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. Legal scholars have describe 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 wish 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 first preceded by diligent seeking of permission and provision of documentation of such attempts. 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 locate 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?

Case examples of fair use claims held as copyright infringment

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: