 on the case for NC Commons. My name is Douglas. I'm from Wikimedia South Africa. And I've got an interest in NC Commons, as you will no doubt learn in a few minutes. But I'm gonna let everyone else also introduce themselves. Perfect, James Heilman, WikiProject Med Foundation. And yeah, I have a large interest in expanding the number of people within our movement. So, perfect, I'll hand it over to you, Stephen. Hello, I'm Stephen LaPorte. I'm a lawyer with the Wikimedia Foundation and a general Creative Commons license enthusiast. Excellent, I'm gonna dive right into it. So, NC Commons, this presentation is going to be broken up in essentially three parts. The part I'm gonna do is gonna outline what the problem is. James will talk about the solution to that problem that already exists, NC Commons. And Stephen will cover all of the legal and copyright related issues thereafter. So, what is the problem that we are talking about here? What is this issue? So, essentially, what currently exists out there today is there are millions and millions of images floating around in, I've got a mic here, thanks, floating around on the internet, which are CC licensed. So, they are in the Commons that we cannot use, because they can't be uploaded to Commons. So, they might be in the digital Commons, but they're not on our Commons, right? And a good example of one of these images is this one here, which is a dermatological example of a type of skin condition. That exists in people with dark pigmented skin. If you go to Wikipedia, this article is extensively illustrated with photographs of light-skinned people, not dark-skinned people, and now that is a problem, because it means that it's harder for people using Wikipedia as a reference for diagnosing this type of condition who have dark skin. But that can be solved if we can use an image like this, all right, I want to ask you to ignore the watermark there for a second, will that part of it away? Because this is just an illustration. But it does show that there are a lot of images out there which we could otherwise use, but we can't use currently in Commons, because Commons doesn't accept non-commercial exceptions under the CC license, and it doesn't also accept non-derivative, so you'll notice in Commons the titles say CC by essay, it's Creative Commons, gotta say who the author is, you gotta share it, share a like. One of the other licenses, or two of the other license types out there, combinations is NC, non-commercial, and ND, non-derivative, and this one is NC, so it's a non-commercial license type. So the requirement of using this is that you've, it's sure it's on Commons, you gotta say who it is, it's also ND as well, isn't it? But you can't use it for commercial purposes, and you also can't make a derivative version of it. Next example, so this is an example that's quite close to my heart, and this is actually the photograph that really got me involved in this particular issue. I'm very interested in South African politics and history, and this photograph is a very good illustration of a particular instance in South African history when the president of South Africa up there, the gentleman over there, was involved in, well, actually it's not even ledgered, it's proven now, involved in corrupt dealings with the gentleman in the middle of the photograph there, which is the subject of the photograph. Now this photograph is a government image, it's taken by the press photographer of the presidency, and it's released under a non-derivative license, and I've been aching to use this image to illustrate the Gupta family article in Wikipedia, which illustrates this controversial relationship between these two peoples, and I can't do that because ND, so that I think sort of highlights the problem we have, we've got thousands of articles out there, millions, sorry, tens of millions of articles out there, which we can almost use because they're in the digital commons, they've got a creative commons license, but they've got the wrong type of creative commons license for us to upload to commons. So what is the solution? Well, it turns out, oh, I also forgot to mention one other type of image use that NC Commons solves. I'm gonna quickly jump ahead and say, the solution is NC Commons, I'm sort of jumping ahead one slide fast, but I'll talk about that just now, but there's one other type of problem, and that is NC Commons would reduce another type of problematic activity, and that is shoehorning in otherwise creative commons photographs under a fair use license, and we see this quite a bit with space photography, right, where there's sort of creative interpretations of fair use and we sort of try to get these images used in Wikipedia under those sort of creative interpretations. But this backstory here, I actually tried that with this photograph, and I think a couple years ago, when my knowledge of fair use and copyright was less than it is today, and it was correctly denied after a few years, and that image was taken down. So this again sort of highlights how this pent-up need, desire to use a lot of these images, and we can almost use them, but we just can't because Commons doesn't quite allow it yet, and NC Commons sort of provides that solution to get over that hump as sort of this sort of interim body that takes on the challenges