Hi.
Most likely the Swedes can explain the exact nuances better, but from the little I have gathered, it seems that Swedish Supreme Court today decided that although there is Freedom of Panorama in Sweden, it cannot be extended to publishing the images of public art on the Internet.
Now, the exact reasoning, all the consequences and WMSE's further actions notwithstanding, my question is whether this makes Sweden the only country in the world where such a distinction is established? If yes, this is a very dangerous precedent. If not, I would very much want to know the peculiarities in the other cases.
In either case, we should be prepared to counter suggestions to adapt that distinction to the other countries in Europe.
Some links: * WMSE's press release: http://www.mynewsdesk.com/se/pressreleases/hoegsta-domstolen-vaeljer-att-kry... * The same in Google Translate: https://translate.google.com/translate?sl=auto&tl=en&js=y&prev=_... * Supreme Court's decision in Google Translate: https://translate.googleusercontent.com/translate_c?depth=1&hl=en&ie... * Swedish Copyright Act in English (on Unesco's homepage): http://portal.unesco.org/culture/admin/file_download.php/se_copyright_2005_e...
Some coverage in Swedish: http://feber.se/webb/art/346833/offentligkonstse_bryter_mot_up/ http://www.svt.se/kultur/konst/brottsligt-sprida-bilder-av-offentligt-konst-... http://www.fotosidan.se/cldoc/lag-och-ratt/hd-dom-olagligt-att-publicera-bil... http://www.friatider.se/wikipedia-f-r-inte-visa-bilder-p-konstverk http://www.dn.se/kultur-noje/konst-form/hd-brottsligt-att-sprida-bilder-av-o...
http://www.kamerabild.se/nyheter/foto/hd-beslut-olagligt-att-avbilda-konst-f...
One particular piece of news in translation, demonstrating the journalist's depth of comprehension, starting with the headline "Copyright of outdoor art also applies online": https://translate.google.com/translate?sl=auto&tl=en&js=y&prev=_...
Enjoy.
Raul
[Warning: This is a lawman's analysis. I'm not a lawyer.]
Wow, this is a pretty incredible decision. It seems the Swedish Supreme Court has gutted the country's Freedom of Panorama law (for all works including buildings) by simply declaring that the the law's statement that "Works of art may be reproduced..." ("Konstverk får avbildas...") doesn't apply to the internet. They seem to have bent over backwards to reach this conclusion, citing the European Parliament and Council Directive 2001/29 / EC of 22 May 2001 (which they say "imposes a strong protection of copyright, especially in the digital environment") and even the fact that other Nordic countries don't have Freedom of Panorama (they do, it's just restricted to buildings). Their basic conclusion is that the law must be interpreted as conservatively as possible because otherwise it would "unreasonably prejudice" the author's financial interests (without acknowledging at all the public's interest). They awkwardly explain that postcards don't constitute a significant impact on commercial exploitation, but when it comes to new technology like the internet, the law must be assumed to not apply (despite what a reasonable person would assume from the law's text). This is very disappointing indeed.
On Mon, Apr 4, 2016 at 8:58 AM, Raul Veede raul.veede@gmail.com wrote:
Hi.
Most likely the Swedes can explain the exact nuances better, but from the little I have gathered, it seems that Swedish Supreme Court today decided that although there is Freedom of Panorama in Sweden, it cannot be extended to publishing the images of public art on the Internet.
Now, the exact reasoning, all the consequences and WMSE's further actions notwithstanding, my question is whether this makes Sweden the only country in the world where such a distinction is established? If yes, this is a very dangerous precedent. If not, I would very much want to know the peculiarities in the other cases.
In either case, we should be prepared to counter suggestions to adapt that distinction to the other countries in Europe.
Some links:
- WMSE's press release:
http://www.mynewsdesk.com/se/pressreleases/hoegsta-domstolen-vaeljer-att-kry...
- The same in Google Translate:
https://translate.google.com/translate?sl=auto&tl=en&js=y&prev=_...
- Supreme Court's decision in Google Translate:
https://translate.googleusercontent.com/translate_c?depth=1&hl=en&ie...
