uses that would almost certainly not be fair use under the policy.

1. An article containing one or more unattributed pieces of text from a copyrighted source.
2. An image of a rose, cropped from an image of a record album jacket, used to illustrate an article on roses.
3. A detailed map, scanned from a copyrighted atlas, used in an article about the region depicted. The only context in which this might be fair use is if the map itself was a topic of a passage in the article: for example, a controversial map of a disputed territory might be "fair use", if this controversy is discussed in the article. Note that simply "tracing" copyrighted material does not make it free.
4. A work of art, not sufficiently well known to be recognized by a large percentage of casual readers, whose theme happens to be the Spanish Civil War, to illustrate an article on the war. (However, because of its iconic status, it is presumably "fair use" where there is a small image of Picasso's Guernica in the article Bombing of Guernica.)
5. A photo from a press agency (e.g., Reuters, AP), not sufficiently well known to be recognized by a large percentage of casual readers, to illustrate an article on the subject of the photo. If photos are themselves particularly newsworthy (the subject of discussion in the news, and not merely depicting an event, person or people widely discussed in the news), low-resolution versions of the photos may be "fair use" in articles mentioning the photo.
6. An image of a Barry Bonds baseball card, to illustrate the article on Barry Bonds. A sports card image is a legitimate fair use if it is used only to illustrate an article (or article section) on the card itself; see the Billy Ripken article.
7. An image of a magazine cover, used only to illustrate the Wikipedia article on the person whose photograph is on the cover. However, if that cover itself is notable enough to be a topic within the article, then "fair use" may apply; see the Demi Moore article.
8. An image of a living person that merely shows what s/he looks like. The rationale is that this is potentially replaceable with a freshly produced free photograph.
9. An image found on the Internet where the original source is unknown or not verifiable.
10. A chart or graph. These can almost always be recreated from the original data.
11. An image of a contemporary newspaper article, when the information it contains could easily be used as the basis of an original article and cited as a reference.
12. A large copyrighted commercial photograph, where its use might undermine the ability of the copyright holder to profit from her work.
13. Seventeen short audio clips of a contemporary pop-music group in a single article. A fair use defense might be tenable for a smaller number if each is accompanied by critical analysis or scholastic commentary in the surrounding text.
14. An audio excerpt of one minute's duration, used to illustrate a stylistic feature of a contemporary band; 10% of the length of the work or 30 seconds, whichever is smaller, is the recognized limit (see Wikipedia:Music samples).
15. A short video excerpt from a contemporary film, used without comment or analysis in the surrounding text.
16. An album cover image as part of a discography. A discography is a type of list, and such usage normally does not significantly increase readers' understanding of the topic. Use of multiple album covers in a single article is acceptable for identification purposes if each is accompanied by significant prose commentary on the album in question, but in this case separate articles may be warranted for each album as a stylistic matter.

The mission of the Wikimedia Foundation, which runs Wikipedia, is "to empower and engage people around the world to collect and develop neutral educational content under a free content license or in the public domain, and to disseminate it effectively and globally."

Free content means free of significant legal restrictions, in particular those of copyright. Wikipedia distributes content throughout the world with no restrictions on how people use it. We therefore reject copyright licenses exclusively for use on Wikipedia, or exclusively for non-commercial usage. That is not free enough. These and other works may be used here, but on a different basis, the legal concept of fair use.

To honor its mission, Wikipedia imposes higher standards on itself than US copyright law. Just because something is "fair use" on a Wikipedia article in the US does not mean it is fair use in another context. Our articles may satisfy US law, where a downstream user's use of the exact same content in a commercial setting would be illegal. That would fail our mission. Commercial use is a complex issue that goes well beyond a company's for-profit status, another reason to be careful. We provide content to users in many countries with varying fair use and fair dealing laws. For these reasons and more we intentionally limit the media content we offer, to make sure what we do offer has the widest possible distribution.

We do not want downstream re-users to rely on our assurances about the law. They are liable for their own actions, no matter what we tell them. We therefore show them and let them make their own decision. To that end we require sourcing material saying exactly where any non-free content comes from, and a detailed fair use rationale for every use of copyrighted content in every article, justifying why use in that article is permitted.

Those concerns are embodied in the strict requirements above that all non-free content must meet, and our demand for fair use rationales. Being generous to the world sometimes means being hard on ourselves. Please understand that these rules are not arbitrary; they are central to our mission.

When uploaded images are claimed as fair use they need both a copyright tag and fair use rationales. We have various templated copyright tags for non-free content. These should be put in the image description page.

Please also add the source from which the image has been reproduced. Remember there is no one-size-fits-all rule about fair use. Fair use must be explained and a separate rationale must be written each time the image is used in an article, specific to the use of that particular image in that article.

The following is currently a proposed addition to the review process examining the fair use of images. It is not official policy or guideline, but is a suggestion being discussed.

There are several tags that you can use in addition to the fair use tag to help for review purposes.

If you would like an image to be reviewed by another user as to whether or not it is fair use, you can add the tag {{fairusereview}} to it, which will flag it for an informal review by other editors.

If you believe an image that is tagged as fair use is definitely not fair use, you can add {{dfu}} to it, and the copyright problem will be reviewed by an administrator within seven days.

Images which have been deleted as not meeting the Wikipedia criteria for "fair use", ie. the 'repeatability' criterion, should be listed at Wikipedia:Deleted fair use image replacement.

If you have reviewed a non-free image (whether it is tagged as {{fairusereview}} or not) and are quite confident that the image does qualify as "fair use" on the listed pages, add {{reviewedfairuse|pages=[[names of pages]]|user=~~~|date=~~~~~}} to the page. Do not review an image for "fair use" in an article if you either uploaded the image or made the decision to include it in the article where it is being used.