and opportunities of hosting both non-derivative and non-commercial creative commons license types. So I'm gonna hand it over to James now. Thank you. Thank you, Douglas. Yes, so the solution is NC Commons, and NC Commons actually exists. You can go visit it right now. It's nccommons.org. It is currently hosted by Wickey Project Med Foundation, which is a thematic organization within our movement. So the Wikipedia's aren't able to use it at this point in time. It's not yet an official sister site, but we have it up and running. It's collected about 1.3 million images under NC and ND licenses as an example of what we could potentially be doing. So some of the benefits of allowing NC, this would allow us to grow our movement, bring in all those other organizations that are using NC and ND licenses. It would dramatically increase our ability to collaborate with other organizations. And most importantly, it would improve what we can provide our readers. There's two philosophies within our movement. There's the idealistic principle and there's the pragmatic principle. And yes, we all agree that NC is not a great license. ND is not a great license. But this is the reality we find ourselves in. And rather than being an ivory tower, we wanna provide our readers the best possible content that we can within the legal requirements of the laws we are subject to. And NC and ND will help us reach that goal. Also, we need to recognize why organizations choose these licenses in the first place. With respect to risks, as I mentioned, yes, it's not an ideal license. That's something everybody within our movement agrees on. There's also concerns that allowing NC might decrease the pressure we put on organizations to drop the NC entirely. But it's also the opportunity to bring these organizations in and show what being part of our movement can give them. And then maybe once they become more involved with us, once they have taken their first little steps within their movement, then they'll be more willing to engage with us and potentially drop that NC down the road. So with respect to some of the major uses of NC, as Douglas mentioned, there are currently tens of millions of media files in large collections under NC and ND licenses. Some of those big collections include the World Health Organization is primarily NC licensed. Khan Academy videos of which there's more than 8,000 in dozens of various languages. These are an excellent resource, incredibly hard to recreate, would be incredibly useful for our reading population. They're under an NC license. I reached out to Solomon Khan myself. I've had friends who've worked for him, reached out to him personally in person. There's no way that our organization is ever going to drop their NC licenses unless the Gates Foundation forces them to. So what do we do in the meantime? The South African government uses NC licenses, TED Talks are all NC licensed. We have all these articles on individuals who've given TED Talks. Often we provide external links prominently within our articles to YouTube. And we're sending our readers off to some other site. We're exposing their personal private information to Google. This here, allowing NC within our movement would improve the privacy of our readers as well. The government of Canada specifically, Health Canada is using NC licenses. Open I, which is a subdivision of the National Institute of Health has nearly a million NC and ND licensed images. And then finally, half of open access journals are NC or ND licensed. So it's a major license out there and something we should be careful we don't ignore. So with respect to a little bit of history, discussions around a central repository for less free images have been taking place since at least 2014. A prior draft of our 2030 strategy contained the texts. Photographs which are marked ND or NC could be made available for use with proper attribution and licensing notes. So notices, so there was a large group of people within our movement, CNC as being one of the ways we can move forwards. A different group felt that we shouldn't put NC material onto comments itself. And we agree with that. We think that, you know, we need a separate repository to host this sort of material. And then finally, Wiki Project Med Foundation thought this was a great idea. So we went ahead and we launched it in March of 2021. Excellent. So I wanna hand this over to our legal colleague, Steven. Yes. So we've been talking about NC for about 10 minutes. I thought it'd be good to actually talk about what NC actually means. So we have a whole suite of Creative Commons licenses. The ones we use on our projects now are the attribution and share alike versions of the license. But Creative Commons also makes available licenses that restrict the use of the content for commercial purposes. So it's important to just put a caveat on that. That's a restriction on the use of the content that is being licensed. It's not a restriction on who uses the license. You don't need to be a nonprofit to use the NC license. You just can't use it for a commercial purpose. And similarly, being a nonprofit isn't all you need to be. You need to continue to use it under that commercial purpose. So what exactly is a commercial purpose? This is a term that is somewhat ambiguous and it hasn't been heavily litigated. There