- Swedish Copyright Act in English (on Unesco's homepage):
http://portal.unesco.org/culture/admin/file_download.php/se_copyright_2005_e...
Some coverage in Swedish: http://feber.se/webb/art/346833/offentligkonstse_bryter_mot_up/ http://www.svt.se/kultur/konst/brottsligt-sprida-bilder-av-offentligt-konst-... http://www.fotosidan.se/cldoc/lag-och-ratt/hd-dom-olagligt-att-publicera-bil... http://www.friatider.se/wikipedia-f-r-inte-visa-bilder-p-konstverk http://www.dn.se/kultur-noje/konst-form/hd-brottsligt-att-sprida-bilder-av-o...
http://www.kamerabild.se/nyheter/foto/hd-beslut-olagligt-att-avbilda-konst-f...
One particular piece of news in translation, demonstrating the journalist's depth of comprehension, starting with the headline "Copyright of outdoor art also applies online":
https://translate.google.com/translate?sl=auto&tl=en&js=y&prev=_...
Enjoy.
Raul
Publicpolicy mailing list Publicpolicy@lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/publicpolicy
Oops, I meant "layman", not "lawman" :)
On Mon, Apr 4, 2016 at 11:44 AM, Ryan Kaldari rkaldari@wikimedia.org wrote:
[Warning: This is a lawman's analysis. I'm not a lawyer.]
Wow, this is a pretty incredible decision. It seems the Swedish Supreme Court has gutted the country's Freedom of Panorama law (for all works including buildings) by simply declaring that the the law's statement that "Works of art may be reproduced..." ("Konstverk får avbildas...") doesn't apply to the internet. They seem to have bent over backwards to reach this conclusion, citing the European Parliament and Council Directive 2001/29 / EC of 22 May 2001 (which they say "imposes a strong protection of copyright, especially in the digital environment") and even the fact that other Nordic countries don't have Freedom of Panorama (they do, it's just restricted to buildings). Their basic conclusion is that the law must be interpreted as conservatively as possible because otherwise it would "unreasonably prejudice" the author's financial interests (without acknowledging at all the public's interest). They awkwardly explain that postcards don't constitute a significant impact on commercial exploitation, but when it comes to new technology like the internet, the law must be assumed to not apply (despite what a reasonable person would assume from the law's text). This is very disappointing indeed.
On Mon, Apr 4, 2016 at 8:58 AM, Raul Veede raul.veede@gmail.com wrote:
Hi.
Most likely the Swedes can explain the exact nuances better, but from the little I have gathered, it seems that Swedish Supreme Court today decided that although there is Freedom of Panorama in Sweden, it cannot be extended to publishing the images of public art on the Internet.
Now, the exact reasoning, all the consequences and WMSE's further actions notwithstanding, my question is whether this makes Sweden the only country in the world where such a distinction is established? If yes, this is a very dangerous precedent. If not, I would very much want to know the peculiarities in the other cases.
In either case, we should be prepared to counter suggestions to adapt that distinction to the other countries in Europe.
Some links:
- WMSE's press release:
http://www.mynewsdesk.com/se/pressreleases/hoegsta-domstolen-vaeljer-att-kry...
- The same in Google Translate:
https://translate.google.com/translate?sl=auto&tl=en&js=y&prev=_...
- Supreme Court's decision in Google Translate:
https://translate.googleusercontent.com/translate_c?depth=1&hl=en&ie...
- Swedish Copyright Act in English (on Unesco's homepage):
http://portal.unesco.org/culture/admin/file_download.php/se_copyright_2005_e...
Some coverage in Swedish: http://feber.se/webb/art/346833/offentligkonstse_bryter_mot_up/ http://www.svt.se/kultur/konst/brottsligt-sprida-bilder-av-offentligt-konst-... http://www.fotosidan.se/cldoc/lag-och-ratt/hd-dom-olagligt-att-publicera-bil... http://www.friatider.se/wikipedia-f-r-inte-visa-bilder-p-konstverk http://www.dn.se/kultur-noje/konst-form/hd-brottsligt-att-sprida-bilder-av-o...
http://www.kamerabild.se/nyheter/foto/hd-beslut-olagligt-att-avbilda-konst-f...
