[Advocacy Advisors] Legal actions - Freedom of Panorama

James Heald j.heald at ucl.ac.uk
Wed Jan 28 13:20:31 UTC 2015

One case of course was the Claes Oldenburg takedown against Wikimedia 
Commons, in November 2012, for images of some of his large-scale public 
outdoor sculptures:

However, the case is complicated because the take-down was under U.S. 
law, even though some of the sculptures were in the UK and other 
jurisdictions with more permissive rules.

Under the Berne Convention, freedom of panorama is a territorial 
copyright exception which applies to the territory where the 
*infringement* is alleged, not where the photograph was taken.  So a 
photograph can be taken in the UK, and okay in the UK, but not okay in 
the United States (nor perhaps even France).  Of course this directly 
runs against the freedom for the same document to be accessible right 
across the EU.

At the end of the day, it's not just about whether there have been legal 
cases or not.  It's also about the chilling effect that there could be 
legal cases.

Wikimedia Commons takes the view that it's not good enough to sat "Okay, 
it's not legal, but we probably won't get sued" -- that is not a good 
approach to encourage, not for a highly visible organisation like WP, 
nor if people are to be encouraged to have a proper respect for 
copyright laws.

   -- James.

On 28/01/2015 09:34, Dimitar Parvanov Dimitrov wrote:
> Hi everyone,
> things are getting hot here in Brussels (saucy Monitoring Report and spicy
> blog post coming later this week) and we're working on full speed to
> convince decision-makers that FoP is an actual issue.
> What would greatly help are any examples of infringement procedures, take
> down notices or someone getting sued because of lack of FoP in a
> jurisdiction. I've - thanks to WMFR - found a few timid examples from
> France, but in general it is still a slim file.
> Thanks for thinking hard about this one.
> Dimi
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