Copy Your Homework: Free Culture and Fair Use with Wikimedia Commons

Michael Mandiberg

In my web and digital-imaging production classes, students are encouraged to actively appropriate images from the vast visual archive the world has already created. In this way, I encourage them to understand the legal, semiotic and ethical considerations of the copy-and-paste culture we live in. The tradition of appropriation in image-making, ranging from dada collage to post-modern pastiche, often contradicts students’ received notions about originality and authorship. In addition, appropriation-based creative practice may or may not break the copyright law governing the use of those images. By explicitly discussing the ways in which these laws both constrain them and free them to exercise their United Statesian First Amendment rights to free speech, students gain a more active relationship to the creation and consumption of media.

Discussions of originality and authorship in the classroom often revolve around plagiarism. Statistics and personal experience indicate that plagiarism and academic dishonesty are on the rise in the classroom (Blum; Gabriel), but in contemporary visual media production, the notion of plagiarism can be a red herring that distracts from pressing legal and semiotic considerations. While my colleagues who teach composition and scholarly writing courses teach a different set of rules of how to avoid plagiarism by properly citing sources, and a different gray area that might focus on paraphrasing, for example, teaching visual digital media requires reframing the scenario.[1] With digital media, we need to shift from a dialectical opposition between citation and plagiarism, and into the interrelated consideration of legal issues of free use and fair use, semiotic concepts of appropriation and citation, and the ethical failure of plagiarism. For images, free use is most frequently based on a Creative Commons (CC) license or the Public Domain (PD) status of the image, and fair use is based on an exemption to copyright law that allows for certain kinds of uses of copyrighted media (such as parody, which is based on the transformative nature of the use); these are legal questions governed by licenses and laws, not ethics. Appropriation is the use of other people’s images, either in full or in part, and is not plagiarism. Closely related to appropriation is the distinction of whether an image that takes another image means to refer to the original image, as would be the case in a parody, or whether the borrowed image was merely used as suitable raw material for a collage. The question of appropriation and citation is not one of legality but, rather, of semiotics. Appropriation and citation are not indicated by a formal footnoting practice, but by the semiotics of the image itself. Whereas the semiotics of an image that successfully chooses its source images and negotiates the intricacies of visual citation will establish that the source was made by someone else, plagiarism occurs if students submit a finished work they did not create themselves but claim as their own work; often this is a question of ethics and intention, and has little to do with the legal or semiotic questions outlined above. Whether an image was plagiarized is a separate question from whether it contains CC-licensed images, fair use of images, or appropriated work.

Understanding these complicated, interrelated concepts is often difficult for students, but it is imperative that they learn them. In my experience, most of their courses have repeatedly enforced the notion that taking anyone else’s work without a formal footnote is plagiarist theft; thus, they have a hard time understanding that the rules are different for image-making. They also need to understand that, although there is no formal footnote system in image making, there are semiotic languages that serve a similar purpose. While the semiotics of encoding and decoding citations in appropriated images is a difficult skill, to be built over many semesters of projects and critiques, the concrete set of rules governing free use and fair use is more easily learned and clarifies the difference between these uses and plagiarism. More than just clarifying what is and is not plagiarism, learning the rules of free and fair use liberates students to embrace the culture of appropriation they grew up in and create works for that context.

To help students learn the difference between free use, fair use and plagiarism I introduce these concepts early, and require my students to understand and follow the licenses on the images they use. I introduce Free Culture via Creative Commons licenses and Free/Libre Open Source Software (FLOSS) in the first week of the course.[2] I use these concepts to talk about how creators can exercise their copyright with such licenses and, even, hardwire collaboration and sharing into their media objects by licensing them with the copy-left variant of these licenses. I use the “Searching and Sampling” chapter from my co-authored (with xtine burrough) Digital Foundations: An Intro to Media Design, which was written for exactly this purpose. We discuss fair use by looking at parody and culture jamming, and I emphasize to my students that when they appropriate a corporate logo for a culture jamming project, they are able to do so because of their First Amendment right to free speech; while Fair Use is a legal defense, not a right, it is predicated on First Amendment rights.[3] I emphasize that fair use is a political act and a right that is not protected in some other countries. It works; they understand the difference and realize the power that originates in their First Amendment rights.