One particular piece of news in translation, demonstrating the journalist's depth of comprehension, starting with the headline "Copyright of outdoor art also applies online":
https://translate.google.com/translate?sl=auto&tl=en&js=y&prev=_...
Enjoy.
Raul
Publicpolicy mailing list Publicpolicy@lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/publicpolicy
Seems to me that in public relations terms, this is about as big a gift as we could have asked for.
The Swedish court has specifically indicated that it has come to this decision on the basis of European law, by the need to take into account how the image might be viewed in other countries, over-riding the considerations of Sweden's own domestic law.
This is very different from how most MEPs believe the FoP law should work (and other copyright exemptions for that matter), and on the face of it such a reading would threaten FoP *everywhere* in the EU.
It's a clear sign that the law needs to be clarified at a European level, and given the depth of popular concern about FoP last year, there should be no shortage of MEPs willing to come out and say so.
Has anyone contacted eg Cecilia Wikström for a quote ?
It should be possible to play this up very powerfully to the European level.
-- James.
On 04/04/2016 18:44, Ryan Kaldari wrote:
Oops, I meant "layman", not "lawman" :)
On Mon, Apr 4, 2016 at 11:44 AM, Ryan Kaldari rkaldari@wikimedia.org wrote:
[Warning: This is a lawman's analysis. I'm not a lawyer.]
Wow, this is a pretty incredible decision. It seems the Swedish Supreme Court has gutted the country's Freedom of Panorama law (for all works including buildings) by simply declaring that the the law's statement that "Works of art may be reproduced..." ("Konstverk får avbildas...") doesn't apply to the internet. They seem to have bent over backwards to reach this conclusion, citing the European Parliament and Council Directive 2001/29 / EC of 22 May 2001 (which they say "imposes a strong protection of copyright, especially in the digital environment") and even the fact that other Nordic countries don't have Freedom of Panorama (they do, it's just restricted to buildings). Their basic conclusion is that the law must be interpreted as conservatively as possible because otherwise it would "unreasonably prejudice" the author's financial interests (without acknowledging at all the public's interest). They awkwardly explain that postcards don't constitute a significant impact on commercial exploitation, but when it comes to new technology like the internet, the law must be assumed to not apply (despite what a reasonable person would assume from the law's text). This is very disappointing indeed.
On Mon, Apr 4, 2016 at 8:58 AM, Raul Veede raul.veede@gmail.com wrote:
Hi.
Most likely the Swedes can explain the exact nuances better, but from the little I have gathered, it seems that Swedish Supreme Court today decided that although there is Freedom of Panorama in Sweden, it cannot be extended to publishing the images of public art on the Internet.
Now, the exact reasoning, all the consequences and WMSE's further actions notwithstanding, my question is whether this makes Sweden the only country in the world where such a distinction is established? If yes, this is a very dangerous precedent. If not, I would very much want to know the peculiarities in the other cases.
In either case, we should be prepared to counter suggestions to adapt that distinction to the other countries in Europe.
Some links:
- WMSE's press release:
http://www.mynewsdesk.com/se/pressreleases/hoegsta-domstolen-vaeljer-att-kry...
- The same in Google Translate:
https://translate.google.com/translate?sl=auto&tl=en&js=y&prev=_...
- Supreme Court's decision in Google Translate:
https://translate.googleusercontent.com/translate_c?depth=1&hl=en&ie...
- Swedish Copyright Act in English (on Unesco's homepage):
http://portal.unesco.org/culture/admin/file_download.php/se_copyright_2005_e...
Some coverage in Swedish: http://feber.se/webb/art/346833/offentligkonstse_bryter_mot_up/ http://www.svt.se/kultur/konst/brottsligt-sprida-bilder-av-offentligt-konst-... http://www.fotosidan.se/cldoc/lag-och-ratt/hd-dom-olagligt-att-publicera-bil... http://www.friatider.se/wikipedia-f-r-inte-visa-bilder-p-konstverk http://www.dn.se/kultur-noje/konst-form/hd-brottsligt-att-sprida-bilder-av-o...
http://www.kamerabild.se/nyheter/foto/hd-beslut-olagligt-att-avbilda-konst-f...
