Commons:Deletion requests/Files in Category:Daniel Cande

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This deletion discussion is now closed. Please do not make any edits to this archive. You can read the deletion policy or ask a question at the Village pump. If the circumstances surrounding this file have changed in a notable manner, you may re-nominate this file or ask for it to be undeleted.

Files in Category:Daniel Cande

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La licence de ces fichiers a été changée par la BnF, qui précise maintenant "conditions spécifiques d'utilisation", alors qu'ils étaient à l'origine marqués "domaine public". Doit-on considérer que la BnF s'est trompée, ou peut-on considérer que les fichiers sont quand même dans le domaine public ?

Yann (talk) 08:00, 6 June 2017 (UTC)[reply]

Discussion

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The National Library of France (BNF) initially said that these files are in the public domain. Now the license was changed, and they are now shown as "specific conditions of use". Should we consider that the BNF made a mistake, or can we consider that the public domain is irrevocable? Regards, Yann (talk) 08:04, 6 June 2017 (UTC)[reply]

Images such as File:La guerre de Troie n’aura pas lieu, btv1b90784730, f4.jpg and File:La Guerre de Troie, btv1b90784730.jpeg have been license reviewed. Regards, Yann (talk) 09:16, 6 June 2017 (UTC)[reply]
 Delete /  Question I assume that the BNF originally made a mistake, and if I remember correctly, we have deleted images with licensing changes from Gallica in the past under this assumption. License review here means only that a file was available there "under the stated license on that date", but retracting a license (which we wouldn't accept) and correcting a license that was mistakenly applied (but never actually applicable) are different things. So, also per COM:PRP, I would delete these images if there's no free license. However: What exactly are these "conditions spécifiques d'utilisation (sous convention BnF-ADM-2016-062763-01)"? Gestumblindi (talk) 09:21, 6 June 2017 (UTC)[reply]
@Yann: The answer to this question depends on who owns (or owned) the copyright and if that copyright owner released the images to the public domain or not. If the BNF never owned the copyright, then the BNF never had the possibility to release it. In the case of the Daniel Cande photos, the BNF said quite clearly from the start that the BNF did not own the copyright, that Daniel Cande remained the owner of the copyright, that Daniel Cande gave permission to the BNF to display the photos on its website, and that for any other use requests should be addressed to Daniel Cande. [1], [2] And there does not seem to be evidence that Daniel Cande released the photos to the public domain. The previous Commons discussions on the matter were to the effect that in the case of the Daniel Cande photos the Gallica notice of public domain was not supported. [3], [4]. By contrast, in the case of the Roger Pic photos, the BNF consistently states that the BNF has acquired the copyright from Roger Pic. Thus, the BNF had the possibility to release the Roger Pic photos to the public domain. And thus, reusers have an argument to say that the public domain mention on the Roger Pic photos had the effect of a release to the public domain. -- Asclepias (talk) 15:01, 12 June 2017 (UTC)[reply]
  •  Keep The situation is a little bit more complex. BNF announced in 2013 it had reached an agreement with Daniel Cande and Joël Verhoustraeten to put on line the photographs Cande and Verhoustraeten had donated to BNF. According to Cécile Obligi, a BNF director specialized in theater [5], " Bien qu’il s’agisse d’images encore protégées par le droit d’auteur, une diffusion de ce patrimoine sur Internet est possible grâce à des accords avec les photographes", although these images are still protected by copyright, they can be distributed on the internet thanks to agreements with the authors [6]. These agreements were in a first stage described by BNF as "domaine public", public domain,which was translated in Creative Commons terms as CC0. This is clearly shown by the description of these images as "public domain" on the Isidore platform [7]. On Europeana, these images are tagged as public domain and usable with attribution [8]. This is precisely where I see a possible concern: CC-BY-2.0 would probably better respect the need for attribution than CC0. Finally please note BNF has not retracted the previous licence (which they can't do) but is now obfuscating the issue. — Racconish ☎ 10:23, 6 June 2017 (UTC) edited 16:15, 12 June 2017 (UTC)[reply]
    •  Keep I was aware of these details, and given the facts that the BNF acquired the copyright, and that the images are still available under a "domaine public" mention on Europeana, I would keep these, unless we have more information from the BNF or the photograher saying the opposite. Regards, Yann (talk) 11:26, 6 June 2017 (UTC)[reply]
