Reading the article from the Swedish national radio, the court decision found that wikimedia database of photo has a "commercial value" that can compete with commercial enterprises of the copyright authors who created the public statues or paintings on buildings.
The journalist asked a lawyer if this mean that its illegal now to take a photo of public statues, and the lawyer said that it legal since the law explicitly says so, but it might not be legal to publish it" on the Internet" as that action might be considered to have a commercial value.
This court decision is a result of the change of law that in part was motivated to happened to get piracy back in 2005. When it was amended there were many, many more restrictions placed on digital distribution than before. The law in question explicitly say "Artwork can be depicted if contained in a collection or catalogue, but not in digital form". So a book detailing famous art is allowed, but a website doing the same is not.
This also means it is not illegal to post Facebook photos with a statue. Since clearly that is not a database, just a random photo.
Under this interpretation, wouldn't (say) a collection of Facebook photos with statues, in aggregate, constitute a database and therefore become illegal? At what point does the size and structure of a collection become sufficient to cross the legal line? Would an individual Facebook user therefore be liable? Would Facebook as whole? etc.
It seems that the law has created the unintended consequence that the organization of the depictions in question matter more than the actual depictions themselves. Or in other words, of imputing commercial intent to any such collection of copyrighted works, whether intentional or otherwise.
Maybe I'm misinterpreting it, but it sounds like there's no problem since Facebook is a commercial enterprise. The problem is when a nonprofit does it. (Which seems... wrongheaded, to basically ban nonprofit websites from competing with for-profit ones.)
Publishers are allowed to make guidebooks and sell postcards without permission and also without recompense for the artists.
Historians and critics are allowed to include the photos in books without permission.
For-profit corporations are allowed to use the photos as long as they don't collect them into a single database marked "highly dangerous public database of art photographs".
But nonprofits who create a digital guidebook are copyright criminals - with the implication that they're not allowed to distribute the work for free, because it might affect the profitability of a hypothetical not-yet-existent commercial alternative.
I'd hope a good lawyer could sail a battleship through that line of argument. It's clearly prejudicial, discriminatory, inconsistent, arbitrary, and not in the interests of either the public or the copyright holders.
I suspect if it gets taken to the EU Courts, it will be shot down in flames in short order.
You might be surprised. In the end, Google got fined in France because Google Maps was competing with paid maps, and if you think about it, google maps is just a depiction of land, it's all publicly available information. But they got fined because their free product was making commercial ones impossible or very hard to sell.
Court is fine, but in the meantime, I'd just find a loophole.
E.g. it might be ok to take a picture of each piece of art with a person standing in front of it, so retake the pictures or just superimpose a picture of a person with a transparent background onto each picture.
Then once you've found that loophole, exploit the heck of it and sell prints on the street with that person superimposed on the art. Just give a big middle finger to the law.
As I understood it, the way they formulated the ruling says that it only becomes a problem when it reaches "commercial proportion", or "commercial value". According to the ruling it would be illegal for Facebook to do a similar database, the difference here being that Facebook is not creating such a database, and afaik no single Facebook user has attempted it either.
However I'm interested in what the case is with Google Ingress and their effort to make public art etc. more accessible through a smartphone-game using GPS and images.
Facebook already is one fricking giant database because it's searchable. Go ahead, try searching for "Branting Monument" on Facebook, it's a statue in Sweden.
As I understand it, actually the sentence that you quote, §24(3), is not relevant in this case. §24 provides three exceptions to the general system of copyright, and this case turns on §24(1), which says "artwork can be depicted if they are permanently placed in a public place outdoors".
So, it would naively seem that photos of public art are not copyright protected. However, the court reasoned that the word "depict" does not cover the act of publicizing the pictures in an open database. They reason based on what kind of use they think the legislators had in mind when passing the law: they think it is intended to allow taking photos of streets, and selling postcards of sculptures, but that a database has more commercial value than a postcard, and therefore the legislators did not intend that to be included in the term...