have been court cases on the use of the NC license. So we know a little bit about what the contours of what is allowed and not allowed. And Creative Commons gives us this guidance saying not primarily intended for commercial advantage. So there's a lot of different reasons why people use the NC license. James talked a little bit about some of the ways people use the NC as an entry into the Creative Commons space. So there's sort of a path that people can follow and sort of a soft introduction to Creative Commons licensing that people can get through NC content. And there's also this question of whether or not there can be any exchange of value. Can you use an NC license in something that is sold? I think these are the sorts of questions that will need to be answered in order to ensure the content is fully available. And this is one of the reasons why I think people have shied away from using NC content to date because they have questions over what this actually means and they see this ambiguity as a cost. But the cost is also not making content freely available. And we've talked about a few of those use cases before. James can talk a little bit about what English Wikipedia has discussed for NC so far. So as the current situation on English Wikipedia, so there are some NC images used on English Wikipedia, but they're all used under fair use rationale. And as Douglas mentioned, they basically concocted these complicated fair use justifications for using these NC images. And they're using them at lower quality. But really, we could be using these images at higher quality with much clearer rationale by just accepting the use of NC. I'll hand it back to you to discuss the policy. So I think the real question here, you can divide up into two sub-questions. I think the first question is, can we use NC content on Wikipedia? And the second is, should we use NC content on Wikipedia? Luckily, I think that first question, can we use it, has a pretty clear answer. The answer is yes. If you look at Wikipedia, it's not sold. It's not used commercially. At least how we're using it on the Wikimedia Foundation projects, we would not be in violation of the NC license if we were to stick an NC image inside of a Wikipedia article today. But I mentioned before, NC doesn't just refer to the type of user. It's actually the use. There may be some uses of Wikipedia that don't allow NC. So we would need to sort of think through that part of the question. But legally, we wouldn't be violating the license to put NC content up on Wikipedia. I think the more important question is, what do the Wikimedia policies say about use of NC content? We have a licensing policy that gives us sort of a multi-factor test we can follow to determine when and where we use content that doesn't meet our free culture definition. Without getting too far into what that definition actually says, we think that the NC licenses themselves would not be considered free culture. So we would need to follow the exempt doctrine policy similar to what we do for fair use. In interpreting that policy, it gives us a clear roadmap of how we go about doing that. So there'd be a few things we would need. First, a community consensus on a policy for the use similar to what English Wikipedia has for fair use. Second, machine readable details attached to the image so that we can differentiate between free and non-free content. And third, a preference for free culture content. So that would be not NC content when it's available. If we do all three of these things, it meets Wikimedia's licensing policy. And that brings us to that second question I mentioned. It's not just can we, but should we? And I think we've sort of presented the case. So that is a good question for conversation. Excellent. Thank you. So I'd like to open the floor for questions. Yeah, certainly. Let me bring you a microphone. Thank you. I'm Diego from Spain, mostly active on Wikimedia Commons. You said that if we open the movement to NC contents that would be kind of first step to those companies that today are only offering images and with an NC license, this I didn't get. Why do you think that there would be a second step for them to adopt an open license? Yeah, so I imagine that if we do move forward with permitting NC Commons within Wikimedia, what we'll initially see will be probably maybe a few dozen small to mid-sized Wikimedias accepting this material. And then this material would then be used within some small Wikimedias. But I would imagine it's gonna be many big Wikimedias like German, who will simply never accept the use of NC licensed material and Spanish, exactly. And those communities are more than within their power to make that decision. So these organizations will then see what the power of having some of their material within Wikimedia is. And then when they come back to us and they say, well, why isn't it used in German Wikimedia? We can turn to them and we say, well, of course, you see you have this NC in your license. If you drop it, then it can be used on German Wikimedia and you can get all that extra bonus. So it might help pull people into the conversation, is my hope, certainly. Let me even bring you a microphone. I don't quite get it. This is the German community that says we can't do NC or is it German law that says we can't use