Commons talk:Freedom of panorama/Archive 3

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Romania

The section on Romania refers to the "Romanian copyright law of 1996"; but what about pictures taken before that? Andy Mabbett (talk) 23:03, 12 September 2009 (UTC)

Normally the documentation of the LAW when written would also prescribe the application to works prior to the changes. Where there isnt such documentation then one would apply the law as it currently stands. Gnangarra 03:00, 13 September 2009 (UTC)

Which doesn't really answer my question. Andy Mabbett (talk) 12:47, 26 September 2009 (UTC)

The law doesn't say you cannot take pohoto of a building, but simply the legislator wants to protect the architect that others build the same building he designed, without his permission and remuneration. So taking photo of a building's plan and selling it would be a violation of property rights, but taking photo from a public space to whatever you want makes it a photo, which itself is a different object and is the property of the photographer. In Romania, as long as you are on public space, you can take photos of whatever you want and your property of those photos is fully guaranteed.--Radufan (talk) 18:39, 13 November 2009 (UTC)

Mali

Does FOP apply in Mali? Malian laws can be downloaded in PDF format from the Parliament's website. V85 (talk) 21:12, 1 November 2009 (UTC)

There was no copyright legislation on that website. But I found the relevant Ordinance on the wipo website. See the results of my findings on COM:FOP#Mali. Teofilo (talk) 23:47, 6 December 2009 (UTC)

Statue in the garden of a hotel in Spain

The FOP for Spain says: "Works permanently located in parks or on streets, squares or other public thoroughfares may be freely reproduced, distributed and communicated by painting, drawing, photography and audiovisual processes". What about a statue in the garden of a hotel? The photos I have concern a bronze statue made in 2008 for the hotel (Realizada en bronce para el Hotel Jardines de Nivaria en Tenerife Obra de Bruno Cuevas). Wouter (talk) 12:28, 20 November 2009 (UTC)

German law allows photographers to take pictures that are visible from publicly accessible places. This includes private ways and parks with common access. However, it does not include railway station buildings or platforms : COM:FOP#Public places. I guess in most hotels you can't go to the garden, sit down on a bench and read a book if you are not a hotel customer, so a hotel garden does not seem to be a "park with common access". For Spain I don't know. The best would be to ask a Spanish lawyer. Teofilo (talk) 15:59, 7 December 2009 (UTC)

street pictures

Could somebody please tell me, if street pictures made with graffiti or paints are copyrighted. Thanks.--Mbz1 (talk) 18:02, 13 December 2009 (UTC)

Hi Mbz1, in case of murals this depends on the country where the photograph was taken. For graffitis please be refered to our image casebook. Regards, AFBorchert (talk) 18:11, 13 December 2009 (UTC)

Thank you!--Mbz1 (talk) 18:21, 13 December 2009 (UTC)

U.S. FOP: "has been constructed"

Hold on, since we're all on this topic right now, would the wording of that clause mean that we cannot legally host any photographs of uncompleted buildings from the United States on Commons because of its choice of wording? Would being a WIP be considered "has been constructed"? ViperSnake151 (talk) 19:54, 17 December 2009 (UTC)

I would think so, since the elements in the photograph have indeed been constructed. I think it is worded that way to prevent photos of non-public information, such as plans, models, etc. of non-constructed buildings from using that clause as a way around the true target of that copyright (preventing other architects from copying the design on other buildings). It was also used to define which buildings counted as copyrightable in relation to the active date of the copyright law change -- buildings which were still under construction at the time did get the copyright protection; only buildings completed before that date are still completely PD (as to the architecture). Carl Lindberg (talk) 22:55, 17 December 2009 (UTC)

Slovenia

Has Slovenia the freedom of panorama? --88.78.239.248 19:16, 29 October 2009 (UTC)

Not quite, according to Article 55 of their law, Works permanently placed in parks, streets, squares, or other generally accessible premises my be used freely, except that they may not be reproduced in a three-dimensional form, used for the same purpose as the original work, or used for economic gain. The last part -- economic gain -- is a problem, as that is essentially a non-commercial restriction. Carl Lindberg (talk) 03:55, 30 October 2009 (UTC)

Sounds to me that the meaning is that you cannot build the same building/object without restiction, although you could do that, with some restrictions. That sounds quite a lot of freedom to me. Photography...oh, but that's quite a different issue! A photo is certainly not 3D and not the same with the object you photographed. To me it seems that the legislator wants to protect architects from having their works copied (ie. others do the same buildings) and certainly not to impede others to take photos of that building viewed from public domain.--Radufan (talk) 18:34, 13 November 2009 (UTC)

In "real life", yes that is pretty much free of restrictions -- you can take pictures, post them to websites, etc. But, you can't use them for economic gain -- say, selling postcards with those photos -- and that is not a restriction permitted by our Commons:Licensing guidelines (i.e., in order to make the license in the first place, you still need the permission of the author of the pictured object, as they still control economic rights). You are correct that the first two parts that I quoted (reproduced in 3D form, and used for the same purpose as the original) are not barriers to such images being uploaded here. It is only that last bit which is the issue. Unfortunately. Carl Lindberg (talk) 04:25, 14 November 2009 (UTC)

The second part of the sentence, the restriction, is only applicable for three dimensional copies of the work, which has nothing to do with the question whether freedom of panorama exists in Slovenia. I have seen this restriction in other legislations as well. My conclusion is the opposite of the one above by Carl Lindberg. Yes, User:Radufan, there is freedom of Panorama in Slovenia.--Gerardus (talk) 12:17, 28 December 2009 (UTC)

The second part clearly mentions that three dimensional copies are not allowed under any circumstances, so the "no economic gain" part would have to refer to two-dimensional derivatives. And yes, this type of freedom of panorama law is fairly common, and all such countries have a "Not OK" marker in this article, as unfortunately that condition is incompatible for Commons' purposes. Carl Lindberg (talk) 15:28, 28 December 2009 (UTC)

If this English translation is indeed correct (can't anyone speak Slovenian???), it is indeed a "freedom of panorama" not worth its name, since it's not economically free, and hence not usable on Commons. The "or" makes this quite clear. --AndreasPraefcke (talk) 13:48, 28 December 2009 (UTC)

Latest official "Copyright and Related Rights Act" in force since 2007 have same "economic gain" restriction. So no FOP in Slovenia --Justass (talk) 15:40, 28 December 2009 (UTC)

The economic gain part is mentioned in paragraph 2 of article 55, which is related to threedimensional copies of the work, and not in paragraph 1, where the free use of the works is allowed. That is not so very clear at all.--Gerardus (talk) 15:55, 28 December 2009 (UTC)

Paragraph 2 refers to the foregoing paragraph (obviously Nr. 1) and adds limitations to the "free use" mentioned in the first one. So they don't allow:

• 3D reproductions
• same usage (I presume they refer to the 2D works, like derivative of poster cant be used as poster)
• usage for economic gain

all those limitations are equal and economic one don't refer to the 3D, but to the all permanently placed works mentioned in the first paragraph. --Justass (talk) 16:05, 28 December 2009 (UTC)

UK National Trust

The National Trust has bylaws controlling photography on its property: " 17. All photography at National Trust properties other than that for private and personal use or for entry into approved competitions is strictly prohibited. 18. Photographs taken for private and personal use may not be used in any other context or submitted to any photo libraries or on-line agencies or sold directly to any image buyers. Photographs taken for entry into competitions may not be used in any other context, including submission to any photo libraries or on-line agencies or sold directly to any image buyers, other than those confirmed by the competition organizers."

Panoramas of National Trust land, much of the coastline over 200 historic buildings, are restricted. Photographs from public footpaths etc are allowed but not when taken from other publicly accessible places on National Trust land. Kwenchin (talk) 11:43, 22 December 2009 (UTC)

The photographer would still own the copyright to the photo. It is up to them if they want to respect the above restriction, or take any and all risk associated with ignoring it by uploading it. See Commons:Image casebook#Museum and interior photography and the links there. Their own FAQ says We welcome amateur photography out-of-doors at our properties, but says "commercial photography" needs permission. There is a thread about it; apparently the National Trust is relying on ticket-back conditions as a legal basis (i.e. an adhesion contract). This "freedom of panorama" page is strictly about the copyright status of photographs of copyrighted objects, not issues such as the above mentioned, and somewhat ironically never really applies to photographic panoramas as those never focus on a single copyrightable object. Carl Lindberg (talk) 13:53, 22 December 2009 (UTC)

This whole National Trust thing is getting repetitive, restrictive and boring. It appears they want to protect an imaginary income stream and in doing so are working against the whole reason for their foundation. It is no wonder their staff keep giving contradictory statements. Trying to understand them is a dead end. So couldn't we be a little more proactive- and get our legal wonks to but together a form of wording for license that is acceptable to us, and enter into negotiations with the trusts lawyers with the end of getting the trust to rewrite the photography clause, to something like

All high resolution photography at National Trust properties other than that for private and personal use is strictly prohibited. Low resolution photography, by which we mean images maller that 1024 by 1280 pixel is encouraged, and images so taken my be distributed under a CC-BY 2.0 license, provided the National Trust is credited and a link given to the official National Trust Photo Library.

I do think this is worth doing because if we suceed we have helped the National Trust out of position that they do not wish to occupy and it would then act as a precedent that we could propose to museum authorities world wide.--ClemRutter (talk) 16:27, 31 December 2009 (UTC)

That would probably be giving them more rights then they really have; I'm pretty sure they own no copyright interest in photos other than they take themselves, no matter what the ticket backs say. I'm not sure we want to permanently give any private institution the right to eliminate all high resolution images from Commons of their properties, which is the effect of the above proposal, and goes completely against the philosophical position described in Commons:When to use the PD-Art tag. Our deletions have always been strictly on copyright grounds; the most we may want to do is make a tag so that UK re-users are aware of the possible issues. We do that with some other national-level restrictions, but we don't delete them either. But again, the issue has nothing to do with freedom of panorama, which is what this talk page is about. Carl Lindberg (talk) 14:43, 1 January 2010 (UTC)

As usual you are right. This issue moves from page to page like an amoeba- but I do feel we need to take the lead and approach the National Trust to get them to change. The idea of producing a NT licence warning tag, is good in that it would be easier to advice our contributors to use that tag rather than reopening this discussion. --ClemRutter (talk) 15:45, 1 January 2010 (UTC)

Israel FOP

Israel painting, June 2009

Deror now added the following to COM:FOP#Israel: "The term "applied art" (אמנות שימושית) is not defined by the Law and have not been treated by the Courts, however it arrises from the previous 1911 Law. Previous scholars have delt with this term and gave as an example artwork hung in museums (i.e. 2D art displayed in a public place)."