Well, what exactly did the photographers agree to? What's the agreement? Really public domain ("domaine public"), in that case needing no attribution, or a specific free license, or something different (still free in the Commons sense, e.g. allowing for commercial re-use, or not free?)...? "une diffusion de ce patrimoine sur Internet est possible" is quite vague. Gestumblindi (talk) 10:37, 6 June 2017 (UTC)[reply]
Based on its agreement with these photographs, BNF has initially released these photographs under CC0 as public domain, both on its own website and on Europeana, where they are still under a public domain mark. They have chosen to keep their agreements with the photographs not public, so I cannot speculate on their content. Gallica simply says there are some "specific conditions of use" which even defeats the purpose of attribution in the CC-BY licence. We can either be "more royalists than the king" and consider that it would not make sense to deprive the photographs of their attribution right (the BY of the CC-BY) or go with the current CCO on Europeana. Although I had uploaded some of these images as CC0, based on the above evidence, I think it would be safer to replace with CC-BY. Your question on non commercial use is interesting. It is not directly a concern on Gallica, as the downloader supposedly commits to a non commercial use. But BNF has in parallel released the same images on Europeana, which does make a difference between NC and not NC and where there is no NC restriction. So I don't see any reason to consider these photographs as CC-BY-NC. My personal understanding is Gallica, based on its agreement with these photgraphers, was intending to release these photographs under a "free" licence and made a mistake, choosing CC0 instead of CC-BY. See also Joisy78's comment on my talk page : he contacted BNF to double check if he was free to use the pictures uploaded here and BNF answered there was "no problem". I know licences are irrevocable, but I just think changing CC0 to CC-BY is the right thing to do. I am not even sure we should change the licence to CC-BY : according to BNF itself, they acquired Cande's photographs in 2005 together with the copyrights.— Racconish ☎ 11:10, 6 June 2017 (UTC) edited 16:15, 12 June 2017 (UTC)[reply]
 Keep we should be very careful with deletion of content once donated. If professional archives switch their licenses once in a while and we follow them with every new policy, our content becomes vulnerable. We should educate professional institutions not to switch their licenses and instead become fully transparant about the contract agreements they have with the copyright holders. --Hannolans (talk) 11:26, 6 June 2017 (UTC)[reply]
 Comment Even if these images are in the public domain, we cannot simply mark them as CC-0 (only the copyright owner can legitimately make them PD by doing so) and if license reviewers approved them as CC-0 when they were actually indicated as 'public domain' those reviewers were wrong to do so. Similarly, we cannot claim that an image is CC-BY unless it was actually released under that specific license, even if it was released under terms that exactly duplicate the terms of that license.
@Racconish: Did the BNF actually ever explicitly claim "CC-0", and not just "public domain'? A mere statement that they 'are in the public domain' is far more akin to the 'public domain mark' (which we do not blindly accept) than an actual license. If we believe they are in the public domain simply because 'the BMF said so' then we need to either use {{PD-because}}, or some source-specific license tag. - Reventtalk 22:44, 11 June 2017 (UTC)[reply]
@Revent: , thanks for raising good points. To my knowledge, BNF itself does not use any Creative Commons licenses. But Europeana does and has tagged these images as given to the public domain under a public domain mark. In that respect, I agree {{PD-because}} would be better than CC-0, with a mention of the author and the identifying source. Nevertheless, the problem here is that the PDM is generally more appropriate to a statement by a curator and not by the copyright holder which BNF seems to also be here. — Racconish ☎ 04:42, 12 June 2017 (UTC)[reply]
@Racconish: Okay, while you have now somewhat contradicted what you said earlier, I suspect it was a simple misunderstanding... but a seriously problematic one. What needs to be specifically understood, here, is that you absolutely cannot, ever, do what you described as 'translating licenses into Creative Commons terms'. Licenses are specific and explicit legal documents (essentially, contracts) that can only be applied to works by the rights owners.... you cannot, ever, claim that a work is under a specific license unless you either own the rights or have evidence that the rights owner applied that exact license to the work. Even if we keep these works, it now seems apparent that they are all incorrectly licensed on Commons, and if they are kept by this DR the licenses must all be fixed. In addition, if you have ever applied this process of 'translation' to other works that you have uploaded, I cannot stress enough how important it is that you fix them..... this is something that could potentially place good faith reusers of this material in legal jeopardy, if they rely on false license claims.