the NC. And that's why we're not using it. That's Stephen answer that. Yeah, so there's not a, we have a license that is usable in Germany that allows you to use material non-commercially. So when we're offering Wikipedia non-commercially, we would not be in violation of that license. There may be some things we may want to do with Wikipedia that may be considered commercial, but sort of the non-commercial availability of Wikipedia would not be in violation. So the real question here is less, does this violate the law, but does this violate our principles? And our policy here gives us some guidelines in making that decision. Yeah, it's, and you know, on that point, you know, I've had many discussions over the last 15 years with the World Health Organization trying to convince them to adopt a better license. And they said, well, all of our materials NC licensed, you guys can use it. The only people stopping you from using your material is yourselves. The only person stopping you. True. Hi, I'm Jack and I'm mostly active on Italian Wikipedia. When the foundation made the new licensing policy in 2007, we made, of course, our policy for our project. And it is slightly different from the English one. For example, we don't accept for use, but for example, we can use non-commercial images, but just in a few cases, of course. So for example, we might have no problem probably using images like the one from ESA, for example. But there are two different possibilities. I mean, one is changing the policies on English Wikipedia, for example. And it is, but it is very different to create a new project to do, I mean, to move the project under the Wikimedia umbrella in order to allow a lot of images to be used. And I mean, even if of course we don't need to sell the DVDs, to earn money from DVDs. But for example, still, I don't know, maybe I want to publish a book of medicine, I don't know. And I want to earn money from it and I couldn't be able, I would not be able to use the image that you show up. And also the image was and this, so I wouldn't be able to remove the watermark, for example, because it is and this. So, I mean, there might be some little things that it could be easily done, maybe not easy because it's not easy to change the policy of English Wikipedia, but other things could still not be done, right? Okay, yeah, you know, one thing that would have to come as part of this is the ability to download all of a Wikipedia in question without certain subtypes of images. So, you know, already you can download all of English Wikipedia without video, you know, you should, you know, and then we just make systems where you could download all Wikipedia without any NC or ND license material. That's not that difficult to do. I think we have a last question from Kat. Kat gets, oh, we'll give one more question to Kat and then that's gonna be it and the next speaker is gonna begin. So, I feel like this is more of a comment, I'm sorry. So, I guess I will say how I feel about this from a CC perspective is mostly like I am not enthusiastic about it in part because I think that most of the entities using non-commercial are doing it wrong and I think that's an opinion that you actually share. Mostly because, you know, I campaigned about 10 years ago to change the name of non-commercial to commercial rights reserved and nobody liked that name change because non-commercial was such a good branding but I do think it would have given people a better idea of what it does and a lot of the people who use it or the institutions are afraid of like things being done to the images that, you know, that might not be done by commercial entities and I think they're actually wrong about the commercial non-commercial being the thing that will stop the things they're afraid of and maybe even if those images are more widely used within the project they'll find that out in ways that they don't want to. So from our perspective, I think CC will always be on the side of like trying to advocate those things to change rather than being enthusiastic about letting them keep it that way. Otherwise, like one of the things that I think is special to me about the Wikimedia projects is that it is available to reuse and even commercially, like there are a lot of things where it's useful to like repackage and do work on the content in the projects that it's worthwhile for somebody to do if they can make a little money to do it to justify their time and that's a thing you can't do with a non-commercial license so that's what I'm afraid of stopping. And you know, this will only ever apply to tech or to media files, this wouldn't apply to tech so the majority of what we do would still remain entirely open. I think we're required to end. I think we're required to end but okay. I would like to add a third point to that list and some jurisdictions, you will have a situation where with every court ruling, the assessment whether commercial, these NC licenses are allowed in Wikipedia projects or not will switch around. Yeah, it is an ambiguous term that will get continually defined. I think there's a core of what Wikipedia does that will remain non-commercial but you're right, that we'll need to pay close attention to what commercial means. Excellent, thank you very much everyone. I think this is a good point for us to wrap up.