Intellectual Property Law

Copyright and Wikipedia

By Jacqui Lipton

I’ve been reading up on Wikipedia’s copyright policies lately and found some interesting items tucked away in the Wikipedia copyright policy guidelines and copyright FAQ.  This is not to criticize the people at Wikipedia as they are working to do something really unique and original with little in the way of financial backing.  But as a cyberlawyer, I’m interested in some of the advice they post about copyright for potential contributors.  I’d be interested in people’s reactions to the following.

1. In several places in Wikipedia’s copyright policies and FAQs, references are made to copyright holders voluntarily placing copyrighted works in the public domain.  Does this make sense as a matter of copyright law?  Is it technically possible to “place” something in the public domain?  I would assume the connotation there is that copyright ceases to exist for something in the public domain.  So wouldn’t the correct terminology be more like a copyright holder “waiving” its rights to enforce its copyrights, rather than “placing” the work in the public domain as if those rights didn’t exist anymore?

2. Wikipedia’s policy also says that it never takes copyright in works published on its pages.  But it goes on to say that contributors can “never retract or alter” the required public use licenses granted by them for copies of materials placed on Wikipedia.  Is it possible for a contributor to contract out of his/her ability to alter license terms?  What if the copyright holder has transferred copyright to someone else?  Would this license bind the successor in title?  Also, would this policy amount to an enforceable contract between the contributor and Wikipedia?  What is the consideration?  And is there truly offer and acceptance and mutual understanding of terms, particularly if the contributors don’t read the copyright policy before posting material?

3. The policy also states that “the copyright status of Internet archives in the United States is unclear”.  The policy then goes on to say that:  “It is currently acceptable to link to internet archives such as the Wayback Machine, which host unmodified archived copies of webpages taken at various points in time.”  Is there any law that would support this policy?  I’m not aware of any.

4. The policy also states that:  “It is not necessary to obtain the permission of a copyright holder before linking to copyrighted material, just as an author of a book does not need permission to cite someone else’s work in their bibliography.”  I’m not sure that the analogy with a book citation in a bibliography is accurate/appropriate here.  And I’m also not clear that the proposition that it is not necessary to obtain permission to link to copyrighted material accurately reflects the current law on this which I understand to be pretty unclear at the moment.

5.  The copyright FAQ also contains the following paragraph trying to give an example of how fair use and derivative works operate in U.S. copyright law:  “If you produce a derivative work based on fair use, your work is a fair use work.  Even if you release your changes into the public domain, the original work and fair use of it remains and the net effect is fair use.  To eliminate this you must make the use of the original so insubstantial that the portion used is insufficient to be covered by copyright.”  I don’t understand the concept of “producing a derivative work based on fair use” and what the concept of “a fair use work” actually is.  This is also another example of the notion of voluntarily releasing a copyrighted work into the public domain – see point 1 above.

I found these issues interesting as the guidelines attempt to help contributors on Wikipedia avoid copyright infringement.  I’m just not sure that they give awfully useful guidance as to how the law actually works in many respects.

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Full post as published by Madisonian.net on December 29, 2009 (boomark / email).