Commons:Deletion requests/File:Canoe Slalom - Kynan Maley.jpg

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File:Canoe Slalom - Kynan Maley.jpg

The file is not offered under the Open Government License. That claim is simply untrue. Martin H. (talk) 23:58, 30 July 2012 (UTC)

Please see the reasoning at Commons:Deletion requests/File:Olympic mascots.jpg. It's a work by the Department for Culture, Media and Sport. Thus it is Crown Copyright, thus it is Open Government License. My previous argument on this point was vindicated by emailing lawyers at the Department for Culture, Media and Sport who agreed with my reasoning. That email is on file with OTRS if you look at the previous DR. —Tom Morris (talk) 00:01, 31 July 2012 (UTC)

The argumentation "Thus it is Crown Copyright, thus it is Open Government License" is a little bit vague. Something is OGL if the rights owner make it expressly available for use under the terms of the OGL. --Martin H. (talk) 00:14, 31 July 2012 (UTC)

Crown copyright would absolutely NOT work for the Olympics unless the government organisation bought a license from the IOC to license images commercially. I some how doubt they have done so. --LauraHale (talk) 00:16, 31 July 2012 (UTC)

Why wouldn't Crown Copyright work for the Olympics? The Department for Culture, Media and Sport aren't exactly ordinary punters when it comes to Olympic photographic restrictions. The government department that oversees sport kind of has rather better bargaining chips over copyright and so on than a press photographer or a ticket-holder. —Tom Morris (talk) 00:29, 31 July 2012 (UTC)

Because the picture was taken in the UK and the rules are generally changed nationally specifically to deal with this. The IOC rules pretty much expressly prohibit COMMERCIAL usage of images unless rights are specifically bought to allow commercial usage. As commons requires a license that allows commercial usage, the license does not work for Commons because of conditions attached to the image. --LauraHale (talk) 00:45, 31 July 2012 (UTC)

The IOC can think whatever it likes. They can't override §163 of the Copyright, Designs and Patents Act 1988. The photographer who took this photo may be breaking the terms and conditions of his entry into the Olympic canoe slalom event, but I don't see any legal backing for that. There's certainly no restrictions on photography in the London Olympic Games and Paralympic Games Act 2006, the enabling legislation for the 2012 Games. —Tom Morris (talk) 08:13, 31 July 2012 (UTC)

The rights holder in this case is the DCMS. The DCMS is a departmental public body (the clue is in the name). Everything they produce is Crown Copyright, and unless it satisfies one of the exemptions in the OGL, it is presumed that it is released under the OGL. It really does work like that. See the deletion discussion I linked to above. Really, I know what the hell I'm talking about here. —Tom Morris (talk) 00:29, 31 July 2012 (UTC)

Great that you know this, but it would be much greater to see this written somewhere. The National Archive [1] suggests the opposite. --Martin H. (talk) 00:49, 31 July 2012 (UTC)

It doesn't matter in this case as the picture was taken in the United Kingdom at the Olympics. We do not know that the organisation was the original copyright holder of that image. I can quote a press pass that says you cannot license your images for commercial use. --LauraHale (talk) 05:19, 31 July 2012 (UTC)

All of which would be pretty much irrelevant given... it's the government. There's plenty of rules on what I am and am not allowed to do photography-wise in a government building. LOCOG can come up with all the funny rules it likes but they can't override the Copyright, Designs and Patents Act. We actually do know the original copyright holder of the image: the Department for Culture, Media and Sport. Why do we know that? Because they say that. As I pointed out in the previous DR, the Department for Culture, Media and Sport have a social media policy on their website which says this:

We use Flickr to: host images that we own and license under the Attribution-NonCommercial-NoDerivs creative commons license, some of which we automate into our website

(Emphasis mine.) Key word "own". By putting photos on Flickr, the DCMS claim ownership of those images. The licensing they do here is irrelevant. The fact they release them under CC BY-NC-ND doesn't change the fact that they are also Crown Copyright—they have to be Crown Copyright for the DCMS to claim ownership on them and release them under BY-NC-ND. Creative Commons licenses are nonexclusive: you can release something under a CC license and under another license (see: the many thousands of images on Commons that are both BY-SA and GFDL)

The social media policy that the DCMS have proves the first point of contention: that the DCMS own the images.

If they own them, the are Crown Copyright. If you read what The National Archives say about Crown Copyright, it's simply this...

Crown copyright covers material created by civil servants, ministers and government departments and agencies.

It is legally defined under section 163 of the Copyright, Designs and Patents Act 1988 as works made by officers or servants of the Crown in the course of their duties.

Copyright can also come into Crown ownership by means of assignment or transfer of the copyright from the legal owner of the copyright to the Crown.

If they are asserting ownership on the material, it's Crown Copyright. It was either created by a civil servant in the course of their duties or licensed to the Crown. Generally when a government department puts things up on their website or Flickr account saying "we own this", I tend to trust them. Unless we think the damn British government are somehow engaging in Flickrwashing or something.

If you are following so far, I think I've established that the DCMS owns this and a number of other Olympic images on their Flickr stream. If you read section 7 of the UK Government Licensing Framework there is a little section called "Controller's Offer", which reads...

Subject to the exclusions set out under point 7.2 below and in the Open Government Licence itself, the Controller offers information which is subject to Crown copyright and Crown database right, or to copyright or database right which has been assigned to or acquired by the Crown (Crown information), for use under the terms of the Open Government Licence.

This establishes the very simple principle that if something is Crown Copyright and subject to the UK Government Licensing Framework that it is covered by the OGL.