>a database has more commercial value than a postcard
That's comparing apples and giraffes. A more accurate comparison would be a publisher's collection of postcards, and the business machinery used to make money from them.
How do you determine what commercial value something has? Apparently not by whether it costs money or not. The map is offered for free, without ads. Postcards are usually for pay.
They don't say anything about how to determine the value. In general, it seems to me that this decision will create a lot of uncertainty about what is copyrighted and what is free.
They do say that the test is whether someone _could_ sell it for money, so the fact that in this case Wikimedia is a non-profit and does it for free does not affect the outcome.
If you however create a group on facebook and collect photos of statues there along with comments about them on each photo, FB would presumably be liable since I don't think its the sort of thing they prohibit in the ToS.
I think it's a matter of opportunity cost. By giving away an art-finder like this for free, using the pictures of the sculptures, you take away the incentive for commercial provider to do the same thing.
Commercial providers would have to pay money for the pictures and thus, a free app is costing the copyright owner (or the manager of the copyrights) money indirectly.
And even failing that: By publishing this on the internet, even if you are offering it for free and without ads, you still create value for third-parties with this content (carriers, platform owners, whoever is injecting ads into your content, etc), so as monetary value is created with this content, the management agency wants to be paid and if they can't be, then they want the content off the net, so other content might appear where they are getting paid.
At least that's what I believe to be the reasoning.
Anything done for free - picking up litter, sharing photographs online, giving someone directions - could be done commercially. Anything done commercially could be done commercially for more money.
This may be the law, but it violates my basic understanding of fairness.
Yes. The illegal nature is due to the fact the pictures were held in a catalog. Use by members of the public (such as through the medium of social media) is legal.
Outside of Sweden, I come to understand, it isn't illegal to catalog the images either, this is exclusively a Swedish law.
Lest you think that this is some oddity that does not happen in the US it is an issue in Portland, OR. The Portlandia statue [1] sitting in public display and on a public building. The artist retains copyright. Raymond Kaskey, the sculptor, sued the studio that made Body of Evidence which used the statue in the background of some shots and won. While I can understand the artist's desire that the work of art is respected and the high likelihood that chotchkies and such would not pay to use the likeness. It is at conflict with fair use and parody.
Any art paid for with public funds should be in the public domain. It seems like an unfortunate oversight that the artist was allowed to retain copyright here.
There are many ways around that. Instead of buying the artwork, it could be on a 99 year lease. Or a museum wins a bid to host the artists exhibition for 10 years.
Another question - is there some threshold which triggers the switch to public domain? Eg, if the public pays for 10% of the cost, through taxes, and private donators pay for the rest, then is it still placed in the public domain?
I agree - I think the Portlandia case should not have let the artist keep that restriction on use. But I think it should be done as part of the contract, rather than a blanket rule that any public funds => public domain.
Sony had issues when filming the first spiderman movie; they had to pay likeness rights to landmark buildings (chrysler building, I think) and also had legal trouble over digitally replacing the ads in time square.
I am happy to see copyright raising its ugly head in circumstances that might concern the general public as well, not only hackers and hippies in the bit-sharing underground. Maybe in a few decades people will realise it doesn't make any sense. The only thing that remains is that we'll have to stretch this further until it becomes universally absurd.
I think since this is a Wikimedia project, that the images themselves were freely licensed, but Sweden has weak or no Freedom of Panorama, which is where the "public" part would factor in. (https://en.wikipedia.org/wiki/Freedom_of_panorama)
There must be some subtly in the law. Or perhaps Sweden has unusual laws about what you can photograph in/from a public space.
That being said, I wonder if an architect could claim an unusual/interesting building as a work of art, and then have it removed from google street view?
This is actually something that is attempted every now and then; architects claiming that they own the (commercial) visual rights to something that exists in public space.