Claims made by Europeana, as a third party, that a work is under the public domain mark (and to be explicitly clear, I don't mean statements that they are 'in the public domain', here, but instead the actual Creative Commons Public Domain Mark) have no evidentiary value for our purposes.... Europeana, in such cases, is merely saying that they 'think' the works are in the public domain but either do not know or are not saying why that is the case. - Reventtalk 05:41, 12 June 2017 (UTC)[reply]
I have contacted Daniel Cande and asked his opinion. — Racconish ☎ 12:30, 12 June 2017 (UTC)[reply]
@Racconish: That's probably the best way to get a definitive answer about these works, and hopefully he will explain the situation, but I hope you're not missing the point I'm making. There are, just out of the files listed here, half a dozen cases where you marked files as CC-BY, with an 'permission' statement pointing to where Europeana listed them as under the PDM. That's completely messed up, and you need to fix any other cases where you did something similar whether they end up at a DR or not. - Reventtalk 13:59, 12 June 2017 (UTC)[reply]
This is a very unusual situation and I don't think I am the only one who struggled trying to make sense of it, but your point is understood and accepted. — Racconish ☎ 16:04, 12 June 2017 (UTC)[reply]
Here is a situation very close to that in which Cande's pictures were initially, handled by the same department of BNF, the puppet photographs of Brigitte Pougeoise, which are part of the Fonds Dominique Houdart donated to BNF in 2010. {{PD-because}} BNF says so or not ? — Racconish ☎ 17:26, 12 June 2017 (UTC)[reply]
@Racconish: Yes, and I hope you don't think I was accusing you of intentionally misstating the licenses.... the exact nature of what the public domain 'is', and exactly what the CC-0 does gets into fairly obscure legal territory (in brief, the CC-0 does not actually place works in the public domain, because that is legally meaningless.... it instead licenses a copyrighted work under terms that are the same as what would apply to a PD work). The exact arguments about why we can't accept the PDM as a 'license' from a copyright holder are similar.... I think everyone who actually understands it agrees. I don't think we really know the exact status of the works yet, because of the contradictory information released by the BnF at various points...but at the same time I think this tangent was important, even if it became a bit off topic for this DR. - Reventtalk 22:43, 12 June 2017 (UTC)[reply]
Another interesting situation is the case of Roger Pic. BNF claims ownership of the copyright on the original photographs and releases the derivative scans at Gallica in the public domain (note the use of {{PD-author}} for the uploads at Commons, which is slightly problematic as it attributes the release (or intent to release) in the public domain to Pic and not to BNF). — Racconish ☎ 07:39, 13 June 2017 (UTC)[reply]
  • Comment:
1. Cf. previous episodes (in French):
1.1. Commons:Bistro/archives/janvier 2012 and
1.2. Commons:Bistro/archives/2013/05.
2. The situation, as far as we could tell (from 2010 to at least 2013):
2.1. The statement in the activity report of the BNF for the year 2010 (version 2, dated 7 June 2011): On page 67, the report mentions the digitization of photo collections from three photographers and their display online on Gallica. The part relating to the copyrights reads: "La BnF est en effet titulaire des droits de Roger Pic qu’elle a acquis, en même temps que le fonds. Joël Verhoustraeten et Daniel Cande, quant à eux, n’ont pas vendu ni cédé ces droits à la BnF et en restent donc titulaires. Ils ont cependant accepté, sans contrepartie, la mise en ligne de leurs images numérisées, considérant la large visibilité ainsi donnée à leur travail et aux spectacles qu’ils ont photographiés." (In short, it says: The BNF is the copyright holder on the photos of photographer Roger Pic, whose copyrights the BNF acquired with the collection. Photographers Joël Verhoustraeten and Daniel Cande did not sell or cede their copyrights to the BNF and they remain the owners of their copyrights.) An entry on the Gallica blog published on 23 November 2010 is to the same effect: "Joël Verhoustraeten et Daniel Cande, bien qu’ayant autorisé la mise en ligne sur Internet de leurs images, restent titulaires de leurs droits et sont les interlocuteurs pour tout usage de leurs images." (Joël Verhoustraeten and Daniel Cande remain the owners of their copyrights and they are the persons to contact for any use of their images.)
2.2. The notices on Gallica: The notices on Gallica stated "domaine public" (public domain), without explanation.