Wikimedia Commons is an image and media file repository, the files of which are all freely available under Free Culture licenses. Wikimedia Commons is a sister project of Wikipedia; both sites are run by the Wikimedia Foundation. The archive holds 7.5 million images, videos, illustrations, sound files, and other media organized by categories, all of which are available to anyone to use either because they are in the public domain or have compatible Creative Commons Attribution or Attribution-ShareAlike licenses.[4] The site “acts as a common repository for the various projects of the Wikimedia Foundation,” but the project has important uses outside of the this family of projects.[5]

The creation of a project like Wikimedia Commons is predicated on a set of legal-cultural constructs that include the commons, copyright, public domain, fair use, Creative Commons licenses and Free Culture. The commons is a term used to describe resources that are collectively owned. Historically, “the commons” has referred to natural resources such as the forests, rivers, air and oceans and is most frequently discussed via the history of commons enclosure in England and elsewhere (Hyde; Thompson). More recently, the commons has been used to refer to the collective ownership of cultural objects, as opposed to the private monopoly of copyrights or patents. Copyright is the intellectual property regime that applies to cultural works, and, although the history of copyright is too large to cover here, two aspects are relevant to this discussion (Hesse). First, when copyright was first formalized in English law in 1710, the period of protection was 14 years with one renewal, after which point the work entered the public domain and anyone could use it. At its conception, copyright was a limited monopoly, the goal of which was to encourage the production of creative work; limiting the monopoly to 14 years prevented abusive full monopolies previously granted by the crown. The United States Constitution adopted the principles of the British model of a limited monopoly, and the Copyright Act of 1790 instituted a period of 14 years, with one optional renewal (United States 1790). The duration of this limited-monopoly period has been rolled back to its current, massive, industry-lobbied length of up to 120 years (United States 1998; Lessig 2001; Sprigman). While determining copyright is a nuanced legal process, a guideline to work from is that all work published before 1923 is part of the public domain.[6]

Due to these legal changes, less works are released into the public domain now than ever before. Second, the United States copyright law includes a set of fair-use provisions that allow the use of copyrighted material for reasons primarily linked to a citizen’s First Amendment right to freedom of speech. While public domain images are in the commons, and fair use provides a tool for using copyright images, Creative Commons licensing establishes a legal mechanism for authors to exercise their copyright to allow others to use their work. Working under the “some rights reserved” rubric, CC licenses enable authors to share their work with optional restrictions on giving attribution to the original author, creating derivative works, using the work commercially, and requiring the maintenance of a copy-left license. The Free Culture definition is a rubric adopted from the Free Software movement to define the freedom to use, study, modify, and distribute works.[7] This widely accepted definition of Free Culture only includes Attribution and Attribution-ShareAlike licenses, which do not put restrictions on the ability to modify and distribute the work; the term freely-licensed refers to these licenses. These are the legal-technical frameworks that enable the Wikimedia Commons.

Although Wikimedia Commons is an international project, fair use exemptions are subject to national laws, so Wikimedia Commons does not permit the use of images that rely on fair use.[8] Some localizations of Wikipedia do allow for some images based on fair use, though it is discouraged if a free use image is available.[9] Fair use, and the freedom of speech it is based on, does not necessarily apply globally.

Wikimedia Commons has several important contemporary counterparts and one important precursor. Several large image and media archives are dedicated in part or in full to freely licensed media: at the time of this writing Flickr has over 170 million Creative Commons licensed images, 38 million of which are freely licensed,[10] and the Internet Archive has 400,000 video files, 800,000 sound recordings, along with 2.5 million texts.[11] One important precedent to these archives is the United States Library of Congress, which holds 5.3 million maps, 3 million sound recordings and more than 14.5 million photographs and prints (“Annual Report of the Librarian of Congress”). Because much of the Library of Congress’s archive predates 1923, or is derived from government entities whose work is public domain, it is a major resource for freely licensed images. Recently the Library of Congress has been making more of their collection available online in the American Memory archive[12] and Flickr’s Commons project.[13]

While most of the digital-imaging production assignments in my courses involve Wikimedia Commons as one potential source of CC and PD images, I also assign students to add new images to the Wikimedia Commons.[14] I point my students to Wikipedia’s list of contemporary artists and instruct them to find compatibly licensed portrait photographs of one of these artists, as there is little actual visual work by most of these creators that is freely licensed. They transfer this image to Wikimedia Commons and then embed that image into a Wikipedia page. The subject matter of the photographs could easily be changed to match the subject matter of a different course.

