Hi Ryan,

I don't understand why Wikimedians are having those kind of doubts, and would like to hear the reasoning behind. There's not even a single doubt, from my side, about Portuguese law covering public interiors. This is not even a question of case law or legal interpretation. Any regular citizen in Portugal knows that a public space as in "local público" is any place that can be accessed by the public, etc. As I said in my study, "via pública" ("public highway") is the wording we use to refer to streets, squares and any other public outdoors. You can ask any Portuguese lawyer or judge and they will all answer you the same - a few minutes ago, I just did that "silly" question to a judge (to prove you I'm right), and guess what? It was a silly question, because "of course" a public school and a hospital are public spaces, he said! I mean, go to a Portuguese dictionary, you'll find the same answer. Also, in our study, we give an example of an online art library - run by the well-known Calouste Gulbenkian Foundation - that contains photos of murals located in the interior walls of schools and metro stations.

I think you are really missing the point here. I don't know how many of you are lawyers, so I'll try to simplify the idea that I described in the introduction to my study, and that's very well explained in this study by Professors Hugenholtz and Senftleben. The optional FoP exception foreseen in the InfoSoc Directive ("use of works, such as works of architecture or sculpture, made to be located permanently in public spaces") contains everything that is possible to do, in terms of FoP legislation, in EU member states, for the time being.

This means that, when the UK says "in a public place or in premises open to the public" that has to be included in the wording "public place" of the Directive - otherwise, the UK law would be infringing EU law. The same for "works": when a member state law specifically mentions literature, paintings, etc in their FoP exceptions (or when such laws only use the word "works" without giving any examples) it means that the wording "such as" used in the InfoSoc is placed there to give a random example of a public placed work, and not to exclude 2D works - unless you think all those member states got it wrong and are infringing EU law.

So, my point (the one that I think you are missing) is that the wording used in InfoSoc exception (that same wording that Portugal replicated) is good enough, and we should be fighting for it to be mandatory across Europe. Laws will always use abstract concepts, and a more detailed clause might inadvertently leave something out that a more open-ended clause wouldn't. 

You can always fight for having it clear in the recitals of the EU law that "public spaces" include public interiors or that "works of architecture or sculpture" are a mere exemple of the type of works that can be found in public spaces, and doesn't mean to exclude graffiti, literature or other 2D works. Because what we see from the different national implementations is that all of this is already contained in the wording of the Directive. In my opinion, fighting for having a different wording will only create noise and divert attention - the clear message that we should be sending to the EU Commission is that the optional InfoSoc exception should be made mandatory across Europe. That's the big fight, which I wouldn't like us to loose!

Best,

Teresa

2016-06-08 23:22 GMT+01:00 Ryan Kaldari <rkaldari@wikimedia.org>:

There has been some contention among Wikimedians about whether Portuguese FoP law covers public interiors. Teresa's legal analysis (http://www.communia-association.org/wp-content/uploads/2016/06/BCS_Communia_FoP_study.pdf) addresses this topic specifically on pages 9 and 10. Basically it argues that the phrase "locais públicos" is understood in Portuguese jurisprudence to include public interiors, even if it is not specifically defined as such. Many other countries use similar phrasing in their FoP laws and it seems to be a roll of the dice whether this is interpreted as including public interiors in each country. For example, in the Netherlands, it is interpreted as including railway stations, but not schools, theaters, and museums. In Switzerland, it is interpreted as not including public interiors, but possibly railway stations, shopping arcades, and interior courtyards (though there is disagreement among scholars).

I would argue that the true "best case scenario" for Freedom of Panorama would be a combination of the Portuguese and UK laws. The Portuguese law has the best inclusion of works (basically, all works) and the UK has the best inclusion of locations: "in a public place or in premises open to the public". While it may be true that the Portuguese law is interpreted as also including public interiors, I prefer the more explicit wording of the UK law in this regard, and I think we should try to promote such wording in any potential FoP legislation.

On Wed, Jun 8, 2016 at 2:38 PM, Lisette Kalshoven <lk@kl.nl> wrote:

Hi Jan, Raul, all, 

As Freedom of Panorama is something Wikimedia cares very deeply about, I’m very curious on what you think about the Panorama study Teresa did for Portugal. As she wrote, we published it this morning: http://www.communia-association.org/2016/06/07/freedom-panorama-bcs-copyright/

Any thoughts?