This isn't some wild and wacky theory, it's just standard operating procedure for government data and publications in the UK, just like PD-USgov is for US publications. With File:Olympic mascots.jpg, I made pretty much exactly the same point in the DR, and just to satisfy people who don't understand this stuff, I sent an email off to the DCMS lawyers who confirmed that this is exactly the situation.

The IOC and LOCOG might not like the fact that the government are publishing photos from the Olympics under a free license, but that's their issue, not ours. —Tom Morris (talk) 07:46, 31 July 2012 (UTC)

• Tom's arguments are sound and the OTRS evidence he presented in the Commons:Deletion requests/File:Olympic mascots.jpg debate unequivocal. He should be congratulated for figuring this out, to the benefit of the commons. And this debate should now be closed as "keep". Andy Mabbett (talk) 12:15, 31 July 2012 (UTC)
• National archive also list a noncommercial OGL - how could we be sure this image, listed with a noncommercial license at Flickr, does not fall under this? We can't assume the vague license statement is correct while the department/body/whatever website says something different. --Denniss (talk) 00:15, 1 August 2012 (UTC)

  No, this is wrong. The whole point when we created OGL was that it was explicitly not NC; commercial rights were very much being released for core Crown Copyright bodies (of which DCMS is one). The NCOGL only exists to allow the few government bodies not covered by the OGL (because they sell their data for commercial use — e.g. the Met Office or the Ordnance Survey) to have an easy-to-use "best-practice" licence to release their data under an NC licence.

  Under UK law, DCMS does not have the authority to consider how to licence the Crown Copyright works it (i.e., its staff) create - in much the same way that under the US Constitution, the Department of Labor doesn't have the right to pick a licence other than PD-USGov - it's been picked for them, and it's OGL. The only question for us is "is this actually a work by a member of DCMS staff?". If DCMS say it is, everything else falls out according to law.

  Clearly we need a Commons: page about this. :-)

  (Disclaimer: I was involved in the UK Government policy decision to make this happen and automatically release all core Crown Copyright works under OGL except for a limited number of government bodies which had a waiver. As such, I can be construed to have a Conflict of Interest, for which I apologise.) James F. (talk) 01:12, 1 August 2012 (UTC)

  As James says, the Non-commercial OGL exists so that it can be used. The Controller's Offer (see my comment above) doesn't deal with the Non-commercial OGL but the normal OGL. Given that this work is bound by the Controller's Offer it's OGL and not Non-commercial OGL. (Can we close this already? I've got a stack more of these damn images to upload and it'd be nice if we could get on and write Wikinews stories and Wikipedia articles without the Sword of Damocles of a Commons DR hanging over us?) —Tom Morris (talk) 05:37, 1 August 2012 (UTC)

  Also, as for the Flickr license? Yes. See Commons:Deletion requests/File:Olympic mascots.jpg. Same situation exactly. It doesn't matter what the government department say on Flickr. All work that is released under Crown Copyright and doesn't satisfy the criteria for exclusion listed in the OGL or the Controller's Offer is OGL. That doesn't mean it can't also be released under another license. That license doesn't need to be compatible with the OGL: this is because neither the CC licenses nor the OGL are exclusive. You can, if you so desire, pay the government to use the work in a way that breaks the terms of the OGL if you like (say, you don't want to attribute). OGL + CC BY-NC-SA just means you have the choice of which license to reuse under, much like the many thousands of photos on Commons with CC BY-SA and GFDL. Or indeed I believe Cory Doctorow does this with his novels: he offers them under two CC licenses, CC BY-NC-ND and CC BY-NC-SA. Neither of them are Commons compatible, sure, but it means you can pick how you reuse them. Same with open source software, there's a lot of people who do dual licensing arrangements: MySQL is offered both as GPL and under a commercial license from Oracle. With the DCMS photos, it doesn't really matter what license they put them under on Flickr, if they are Crown Copyright, they are OGL. They might also be some choice of CC license, and that's fine, but that doesn't change the fact that they are OGL. Again, see the aforementioned Olympics mascot DR: I handled this the last time we played this game. —Tom Morris (talk) 05:49, 1 August 2012 (UTC)

• Quite frankly, the fact that this debate is even going on is ridiculous. Martin, we've been through this before in other deletion requests. Laura, you seem to be under the odd impression that IOC rules somehow overrule national law. I can assure you that this is not the case. The IOC are welcome to think so, but they're not the legislative body with nuclear weapons and international acceptance as a nation, so nobody really cares what they think.
• We've got an OTRS ticket, from the DCMS. We've got the Open Government License. We've got previous commons decisions covering precisely this situation. Hell, we've got common sense. The image is perfectly acceptable, and perhaps in future we could try to avoid acting as the arbiters of copyright law. That's the job of governments and judges, and only one side here has said government agreeing with them (hint; he's big, philosophical and codes a lot). The images are fine, the images stay. Ironholds (talk) 14:36, 1 August 2012 (UTC)
• As has been discussed, British government lawyers have endorsed the position of another image with the same context and background. The Department for Culture, Media and Sport owns this image (not LOCOG, and not the IOC, whose own rules have no bearing on this anyway). The DCMS is a UK government body. Therefore this is a Crown copyright image with apparently no extenuating circumstances that would exempt it from being under the Open Government Licence, meaning it can be kept and this discussion closed. WilliamH (talk) 15:23, 1 August 2012 (UTC)

---

Kept: The conclusion is very clear and thoroughly verified. These works are released under the OGL, and the IOC is not capable of restricting their use, as much as they would like to. They may be very upset at the UK for not passing new laws to "protect" their brand, but that's not our problem. Dcoetzee (talk) 14:44, 2 August 2012 (UTC)