2.3. Conclusion: There was an obvious contradiction between, on one hand, the statements in the activity report of the BNF and in the Gallica blog and, on the other hand, the statements in the notices on the Gallica website. The more detailed explanations in the report and in the blog were preferred to the notoriously unclear or unreliable status statements of the Gallica notices. (At the risk of repetition, allow me to translate my comment from the 2013 discussion: "We can conclude that the mention 'public domain' in the notice of Gallica is misleading. Sometimes, we grant the benefit of doubt to some mentions 'public domain' on Gallica when they seem plausible and there is no contrary information. However, this cannot apply to situations such as the present case, where an information clearly contradicts the Gallica notice.") The photos by Cande uploaded in 2013 on the basis of the notices of Gallica were deleted from Commons (e.g. Commons:Deletion requests/File:Jean Marais 1990.jpg).
3. New developments (or not) since 2013?:
3.1. This description of the fonds Daniel Cande, mentioned above by Racconish, says that the fonds was acquired by the BNF with the rights. However, this webpage does not mention the date of its writing and does not provide details. Was it supposed to replace the more detailed accounts from the activity report and from the blog that said that the BNF did not own the rights? Or is this webpage just another mistake by the BNF? The detailed account from the activity report still sounds more credible. Anyway, given the contradictory statements, precaution is in order.
3.2. The files nominated in the present deletion request seem to have been uploaded to Commons after 2013. For most of those files, the uploaders have stated that the images were released by their former copyright owner specifically by the text of a CC0 declaration. Please forgive my skepticism, but that is very surprising. The skepticism is supported by four facts. Firstly, the usual public domain notice at Gallica reads "domaine public". Secondly, we know, from the 2012 and 2013 discussions, that the Cande photos were indeed noted "domaine public" (not CC0). Thirdly, the Europeana website, which likely used the information from Gallica, has the photos as "domaine public" (not CC0). Forthly, in the introduction of the present deletion request, one of the uploaders writes that the files "étaient à l'origine marqués "domaine public"" (were originally tagged "domaine public"). For a few other files, one uploader claims that they are offered under a license CC BY version 1.0. This does not look correct. There does not seem to be evidence that they were licensed like that by the photographer or by Gallica. And uploading the images to Commons does not give the uploader a copyright on them or allow the uploader to take the initiative to license them, unless the uploader modified the images creatively. (However, the uploader's choice of the CC BY version 1.0 is interesting, because this is the version of the CC licenses that includes a clause whereby the person who claims to offer such license gives a warranty to the reusers that the material is free.)
3.3. As Gestumblindi noted, the Gallica notice now mentions that the photos by Cande are under the agreement "BnF-ADM-2016-062763-01". The part "2016" seems to suggest that it is a document from 2016.
-- Asclepias (talk) 00:27, 12 June 2017 (UTC)[reply]
Please note the Répertoire des arts du spectacle statement on copyright ownership is different for the Fonds Cande [9], the Fonds Verhoustraeten [10] and the Fonds Pic [11], the first one being the clearest in terms of copyright transfer to BNF. The Répertoire des arts du spectacle is a common project between the French Ministry of culture, the National Center for theater and BNF started in 1997 [12]. — Racconish ☎ 04:42, 12 June 2017 (UTC)[reply]
 Keep "Claims made by Europeana," have more "evidentiary value for our purposes" than the word of a commons admin. Slowking4 § Sander.v.Ginkel's revenge 10:50, 12 June 2017 (UTC)[reply]
@Slowking4: Apparently you missed the point. What matters here is whatever agreement there was between Cande and the BnF, not what Europeana (a third party) says about it, since they would just have copied what the BnF database 'used' to say. It's also not a vote. - Reventtalk 13:31, 12 June 2017 (UTC)[reply]
the europeana mark is evidence of am irrevocable license choice made. your reasoning is not a veto. Slowking4 § Sander.v.Ginkel's revenge 13:35, 12 June 2017 (UTC)[reply]
@Slowking4: I have not tried to veto anything, and I'm not acting as an admin here. If you read, I haven't even expressed an opinion about if we should keep or delete these files.... it's not clear if the BnF made a mistake, or if they are trying to revoke a release to the PD. What I have said is that you can't say a work is under CC-0, or some other CC license, unless the source specifically indicates that the work is under that license.... you can't read 'public domain', or 'public domain mark', and then just decide to say CC-0 or CC-BY because they are explicitly not the same thing. That has apparently happened with some of these files, and it needs to be fixed if they are kept (and fixed anywhere else it was done).
All that is 'proven' by the PDM on Europeana is exactly what Yann said back at the beginning.... the works used to be described as 'public domain' at the BnF, Europeana copied that, and now the BnF says something different. It proves nothing about why the BnF changed it, which is what needs to be established (if it was simply a mistake). - Reventtalk 14:24, 12 June 2017 (UTC)[reply]
and when the BnF chose a license that was irrevocable, it is just as irrevocable as a flickr user. we do not delete files when the flickr changes the license, even if "mistaken". but i take it that was beneath your notice. Slowking4 § Sander.v.Ginkel's revenge 14:59, 12 June 2017 (UTC)[reply]
@Slowking4: , I think Revent is right, there is no evidence of a CC-0 or a CC-BY explicit license. I can only apologize for having contributed to create a confusion on this aspect when uploading some of these files. The public domain mark is not a licensing tool but an assessment of a preexisting situation. It should also be clarified that the public domain mark does not refer to the original photographs but to the digital objects distributed by Gallica. On one side, the RASP says unspecified rights have been "acquired" by BNF in 2005. On the other hand, BNF itself says that despite the fact Daniel Cande has kept the copyright on his photographs he has "accepted with no counterpart" the internet distribution of the derivative digital images "in consideration of the wide visibility it gives to his work". I interpreted the combination of these statements to mean that Daniel Cande has abandoned his rights on the files available at Gallica while keeping his rights on the originals, which I found coherent with Europeana's assessment and RASP's precision. I hope to receive an answer from Daniel Cande which will help clarify if this interpretation is correct, in which case I will modify the license on my uploads to a {{PD-because}}. — Racconish ☎ 20:09, 12 June 2017 (UTC)[reply]
@Slowking4: I started to reply at length, but instead..... just reread what Gestumblindi said back at the beginning of this discussion, and what Racoonish just said. Then try to not ABF so much, please. I would not have described an attempt to retract an irrevocable license as something we would accept as a mistake... something on the nature of a 'clerical error' made by a GLAM that does not actually own the copyright is something else entirely, and it's not yet clear which was the case. - Reventtalk 20:38, 12 June 2017 (UTC)[reply]
I think they will not be able to give such a general answer, as it depends, as I said above: there's certainly a difference between changing a license at the source because the licenser no longer likes the previous license (i.e. an attempt to retract a validly issued license), and correcting a license at the source because it turns out that it wasn't valid from the start. "License review" here is nothing but a semi-technical measure to confirm that a certain license was present at the source at a given time, but of course there is no automated way to ascertain that the license was correct then. Gestumblindi (talk) 14:35, 25 June 2017 (UTC)[reply]
I have precisely asked about this case. This is not a correction. It is a change of policy from the BNF.
I have asked: 1. should we keep these files? 2. if we keep them and the BNF sends a DMCA, what the WMF would do? 3. what the legal value of our license review process? I am thinking about potential issues for reusers. Regards, Yann (talk) 15:54, 25 June 2017 (UTC)[reply]
  • Comment: From the information by BNF, the question is: when the BNF placed the images on Europeana (and previously on Gallica) in the public domain, did the BNF act inside or outside the rights that it acquired from the photographer by the agreement (as the terms were at that time)? I understand the argument of Racconish, saying that the way to reconcile all the information from BNF is to conclude that the agreement gave the BNF the right to release the copyright on particular digitized copies of the photographs, but not on the original photographs. Maybe that works. But the whole thing still gives the impression that it can be a mistake by BNF. I'm leaning delete by precaution. -- Asclepias (talk) 04:20, 26 June 2017 (UTC)[reply]
Both Cande and BNF's département of arts et spectacles have been made aware of the situation. Cande did not respond and BNF kept the public domain mark at Europeana. — Racconish ☎ 07:55, 26 June 2017 (UTC)[reply]
  •  Comment Answer from WMF Legal: In this case, the Wikimedia Foundation will not take action to remove the images regardless of what community decision is reached. They will evaluate a DMCA from the BNF if it comes according to the data provided by the BNF (proof that the files are under a copyright). If the WMF received a DMCA from the BNF, we would look at the specific images or documents identified in the DMCA and attempt to determine if they were subject to a copyright law enforceable in the United States. Regards, Yann (talk) 09:49, 29 June 2017 (UTC)[reply]

Deleted: per nomination - it remains unclear whether BnF had the right to release the files into PD. Also 'Public Domain mark' is not a license and not accepted at Wikimedia Commons, see Template:Flickr-public domain mark. --Jcb (talk) 00:26, 30 June 2017 (UTC)[reply]

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