Commons talk:Freedom of panorama

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Stained glasses and Swiss copyright law[edit]

Hi, I'm planning to revert the latest change to that section, https://commons.wikimedia.org/w/index.php?title=Commons%3AFreedom_of_panorama&diff=141739587&oldid=140474853 (cc Yann). Commons DRs are not an adequate source. As to the users who discussed the topic with a lawyer: Folks, I think your expectations are a little too high here. First, FOP in Switzerland is almost entirely a "scientific" topic in that I know of no case involving a discussion of the statue whatsoever that would have made it to an upper court. In other words, it stands to reason that much is fairly uncertain and practicioners barely have to deal with it. Second, questions at that level of detail can't really be expected to be addressed properly when a lawyer is asked to make an on-the-spot assessment of the situation. Talking to a lawyer can be extremely helpful to get an idea of the "big picture," but extremely specific questions such as this almost always will only receive proper treatment in an opinion letter. I speak from experience here, Wikimedia-wise: I've been part of various dicussions with specialized attorneys, and, believe me, I regularly ask such specific questions as well, but it really doesn't work that well, and that's not because the lawyer is bad but because it's not something they usually have to deal with. (This is true for many legal questions that we have here on Commons.)

To the facts: I won't claim that the assertion in the edit is correct or incorrect, but I believe it is an extremely difficult question to answer. I have read, as far as I'm aware, the entire body of literature on this provision, but from what I remember I haven't noticed a single treatise or an article that addresses that question. (I have also never seen anyone mentioning that it bears any relevance if something was constructed with public funds, and it doesn't seem to fit the ratio legis, so I doubt that argument in the DR really makes sense.) It's difficult because the glass can be seen from the inside and the outside. To illustrate the difficulty, let me draw an analogy to German law (as Swiss courts also do at times): Emplying the line of reasoning of the upper regional court of Munich in Hundertwasser (which was basically: once a work meets the requirements, i.e. is located permanently at a public square/stree, one can take photos from all positions), one could probably argue that this is covered (there is no limitation concerning reproductions of the interior of buildings under Swiss law, unlike under German law); if, on the other hand, you use the argument of the German Supreme Court (which granted the appeal agains the Munich court's decision) (roughly: if a work meets the requirements, i.e. is located permanently at a public square/street, one may take photos only from the public square/street), this couldn't be covered. The important thing is that it's not something that's in the text of the statute, and you can (fairly) reasonably come to different conclusions.

I think we should not include any language in the section that suggests that the action concerned is covered/not covered untill there is a court decision or treatise writers start to discuss that topic. But before that it's a fairly arbitrary guessing game without any real value. Hence I suggest to revert this. — Pajz (talk) 15:43, 11 December 2014 (UTC)

@Pajz: I have personally no opinion in one way or the other, but I'd like our decisions to be consistent with our rules. So either we allow recent stained glass and we include that here, or we don't, but then you should renominate for deletion that image (and eventually others) so that images which do not fit our rules are deleted. Otherwise, it creates a discriminatory situation, where some images would be deleted and some would be kept, depending on the mood of the admin, or other non rationale criteria. Regards, Yann (talk) 16:00, 11 December 2014 (UTC)
Well, I (or Gestumblindi who pointed me to it) can re-nominate that one, but it cannot be my job to go through all sorts of other previous DRs: You decide a DR and add your rationale at COM:FOP (so that all other admins will follow it in all future cases), and when I suggest to remove your claim, you make me go through all sorts of DRs to change their outcome -- that doesn't seem like fair deal. I mean, I'm not suggesting to change the meaning sentence to the opposite, but to remove the sentence, as it is better to have no rule than a rule that's not correct. I don't think we should make up rules if the underlying legal situation is unclear; presumably admins should simply, as always, decide based on Commons:Project scope/Precautionary principle on a case-by-case basis. — Pajz (talk) 16:34, 11 December 2014 (UTC)
Fine for the DRs. But it is not true we have no rule. The rule is quite clearly written (It is generally held that the interior of a church cannot be depicted under Art. 27, with a reference) So unless otherwise said, stained glass is not allowed. And I don't agree with "admins should decide on the precautionary principle" is that case, that is exactly the situation I explained above: decisions will be based on the closing admin's mood, or worse (picture from my friend, etc.). Regards, Yann (talk) 16:46, 11 December 2014 (UTC)
Looks to me that you two are in agreement on the subject matter. Pajz only wants to remove the recently added sentence, which removes the "new rule" (which he was referring to), leaving the old rule (that you point out) untouched. BTW, I agree that this recent change should be undone. The only evidence we have (in the form of published legal commentary; the "old rule") points to "no", so we'd really need very convincing published evidence pointing to "yes" if we were to change that. Unfortunately, the point has not been tested in court in Switzerland.
As for admin conduct, yes, PRP applies. If there are other problematic shots, they'll get nominated for deletion eventually. "Other crap exists" was never a reason not to act in a particular case, even if doing so creates a temporary situation in which the handling of a class of cases is inconsistent. (In fact, I rather think the keep closure of that DR was the inconsistent bit. I think interior stained glass shots from Switzerland were otherwise generally deleted under the old rule you cited, if they were nominated for deletion. See for instance this one. I don't think anyone ever went through all Switzerland-related photos and consistently put up interior shots of still copyrighted stained glass up for deletion, though.) Lupo 17:14, 11 December 2014 (UTC)
That's exactly the problem I mentioned above. Nobody looks systematically into all potential cases, and your "eventually" translates to practically never. Regards, Yann (talk) 17:52, 11 December 2014 (UTC)
Heh. That's the problem with a system that depends on volunteer work. You can't press volunteers to do something specific. Nearly nobody is going through the 16000 "Mobile Web" uploads to check, either. And I'm sure we have lots of similar problem spots. Lupo 18:02, 11 December 2014 (UTC)
It's much more than just a lack of volunteers. People rather like to nominate complex borderline cases, than just plain obvious copyvios. The later ones are boring, while the former ones are exciting (for some people at least). Regards, Yann (talk) 18:10, 11 December 2014 (UTC)
I agree. Just when I had saved, I realized that I should have written "You can't press volunteers to do something specific, especially if it's not fun, boring, and likely to annoy lots of people and may mean you'll have to take some flak." Anyway, we're sailing quite off-topic here. OK to revert [1]? Lupo 18:18, 11 December 2014 (UTC)
Fine. Like I said, I don't have a legal opinion about that. I'd just like our decisions to be consistent. Regards, Yann (talk) 19:34, 11 December 2014 (UTC)
Undone and re-nominated the file. See Commons:Deletion requests/File:Cathédrale de Lausanne - Vitrail - Edmond Bille - L'homme de douleur.jpg. Lupo 22:37, 11 December 2014 (UTC)