The students are instructed to find the source image on Flickr via the Free Image Search Tool[15] or the Creative Commons search engine[16] and upload the image to the Wikimedia Commons. We review the guidelines for adding images to Wikipedia[17] and discuss which types of image licenses are compatible with Wikipedia[18] and which are compatible with the stricter guidelines for Wikimedia Commons.[19] After registering accounts on Wikimedia Commons and Wikipedia, the students use the Flickr Upload Bot[20] to upload files from Flickr while avoiding having to write MediaWiki’s BBCode markup language. The upload process requires students to add categories, which provides an opportunity to discuss the role of tags. The Flickr Upload Bot is a little particular: first, the page it creates must be saved; then, after the page is saved, one has to click on the link, “You must then click this link to complete the upload.” Once uploaded to the Commons, the students add the image to the artist’s Wikipedia page.

I encourage students to follow the revision history for the image file they created on the Wikimedia Commons and for the page they added the image to on Wikipedia. Approximately one month after they upload the image, I have them return to the revision history and see if their image is still included on the Wikipedia page, and on the Wikimedia Commons. I use this as an opportunity to talk about the role of peer-review and editing in the peer production process.

I usually give this assignment at the beginning of a course in order to cement students’ understanding of how Creative Commons, Free Culture and the Wikimedia Commons archives work. They understand these abstract ideas through the application of concrete, first-hand experiences; while students can gain this understanding to a certain degree by only using freely licensed images, being able to take “somebody else’s” image from their website or Flickr page and upload it into a shared archive brings these abstractions into a form that is very tangible for them. It helps them understand that they can act in the world. As active participants in writing culture, they become more engaged digital citizens. Finally, it adds a dimension of reality to their homework assignments not provided by their (otherwise necessary) in-class critiques, student portfolios or blog posts.

In courses that include photography and image creation, I refocus the assignment from locating existing images to creating new images. I charge students with photographing noteworthy aspects of their city or neighborhood and adding those to the appropriate Wikipedia pages. For advanced students, I have modified this assignment into a research project, where they explore a particular artist, group of artists, or media phenomenon; the end goal is to identify gaps in the Commons’ collection and locate images to complete the archive. Additionally, this exercise could be modified for humanities classes.

Wikipedia allows the inclusion of works that rely on fair-use provisions, while the Wikimedia Commons does not, as it adheres to a stricter international definition of Free Culture and free use. When I give this assignment, I lead a discussion on the difference between free and fair use and the role of national legal systems in determining how makers can or cannot legally use images. My United Statesian students are always surprised when they realize that their rights to use an image are secured not by some intrinsic human condition, but by the intra-national legal power of the First Amendment to the United States Constitution, and that the laws of other nations may not guarantee these rights. While I don’t want to overstate the power of such a modest exercise, this legal knowledge and political awareness seems to make them more engaged in the politics of free speech.

Works Cited

 

Annual Report of the Librarian of Congress. 2009. Web. 30 December 2010. http://www.loc.gov/about/reports/annualreports/fy2009.pdf.

Blum, Susan D. MY WORD! Plagiarism and College Culture. Ithaca: Cornell University Press, 2010.

burrough, xtine and Michael Mandiberg. Digital Foundations: An Intro to Media Design. Berkeley: Peachpit Press, 2008. Web. 30 December 2010. http://wiki.digitalfoundations.net/index.php?title=Chapter_2_Sandbox

Gabriel, Trip. “Plagiarism Lines Blur for Students in Digital Age.” New York Times. 1 August 2010. Web. 30 December 2010. http://www.nytimes.com/2010/08/02/education/02cheat.html

Hesse, Carla. “The Rise of Intellectual Property, 700 B.C.-A.D. 2000: An Idea in the Balance,” Daedalus. Spring (2002): 6-45.