Cheers, 

Lisette 

-- 
Kennisland | www.kennisland.nl | t +31205756720 | m +31613943237 | @lnkalshoven | skype: lisette.kalshoven

On 08 Jun 2016, at 12:54, Teresa Nobre <teresaraposonobre@gmail.com> wrote:

Thanks Jan!

We just released the FoP study: http://www.communia-association.org/2016/06/07/freedom-panorama-bcs-copyright/

Best,

Teresa

2016-06-07 9:41 GMT+01:00 Jan Gerlach <jgerlach@wikimedia.org>:

Hi Lisette and Teresa

Congratulations on a great campaign and thanks for sharing it on this list! I really like the approach and am very curious about the forthcoming case studies.
I appreciate that you set expectations right ("EU copyright reform won’t fix it all.") and give best practice examples of norms that are actually in effect.

Best,

Jan

==


Jan Gerlach
Public Policy Manager
Wikimedia Foundation
149 New Montgomery Street, 6th Floor
San Francisco, CA 94105
jgerlach@wikimedia.org

On Mon, Jun 6, 2016 at 7:20 AM, Teresa Nobre <teresaraposonobre@gmail.com> wrote:

Hi Raul,

If you wait 2 more days, you can read the 10-page report that I prepared on the Portuguese study.

As you will see, public interiors is not an issue in Portugal, because we have a broad definition of public space elsewhere in the Portuguese Copyright Code. The fact that this is a relatively abstract norm (with a wording very similar to the InfoSoc), only raises interpretation issues with regards to the purposes. But the fact that the norm doesn't exclude a priory commercial purposes can only be seen as a positive thing. The rest of the concepts (e.g. "use", "works") are defined in other norms, so they are not vague at all.

Thanks,

Teresa

2016-06-06 15:01 GMT+01:00 Raul Veede <raul.veede@gmail.com>:

Well, Estonian FoP was today discussed in the Parliamentary Committee of Culture, and we're hoping to present the case in the Committee of European Affairs in close days.

The Portuguese scenario has at least three weaknesses I can identify (I've written about it in short in a comment on your blog post, and in length to Teresa Nobre personally; to count quickly, it leaves unclear the situations with public interiors and several types of works, and prescribes provisions so vague that every politician would be proud to include such language in their election program) and if it were adopted in Estonia, we would actually lose some territory that is currently covered by NC FoP and by the draft bill I wrote would become also free commercially.

So please excuse me but we're in a bit of a hurry here yet would still be greatly interested in reasons for going backwards.

Also, my experience shows it is hard to get Communia to respond to anything. You don't exactly try to communicate with people who comment on your blog or FB, and your posts have a constant lack of references and analysis. If you're saying you are recommending the best scenarios without having any analysis to back up your recommendations yet, it sounds, unfortunately, believable. Care to disprove my cynicism?

All the best,

Raul

On Mon, Jun 6, 2016 at 4:49 PM, Lisette Kalshoven <lk@kl.nl> wrote:

Hi Raul, 

The supporting documents (with full legal analysis) will be published when we share the individual scenario’s over the next 3-4 weeks. This is just us announcing the series. So stay tuned :) 

With kind regards 

Lisette 

-- 
Kennisland | www.kennisland.nl | t +31205756720 | m +31613943237 | @lnkalshoven | skype: lisette.kalshoven

On 06 Jun 2016, at 15:46, Raul Veede <raul.veede@gmail.com> wrote:

Your proposal of the Portuguese scenario as a good example for adopting across Europe made me wondering  what might be the reasoning behind that. In the piece published today you only count the examples but do not offer any analysis, proof, or legal reasons. Would you be so nice and expand it beyond pure rhetorics?

All the best

Raul

On Mon, Jun 6, 2016 at 4:43 PM, Lisette Kalshoven <lk@kl.nl> wrote:

Dear Wikimedians,

Today at Communia we’re launching the Best Case Scenarios for Copyright series, to promote great solutions such as user-friendly copyright limitations. They work in some EU countries and we want to talk about making them (and other good ones) mandatory for the whole EU. It would be great if you could promote the message via social media and any other communication with your partners.

Today we introduce the idea for the campaign and on Wednesday we will publish the first case. Today’s post may be found here and Communia TT is here. 

Best wishes,

Lisette Kalshoven

-- 
Kennisland | www.kennisland.nl | t +31205756720 | m +31613943237 | @lnkalshoven | skype: lisette.kalshoven

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