2012/9/14 Platonides platonides@gmail.com:
This will likely appear several times at COM:DR, having to be explained. It would be worse if someone tried to do the same with their own photos (I place them under CC-BY-SA but I require a fee) but I don't think they could since they would only have copyright to battle with.
Won't work. If a photographer wants to ask a fee for the use of his/her photos the law which is permitting him to do so is copyright law, i.e. the monopoly (albeit temporary) granted by the state the exclusive rights over the use of a work of art to the author of the work itself. Creative Commons licenses are enforced by the same law, i.e. the author, since he is the person with the right to do so, grants a thirds party the possibility to reproduce, re-use, etc his work. So you can not use the same copyright law to grant a right and negate it at the same time.
The (Italian) law for which you have to request authorization to publish photos of Italian cultural heritage come is *a different law* from copyright law, it has different grounds, namely it is based on the fact that the Italian States thinks it has the right to decide whether the picture of a monument can be published or not, with the aim of protecting the monuments via protecting (the "decency" of) their images.
To put this differently let me add that in the agreement we made with the Ministry the Ministry said that the choice of the license to use for releasing the images is a personal choice of the photographer, the Codice Urbani is not.[*]
To clarify, my understanding of the situation (but IANAL) the situation is more similar to the {{Personality rights}} template. There are laws, which are different from copyright law which prohibit to do something with a picture unless you obtain an authorization. This is a non-copyright restriction.
So, this is not the first time we find that photos that may have some sort restrictions on it which are not deriving from copyright.
Still, those photos are not completely free.
Disagree, they are completely free regarding the subject of copyright, and that's why the lawyers we contacted (which are people from Creative Commons Italia) assured us that this agreement (disclaimer included) is compatible with CC-BY-SA.
Cristian
[*] It's also worth noting that the Ministry, with this agreement is not "stretching" the existing law in any way. They also have not required that the photos must be free (because the Italian law doesn't impose such a thing), but it is stated that the photo participating in the contest will be released with CC-BY-SA. The difference is subtle, but the derives from the previous statement.