One particular piece of news in translation, demonstrating the journalist's depth of comprehension, starting with the headline "Copyright of outdoor art also applies online":
https://translate.google.com/translate?sl=auto&tl=en&js=y&prev=_...
Enjoy.
Raul
Publicpolicy mailing list Publicpolicy@lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/publicpolicy
Publicpolicy mailing list Publicpolicy@lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/publicpolicy
2016-04-04 19:44 GMT+02:00 Ryan Kaldari rkaldari@wikimedia.org:
[Warning: This is a lawman's analysis. I'm not a lawyer.]
Wow, this is a pretty incredible decision. It seems the Swedish Supreme Court has gutted the country's Freedom of Panorama law (for all works including buildings) by simply declaring that the the law's statement that "Works of art may be reproduced..." ("Konstverk får avbildas...") doesn't apply to the internet.
Not necessarily – you're still free to post your vacation pictures on Instagram or Facebook, for example, as I understand it. But for us that's almost irrelevant: if you want to make information about public spaces available to the public, you need to do so in a structured way and they need to be able to easily find it.
But it's just to roll up our sleeves and start the legislative fight, I suppose.
//Johan Jönsson --
On Mon, Apr 4, 2016 at 4:39 PM, Johan Jönsson brevlistor@gmail.com wrote:
2016-04-04 19:44 GMT+02:00 Ryan Kaldari rkaldari@wikimedia.org:
[Warning: This is a layman's analysis. I'm not a lawyer.]
Wow, this is a pretty incredible decision. It seems the Swedish Supreme Court has gutted the country's Freedom of Panorama law (for all works including buildings) by simply declaring that the the law's statement
that
"Works of art may be reproduced..." ("Konstverk får avbildas...") doesn't apply to the internet.
Not necessarily – you're still free to post your vacation pictures on Instagram or Facebook, for example, as I understand it. But for us that's almost irrelevant: if you want to make information about public spaces available to the public, you need to do so in a structured way and they need to be able to easily find it.
The actual conclusion is pretty vague. It basically just says "The way Wikimedia is using these images fails the three-step rule of the EU Directive." It cites several different reasons: that the images are in an "open database", that there is significant commercial value in the database, that no compensation is provided to the authors, and that the right to exploit "new" technology in this way should remain with the authors. It seems unclear whether posting images on Facebook or Flickr would also fail these tests. Has anyone written a thorough legal analysis on the implications?
2016-04-05 1:46 GMT+02:00 Ryan Kaldari rkaldari@wikimedia.org:
On Mon, Apr 4, 2016 at 4:39 PM, Johan Jönsson brevlistor@gmail.com wrote:
2016-04-04 19:44 GMT+02:00 Ryan Kaldari rkaldari@wikimedia.org:
[Warning: This is a layman's analysis. I'm not a lawyer.]
Wow, this is a pretty incredible decision. It seems the Swedish Supreme Court has gutted the country's Freedom of Panorama law (for all works including buildings) by simply declaring that the the law's statement that "Works of art may be reproduced..." ("Konstverk får avbildas...") doesn't apply to the internet.
Not necessarily – you're still free to post your vacation pictures on Instagram or Facebook, for example, as I understand it. But for us that's almost irrelevant: if you want to make information about public spaces available to the public, you need to do so in a structured way and they need to be able to easily find it.
The actual conclusion is pretty vague. It basically just says "The way Wikimedia is using these images fails the three-step rule of the EU Directive." It cites several different reasons: that the images are in an "open database", that there is significant commercial value in the database, that no compensation is provided to the authors, and that the right to exploit "new" technology in this way should remain with the authors. It seems unclear whether posting images on Facebook or Flickr would also fail these tests. Has anyone written a thorough legal analysis on the implications?
I should probably have added "but of course, there's a pretty good chance I don't know what I'm talking about" to "as I understand it".
The decision came today, so the legal analysis that exists isn't very thorough, but here's a comment from a Swedish copyright lawyer – former lawyer for the Association of Swedish Photographers – whose interpretation is that it's mainly about databases rather than individual images: http://www.fotosidan.se/cldoc/lag-och-ratt/fotosidans-jurist-om-konsekvenser...