This is rather imprecise, and I doubt that it is true. The old 1911 British Mandate FoP would have been similar to {{FoP-UK}}. The new 2007 Law says in its definitions that artistic works (יציר אמנותית, work of art) include "including, drawings, paintings, works of sculpture, engravings, lithography, maps, charts, architectural works, photographic works and works of applied art" (יצירת אמנות שימושית, useful work of art); clearly these are different categories of works. Of these different categories, the 2007 FoP provision exempts only "architectural work, a work of sculpture, or work of applied art" when permanently situated in a public space, but drawings, paintings, engravings, lithography, maps, charts, and photographic works are not exempted. I will revert the addition. /Pieter Kuiper (talk) 06:42, 8 June 2009 (UTC)

With all due respect, you should address your complaints to the Israeli parliament, not to us. We are acting according to the existing law and authorized interpretation. If you think the Israeli law should be phrased in a better way, I you may visit the website of the Israeli parliament and tell the members they don't do their work properly. For the time being, Deror who is an Israeli lawyer gave you a perfect answer to your doubt, and another lawyer who is an expert in this issue, backs his opinion. What else do you want? Drork (talk) 07:58, 8 June 2009 (UTC)

Another important remark - none of the Israeli statutes is a British statute. The judicial systems split on the 15th of May 1948. Israel has decided to retain legal status quo, but its courts of law are not obligated to any interpretation made by the British courts of law. The idea that what is legal in the UK is also legal in Israel is simply wrong. Drork (talk) 08:01, 8 June 2009 (UTC)

The Courts rulled in 1985 that freedom of Panorma as defined by the 1911 Law applies to 2D. In 2007 the legislator did change the phrasing to a more modern term - but the term has the same meening the the legislator specificaly stated that it does not intend to change the status quo with regards to FOP (there is a small change which is irrelevent to this discussion and deals with photography of statues that are on private property from outside that property - but as I said, this is irrelvent to the question at hand). Deror avi (talk) 08:40, 8 June 2009 (UTC)

Please give a reference to that 1985 case. According to a reply by Doron Sieradzky, Israeli courts used to follow English precedents in copyright law. Sieradzky says that in 1980 the Knesset spoke out against this, but that judges continued to do this. And the 2007 Law is roughly in accordance with UK-FoP, which I suspect was status quo. /Pieter Kuiper (talk) 08:51, 8 June 2009 (UTC)

The Courts also check Canadian, US, French an German precedeints. UK precendents do not apply at all with regards to Contract Laws (which are based on the BGB). In this case there are rulings with regards to these terms - which are not based on UK law. Deror avi (talk) 09:55, 8 June 2009 (UTC)

So Bundesgesetzbuch for contract law, UK precedents for copyright law. /Pieter Kuiper (talk) 10:05, 8 June 2009 (UTC)

No. It is much more complicate. Only Israeli Supreme Court's ruling are binding. When interpreting terms, one should check the origin of the Law, but always (according to the 1980 Law [1]) first comes the presedents of the Israeli Court, then the Hebrew Law (the religious Law) and only then the origin Law - in any case - according to Secion 2 of the said Law - UK law is not binding with regards to the 1911 Copyright Law. In this case there are rulings with regards to these terms - which are not based on UK law.

The rullings with regards to the terms are: OM 9496/91, bubbles inc.s.a.1the roy export company establishment v. Rivlin; CA 513/89 LINES BROS. S.A-EXIN v' S/INTERLEGO A; RCA 2687/92 Dudu Geva. In these the court rulled what is "מלאכת אמנות" (which is in modern hebrew "אמנות שימושית"). In all these cases - the work was 2D, there was also one case which delt with toy cubes - but that is not relevant here (also in all these cases the work was not in the public domain, and therefore not FOP). Deror avi (talk) 10:19, 8 June 2009 (UTC)

Even if some 2D designs can be included in "applied art", that does not mean that that any painting is applied art. The parties in these copyright cases were companies, and I guess that the lawsuits were about mass produced goods. But it does not seem right to extend such rulings to a unique portrait or to maps displayed on signs. /Pieter Kuiper (talk) 12:25, 8 June 2009 (UTC)

I don't understant on what do you base your incorrect statement (especially if you have not read the rullings). According the Presenti's book it applies to drawings hung in a museum, and the court specifically ruled with regards to signs. Deror avi (talk) 12:56, 8 June 2009 (UTC)

This is annoyingly imprecise. Which case was about signs? Were the signs being infringed upon or were the signs the infringement? Anyway, I had missed that en:Dudu Geva was a cartoonist who was being sued by Disney for infringement on Donald Duck. Disney won. I do not see how the case is relevant here. /Pieter Kuiper (talk) 13:43, 8 June 2009 (UTC)

The signs were being infringed upon and in the Geva case an interpretation of the meening of "applied art" by the Court is mentioned - the infringment is by a drawing of a duck. The drawing of a duck is "applied art" and infringes the rights of Disney. So what if Disney won. the Court specificaly said that "עיצוב הדמות ואיפיונה המיוחד מהווים כשלעצמם "מלאכת אמנות"; אלה באים לידי ביטוי ויזואלי, באופן הנכלל בקטיגוריות של "ציור" או "שרטוט". יצוין, כי בסופו של דבר ההבחנה בין רובדי היצירה בהקשר זה איננה חדה, באשר עיצוב הדמות ואיפיונה מוגדרים באמצעות השרטוט הגראפי וההנפשה (האנימציה)."

Even a 0D artwork (a concept) may be "applied art" such as the distinct walk cloathing, and standing position of Charlie Chaplin: "דמות מיוחדת כזו היא "מלאכת אמנות ", כהגדרתה בסעיף 35 (1) לחוק זכות יוצרים ". Deror avi (talk) 13:52, 8 June 2009 (UTC)

How on earth Geva's case became relevant here? Geva wanted to incorporate Donald Duck into one of his comics books. The court said he may not do that because Donald Duck is copyright protected. This has nothing to do with FOP. BTW, don't you want to come to Israel? We have sandy beaches, a lot of sunshine, and full Freedom of Panorama. A Wikimedian paradise. Drork (talk) 15:05, 8 June 2009 (UTC)

It is relevent because it is one of the few places where the Court delt with a definition of "מלאכת אמנות" ("arts and crafts" or "usefull art"). 15:23, 8 June 2009 (UTC)

Drork is right, all this lawyering is not relevant. It comes as no great surprise that Israeli courts would consider Lego construction toys (the Interlego case) or Disney characters (the Geva case) as "applied art". They are seen as artistic works that are not paintings, lithographies or sculptures, so they end up in the elastic category of "useful art". These cases have no bearing on freedom of panorama. Summarizing: according to a straight reading of the new law, paintings are not exempted by FoP. The new law was not supposed to be a change in FoP, and indeed, the simple reading matches the English interpretation of the 1911 Mandate Law. Deror has not given a basis in law for his addition. /Pieter Kuiper (talk) 07:02, 9 June 2009 (UTC)

As detailed before Pieter Kuiper is not a Hebrew speaker, have no knowedge of Israeli Law nor UK law, and has no understanding of rules of interpretation of Israeli Law wharsoever.

I do not understand on what he bases his above summery (he brings no information in support of his odd opinion). According to the 1911 Law, and based on UK cases (such as the Hensher case) which stated that stain glass windows is FOP, and this has also been applied to frescos. The only remaining question is paintings hung in a museum and as to that it has been stated clearly by Presenty that: "מקום ציבורי שהמבקר בו נכנס אליו תמורת תשלום או הרשאה לדוגמא מוזיאון רשאי בעליו להגביל את הצילום או ההעתקה של היצירות שמוצגות בו. העובר על הגבלה זו מפר הסכם בינו לבין בעל המקרקעין או בעל זכות היוצרים אך אינו מפר זכות יוצרים ביצירה. גם העותקים שיצר אינם עותקים מפרים. התרופות שיעמדו לבעל המקרקעין או בעל זכות היוצרים הן תרופות בגין הפרת חוזה". The 2007 Law did not change any of that. The interpretation of the term is simple, and I have no doubt that Paintings ("ציורים") are indeed "אמנות שימושית" based on all the tests used in Court rullings, and based on the definition of "מלאכת אמנות" in the Gevah and other above cases (which I am sure Pieter Kuiper have neither read nor understood - because should you have read or understood them, you would not say it is irrelevant).

To sum up - until the Supreme Court of Israel declairs otherwise, or until the Law is changed, FOB does include all works of usefull art (which is any object done with artistic craftsmanship, even if mass produces, and of course include 2D objects such as paintings), if it is permenantly places (according to the intension of the placer) in a public place (as accepted by the Israeli Courts - which may include malls and private cemetaries). Deror avi (talk) 07:23, 9 June 2009 (UTC)

The quote in Hebrew seems to say that a museum may limit photography on its premises, but that such a restriction is not a copyright restriction. The quote does not mention paintings. /Pieter Kuiper (talk) 07:31, 9 June 2009 (UTC)

Your tanslation is inaccurate (are you using google translator?). Deror avi (talk) 07:39, 9 June 2009 (UTC)

According the Presenti's book it applies to drawings hung in a museum, and the court specifically ruled with regards to signs. Deror avi (talk) 12:56, 8 June 2009 (UTC) - - > Could you please provide one or two quotes from that book (with English translation, if it is an Hebrew book) and full book references (i.e. full writer's name, book title, book publisher, page numbers) ? Teofilo (talk) 13:27, 24 June 2009 (UTC)

The quote is translated above. it is on page 934 - 935 ofDr. Sarah Presenti's book "Copyright and neighbouring rights", published in Hebrew, in Tel Aviv 2000. Also in Tony Greenman's book "זכויות יוצרים, אמנים ומפיקים" in page 85.— Preceding unsigned comment added by Deror avi (talk • contribs) 12:51, 25 June 2009 (UTC)

Israel painting, July 2009

I am Sorry, but this is a long discussion page, and I can't see exactly where this quote is provided and where its translation is provided. All I can see is the quote "מקום ציבורי שהמבקר בו נכנס אליו תמורת תשלום או הרשאה לדוגמא מוזיאון רשאי בעליו להגביל את הצילום או ההעתקה של היצירות שמוצגות בו. העובר על הגבלה זו מפר הסכם בינו לבין בעל המקרקעין או בעל זכות היוצרים אך אינו מפר זכות יוצרים ביצירה. גם העותקים שיצר אינם עותקים מפרים. התרופות שיעמדו לבעל המקרקעין או בעל זכות היוצרים הן תרופות בגין הפרת חוזה" provided by you without page numbers or book title, and no English translation. Pieter Kuipers provides some sort of translation, but you opine that his translation "is inaccurate". If you keep your opinion that Pieter's translation is inacurate, can you please provide an alternative English translation, which you would approve as being "accurate" ? Teofilo (talk) 20:16, 10 July 2009 (UTC)

The quote is translated above. it is on page 934 - 935 ofDr. Sarah Presenti's book "Copyright and neighbouring rights", published in Hebrew, in Tel Aviv 2000. The quite says that a museum for example, may limit the photography therein only on contractual basis and not on copyright law (due to the exclusion in the law for work permenantly hung in public place). Deror avi (talk) 09:48, 11 July 2009 (UTC)