In 2004 the architect of a bridge in Rotterdam, the Netherlands, tried to claim that photographs and reproductions of 'his' bridge were unlawful, and that a fee would have to paid for any sold reproduction of that bridge (such as a postcard). Luckily this was prevented by an EU directive that states clearly that any art or architecture located in a public area may be photographed, provided that it is reproduced as-is.
I wonder if this EU directive is applicable to this situation in Sweden?
Hm, maybe you can find some more details about that case? As I understood it, the EU copyright directive does not say anything about freedom of panorama either way (see https://en.wikipedia.org/wiki/Freedom_of_panorama#European_U...), but maybe there are some subtleties.
From what I can tell without any legal expertise, the EU Copyright Directive provides a way for countries to make certain exceptions (article 5(3)), which literally includes the case of architecture and sculptures in a public setting.
So whereas the Netherlands sensibly chose to enact this exception, other countries selectively allowed certain situations, such as the lights of the Eiffel Tower and possibly Belgium's Atomium landmark.
This blog post (in Dutch) contains a good summary of the Dutch bridge case:
That was a fascinating case. The photographer lost in the initial round, but won 2 appeals, and then the hall of fame gave up after that. Imagine if you could prevent people of taking pictures of buildings. Then you couldn't take a picture of downtown cities, you'd have to negotiate with all those building owners! If you search for the above case (Gentile vs Rock and Roll Hall of Fame), then you find the famous Sydney Opera House tried to keep iStockPhoto from having a picture. That doesn't seem to have gone to trial, but a law professor thought it wouldn't hold up in court.
Taking that a step further imagine if the architects of iconic buildings like the Burj Al Arab etc would start requiring people to ask permission before posting photos of it on the internet or using it in maps.
Buildings are explicitly from the law banning databases of depictions. So Street View for example would not be affected (or any photo of a unique building).
How long before google replaces your google adwords with the artists if it detects the somewhere on your page you have a photograph of a public place that happens to contain a statue?
I was bored recently and scanned the terms for an amusement park ticket. I gave all rights to my likeness and it was specifically listed that I could not make copies of photos taken by park equipment without explicit permission (I assume when you buy a CD or whatnot you pay for that).
Of course, there are other issues with GSV. If I'm watching obscene content inside my house and GSV photographs through my window, thereby displaying the obscene content in public, who is at fault? What if I lay in wait for the street view van and drop my trenchcoat at an opportune moment?
I love these kinds of cases because everyone can sue everyone. In general, the panopticon creates more and more cases where everyone has some blame (and can be arbitrarily hassled by the po).
No. The decision specifically mentions photos of streets (where artwork is incidentally depicted) as the core purpose of the freedom of panorama law. The decision says that online photo databases were not anticipated by the lawmakers, and therefore should not be considered freedom of panorama.
No. Street View does not offer a list of all artwork, and a way to find the images of them. Thus it would not fall under the "database of artwork" umbrella mentioned in the law. There is no metadata such as author of the work etc. that would make it a database of artwork.
If you enter 'statue' in the search, it'll give you a list of famous statues. If you click any of them, you are shown the artwork together with a description.
This seems to fit the description of a 'database' given elsewhere in this thread, but it may be that some detail in the law allows things like this. Perhaps because it is a database that contains other things than art as well.
That's a good point, I didn't know about that functionality. I'm not sure the distinction that the database also contains other, unrelated, data and photos matter in this case.
Certainly the database that google has backing its mapping service has commercial value in a much more obvious way compared to the wikimedia public artwork database.
I guess that the licensing agency either didn't know of this function, or else started with the easier target.
My baseless guess for the outcome if they sue google is that google would win on jurisdictional grounds after five years of battle.
That is the same argument that typing "Avengers 3 torrent" in Google Search gives download links, so Google are liable for copyright infringement the same way Pirate Bay is. While technically true, there is a diference in intent here that needs to be taken into consideration.