The reviewer may choose to accept a reasonably presented rationale in good faith without necessarily agreeing with each point asserted, as long as it does not contain information that the reviewer believes to be incorrect or misleading. If incorrect or misleading information is removed, and the reviewer believes that the remaining information is sufficient to provide a reasonable "fair use" rationale, then the rationale should be accepted. If the reviewer considers that the rationale is incomplete or does not provide sufficient detail to make a determination, then the reviewer should consider that the criterion has not been met.

Reviewers are urged to consider that some discretion and personal judgement is required in assessing whether certain of these requirements are met, and in these cases may choose to assume good faith, unless there is reason to doubt. Other users may be invited to review or comment if a clear determination can not be made.

If the image is used in more than one article, it is preferable that individual articles are assessed individually with a separate template box used for each article reviewed, as future edits to a particular article may render "fair use" claims as void.

As the aim of this process is to improve Wikipedia, reviewers should, where possible, attempt to elevate the standard of the "fair use" of the image, by making any edits they consider appropriate, where possible. For example rewording an inadequately written Fair Use rationale, or deleting unnecessary information, is a far more constructive action than simply deeming that a criterion has not been met.

If you see an image tagged as fair use that could be replaced with a free alternative, add {{subst:rfu2}} to the image description page (add {{subst:rfu}} if the image was uploaded before July 13, 2006). Be sure to notify the uploader! The image will be added to today's subcategory of Category:Replaceable fair use images so that it can be deleted. Large images that should be scaled down to qualify as fair use may be tagged with {{fairusereduce}}.

Under U.S. copyright law, almost all work published after 1922 has an active copyright (although there are exceptions — see United States copyright law for the details). In general, the use of copyrighted work without the permission of the copyright holder is copyright infringement, and is illegal. As such, on Wikipedia, which is hosted in the United States, we are normally only able to use material that is not under copyright or is available under a sufficiently free license.

There is an important exception to this rule, recognized in a clause in the copyright act that describes a limited right to use copyrighted material without the permission of the copyright holder — what is known as fair use (or "fair dealing" in some countries, where standards may vary). This clause exists to protect criticism and commentary, and to prevent copyright holders from restricting free speech.

This page is a guideline for dealing with fair use materials on the English Wikipedia. It provides general guidance on what is or is not likely to be fair use and how you can best assist editors when attempting to include material under fair use. However, it is not official policy. You, as the uploader, are legally responsible for determining whether your contributions are legal.

If you use part of a copyrighted work under "fair use" (except for short inline quotations), you must make a note of that fact (along with names and dates). It is our goal to be able to freely redistribute as much of Wikipedia's material as possible, so original images and media files licensed under a free content license or in the public domain are greatly preferred to the fair use of copyrighted files. See Wikipedia:Boilerplate request for permission for form letters asking copyright holders to grant us a license to use their work under the terms of the GFDL.

Never use materials that infringe the copyrights of others. This could create legal liabilities and seriously hurt the project. If in doubt, produce an equivalent item or text yourself. The Wikimedia Foundation reserves the right to remove unfree copyrighted content at any time.

Copyright law governs the creative expression of ideas, not the ideas or information themselves. Therefore, it is perfectly legal to read an encyclopedia article or other work, reformulate it in your own words, and submit it to Wikipedia. (See plagiarism and fair use for discussions of how much reformulation is necessary in a general context.)

The Copyright Act of 1976 sets out four factors to consider when deciding if the copying of a copyrighted work is fair and allowable without the consent of the copyright holder (17 U.S.C. § 107):

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.[1]

Briefly, these indicate that

1. The use must not attempt to "supersede the objects" of the original, but rather, must be scholarly or critical.
2. The less of the original that is used in relation to the whole, the more likely that use is fair, though the importance of the specific portion is also considered (as quoting the most important part may attempt to "supersede" the original).
3. The use must not infringe on the copyright holder's ability to exploit his original work (for instance, by acting as a direct market substitute for the original work), though not through criticism or parody.

To these, Wikipedia adds that if the media could be repeated by an editor then 'fair use' is not sufficient criteria for inclusion. Editors are asked to upload a free equivalent instead.

There is also a substantial body of case law which can be consulted, and is useful for determining what some of the vague terms in these factors (such as "substantiality" and "purpose") have translated to previously in a court of law. Stanford University Libraries has put together a summary of some of the most relevant cases on the subject.

On Wikipedia, copyrighted, non-free material may be used under fair use if we firmly believe that the use would be judged to be fair if we were taken to court. Whenever possible, however, "free" material should be used instead of fair use material to avoid compromising the goal of a free encyclopedia and to avoid unnecessary legal exposures.

The above guidelines are specific to the English language edition of Wikipedia, at http://en.wikipedia.org. Other Wikimedia projects, including Wikipedias in other languages, may have different policies towards non-free content. Please check the policy of each project as certain projects never accept fair use.

• Wikipedia:Copyrights
• Wikipedia:Copyright FAQ
• Wikipedia:Copyright problems
• Wikipedia:WikiProject Fair use
• Fair use and comics
• Wikipedia:Image copyright issues for dummies — An essay explaining the rationale behind the fair use policy
• Wikipedia:Removal of fair use images — An essay regarding the removal of images from user and template spaces
• Wikipedia:Deletion of all fair use images of living people
• Wikipedia:Non-free content criteria exemptions
• Wikipedia:Example requests for permission: how to ask a rights holder for free use of existing materials
• Foundation:Resolution:Licensing policy

• Coverage of U.S. fair use law by Stanford University
• U.S. Copyright Office summary of fair use
• Guidance about fair use from .Edu site