Deror Avi has so far not shown that FOP in Israel also is for paintings. I will again remove this from the project page when decent translations of Hebrew quotes are not supplied. /Pieter Kuiper (talk) 14:49, 14 July 2009 (UTC)

I, as a Hebrew speaker, believe that the above parograph is a decent translation of the above. If Pieter Kuiper belives otherwise, he should state why (and based on what). In my personal opinion this is another bad faith attempt of him to cause damage to the Wikimedia foundation and its projects. Deror avi (talk) 19:26, 14 July 2009 (UTC)

I have left a message on the Hebrew Wikipedia's Village Pump. Hopefully someone will provide translation help. Teofilo (talk) 19:56, 14 July 2009 (UTC)

From Hebrew Wikipedia, here I come. A translation of:

מקום ציבורי שהמבקר בו נכנס אליו תמורת תשלום או הרשאה לדוגמא מוזיאון רשאי בעליו להגביל את הצילום או ההעתקה של היצירות שמוצגות בו. העובר על הגבלה זו מפר הסכם בינו לבין בעל המקרקעין או בעל זכות היוצרים אך אינו מפר זכות יוצרים ביצירה. גם העותקים שיצר אינם עותקים מפרים. התרופות שיעמדו לבעל המקרקעין או בעל זכות היוצרים הן תרופות בגין הפרת חוזה

is:

"A public place that a visitor enters in exchange for payment or authorization, for instance a museum, may restrict photography or copying of works displayed in it. A person breaking this restriction is breaking an agreement between him and the owner of the property (meaning the physical place, i.e. museum. okedem) or copyright holder, but is not infringing on the work's copyright. The copies he created are also not infringing. The remedies available to the property owner or copyright holder are the remedies for breaking a contract."

So a person photographing some work in a museum where photography is prohibited is breaking a civil contract, but the copies he made are perfectly legitimate. Where photography is not prohibited, there no issue at all. Okedem (talk) 21:04, 14 July 2009 (UTC)

Thank you very much! So the quote does not mention paintings, and it does not say anything about paintings being exempted from copyright protection by the FOP-provision. It is my impression that this text presupposes museums with old stuff: archeology, old tools and statues, PD-old paintings, etcetera. /Pieter Kuiper (talk) 21:24, 14 July 2009 (UTC)

That is a far-fetched interpretation. The text clearly speaks of a "copyright holder", which does not exist for the items you mention - thus, the text deals with copyright-protected works. It clearly speaks of "works", which includes paintings, photos, etc. Don't twist the words, please. Okedem (talk) 21:27, 14 July 2009 (UTC)

Thank you Okedem. It is very nice of you to come for help so quickly. To Deror Avi : this text means several things. One of the things meant by the author could be : if the artist is your friend and says "OK you can take a picture of my work, and put the picture on your website or Wikipedia", from a copyright point of view, you can take a photograph because the artist said "OK", but if the work happens to be located in a museum, you must still ask the permission from the museum if the museum has rules concerning the taking of photographs. You need two permissions : the permission of the artist and the permission of the museum. Teofilo (talk) 21:43, 14 July 2009 (UTC)

Don't forget that the book is a book relating to copyright law, and the relevant chapter is the one regarding FOP in Israel, and with this regard, as I said - it is not a questions of copyright (only of contract infringment), which is irrelevent to the commons. Deror avi (talk) 08:02, 15 July 2009 (UTC)

(ec) Wow that really does sound like Israel does essentially have FOP for paintings. The contractual situation between the uploader and the museum/other establishment is between them, and would not cause Commons to delete it. The uploader would take whatever contractual risk exists, but if they want to upload it, the copyright part sounds OK. Carl Lindberg (talk) 03:45, 15 July 2009 (UTC)

See Commons:Non-copyright_restrictions#.22House_rules.22. In most places, "house rules" like museum no photography rules are civil contracts that affect only the photographer and not the photo. Dcoetzee (talk) 03:44, 15 July 2009 (UTC)

If Sarah Presenti wrote a whole chapter on Freedom of Panorama it would be more interesting to focus on her comments on copyright law than her comments on contract law, because our main concern on Wikimedia commons is copyright law. Does she refer to specific articles of the copyright law of Israel ? Which article numbers ? Does she give a definition of "works of applied art" ? The copyright act of 2007 of Israel includes the following definition in article 1 : In this Act [...] "Artistic work" – including, drawings, paintings, works of sculpture, engravings, lithography, maps, charts, architectural works, photographic works and works of applied art; (source). So it is very clear from the start that in the Israeli law "paintings" and "works of applied art" are two different things. Thus it is very clear that the "works of applied art" mentioned in article 23 of the law : "Broadcast or copying of work in public place", do not include paintings. Teofilo (talk) 12:45, 15 July 2009 (UTC)

no it is not - one can include the other - I have answerd this questions several times befor above. This is not how laws are interpreted. Basicly the 2007 law did not change anything with this regards, and the interpretation of 1911 still applies. "works of applied art" is modern Hebrew for "arts and crafts" which includes any useful object which is a work of art - for example - a window is a usefall obeject that is not a work of art but stained glass is` a floor is not but a mosaic is etc. A palin carpet is not but a hanging painted carpet is. The chapter deals with the questions of what is "Public domain" and what is "permenantly placed" - with regards to images in museums - the above quote is very clear - no copyright probles just contractual ones (usually museums in Israel forbid photography). Deror avi (talk) 19:20, 15 July 2009 (UTC)

In none of the countries of the Commonwealth where the 1911 law was in force, paintings are covered by FOP. The British Mandate had the same law texts, and until 2007 also Israel did. Your interpretation is out of line with everybody else's. Of course it is possible that Israeli courts ruled differently, but it would have been noticed in the literature. /Pieter Kuiper (talk) 20:01, 15 July 2009 (UTC)

"it would have been noticed in the literature" - see Prezanti's book. OK. There was never a copyright claim filed in Israel against someone who took an image of a picture hung in a public place - so there are no court rulling. Once a claim was filed against a person who took a picture of a statue in a gallerie, and the Court rulled that it was a breach of copyright as it was a temporary exhibition. Numerious copyright claims are filed every year, and numerous rullings are published yearly on copyright issues so it is not a questions of lack of claims but rather a fact that something is possible. Unless the Supreme Court rulles otherwise (Magistrate and Distrcit Court are not binding precedents) or a new anactment is made - that is the current law. Deror avi (talk) 08:23, 16 July 2009 (UTC)

Lack of lawsuits is nore likely due to professional publishers paying royalties to copyright holders, and to the fact that there is no collection agency in Israel for visual art. It does not say anything about the law. /Pieter Kuiper (talk) 21:51, 18 July 2009 (UTC)

No. As usuall. you are completely wrong. Deror avi (talk) 06:51, 21 July 2009 (UTC)

No progress on Israeli FoP at the Village Pump

Teofilo brought the lack of evidence for "useful art = anything commons can use" to the Village Pump archived here. And as usual, the response by Deror avi is mostly rethoric. I will remove the unsupported phrase again from the project page. It is not grammatical anyway. /Pieter Kuiper (talk) 19:40, 12 September 2009 (UTC)

Two Israeli Lawyers who understand the law state it is correct. Why dont you stop arguing on a subject you have no understandig of and in a langauge you now nothing about. Deror avi (talk) 16:32, 16 September 2009 (UTC)

Language does not matter. The mandate law was in English, and everybody seems to agree that the 2007 law did not materially change rules for FoP. You are drawing on a single phrase in Presenti's book on copyright, which is dealing with the text of the English law. The quote you gave does not support your phrase: "According to Dr Presently, the leading Israeli Copyright Scholar, this term applies to all works of art displayed permenantly in public, including any artwork hung permenantly in museums." That is why it is better to attribute that opinion to you. /Pieter Kuiper (talk) 17:01, 16 September 2009 (UTC)

You are incorrect. Israeli Law is interpreted according to the Hebrew Version of the Law since 2008, and according to Israeli interpretation principles since 1980. Presanti deals with the the Law and states that there is no copyright issue in derivative work if artwork in museums if it is premenantly hung there - any artwork including pictures. The Law is simple and should be interreted accordingly. By the way - according to the UK Court precedents Stained glass windows are free. Today, in israel, any useful object (no matter what it is) that has artwork on it - is free if permenantly in a public place. Deror avi (talk) 17:17, 16 September 2009 (UTC)

Please remind us - what year wrote Presenti that phrase that you rely on? /Pieter Kuiper (talk) 17:23, 16 September 2009 (UTC)

Presanty wrote her book in 2000 and she delt with the 1911 version of the Law. The 2008 Law is even clearer. Deror avi (talk) 18:38, 16 September 2009 (UTC)

Wait. A museum is considered a public place in Israel and therefore any work contained is public domain. I cannot believe that is what the law says. Nobody would ever exhibit their work in an Israeli museum if this were the case. I think we need to reread exactly what is said. --Bastique ^demandez 17:57, 16 September 2009 (UTC)

That's the way it is. That is why museums forbid photography (which is a contractual agreement with the visitor - when a visitor enters a museum he contractual agrees not to take pictures - and there are personal in each room forbiding taking pictures. Of course -there are some museums which allow photography) - because otherwise the would take the derivative pictures which will be free. Deror avi (talk) 18:36, 16 September 2009 (UTC)

The fact is - for the past 50 years hundrds of thousands of pictures were taken of 2D objects in public places and never a claim was filed at court, while in fact hundred of copyright claims are filed each year (many against internet sites). A claim has never been filed - because the law is understood by all. Deror avi (talk) 18:47, 16 September 2009 (UTC)

Ahem... who in hell is "Dr Presently, the leading Israeli Copyright Scholar"??? Lupo 21:34, 16 September 2009 (UTC)

Oh, I see... a typo. Well, what's her name? Presanty, Presanti, Presently? Lupo 21:36, 16 September 2009 (UTC)

Sarah Presenti, http://www.presentilaw.com/ /Pieter Kuiper (talk) 21:48, 16 September 2009 (UTC)

A museum is also considered a public place in the UK, and any photographs of permanent exhibits of 3-D artwork there are not considered derivative works (even if the original work is still under copyright). So, that same concept exists other places too -- yet artists, I'm sure, still do exhibit 3-D works in museums there. The Israeli law is based on the 1911 UK law, but the question is mainly if this same concept under Israeli practice has morphed to include photographs of 2-D works as well, which is generally not the case for countries based on the UK laws, but it is always possible that Israel is different. Carl Lindberg (talk) 06:36, 17 September 2009 (UTC)

I have never met Dr. Presenti, but I have studied in detail copyright Law in the university (my LLM is in Comparative Constitutional Law, but as part of my LLB studies I took many courses in copyright law) and Presenti is considered the no. 1 expert in Copyright Law in Israel (the other experts are Prof. Birnhak (בירנהק) and Adv. Grinman (טוני גרינמן). From my experiance at the Courts (during internship), the justices look at Dr. Presenti's book when giving judgements with regards to Copyright Law. Deror avi (talk) 07:34, 17 September 2009 (UTC)

Surely courts would look at the law first. Presenti does not say what you claim she says. The quote as translated by User:Okedem here makes perfect sense when applying it to sculptures in museums for which there is FoP or to old paintings. For your reading, however, there is no basis in law, nor in court decisions. /Pieter Kuiper (talk) 13:47, 17 September 2009 (UTC)

When reading Presenti you should note that she speaks of all works displayed in a museum - not just statues. And you should also take into account that most art museums in Israel display mostly paintings (and few scalptures). Deror avi (talk) 18:29, 21 September 2009 (UTC)

Sometimes scholars go over fuzzy legal ground before courts do... someone like w:Melville Nimmer was (and still is) *widely* quoted in legal decisions. Obviously, nobody really knows until those areas are actually tested in a court case and precedents get set, but it is at least possible. I have no real knowledge of the Israel situation whatsoever, of course. Carl Lindberg (talk) 22:37, 17 September 2009 (UTC)

I promised myself I won't get into such a discussion ever again, but things are getting a little bit out of hand here. Let me make some simple and (hopefully) useful points to end this saga, starting with the most important one:

1. Find an experienced arbitrator - In order to avoid any bias that might result from personal relations or possibly polemic attitude, I suggest handing this problem over to someone who hasn't been part of this debate, preferably someone with relevant experience.
2. This is not about Israel - Bear in mind that this problem could, and most probably will, pop up again with regard to another country or territory. Therefore we might as well think of the principles here rather than about Israel. Israel became the focus of this debate because it has a huge number of interesting sites to document, a very enthusiastic Wikimedian community, comparatively lax copyright regulations, a distinct language and no federative connections to other legal systems. We will encounter this problem again once Wikimedian communities in other interesting non-European non-N.American countries develop.
3. Some of the principle issues to be considered - (i) Do Wikimedia Projects respect any local law, or are there cases in which certain aspects of local laws are disregarded in order to conform with US/EU/WIPO norms? (ii) What kind of proofs should one supply in order to assert that a certain thing is legal in his locale? To what extent can another person challenge these proofs? (iii) Obviously, this is not the right place to conduct legal debates. Also, the old rule of "when in doubt do without" doesn't apply here, because the doubt here relates to too much material and it is not strong enough. Whom do this community turns to when it need to resolve such an issue? Drork (talk) 10:12, 18 September 2009 (UTC)

It seems the only arbitrator acceptible to Drork would be an Israeli expert on copyright. Maybe wikimedia can pay for an opinion by Sarah Presenti? If that would cost too much, I suggest someone from an Israeli artist's rights organization. Israel does not seem to have a collection agency for visual artists, but maybe someone at Eshkolot could be accepted as qualified? They certainly could say something about Deror avi's bootleg recording of Dana International (an obvious case, I thought, but has been open for four weeks now). /Pieter Kuiper (talk) 07:42, 26 September 2009 (UTC)

First of all, since it is so important to you, you might as well visit Israel and ask to hire an expert lawyer yourself. It is not that cheap, but I suppose you can afford it. This way you won't have to trust our word, but can see the situation in Israel with your own eyes, and choose a local lawyer whom you trust. Had I been bothered by a similar problem regarding Sweden or the Netherlands, that would probably be my way of solving the problems, if I couldn't trust any Swedish or Dutch person available around me. In any event, it is very unethical to throw the costs at another person or organization in such a case where you are the only person who is not comfortable with the current situation. Had you read my comment, you would have seen that to the best of MY JUDGMENT the issue was not an Israeli issue, nor is it entirely legal issue. I was urging those people who see themselves responsible to declare a clear policy about how to treat local laws which do not fully align with European/N.American laws, and what kind of documents they want to see in order to learn about what a local law permits. This is my last comment here, and I am sorry to see that you did not read my previous one, and merely used the occasion to prolong this discussion in order to doubt the integrity of other users. Drork (talk) 08:31, 26 September 2009 (UTC)

Dr. Presently

User:Deror avi reverted my deletion of: " According to Dr Presently, the leading Israeli Copyright Scholar, this term applies to all works of art displayed permenantly in public, including any artwork hung permenantly in museums."
However, there is no direct quote that supports this statement. It is Deror avi's very personal interpretation. His interpretations of other juridical texts have been shown to be wrong (see here). Deror avi takes words out of context. His quote is also extremely careless - he cannot even get the name right of the person that he refers to as his authority. /Pieter Kuiper (talk) 15:53, 24 October 2009 (UTC)

It has been shown in the past the Pieter Kuiper's interpretation of Israeli Law is based on his personal bias against Israeli pictures. Dr. Presenti in her book states: "מקום ציבורי שהמבקר בו נכנס אליו תמורת תשלום או הרשאה לדוגמא מוזיאון רשאי בעליו להגביל את הצילום או ההעתקה של היצירות שמוצגות בו. העובר על הגבלה זו מפר הסכם בינו לבין בעל המקרקעין או בעל זכות היוצרים אך אינו מפר זכות יוצרים ביצירה. גם העותקים שיצר אינם עותקים מפרים." - which was translated above but the main point is the ending that anybody who makes a copy of any artwork in a museum is "not in breach of copyright". It has been stated before the Kuiper can not read Hebrew and has a personal animocity against me - that's why he is refaring to the Berlin discussion, which is based on the commons guidelines up to that discussion. I am an Israeli Lawyer not a German one - and prior to that descussion re the Berlin work the guildines here were not clear. As to the Israeli Law - nothing has been changed in the past six month Pieter has been targeting his attack and there is no reason to change the guidlines with reagrds to Israel now.Deror avi (talk) 20:23, 24 October 2009 (UTC)

Deror avi finally gets the name right, and probably the Hebrew quote, but when one compares his paraphrase with the translation given by Okedem, it is clear that Deror avi's rendering is grossly misleading (maybe he is misleading himself). Deror avi has been trying to pull this off for the last six months, but his way of responding to the Jewish Museum DR shows that his lawyering cannot be relied upon. There is no basis in Presenti's writings for the statement he ascribes to her in COM:FOP#Israel. /Pieter Kuiper (talk) 20:58, 24 October 2009 (UTC)

Kiuper has shown in the past that his agenda is not the best interest of the commons. I urge other user to reread Ofer Kedem's above statment and see that I am correct. I do not expect Pieter who is known of his anti-israel bias and his attacks on Israeli projects (such as the piki wiki) to change his mind. Deror avi (talk) 22:31, 24 October 2009 (UTC)

Anyone with a rather rudimentary command of the English language can read both my translation, and Deror Avi's comment, and see they are wholly compatible. As Mr. Kuiper's continues to make obviously false claims, I suggest he simply be ignored, having proven he either cannot understand the text, or doesn't want to. Okedem (talk) 07:40, 25 October 2009 (UTC)

It would require a lot of fantasy to deduct from Okedem's translation that Presenti states that the term "usefull art" (אמנות שימושית) applies to all works in museums. She does not say that, and such a statement just does not make sense. It is an insolence that COM:FOP attributes such nonsense to her. /Pieter Kuiper (talk) 10:06, 25 October 2009 (UTC)

We know you can not read Hebrew. Re read the English translation. Presanty states that "all works in a museum" are not copyrighted (provided that it is permenantly displayed). I am sure you are aware of this, but I want to remind you - a drawing, a painting, a statue, a photograph are all works of art. Maybe sometimes when you have free time you should go to a museum and see what is displayed there. Deror avi (talk) 13:40, 25 October 2009 (UTC)

Israel FOP unclear

With this edit I changed the OK mark to a question mark at Commons:Freedom of panorama#Israel for two reasons: I see there is a dispute on its precise meaning on this talk page, and I as a native English speaker do not fully understand what it intends to mean. Note I am completely ignorant regarding Israel law, so below I explain my current understanding in order to determine how a user might decide whether any one image is Ok or not Ok for Commons purposes.

Here are the clear and unclear parts, separated out in italics with my understanding of each in plaintext. Maybe the disputed parts ("applied" and "public"?) could be marked as such?

The reproduction of this artistic, architectural, or applied artwork,

To me this includes a painting, wall mosaic, building, bridge, or sculpture.

applied artwork is difficult: it appears to mean art put to some practical use. What could that be? It could also mean artwork "applied" to a surface, as in a fresco on a wall or ceiling or a mosaic on a floor.

is covered under the Israeli copyright statute (2007), which states that

"Broadcasting, or copying by way of photography, drawing, sketch or similar visual description, of

an architectural work,

To me this includes a building, bridge or other permanently fixed structure (a tower for example).

a work of sculpture

To me this means anything sculpted.

or work of applied art,

applied art remains unclear until its meaning is better defined.

are permitted if that work is permanently placed

I understand this as meaning permanently fixed to the ground or to some permanently fixed structure (a building, wall, bridge or tower (street furniture maybe). Not a painting hung on a wall, not a picture on a movable vehicle, not a flag on a flagpole.

in a public place." (paragraph 23)

public place is open to interpretation. Does it exclude the inside of private buildings requiring a ticket or other permission? Include the forecourts of hotels? Inside churches?

I then looked at some images which have the template {{FoP-Israel}}.

• File:Holon Twin cities.JPG is a set of solid plaques fixed to the ground. OK to me.
• File:Akko IDF memorial 01.JPG shows some arches and other architecture in an open-topped structure. OK, assuming it is public.
• File:Moshe Feiglin Poster.jpg is a poster on a bus.  Not OK because it is not "permanently placed".
• File:Drawing in Domus Galilaeae church.jpg looks like a painting fixed to a wall.  Not OK because it is not "permanently placed" - it could be removed, it is not "applied" to the wall.
• File:Domus Galilaeae mural and table.jpg shows a large mural, which other images from [2] convince me is permanently applied to the wall behind. However, I would not like to judge whether it is a public place; I have always treated churches, chapels and such meeting places in Europe as not public, so or  Not OK.
• File:Rotshield balcony statues.jpg are statues on a balcony. If they are firmly fixed there, I would say OK.
• File:Denmark Square 1.jpg shows three plaques with a memorial inscription on each in three languages. Look fixed and in public so probably Ok (I am always unsure about the copyright of text seen in public).
• File:Arad Flag.jpg is a flag on a pole. Does not look "permanently placed" at all, but are flags covered by a different license? If not this looks like  Not OK.

That's as far as I looked. Are these more or less correct interpretations of the Israel-FOP? -84user (talk) 05:27, 27 October 2009 (UTC)

The Israeli copyright law is (strongly) based on the UK Copyright Act of 1911, which has pretty much the same FOP rules as today's UK law. In general, that law allows photography of 3-D works but generally not 2-D, and unlike many countries it does allow them in places open to the public such as museums (so museum exhibits are usually "permanent"). "Applied art" is usually meant as something distinct from "fine art"; it usually implies some utilitarian aspect but can also apply to many posters, etc. One example would be ornate decorations on fences. See w:Applied art. The UK law doesn't use that term, but rather "works of artistic craftsmanship" which exludes 2-D works according to their definitions. That is the crux of the argument above; some are arguing that Israeli practice has evolved in practice to allow photography of permanently placed 2-D works, even things like paintings (which are usually not applied art). So... I don't think you are going down the right path with some of your interpretations, but some of them may well be issues for other reasons. For example, the poster may well be considered permanently placed on the (public) bus -- but it contains a photograph itself, so it probably wouldn't count as "applied art". In general, Israel most certainly has FOP; the questions are to what extent it is beyond the UK definitions (if at all). I would restore the OK checkmark. Carl Lindberg (talk) 07:58, 27 October 2009 (UTC)

In Israel the term is "Usefull art" "אמנות שימושית" and not "applied art" and therefor any useful object (including 2D objects) that has artistic value are free. A cup is usufull, a cup with a drowing is useful art. And so are pictures and statues (aorks of art that are usefull) see a paragraph above - Dr. Presanti's book.

Therefore:

• File:Holon Twin cities.JPG - artwork, useful, permenantly displayed. OK .
• File:Akko IDF memorial 01.JPG artwork, useful, permenantly displayed. OK .
• File:Moshe Feiglin Poster.jpg is a poster on a bus.  Not OK because it is not "permanently placed".
• File:Drawing in Domus Galilaeae church.jpg artwork, useful, permenantly displayed. OK .
• File:Domus Galilaeae mural and table.jpg artwork, useful, permenantly displayed. OK (I have before explain and gave Court rullings - churches are public locations in Israel).
• File:Rotshield balcony statues.jpg artwork, useful, permenantly displayed. OK .
• File:Denmark Square 1.jpg useful - a plack, but not artwork (what's artisitic about text), permenantly displayed. Template:Not Ok .
• File:Arad Flag.jpg artwork, useful, permenantly displayed. OK .

To sum up - all usefull art (including all displays in museum whether 2D or 3D, as can be seen from the paragraph above where Dr. Presanti's book is delt with (the leading authority on the matter in Israel), if permenantly displayed is FOP. This includes murals, pictures, mosaics etc. Deror avi (talk) 08:42, 27 October 2009 (UTC)

I could see "useful art" as a similar translation translation to "applied art" -- the latter generally refers to artistic twists on useful/utilitarian items as opposed to a piece of art made for art's sake. The English translation the Israeli provided to WIPO (the only version they submitted) is here; they use the term "applied art" -- so that would seem to be a very legitimate translation. In addition, the definition of "artistic work" in that translation defines "applied art" as something different than drawings, photographs, paintings, engravings, lithographs, maps, and charts (and sculptures etc.). Does the Hebrew version define artistic work the same way? I.e. by a list of types of works, with "useful art" being mentioned separately from those others? That would imply that all those other types of works are not useful art. But, "applied art" can mean certain types of 2-D work, more than the UK law does, so there may be some additional items covered which were not before. They don't define "public place" either, though the previous law had "in a public place, or building" in its FOP provision so historically it did encompass indoor public areas. Carl Lindberg (talk) 04:29, 28 October 2009 (UTC)

I think you got the main points (but there are some ina curacies). The term "useful art" - "אמנות שימושית" is not defined in the Law. (It is not "applied art" - "אמנות יישומית". Just to point that English is not an official language in Israel and therefore there is no official translation to English of the Laws). The Court delt with some aspects of the term (and rulled for example that even a 0D object such as a concept may be applied art) but never gave a definition. Just wish to point that there is no one definition for "public place" and various court rulling stated that for example churches (and other places of worship), schools, cemetaries and malls are public places (for various puroposes). Deror avi (talk) 08:08, 28 October 2009 (UTC)

Yes, only the Hebrew version is official. Thus my one question above... the English version does have a definition of artistic work in section 1, so I assume the Hebrew version does too. In the Hebrew version, in its list of types of works, does it use the Hebrew term for "applied art" or does it use the same "useful art" term which is later used in section 23? If it is the same term as section 23, then even though the law may explicitly define "useful art", it would at least define what "useful art" is not (i.e. all the other types listed there). That would be like the UK "works of artistic craftsmanship"; that is not explicitly defined there either but it is at least something other than a "graphic work" (which is defined) plus some other types. Israeli law used to have basically the exact same wording (since it started out as the 1911 UK law). Carl Lindberg (talk) 13:13, 28 October 2009 (UTC)

It is the same term but you are incorrect in your interpretation as it is the last item on the list and therefore may include all the previous ones (it is the "Basket term" - "מונח סל"). For example The Passover Law (חוק חג המצות) defines "leavened breads" as "bread, bun, Pitah, any flour product" - where the last definition inclueds all the previous ones (See Juctice Barak's book "Interpretation in Law", Vol. 2, p. 132, 135, 138 - when a term is used it has the meening it would have to the common person in the street. You can not learn from an item in a definition what it does not include (but only that "artisitic work" includes "useful art"). As it is not defined we check what the scolars wrote. In any case, even before the change of the wording (in 2007), the scholars wrote that it did include all artwork displayed in a museum (see above in the previous section), so it has not the same meening as the UK Law. Deror avi (talk) 13:35, 28 October 2009 (UTC)

Unless Deror avi is referring to himself as a scholar, nobody wrote that "useful art" includes all artwork displayed in a museum. If that were true, what would the Israel Museum need its Copyright Management Department for? I suggest that someone writes to Amalyah Keshet to ask for her opinion. I can do that. /Pieter Kuiper (talk) 12:09, 1 November 2009 (UTC)

Obviously you have not read Dr. Presenti's book (nor what is said above). Presnti wrote that all works in a mueseum permenantly are FOP. As for Keshet - she has no legal background and is not a scholar. She does work at the Israeli Museum who is very strict not allowing any photography therein (the strictest in Israel) just for that reason (to avoid pictures taken and becoming FOP). You can ask for her opinion, but hers is as good as mine (actually mine is better, I know what I am talking about). We can also ask for the WIkimedia foundation to pay for a legal opinion to finalize the issue (although I think they have better things to do with the donations given to them then to stasify Kuipfer's curiousity). Deror avi (talk) 16:12, 3 November 2009 (UTC)

Tamir Afori

I now browsed a part of the debate on article 23 in the Knesset here. Not all participants seem equally well-informed, but Tamir Afori clearly knows what he is talking about. And he says that article 23 contains a very specific list, in which drawings, paintings and photos are not included:

בסעיף 23 יש רשימה מאוד מוגדרת של יצירות שזה חל עליהן: יצירה אדריכלית, יצירת פיסול ויצירת אמנות שימושית, לא ציור ולא צילום, למשל

(Now I am just waiting to hear Deror Avi say that he knows better than Afori...) /Pieter Kuiper (talk) 00:56, 15 November 2009 (UTC)

No.first and foremost, the debates in the Knesset comittee has no legal basis nor can they be precedents in Court. Acctually, the courts disregards it.

Furthermore, as mentioned before. Kuiper can read nor understanf hebrew and therfore he uses google translations and talks nonsense. Knesset memeber Dov Hanin specifically said that "usfull art" includes 2D pictures. Limor Livant understood this section to allow any photography in a public location (such as the pictures hung in the Knesset) and she thought the section should be cancelled as it means that there is no copyright on images of artistic work in public places (obviously, her opinion was not the majority opinion). Michal Refaeli Caduri stated that according to the Law prior to 2008, derivative work of 2D pictures (specificaly Reuven Rubin pictures hanging in the Knesset) was alowed, and Afori stated that this is not going to change. Then Tamir Afori gave the above statment, Eyal shani stated that he is incorrect, and the desision was not to decide anything. No vote took place, and evenatually, the Knesset member's suggestion not to allow commercial use for artwork in a public place was not approved. In total, an before Kuiper is clueless. Deror avi (talk) 19:43, 15 November 2009 (UTC)

For Commons, Tamir Afori's opinion expressed in a legislative committee should carry more weight than Deror avi's misreading of a text by Sarah Presenti. Probably, Israeli courts will disregard Deror avi. /Pieter Kuiper (talk) 19:52, 15 November 2009 (UTC)

for the record - if you can't read the languge, don;t try and say you do - read the completete protocle - which states the opposit.

Furthermore, as stated before, this has no legal binding. Until the supreme Court states otherwise, the term of "useful art" (which is specifically not defined IN ORDER FOR IT TO HAVE THE COMMON USE MEANING) a stated in the above protocle, have exactly such a meaning - all works of art which are usefull. Deror avi (talk) 19:59, 15 November 2009 (UTC)

Please do not shout, it is not convincing. I read the protocol, and as I already wrote, not all members in the committee were equally well-informed. The Knesset members are not copyright experts. But Tamir Afori was the copyright expert at the Israel Ministry of Justice. He drafted the texts for the 2007 copyright law. It is my impression that several Knesset members wanted to restrict FoP to concommercial use, but Afori advised against that, because one would need transition regulations. But he explained to those that thought otherwise, that paintings, drawings, and photography are not included in article 23. Nobody said that that was incorrect. A vote about a non-commercial clause was postponed, and nothing came of it. /Pieter Kuiper (talk) 20:29, 15 November 2009 (UTC)

The Knesset members (the legislators) specifically said that the clause included 2D images and wanted to change the clause. this was not done. But in any event - this is not binding in a Court and can not be presented as evidence (unlike Dr. Presenti's book). Deror avi (talk) 20:37, 15 November 2009 (UTC)

In the discussion about article 23, the committee mainly talked about architecture and sculpture. When Dov Hanin said that "useful art" might include photography, Afori corrected him and said that photography was a separate category. Clearly, Afori was the expert on points of law in that meeting. The Knesset members accepted his expertise, and so should Deror avi. /Pieter Kuiper (talk) 20:48, 15 November 2009 (UTC)

The arguments against his opinion (listed above) arose all throughout the discussion. I disagree with your statment that the Kneset members accepted his interpretation. I further argue that this has no bearing on the interpretation of the Law. Deror avi (talk) 20:53, 15 November 2009 (UTC)

There were no arguments against Afori's opinion that article 23 does not include paintings, drawings and photography. But Hanin said that without a definition of "useful art" one would open for abuse, presumably forseeing the sophistic lawyering that Deror avi has been practicing here. Anybody can read this in a google translation of the protocol (it starts with article 22, start reading at article 23). /Pieter Kuiper (talk) 21:11, 15 November 2009 (UTC)

U r wrong - and the translation is inaccurate. see Michal Refaeli Caduri for example. Deror avi (talk) 21:20, 15 November 2009 (UTC)

I can't believe that someone is using Google Translate in order to try and understand the Law. It is an absurd and probably the most unprofessional method I have ever saw. You have a lawyer from Israel, so for heavens sake - Listen to him. He knows and lives this subject. How is it even possible to accept the opinion of someone who doesn't have the necessary understanding of the law, and doesn't even know the local language (i.e Hebrew)? It's a shameful day in my opinion. ברוקולי (talk) 21:26, 15 November 2009 (UTC)

Deror avi is saying that Tamir Afori is wrong. I just knew he would. /Pieter Kuiper (talk) 21:27, 15 November 2009 (UTC)

I'm waiting for an answer. ברוקולי (talk) 21:29, 15 November 2009 (UTC)

I wasn't going to make any more comments on this issue, because I don't see where this discussion is leading, and yet I was asked to look at the recent posts, because I attended one of the sessions of the above-mentioned parliamentary hearings, and I followed the legislation process closely on behalf of wm-il.

First and foremost, the protocol from which Pieter Kuiper quoted is irrelevant to the discussion. Such protocols are not legally binding, and they are published only for the sake of process transparency. Reading the protocol in its original version in Hebrew (rather than a Google translation) leaves no room for doubt. Tamir Afori expressed his OWN view, and it is not compelling. True, he was one of the government employees who phrased the draft law, however what he, or any other official, said during the parliamentary hearings is not legally binding. Hearings are meant to let people bring forth views and ideas BEFORE the final phrasing and the actual legislation.

Furthermore, if you read the protocol carefully, you see that the term אמנות שימושית (omanut shimushit) has been left vague deliberately. MK Dov Hanin suggests that Tamir Afori add a clear definition of this term, but Tamir Afori rejects this proposal, and prefers to leave the term undefined. An undefined term in a law is used when the legislators wish to leave room for flexibility in court rulings.

To sum it all up, the quote that Pieter Kuiper was kind enough to bring us is nor leading us anywhere new. The phrasing of the current Israeli statute leaves enough room for an Israeli court to decide that FOP is not applicable on 2D works, HOWEVER, such court ruling does not exist at the present time. Israeli citizens take pictures of 2D works in public places and publish them as a matter of fact, so it is very unlikely that a court of law would rule against this popular practice.

Finally, I really urge you all to leave this subject. Wikimedia Commons does not, and should not, act as a tribunal, let alone an Israeli one. There is no reason to believe that anyone acts against the law here, and deletion of images based on speculations or pseudo legal analysis is in violation of both "no censorship" and "assume good faith" rules. Wikimedia projects assume people want to keep the law, and know their countries' laws. Suggesting that Israelis try to breach their own country's law, is not helpful for the cooperation among users in this project. Drork (talk) 07:08, 20 November 2009 (UTC)

Tamir Afori expressed his expert opinion. It was his job in that committee to explain the meaning of the law. He told the committee very clearly that neither the old British Mandate law nor the new 2007 law make exceptions for paintings and drawings. As is also evident from the text of the law, he told them that paintings and drawing are separate categories. The category of works designated as "useful art/applied art" is diverse and not easy to define (one does not want to include design furniture and stuff like that). But one characteristic that Afori pointed out is that the works in the category "useful art" are typically 3D. There is no language problem here. Dror and Deror plainly disagree with what Afori said. Their own reading of Israeli law is just wishful thinking. Commons should accept the authority of a legal opinion by a copyright expert from the Israeli Ministry of Justice. Commons should stop its infringement on the rights of Israeli artists. /Pieter Kuiper (talk) 13:56, 26 November 2009 (UTC)

There are two basic misunderstanding which you make - possibly due to Language and lack of legal understanding. Affori's opinion is irreilevant when interpreting the Law (see below), and that MK Dov Hanin's opinion, who states the opposite of Afori, is rellevant. Deror avi (talk) 09:50, 27 November 2009 (UTC)

Afori can say whatever he wants, but it doesn't matter as long as it is not written IN THE LAW or in COURT DECISION. The fact that you are repeating over and over on your mistakes isn't helpful. You are the one that makes wishful thinking. ברוקולי (talk) 17:09, 26 November 2009 (UTC)

Dr Presenty's opinion isn't law either. And to be honest, I don't think this discussion belongs at the FOP board anymore. And I'll tell you why. Commons:Licensing and Commons:Project scope say that we only accept free content. Not "maybe free" or "I think it's free" but free content forever. Not something that will change in 20 years when a court finally does interpret this law. In the case of copyrighted art without a license, we allow FOP as an exception where the legislation is clear and unambiguous that no license is required to use the work. In Israel, the law on 2d works isn't settled enough to allow this exemption. Simply put, Commons policy prohibits 2d works from Israel as long as the law isn't settled. If you want to change that, the FOP discussion board is not the right place. If you want to argue that we should accept works that are defined by current Commons licensing policy as unfree, you need to change the underlying policies first, and then change the FOP rules. Please go troll the Commons talk:Licensing forum instead if you want to argue we should accept these unfree works. -Nard the Bard 01:17, 27 November 2009 (UTC)

You are mistaken because the law is settled. ברוקולי (talk) 01:19, 27 November 2009 (UTC)

In other words, the law must say that 2D paintings in museums is not permitted under the FOP. As long as it is not in the law it is free. It might be hard to comprehend this, but this is the reality. ברוקולי (talk) 01:24, 27 November 2009 (UTC)

That's not the way copyright or Commons policies work. Everything is copyrighted and unfree, unless there are specified exceptions. If the law does not spell out the exception then it is unfree. Period. If you do not like this you will have to change basic Commons policies and THEN the FOP rules. -Nard the Bard 01:30, 27 November 2009 (UTC)

But the law says that it is free... ברוקולי (talk) 01:31, 27 November 2009 (UTC)

Nard - see below. Deror avi (talk) 09:47, 27 November 2009 (UTC)

Applicability of Tamir Afori's Opinion

I wish to adress both the applicability of Tamir Afori's opinion and what nard said above. First - the language of the Law is simple and clear - any usfull art in a public place permenantly is free. The term "usful art" in common Hebrew is understood by all Hebrew speekers to include also 2D images, painting and maps. If this will ever be brought before the Court, the Court will check the commonly understood meening of the term, then it will check the writing of scholars - in this case - the leading scholar is Presenti. The Court can not check the committee notes as it is hearsay. It can not be brought into evidence the only centneces from the opinion which may be considered by the Court (in a lesser value then the writting of scholars, are the saying of the MK's. In the above protocole MK Dov Hanin states the exact opposite of Affori's opinion. To some up - the Law is clear and the litrature is clear. In view of the Litrature - derivative images are taken everywhere in Israel (except some musuems who, knowing the Law - enforce prohibition of taking pictures - as these pictures will be free. Wikimedia Israel has tried to negotiate with the Isreal museum to allow photography and the museum did not agree knowing the images will be free). In the past years - never have such a claim be filed in Court (a rulling in copyright Law is given on a daily basis - I get a rulling on one subject or other almost every day. Never have a claim been filed in this regards, as all understand such images are free. According to commons policy - once we are sure something is free we must allow appload. Any Laws may be change in the future, ever retroactivly. should we not allow upload just in case France may one day in the future decide that copyright in france is 300 years? If A court in Israel may rule deferently in the Futute (and even if a claim is filed this year it will take 10 years at least to reach the Supreme Court) only then should we delete the images. Any countries Court can change any interpretation, but once we can base our lega arguments on the leading scholars, and without any precedents we can allow the aploads. Deror avi (talk) 09:47, 27 November 2009 (UTC)

And Bard - please note that the current statment at the page is correct and accurate. Kuiper's edit war does not change this fact. Deror avi (talk) 09:52, 27 November 2009 (UTC)

Deror is 100% correct. Tamir Afori, as an experienced lawyer and state employee, cannot and will not give a compelling legal interpretation in a parliamentary hearing. Throwing ideas is common and most welcomed in such hearing, but these ideas are not compelling unless introduced into the law, which is not the case here. There are no "default prohibitions" in the Israeli legal system, nor in any other liberal legal system. If something is prohibited, it should be stated clearly in the law itself or in a compelling authorized decision. Presenti's book is enough to prove that the law does not prohibit taking pictures of 2D works placed permanently in public places. Don't get me wrong - this situation can change in the future, but then again, laws and court rulings can change so many things related to the material uploaded to the Commons. If we worry about the future like that, we'll have to delete most of the material here. And another thing - the legitimacy of about 70% of the Commons' material can be contested. Pieter Kuiper knows that very well, as he questioned the legitimacy of so many images and opened so many deletion requests. In most cases his arguments were too far-fetched to be taken into account. I don't know why he insists here, and I don't want to know. I think we have proven beyond any reasonable doubt (so to speak) that this debate should end and be archived. Drork (talk) 10:18, 27 November 2009 (UTC)

The law is clear: artistic works (paintings, drawings, sculpture, photos, architecture, applied art) are protected by copyright by default. I cannot believe that Drork denies that. There is an exemption for architecture, and for such sculpture and applied art as is permanently located in a public place. The Israeli term for applied art has the literal translation "useful art", but Deror avi is not correct when he says that Hebrew speakers take this to include even maps. Tamir Afori clearly said that the legal term applied to 3D objects. To test the issue anybody can do a google image search on "אמנות שימושית". Deror's reference to Presenti is a fabrication, as her quote does not even mention the term "works of artistic craftmanship" (as it was in the British Mandate law, which was in force when she wrote). Deror avi and Drork agree with me that Afori explicitly says that paintings and photography are not included in FOP. That should settle the issue here: ignore humbug, go by the expert. /Pieter Kuiper (talk) 12:50, 27 November 2009 (UTC)

Since Dov Hanin disagrees with Afori, it is clear that his opinion isn't the right one. For your information, in Israel only the Kneseet (and the supreme court of justice in rare cases) can decide about the content of the law, and not some clerk from the MOJ. ברוקולי (talk) 13:36, 27 November 2009 (UTC)

Hanin was of the opinion that public paintings should be protected by copyright. Afori told him that this was the case. /Pieter Kuiper (talk) 13:43, 27 November 2009 (UTC)

Is that so? he says "לדעתי צריך להגדיר מהי יצירת אמנות שימושית. ", and it is clear from that there is no specific definition and therefore it is permitted. Where does he say it? Where is the decision to put such thing in the law? ברוקולי (talk) 14:03, 27 November 2009 (UTC)

Hanin said that without a definition of "אמנות שימושית", one would open for abuse, like people claiming that a photo was useful. With that, he was foreseeing the abuse of the law that Deror, Drork, and you are practicing here. But as Afori told him, photography is a separate category, distinct from "applied art". Sure, Hanin still thought that it would be better to define "applied art", but this is not an easy thing to do, and he did not propose a definition. /Pieter Kuiper (talk) 14:40, 27 November 2009 (UTC)

As always - you are wrong (probably due to not understanding the Language). MK Hanin specificly says that the term should be defined, as in common meaning and without a definition - "למשל, יצירת אמנות שימושית יכולה להיות ברמה העקרונית, יכולה להיות צילום. " - "For example, useful art can be, a photograph, as a matter of principle" - ie Hanin specificaly said that without a definition the Section would include photography. At the end of the discussion it was decided not to add a legal definition, and the currently law uses the term in its General meaning. Deror avi (talk) 23:44, 27 November 2009 (UTC)

The Knesset member Hanin was afraid that there was a loophole in the law. He feared that people would come and dissect the term "אמנות שימושית" into "any art that I can use for something". But that is not its meaning in Hebrew (as a simple Google image search will show). Afori (the expert from the Ministry of Justice) then explained that there was no loophole, because the definition section of the law very clearly says that photography, maps, drawings, and paintings are categories separate from applied art. You are just acting as a lawyer trying to find a defense for someone who is accused of copyright infringement. You are trying to find a loophole, and you are desparately wriggling to pass the infringed work off as "applied/useful art". You are twisting words by Presenti, you are invoking very special Jewish principles for interpreting the law, but you would not get anywhere with the judge. As long as no lawyer has succeeded in convincing a court, the loophole is not open. /Pieter Kuiper (talk) 23:59, 27 November 2009 (UTC)

There is no need to convince a judge - the Law is simple and clear. Presanti's words are simple and clear. And no claim has ever been filed. Hanin explains the common meaning of the terms and gives an example. He speaks Hebrew. You - google translate. Deror avi (talk) 00:15, 28 November 2009 (UTC)

I bet that, if kuiper is to continue like that, in 2-3 months he will learn both English and Hebrew, convert to Judaism and move to Israel :)--Mbz1 (talk) 00:37, 28 November 2009 (UTC)

I have invited Pieter to Israel in the past - and even promised him a tour of the country. Deror avi (talk) 00:38, 28 November 2009 (UTC)

And what he said?--Mbz1 (talk) 00:40, 28 November 2009 (UTC)

No reply. Deror avi (talk) 00:42, 28 November 2009 (UTC)

Page protection

The page is currently protected from edited until December 13. That is not an endorsement of the current version or the contradicting version. A question I'd like answered: Who is "Dr Presently", is his/her name spelt correctly? And what institution is he at and in what paper/book did he make the assertion quoted. I can't verify the existence of the claimed opinion without some info on that.--Nilfanion (talk) 13:31, 27 November 2009 (UTC)

Amongst Israeli Lawyers, Presenti is considered the leading expert in copyright Law and wrote the leading book on the matter in Israel. Deror avi (talk) 23:15, 27 November 2009 (UTC)

This is about Sarah Presenti, of her own law firm. She wrote an authoritative book on copyright law. Nowhere did she say something like: "Applied art is any painting in a museum." It is rather embarassing for Commons that such a weird legal doctrine is ascribed to her here. /Pieter Kuiper (talk) 13:34, 27 November 2009 (UTC)

The quote above is very clear. all Hebrew speakers have told you that. It is your own personal bias against Israeli that is in the source of the dispute. Deror avi (talk) 23:15, 27 November 2009 (UTC)

As a matter of fact kuiper has bias not only against Israel. He has his own personal bias against Jews as well. He is an antisemite.--Mbz1 (talk) 01:41, 28 November 2009 (UTC)

And you conclude this based on your knowledge in Hebrew. How interesting since you don't know that language. ברוקולי (talk) 13:57, 27 November 2009 (UTC)

I've altered the text slighty (to fix spelling and change "the" to "a" Presenti is not the authority, but is one authority (of several). ברוקולי, "applied art is any painting in a museum" is a very strong statement. Stating that "because you cannot read Hebrew you cannot comment on Israeli law" is not constructive to a solution. I note that several Hebrew quotes are mentioned in this discussion, and these quotes have made discussion harder rather than easier (due to the lack of translation). I'd encourage people here to stick to English, and provide translations to any Hebrew quote.--Nilfanion (talk) 22:47, 27 November 2009 (UTC)

A much appreciated translation of what Presenti actually wrote was spplied by User:Okedem here. She does not even mention the term "applied art" there. /Pieter Kuiper (talk) 22:59, 27 November 2009 (UTC)

She wrote it in here chapter of the book dealing with applied art. This is here comment on the relevant section of the Law. Pieter - if you cant read the language, and dont have the book, nor have a clue in the relevant law - dont twist the facts. Deror avi (talk) 23:08, 27 November 2009 (UTC)

This is the only quote by Presenti that you have supplied, and you have twisted Presenti's words. /Pieter Kuiper (talk) 23:12, 27 November 2009 (UTC)

I doubt if you truely understand english. Maybe you google translate english as well. Deror avi (talk) 23:16, 27 November 2009 (UTC)

OK, I see a quote (which I assume you both accept the English translation of). That quote states that taking photos when photography is banned is a civil matter not a copyright matter. That quote has been provided without context, apart from the statement it is in a chapter on "applied art". Is it a stand-alone statement? Is it part of a lengthy discussion? That broader context would make the meaning of the quote clearer (the surrounding text might indicate clearly that its meant to be a broad-reaching statement or a narrow statement that "banning photography doesn't provide additional copyright protection"). The continuing personal attacks are not exactly helpful...--Nilfanion (talk) 23:31, 27 November 2009 (UTC)

A translation (not provided by me) is very clear [3]. There is a leangthy chepter in her book about the relevant section of the Law. Most of it deals with other parts of the Section (i.e. what is "architectural work" and what is a statue, as well as comperative asspects to other legal systems. The relevant section with regards to "usefull art" is the one copied. If you wish, I can copy here further sections from the book (but it is copyrighted and as they are not relevant, i doubt it is "fair use"). It is, of course, in Hebrew, and will need by translated. Deror avi (talk) 23:37, 27 November 2009 (UTC)

Israel FOP still unclear

The project page now has this sentence:

According to Dr Presenty, the leading Israeli Copyright Scholar, this term applies to all works of art displayed permenantly in public, including any artwork hung permenantly in museums.

This needs a more precise definition and clarification to avoid what seems to me an obvious loophole. Does this maybe apply only to works of art by Israeli citizens, or that created in Israel? Is there an Israeli law that forbids museums from displaying non-Israeli works? Otherwise, what stops someone taking a photograph of a painting, that is copyrighted in Italy say, but that is displayed in a museum in Israel, and then uploading the photograph to Commons under {{FoP-Israel}}? Would that not result in the image of the painting becoming freely licensed? I also think clarifications, with specific examples, would be helpful for Template:FoP-Israel and Commons:De_minimis#Israel. -84user (talk) 13:46, 27 November 2009 (UTC)

The law applies to all "usefull art" premenantly in a public place no matter where it was created. A statue that is copyrighted in Italy (no FOP) or France - when moved to Israel (or the UK for that matter) and permenatly placed there will become free. In Israel - any image in a museum is free. That is why musuems usually have a very stickt policy of not allowing any photography.

with this regards - see one section below about Norway - it is the same idea. Deror avi (talk) 23:20, 27 November 2009 (UTC)

Please not that we are talking about a work that is permanently placed in a public place. If a foreign artist is kind enough to contribute a painting, so that it would be displayed permanently in a public place in Israel, then he accepts its treatment according to the local law. If he expects to get the painting back, then you cannot say it is displayed in Israel permanently. Please note that the case of taking pictures in a museum is very rare. Most museums in Israel do not allow it at all, and demand the deposit of cameras at the front desk. We are talking here about frescoes in churches, interesting signs etc. These kinds of works are numerous in Israel, and no one has ever questioned the right to photograph them and publish the photograph. For example, you can see derivative works of posters, permanently displayed in public places, on covers of Israeli magazines. No one has ever raised doubts about the right of publishers to do that. Drork (talk) 06:04, 28 November 2009 (UTC)

What Pieter Kuiper does here is giving his own interpretation to the Israeli law. He decided that a certain paragraph in a law, written in a language he cannot read (without machine translation) and applicable in a country he never visited, makes 2D works of arts fully protected in this country. I wouldn't dream of doing such thing even in the case of the French or English laws, two countries whose languages I can read, and whose legal systems are taught throughout the world. The fact that he raised his doubts about the extent of FOP in Israel is legitimate and welcomed, however when he was answered properly and elaborately, he, for some reason, decided to reject the answer based on his own judgment, and kept raising endless questions. Not only does he keep us busy here for no real reason, he also continually questions the good faith and discernment of the Israeli users who are also veteran volunteers in the Wikimedia movement. This is not in line with the proper conduct expected from users in this project. In a way, he also jeopardizes the whole project, because he tries to set non-realistic standards to the upload of images onto the Commons. As I said, far-fetched doubts can be raised regarding to at least 70% of the images on the Commons. If we accept any unreasonable doubt as a deletion criterion, and this is where Pieter Kuiper leads us, we will be left with no Wikimedia Commons at all. Drork (talk) 05:42, 28 November 2009 (UTC)

Moving forward

For those that don't know, I invited the people most involved to provide further information here: User:Nilfanion/Israel. I believe that as this page is the core of this dispute, the dispute should be handled here.

As a first stage, lets get a version of the section on the page that is acceptable to all. Commons:Freedom of panorama#Israel currently reads:

{{FoP-Israel}}

OK Sections 21 and 23 of the 2007 Copyright Act states that ""Broadcasting, or copying by way of photography, drawing, sketch or similar visual description, of an architectural work, a work of sculpture or work of applied art, are permitted if that work is permanently placed in a public place."

• Israeli Copyright Act of 2007 in Hebrew
• Unofficial English translation of the Israeli Copyright Act of 2007

The term "Applied art" (אמנות שימושית) is not defined by the Law and have not been treated by the Courts, however it arises from the previous 1911 Law. According to Dr Presenti, a leading Israeli Copyright Scholar, this term applies to all works of art displayed permanently in public, including any artwork hung permanently in museums.

The part of that is under dispute is just the last sentence. So can we just remove that sentence, until we can settle this?--Nilfanion (talk) 12:41, 29 November 2009 (UTC)

That is fine with me. In the meantime, I am working on writing a summary of the legal situation. /Pieter Kuiper (talk) 12:47, 29 November 2009 (UTC)

Pieter Kuiper is based on Google translation and is wrong any many counts - especially with regards to an irrelevant rulling misquoted and his disregards of Leagal litrature in Israel which he has no access to. For example - there is no judge by the name of Mordechai Levin, and in the case Juiper is refering to Justice Solberg stated that the wall in question is not a work of art so copyright Law is not applicable at all (there is no question of copyright). Deror avi (talk) 13:06, 29 November 2009 (UTC)

As for the dispute itself: The definition of the term "applied art" appears to have been left deliberately vague by the drafters of the law, with the intent of leaving it to the courts. Therefore this whole debate comes down to the question "What is the definition of "applied art" (אמנות שימושית) under Israeli law"?

