Commons:Non-copyright restrictions
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This page is considered an official guideline on Wikimedia Commons.
It illustrates standards or behaviors which most editors agree with in principle and generally follow. Feel free to update the page as needed, but please use the discussion page to propose major changes.
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Non-copyright restrictions are restrictions on the use of material which are distinct from copyright; such restrictions may apply to works in the public domain (e.g. works no longer subject to copyright) or be additional restrictions on the use of copyrighted works.
While all material on Commons must either be in the public domain or free to use under its respective license(s), some materials may be subject to additional legal restrictions when they are used in particular circumstances or in particular ways. These limitations may arise from laws related to trademarks, patents, personality rights, authors' moral rights, political censorship, or any of many other legal causes which are entirely independent from the copyright status of the work. With the exception of some restrictions relating to photographs of identifiable people and some restrictions that make it illegal for Commons to host certain works, Commons considers non-copyright restrictions to be matters for photographers/uploaders or reusers and are not grounds for deletion of works from Commons.
It is up to the reusers of Commons-hosted media to ensure that they do not violate any non-copyright restrictions that apply to the media. It is not possible for Commons to give detailed guidance on all the non-copyright restrictions that exist around the world (although some guidance on matters relating to privacy and personality rights is maintained at Commons:Photographs of identifiable people).
Non-copyright restrictions
While all material on Commons is free to use under its respective license, some materials may be subject to additional legal restrictions when they are used in particular circumstances or in particular ways. These limitations may arise from laws related to trademarks, patents, personality rights, political censorship, or any of many other legal causes which are entirely independent from the copyright status of the work.
Wikimedia Commons policies forbid content which is not sufficiently unrestricted for reuse. However, non-copyright related restrictions are not considered relevant to the freedom requirements of Commons or by Wikimedia,[1] and the licensing policies are accordingly limited to regulating copyright related obligations.
An extreme example: it would generally be illegal to use any Commons illustration to commit fraud, but this fact does not mean that the material from commons isn't free content. Likewise, the legal prohibitions on using a registered mark or an image of a well known personality to mislead consumers are not considered to impact the freeness of the work. In Germany, usage of the Swastika and other Nazi symbology is restricted outside of scholarly contexts yet this too is not considered a material limitation for our purposes. While Commons' licensing is intended to respect the public's freedom, our ability to do so is generally limited to ensuring works on the Commons are free of copyright-related restrictions. It is neither possible, nor desirable, for Commons to release people from all laws which they may find inconvenient.
As a free media repository used by many educational and journalistic projects, Wikimedia's projects and many reusers of their content enjoy a strong position under law with respect to most of these non-copyright restrictions.
Reusers who are in other jurisdictions, or who are using material in a considerably different manner than Wikimedia's projects, may find themselves in a less favorable position, but in almost all cases replacing an image with another substantially similar image would not change the situation, which is entirely unlike concerns arising from copyright considerations.
Although we do not consider these restrictions relevant to our policies we do occasionally add disclaimers such as {{Trademarked}} and {{Personality rights}} as a general public service. The omission of these disclaimers should not be taken to indicate an absence of possible legal obligations. As always, we cannot provide legal advice specific to your circumstances.
Non-copyright restrictions that directly affect Commons
Some non-copyright restrictions, for example defamation or obscenity laws, might make it illegal to host certain images on Commons. Such images are of course not allowed, whether they have a free license or not. The most important such restrictions are personality/privacy laws which do not allow photographs of identifiable people which were made in a private place, unless the depicted person gives permission.
Examples
"House rules"
Even if the rules of a facility contractually place restrictions on photography (either forbidding it entirely, or only allowing the resulting photos to be used non-commercially), these normally do not change the copyright status of a work photographed inside. For instance, many museums restrict photography, and Australian law forbids use of images of Commonwealth reserves for commercial gain, although this is within the Environment Protection and Biodiversity Conservation Regulations 2000, REG 12.38 and not the intellectual property laws of the country.
Trademark law
Trademark laws control the commercial use of logos, terms, and names related to products and services. Commons hosts many images of trademarks, and as long as the images do not violate any copyright, they are OK here. That applies even though certain commercial use of this material may be trademark infringement. Trademarks may not be subject to copyright if, for example, they are too simple to acquire copyright protection ({{PD-ineligible}}), or the designs are old enough that copyright protection has expired.
- See also Copyright rules: Trademarks.
Personality rights
Laws pertaining to personality rights may affect specific uses of particular images by third-parties and by Commons.
Database rights
Since 1996, the European Union has had so-called database right laws covering the copying and dissemination of information in computer databases. A database right is considered to be a property right, comparable to but distinct from copyright, that exists to recognize the investment that is made in compiling a database.
Database rights protect against extraction of substantial parts of the database; they do not cover the individual works contained in the database. Therefore, database rights do not affect the right to reuse an individual work on its own. Also note that since database rights are not recognized by US law, the Wikimedia Foundation is not required to honor them.
Authors' moral rights
Most legal jurisdictions recognise authors' moral rights as distinct from economic rights. Moral rights are usually non-transferable, in many jurisdictions do not expire, and in many jurisdictions cannot be waived by the author. The Berne Convention's definition of these rights can serve as a general guide, but the details of moral rights vary substantially by jurisdiction. Article 6bis of the Berne Convention protects attribution and integrity, stating:
Independent of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author's honor or reputation.[2]
See also
- Category:Restriction tags. These tags are not copyright licenses in themselves, and are intended merely to warn re-users of Commons' content that certain usage restrictions may apply in some countries.
- Background: For an inactive proposal from 2007/8 that would have made trademarked material be considered non-free, see Commons:Trademarks proposal.
References
- ↑ "Some media may be subject to restrictions other than copyright in some jurisdictions, but are still considered free work."[1]
- ↑ [2], Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, art. 6bis, S. Treaty Doc. No. 27, 99th Cong., 2d Sess. 41 (1986).
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