Interesting. To me that reads like I can reproduce the art as soon as any of the three points is true. In that case the exception in the third point wouldn't matter, because we already have permission by the first point. I wonder if lawyers have a specific way of reading it though..
Laws are read in order of specificity. So the most restrictive law takes precedence. For example. In the sentence above, depictions in a catalogue is more specific than any depiction in a public place, so that takes precedence. (And in general, the constitution takes precedence over all other laws)
As you may realise. There is a huge room for interpretation in the specificity, which is why we have courts & judges that settle these matters.
current title "The Illegal Map of Swedish Art " is clickbait. The map is fine, photo of work of art were included in the map and those were found infringing.
No, it is the act of pooling images into a database that is the issue. According to the court including the copyleft licensed photos in the database creates value that the creators then have a claim on.
It is however from the ruling not clear exactly how the photos and metadata create value; for instance it seems clear like just hosting all the offending images on a separate service and naming them with guid:s will be perfectly fine so long as the user has to navigate and find the image themselves.
Actually, it is the reverse. It is the database (ie. the map) that was found to be illegal. The photos contained within are not. And if they were not assembled into a database, they would all be perfectly legal. This is even explicitly mentioned in the court decision (in swedish): http://www.hogstadomstolen.se/Mer-om-Hogsta-domstolen/Nyhete...
through translate.google.com and learned to my horror that the defendant in this case was Wikimedia, not some map/app designer.
I could not tell who the plaintiff was, it translates as "Plaintiffs in the district court Image Copyright in Sweden oak. for., 769610-3121 Hornsgatan 103 117 28 Stockholm" I looked at that address on google maps and discovered that it is hard to find the front door of a building in Stockholm.
BUS (http://bus.se/en ). It's a copyright collecting society. That is, if you own the copyright in a visual work, you can assign it to BUS and they will sell the publication rights for you (and take a 20% commission). They also manage some compulsory copyright licence schemes. This is a standard way of managing royalty fees in Europe (https://en.wikipedia.org/wiki/Copyright_collective ).
The public may own the physical artwork, but may not own the licensing to reproductions of it. Searching Cloud Gate on shutterstock.com will quickly show you that all of the images are editorial use only for this reason.
> Therefore Offentlig Konst can no longer show you a picture of a work of art, even when the artwork is in public ownership, on public display and sited in a public area,
If artist are concerned about copyright, then they should make art that can't be copied; take some comfort in knowing Banksy agrees with me, though even then, I'm still have the same opinion.
Probably, unless Wikicommons voluntarily takes down the photos. Apparently, "Wikimedia Sverige will be consulting with our lawyers and Wikimedia Foundation the coming weeks about what this really means and what our options are." (https://commons.wikimedia.org/wiki/Commons:Deletion_requests... )
I was asking the same thing. After thinking about it for a bit and reading more about the case, I think the short answer is no.
I think it could be argued that the nature of Ingress and the main purpose of it is NOT to exploit pictures to the public without paying the artist/sculptor in question. However this could obviously be up for debate, and I guess part of it depends on whether anyone sues Google over it.
Another important point to make is that the suing party in this case states in their press release, that Wikimedia could just have paid the organization a few 1000 SEK per year (~a few 100 USD) in a license fee and it would all be deemed legal.
In this case I think it would not help. The project is done by Wikimedia, which has its servers in Floria. But the U.S. version of freedom of panorama is fairly weak (buildings only, see https://commons.wikimedia.org/wiki/Commons:Freedom_of_panora... ). With this decision, it seems Sweden will also turn buildings-only. So U.S. courts will recognise the Swedish copyright.
Every nation has some weird and unpleasant laws. You're going to have to cite a lot more really weird things about Sweden in particular if you want anyone to take you seriously.
The journalist asked a lawyer if this mean that its illegal now to take a photo of public statues, and the lawyer said that it legal since the law explicitly says so, but it might not be legal to publish it" on the Internet" as that action might be considered to have a commercial value.
In my view, its a bit weird.