Hyde, Lewis. Common as Air: Revolution, Art, and Ownership. Farrar, Straus and Giroux, 2010.

Lessig, Lawrence. “Copyright’s First Amendment.” UCLA Law Review. 48 (2001): 1057-1074.

Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: Penguin, 2004.

Raymond, Eric. The Cathedral & the Bazaar: Musings on Linux and Open Source by an Accidental Revolutionary. Sebasapol: O’Reilly Media, 1999.

Sprigman, Chris. “The mouse that ate the public domain: Disney, the Copyright Term Extension Act, and Eldred v. Ashcroft.” FindLaw. 5 March 2002. Web. 30 December 2010, http://writ.news.findlaw.com/commentary/20020305_sprigman.html.

Stallman, Richard. “GNU Manifesto.” 1985-1993. Web. 30 December 2010. http://www.gnu.org/gnu/manifesto.html

Thompson, E.P. “Custom, Law and Common Right.” Customs in Common. New York: The New Press, 1993.

United States. Copyright Act 1790, 1 Stat. 124, 1790.

United States. Sonny Bono Copyright Term Extension and Fairness in Music Licensing Act. Pub. L. No. 105-298, 1998.


[1] These questions have a similar manifestation in code-based work, where students are required to make use of classes or frameworks that others have written, and also in other creative media such as music and creative writing, which have a strong tradition of appropriation and citation.

[2] Free/Libre Open Source Software is software which is licensed and distributed in a manner that allows anyone to view the source code; any user of this software is free to use it in any way they want, including changing the code, so long as they preserve the license that allows this freedom of use. In this usage, “Free” refers to the freedom described above and not the price of the software; this dialect is often framed by terms libre and gratis. Free Culture is the application of this principle of freedom to non-code-based cultural works. Under the rubric “Some Right Reserved,” Creative Commons licenses are a schema to extend each user’s copyright to allow for various degrees of sharing based off of this Free Culture model. For more on FLOSS, see Stallman and Raymond. For more on Creative Commons, see <http://creativecommons.org/>. For more on Free Culture, see Lessig 2004, and <http://freedomdefined.org/Definition/>.

[3] The Electronic Frontier Foundation (EFF) is one of the key organizations which has protected these rights, and has recently created Teaching Copyright, <http://www.teachingcopyright.org/>, a high school curriculum to teach copyright, free use, fair use, and free speech.

[4] Wikipedia is licensed with a Creative Commons Attribution-ShareAlike license. This means that anyone can freely use any element of Wikipedia, as long as they give credit (Attribution) and preserve this license (ShareAlike). This license is also compatible with the Attribution license, which does not require the preservation of the license; thus, it can be augmented by the ShareAlike clause. This license, which governs content on Wikipedia, is not compatible with the more restrictive Creative Commons licenses that forbid the commercial use (NonCommercial) or modifications of the content (NoDerivs).

[5] See <http://commons.wikimedia.org/wiki/Commons:Project_scope/Summary/>.

[6] 17 USC Sec. ch3.

[7] See <http://freedomdefined.org>.

[8] See <http://commons.wikimedia.org/wiki/COM:FAIRUSE/>.

[9] See <http://en.wikipedia.org/wiki/Wikipedia:Non-free_content/>.

[10] See <http://www.flickr.com/creativecommons/>.

[11] See <http://www.archive.org/>. Data on other archives available at <http://wiki.creativecommons.org/Metrics>.

[12] See <http://memory.loc.gov/>.

[13] See <http://www.flickr.com/commons/>.

[14] See <http://www.351.00mm.org/#flickr/>.

[15] See <http://toolserver.org/%7Emagnus/fist.php/>.

[16] See <http://search.creativecommons.org/>.

[17] See <http://en.wikipedia.org/wiki/Wikipedia:Finding_images_tutorial/>.

[18] See <http://en.wikipedia.org/wiki/Wikipedia:Non-free_content/>.

[19] See <http://commons.wikimedia.org/wiki/COM:FAIRUSE/>.

[20] See <http://toolserver.org/%7Ebryan/flickr/upload/>.