Not about everything

November 18, 2008

Wikipedia: how my copyrighted photo got into the public domain

My copyrighted photo is now spreading around the world tagged as “Public Domain”, with no reference to me as photographer. Thanks to wikipedia. However the photo is still copyrighted by me, I did never change the license.

I have a flickr account with many photos, all are published there as “all rights reserved”. Out of curiosity I sometimes following links that are provided in the flickr statistics. On one such occasion, there was a referer to a Google images search. When I followed that, I saw to my surprise that it not only showed the photo on flickr, but also on wikipedia. A closer look revealed that my photo had been hosted on commons.wikimedia.org (the media storage for wikipedia) since March 2007. A bit by bit comparison showed that wikimedia hosted exactly the same photo as the medium size (500 x 333 px) version that was created by flickr after I uploaded the full size version. Wikimedia hosted the photo as “Public Domain”.

Hema

A further search on internet revealed a number of other places where this photo was in use. Apparently people had believed the public domain tag that was given to the photo by wikimedia, and thought it was free to use.

I was angry. My first step was to notify wikimedia of the situation. The problem was however not only that wikimedia was hosting the image illegally, but that a number of sites had copied the photo with the wrong license and that it will be very hard to stop further spread of the photo. It would have been a lot better if wikimedia would not use such free licenses, but would use a “wikimedia-only” license.

On commons.wikimedia.org, the photo got a “speedy deletion”. But people there immediately said that Commons (as they like to call it) is not responsible for the uploads. The uploader is responsible. Interestingly enough the accounts on wikimedia are basically anonymous. All you need to create an account is an email address, which is invisible to others. Wikimedia will only release this email address (and IP-number) when required by law. People can also use a temporary email address to create a wikimedia account.

On the other hand, sometimes the identity of a person can be found from bits and pieces. With some help of people on wikimedia, I was able to identify the uploader (name, address, email) with a high certainty. I have no doubts about the identity of the uploader, but I am not sure if what I have is evidence in a legal sense.

The question is who is guilty. Wikimedia claims to be not (never) responsible and says the uploader is. The uploader clearly did something wrong. But wikimedia has hosted the photo illegally for about 20 months, and worse even offered it for download as “public domain” during that period. To me – but I am no lawyer – that seems reason enough to be guilty of a violation of copyrights.

When I talked about sending a bill to wikimedia for this, some people started giving funny responses. One claimed that wikimedia would block my account there for that reason (I have had an account since a couple of years – I even have been an admin on nl.wikipedia for a while). As if that would invalidate a bill. Also it was questioned if I could prove that I never offered the photo with a free license. The photo has always been on flickr with “all rights reserved” – all my photos on flickr are, but I don’t know if it is possible to prove that. I know the photo was taken from my flickr account, and flickr does not provide an option to publish photos as Public Domain. It does offer several variants of the Creative Commons license, but not Public Domain.

Anyway, I decided to start to formulate a message to the uploader, explaining what exactly he had done wrong. I wanted to write how he had agreed that he in person is responsible for his uploads to Commons. For the exact formulation I opened the upload form of Commons. To my surprise there was nothing in that form that states that the uploader is responsible. There are only instructions. Indeed also instructions about copyrighted files which would be deleted without further notice. The text of the upload form suggests that all uploads are being reviewed.

In practice, uploaded files are being reviewed by volunteers who themselves say that they are not gods. Sometimes copyrighted files are being uploaded to Commons and removed. But some slip through. One person said that about 2% of the uploads to Commons are copyright violations.

In the case of this photo, the history of the file on Commons makes clear how this one slipped through. The history of the file is now invisible on Commons, but I have saved every iteration. In short: the uploader at first said it was a file from flickr (with no specified url) with a CC-license. Because a specified url was missing a bot on commons indicated that a human should check the status. The uploader was notified of insufficient information. The uploader then changed the file information to “own work” and the license to “public domain”. That change was accepted by an admin. But it would have been very easy to find the file on flickr. The name of the image on Commons was “HEMA_Utrecht.jpg”. A search on flickr for “Hema Utrecht” shows the photo as first result.

My suggestions to wikimedia:

  • Use a “wikimedia-only” license to prevent spread of copyright violations beyond wikimedia.
  • If you want the uploader to be responsible, only accept accounts that contain full contact information, make sure that it information is correct.
  • Change the upload form, so it is explicitly clear to the uploader that he is responsible for copyright violations.

The wikipedia is a large project with a big impact. Commons is a well-known and much-used source for free content. The organization behind these projects can or should no longer hide behind anonymous uploaders.

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