[Wikimedia-l] Iceland: Country specific copyright issue regarding artistic photographs

[Hrafn Malmquist]

49th Article of the Icelandic Copyright Act states (
http://eng.menntamalaraduneyti.is/media/MRN-pdf/he-Copyright-Act.pdf) :

*Article 49*

*The reproduction of photographs, which do not enjoy the protection of this
Act for works of art as provided for in *

*the second paragraph of Article 1, is prohibited without the consent of
the photographer or the party who has *

*acquired his rights. [Furthermore, the publication of such photographs
without the permission of the rightholder *

*shall be prohibited.]1) If such a photograph is presented to the public on
a commercial basis or for profit the *

*photographer, or the subsequent holder of his rights, shall be entitled to
remuneration. The protection of a *

*photograph in accordance with this paragraph shall apply until [50
years]2) have elapsed from the end of the year *

*in which it was taken.*

*The provisions of Chapter II of this Act shall also apply as appropriate
to the photographs referred to in the first *

*paragraph.*



The second paragraph of the first article referenced provided copyright for
artistic work. It is therefore my understanding that the 49th article is
intended to cover non-artistic photographs.

That begs the question as to how Icelandic courts define artistic
photographs. In a ruling from November 27. 2008 Reykjavík District Court
found that photographs taken at a public place using a mobile of the movie
director Quentin Tarantino were not artistic. (
http://www.domstolar.is/domaleit/nanar/?ID=E200802042&Domur=2&type=1&Serial=1
)

*It is therefore my contention that non-artistic photographs taken before
January 1. 1963 are in the public domain.*
*
*
I have sought the advice of a lawyer specialising in copyright and he
agrees with this estimate.

I want to put this to the test by taking photographs taken by Ólafur K.
Magnússon (1926-1997) a photographer for the newspaper Morgunblaðið taken
at riots on March 30th 1949 when the Icelandic parliament voted for Iceland
to be a founding member of NATO. See:
http://www.mbl.is/mm/frettir/myndasyrpa.html?cat_id=4;album=634

It is obviously a central issue whether a photograph is artistic or not.
Should the photos be considered artistic the copyright does not expire
until (1997+70=2067).

I have sent a query to Morgunblaðið, which still holds the photographs, and
the man who takes care of the photographic archive did not agree that the
photos are non-artistic (I suspect this is his personal opinion).

There is little history of contending the 49. article, I believe the
example cited above is the only one (When I contacted the curator of the
Reykjavík Photographic Museum she had not heard of the 49th article).

So, do I upload to Commons? the Icelandic Wikipedia with a caveat ("This
photo is reproduced under the assumption that the 49th article of the
Copyright Act of 1972 applies")? Both?

Best, Hrafn Malmquist