//Johan Jönsson --
On Mon, Apr 4, 2016 at 6:34 PM, Johan Jönsson brevlistor@gmail.com wrote:
The decision came today, so the legal analysis that exists isn't very thorough, but here's a comment from a Swedish copyright lawyer – former lawyer for the Association of Swedish Photographers – whose interpretation is that it's mainly about databases rather than individual images:
http://www.fotosidan.se/cldoc/lag-och-ratt/fotosidans-jurist-om-konsekvenser...
According to that article, it sounds like it mostly depends on how popular your website is, and unfortunately the court didn't offer any suggestions for what constitutes sufficient "economic significance", other than the bizarre claim that postcards don't meet that threshold (although I'm sure that far more money has been made off of Swedish FoP postcards than images from Offentligkonst.se). In the absence of any guidelines, will people want to take the risk of even posting individual images? I'm sure BUS will start threatening to sue anyone who doesn't pay licensing fees regardless, as the lack of clarity certainly plays to their advantage.
Evidently, it is not safe to post individual images on any platform that could be seen as an economically valuable database. What it makes of Facebook, is unclear, as the amount of pictures is still big but they're diluted by other content, yet Flickr is definitely in danger. Still, this seems to target the database owners, not the individual uploaders. BUS probably hasn't realized yet there is Commons.
The part about the authors' right to exploit new technologies goes in principle clearly against any kind of free culture. If, say, the rules about music had been set on 1960s, on similar basis one could infer that music in public domain on vinyls but not in digital form, because this is a new technology and though Bach is not around to gather his fees, collective society certainly is. Usually people think that if there is a new technology, it is open by default, the usual freedoms are extended to it; this decision says anything new is closed by default.
Raul
On Tue, Apr 5, 2016 at 4:00 AM, Ryan Kaldari rkaldari@wikimedia.org wrote:
On Mon, Apr 4, 2016 at 6:34 PM, Johan Jönsson brevlistor@gmail.com wrote:
The decision came today, so the legal analysis that exists isn't very thorough, but here's a comment from a Swedish copyright lawyer – former lawyer for the Association of Swedish Photographers – whose interpretation is that it's mainly about databases rather than individual images:
http://www.fotosidan.se/cldoc/lag-och-ratt/fotosidans-jurist-om-konsekvenser...
According to that article, it sounds like it mostly depends on how popular your website is, and unfortunately the court didn't offer any suggestions for what constitutes sufficient "economic significance", other than the bizarre claim that postcards don't meet that threshold (although I'm sure that far more money has been made off of Swedish FoP postcards than images from Offentligkonst.se). In the absence of any guidelines, will people want to take the risk of even posting individual images? I'm sure BUS will start threatening to sue anyone who doesn't pay licensing fees regardless, as the lack of clarity certainly plays to their advantage.
Publicpolicy mailing list Publicpolicy@lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/publicpolicy
Hi everyone,
As far as Brussels in concerned this can be packaged in a way that provides extra traction to our FoP reform initiative. We now have a very concrete and recent example to answer the question "But did you ever really have any problems with that?".
As far as Sweden is concerned, between Anna, John and Karl the chapter is such a high concentration of public policy expertise that I am sure they will manage to spin it as they please. We will all help them with anything they ask for.
Meanwhile, it would be important to make sure as many individuals and professional organisations (photographers, painters, architects) participate in the consultation by the EU. We're currently working on our draft answers. There will one set that is provided to the general public as an answering guide and then again our own set of answers. You can participate here: https://meta.wikimedia.org/wiki/EU_policy/FoP_Consultation#Draft_Answers
Cheers, Dimi
2016-04-05 3:00 GMT+02:00 Ryan Kaldari rkaldari@wikimedia.org:
On Mon, Apr 4, 2016 at 6:34 PM, Johan Jönsson brevlistor@gmail.com wrote:
The decision came today, so the legal analysis that exists isn't very thorough, but here's a comment from a Swedish copyright lawyer – former lawyer for the Association of Swedish Photographers – whose interpretation is that it's mainly about databases rather than individual images:
http://www.fotosidan.se/cldoc/lag-och-ratt/fotosidans-jurist-om-konsekvenser...
According to that article, it sounds like it mostly depends on how popular your website is, and unfortunately the court didn't offer any suggestions for what constitutes sufficient "economic significance", other than the bizarre claim that postcards don't meet that threshold (although I'm sure that far more money has been made off of Swedish FoP postcards than images from Offentligkonst.se). In the absence of any guidelines, will people want to take the risk of even posting individual images? I'm sure BUS will start threatening to sue anyone who doesn't pay licensing fees regardless, as the lack of clarity certainly plays to their advantage.
Publicpolicy mailing list Publicpolicy@lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/publicpolicy
An interesting commentary has just gone up by Eleanora Rosati on the well-known IPKat blog:
http://ipkitten.blogspot.co.uk/2016/04/swedish-supreme-court-uses-three-step...
Her conclusion may be of some concern, that the Swedish decision may in fact be correct, at least in terms of a narrow application of the 3-step test.
If that is correct, then this logic could apply not just to Sweden, or even to the EU, but to all signatories of either TRIPS or Berne -- i.e. pretty much everywhere.
Previously there has been concern that the boilerplate inclusion of 3-step language in the Trans-Pacific Trade deal may be incompatible with current U.S. caselaw on Fair Use.
This application of the 3-step test in Sweden may just have upped the stakes considerably.
--
The Guardian website also has a longish English-language article on the decision, from Agence France-Presse:
http://www.theguardian.com/world/2016/apr/05/wikimedias-free-photo-database-...
-- James.
The worrying thing is that I have a very high opinion of Eleonora Rosati. She has also participated in the Legal Affairs Committee hearing with me, Marie-Anne Ferry-Fall and the Commission during our #saveFoP campaign.
The boilerplate inclusion of the three-step-test could indeed be a stumbling block for many exceptions, not just FoP. However I however feel the results of the test should be different for architecture and for sculpture. After all the primary intention and intended uses (and sources of revenue) for the two are very different.
Dimi
2016-04-06 17:56 GMT+02:00 James Heald j.heald@ucl.ac.uk:
An interesting commentary has just gone up by Eleanora Rosati on the well-known IPKat blog:
http://ipkitten.blogspot.co.uk/2016/04/swedish-supreme-court-uses-three-step...
Her conclusion may be of some concern, that the Swedish decision may in fact be correct, at least in terms of a narrow application of the 3-step test.
If that is correct, then this logic could apply not just to Sweden, or even to the EU, but to all signatories of either TRIPS or Berne -- i.e. pretty much everywhere.
Previously there has been concern that the boilerplate inclusion of 3-step language in the Trans-Pacific Trade deal may be incompatible with current U.S. caselaw on Fair Use.
This application of the 3-step test in Sweden may just have upped the stakes considerably.
--
The Guardian website also has a longish English-language article on the decision, from Agence France-Presse:
http://www.theguardian.com/world/2016/apr/05/wikimedias-free-photo-database-...
-- James.
Publicpolicy mailing list Publicpolicy@lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/publicpolicy
On Mon, Apr 4, 2016 at 4:39 PM, Johan Jönsson brevlistor@gmail.com wrote:
But it's just to roll up our sleeves and start the legislative fight, I suppose.
Do you think the Swedish Wikipedia community would be interested in mounting any kind of protest action?
2016-04-05 1:51 GMT+02:00 Ryan Kaldari rkaldari@wikimedia.org:
On Mon, Apr 4, 2016 at 4:39 PM, Johan Jönsson brevlistor@gmail.com wrote:
But it's just to roll up our sleeves and start the legislative fight, I suppose.
Do you think the Swedish Wikipedia community would be interested in mounting any kind of protest action?
I don't know. We're usually happy to leave that sort of thing to the local chapter – as a wiki, we've never exactly been politically active. It was suggested to immediately remove all affected images from articles on Swedish Wikipedia to stress the problem, but it didn't really get any traction. But they're certainly concerned: https://sv.wikipedia.org/wiki/Wikipedia:Bybrunnen#H.C3.B6gsta_domstolens_bes...
//Johan Jönsson --
publicpolicy@lists.wikimedia.org