The law doesn't specify, and there appears to be no case law since the copyright act came into effect. There may be cases prior to 2007 that are relevant. Dr Presenti's opinion is relevant as the courts are likely to consider it if a case does arise. Personally, I cannot believe that she would write a book on the topic without giving a definition of the term "applied art". Could someone with access to her book find out how she defines the term and present it here?--Nilfanion (talk) 12:41, 29 November 2009 (UTC)

here is my version of the current situation in Israel -My Summery - here.

As to case law - the 2008 Law did not change the Law that was prior to 2008 and therefore, there was never any case Law with regards to the term. According to rules of interpretation the term "אמנות שימושית" should have its commons meaning to a Hebrew speaker (any usefull artwork). Deror avi (talk) 13:02, 29 November 2009 (UTC)

Deror Avi is a lawyer, I'm not. And yet I studied the issue of the Israeli copyright legislation to some extent, as I was Wikimedia Israel's representative to the parliamentary hearings about the subject. As far as I know, the Hebrew term omanut shimushit can have several meanings: "applied art", "useful work", "useful art" etc. There is no legal definition to this term, and according to some remarks during the parliamentary hearing, it was probably left vague deliberately. The "words of explanation" given to the lawmakers before voting, say the new statute does not change the status quo regarding FOP. Courts sometimes use these "words of explanation" when the actual phrasing of the statute is unclear. An Israeli court never addressed the issue of FOP extent, simply because no one in Israel ever appealed to court about this matter. The common practice in Israel is that FOP is allowed, period. People appeal to court when they think their rights are compromised. When something is acceptable on all, no one complains about violation of his rights. Furthermore, the Israeli legal system, like the Common Law, values customs and habits, especially when the law is vague. If an Israeli court of law is ever asked to address the issue of 2D FOP, it would probably rule according to the common practice. This explanation of mine is by no means a legal advice, but I am an Israeli citizen who lives in Tel Aviv, with some relevant knowledge. Other Israeli users who have been asked gave similar answers.

Pieter Kuiper's summary of the situation in Israel should be regarded as an attempt of mine to summarize the legal situation in Finland. It would be a nice experience, but not a reliable account. Drork (talk) 13:11, 29 November 2009 (UTC)

The question of FOP in Israel is a settled matter - it clearly exists. The Hebrew term is typically translated as "applied art", but that doesn't mean its the only way of interpreting it. What I would ask is how would an ordinary Israeli citizen understand the term "useful art"? To me the distinction between "useful art" and "art" is that "useful art" has some practical utility beyond being a piece of artwork.--Nilfanion (talk) 13:23, 29 November 2009 (UTC)

I'll let Deror give the more educated answer about legal definitions. As for the common interpretation of the term - it's a matter of context. It is a bit like asking how high a building should be to be called "sky scrapper". The term is indeed vague. It is indeed used to translate the English term "applied art", but this is only one context of several possible (most HE-to-EN translators who encountered this vague term, simply reverted the EN-to-HE common translation as a workaround). In our context here, we are talking, by and large, about 2D works such as frescoes in public buildings, decorated signs, signs containing maps, designs of flags etc. A normal Hebrew speaker would regard them as covered by the term omanut shimushit unless a stricter definition is offered to him. Drork (talk) 13:39, 29 November 2009 (UTC)

How about I turn the question around. What would a normal Israeli citizen consider to be not an example of omanut shimushit?--Nilfanion (talk) 13:42, 29 November 2009 (UTC)

In my understanding (and as is detailed in the explanation to the Law) - the purpose of the Law is to allow photography in public places. The question would be what is not permenantly in a public place (commercials for example, or posters, and temporary exhibitions). All these can not be photographed. As for examples for what is not artwork see here or see above my comment here. Deror avi (talk) 14:22, 29 November 2009 (UTC)

There are no examples there of "artwork" that you do not consider "useful". Permanent vs temporary is a settled problem (I think you'll find both you and Pieter agree on that). As I said above the problem is purely with the definition of "applied/useful art". There must be some forms of artwork you do not consider useful, please give some examples of artwork that is not "useful art".--Nilfanion (talk) 14:52, 29 November 2009 (UTC)

I think that these examples are not usefull art:

• 
  Litterary work
• 
  Mostly text
• 
  Text

mostly because I do not think it is art to be displayed (not that litrature is not art - but rather it is not art to be used). Usually artwork is useful by definition. But text (litrature) is outside the scope of the definiton. Again - the purpose of this section of the Law is to allow free photography of public locations. Accordinlgy everything in the public eye (unless temporarily there) should be free. Books for example - are usufull art, but can never be permenantly in public. The text therein is art, but not usefull art. Deror avi (talk) 15:14, 29 November 2009 (UTC)

Not disputing that the purpose of the law is to allow photography in public places! :) However, you are missing what I am asking for. Not all artwork is useful, and this is as true in Israel as it is anywhere else. The phrase "אמנות שימושית" is in the copyright law to cover the various types of artwork, which need FOP protection, that are not already mentioned such as architecture and sculpture. Its legally imprecise, yes. However, for the phrase "useful art" to have any meaning at all there must also be "non-useful art". Please give me some examples (it doesn't have to be specific cases, it doesn't have to be on Commons) of something that you consider to be both "Artwork" and "Not useful artwork". You have given literature as an example, can you give any example of visual art?--Nilfanion (talk) 15:30, 29 November 2009 (UTC)

The rules of interpretation of Laws state that when interpreting the Court choses the interpretation which would enable the intention of the Knesset (not the original intention but the pursposful one - but that's another issue). In the explanation to the Law, the Knesset gave the puprpose of the Law was "to allow the public to photograph the works of art, to draw or to broadcast an image from the place it is located" - i.e. the intention of the Legistlator was to allow photogrpahy of all works of art in public places permenantly. hence the use of the term which is very broad, and intended to include not only "pictures" and "paintings" but also "artistic benches" any useful artistic worksee Here - therefore, unless the work displayed is not art (a regular bench) or not useful art (i.e. literary text even if public display) it is free to photograph. Deror avi (talk) 09:28, 30 November 2009 (UTC)

Huh? I'm free to take a picture of an artistic bench (because its art) in Israel but not a regular one (because its not art)? That makes no sense to me. Surely I'm allowed to take a picture of the normal bench regardless of FOP, and also the artistic one too because it is covered by FOP. Thanks for clarifying your understanding of the terms though.--Nilfanion (talk) 12:29, 30 November 2009 (UTC)

You are free to take pictures of a regular bench as it is not subject to copyright at all. Only art is subject to copyright. Deror avi (talk) 14:15, 30 November 2009 (UTC)

Let's keep this discussion on the practical level. This strange term omanut shimushit worths a research, especially as the legislators chose it for it vagueness rather than its clarity (or so it seems from some documented remarks). Nevertheless, this research should not be conducted here, but in a law school. We are here to address practical issues. We had a picture of fresco inside a church. This picture was deleted on the account that the Israeli FOP version does not cover 2D works. This claim is obviously wrong, so the image can be undeleted. We have the issue of Israeli insignia. In this case the copyrights belong to the State of Israel, but since there is nothing to suggest that they should be treated differently from other works (from the copyright issue perspective), we can conclude that the copyrights on most of them expired, and the rest can be treated according to the FOP principle. The Israeli copyright law also includes an elaborated paragraph about "de minis" which gives a lot of room for taking pictures without copyright infringement. The Israeli law did not go so far as to allow taking pictures of any possible work of art permanently displayed in a public place, however, here, in the Commons, we never encountered a case in which the Israeli FOP principle had been taken too far. The limit is set in a very long distance from the common practice, and indeed people rarely cross it (if ever). Drork (talk) 15:54, 30 November 2009 (UTC)

"Omanut shimushit" is not a strange term in Hebrew. It is the title of this book for kids - about decorating flower pots and making pretty picture frames and stuff like that. The concept is clear, it is just hard to define a category that spans everything from simple toys and decorative ashtrays to fountains on city squares. /Pieter Kuiper (talk) 16:12, 30 November 2009 (UTC)

Well, you've just proven our point here. There is an explanation in Hebrew about this book's content. If you were able to read it, you could see this booklet deals with nearly every form of art, or as the author puts it "let's just be creative". :-) Drork (talk) 18:12, 30 November 2009 (UTC)

I'll ask again. Does Dr Presenti give a definition of "אמנות שימושית"? If so what is it? :)--Nilfanion (talk) 13:23, 29 November 2009 (UTC)

No - there is no definition in the Law - but Presenti gives an example - "artwork hung in a musem". Deror avi (talk) 14:22, 29 November 2009 (UTC)

The quotes attributed to Presenti here do not include the phrase "artwork hung in a museum". In fact the statement we do have, in the context of "applied art" would be equally valid regarding artwork in the British Museum under English law. I assume Dr Presenti mentioned "artwork hung in a museum" (as opposed to artwork displayed) somewhere else in her book - could you provide that quote?--Nilfanion (talk) 14:52, 29 November 2009 (UTC)

Brilliant! I wish I had thought of saying that the last few months. This seems to have cliched it. /Pieter Kuiper (talk) 22:04, 29 November 2009 (UTC)

@Nilfanion, sure she talks about museums. Dr. Presenti is talking about artwork displayed in any public places. A museum is only an example of such public place. Please see the first statement from the link you provided "A public place that a visitor enters in exchange for payment or authorization, for instance a museum". Why she's talking about entrance fee public places specifically? Only to explain that one, who's taking pictures there "is breaking an agreement between him and the owner of the property", if photography there is prohibited, yet she specifically mentions that even in those cases no copyrights laws are broken. --Mbz1 (talk) 02:23, 30 November 2009 (UTC)

The point is that Sarah Presenti's quote would also be valid for the British Museum and English law. /Pieter Kuiper (talk) 03:29, 30 November 2009 (UTC)

I understand that. I was trying to say that if the copyright laws of Israel were absolutely the same as they were written under George V of the United Kingdom, why would Dr. Presenti write her book in the first place, and what would be the role of Knesset in those laws?--Mbz1 (talk) 04:20, 30 November 2009 (UTC)

I don't know the English Law that well, so I don't try to say what is allowed or not allowed there. With regards to the Israeli Law and specificaly with regards to this section of the Law Presenti made her statment. I don't understand what you meen by "I assume Dr Presenti mentioned "artwork hung in a museum" (as opposed to artwork displayed) " - Presenti mentions artwork "displayed" in a museum and states that the photography is allowed according to the copyright Law. That is why this whole argument is redicules - unless Kuiper thinks he knows better than Israel's leading expert in copyright Law. Deror avi (talk) 09:33, 30 November 2009 (UTC)

It is boggles the mind, but I can read Sarah Presenti better than you. Already in June my tentative interpretation was right. I thought that Nilfanion's question had finally made you understand Presenti's words, but unfortunately, you still do not seem to get it. /Pieter Kuiper (talk) 10:10, 30 November 2009 (UTC)

Nilfanion, the distinction you present, of "hung" vs. "displayed" is meaningless here - the hebrew word for "hung", "תלויות", is not used in this context. "מוצגות" ("displayed") is the only word used for any kind of art in museums, be it paintings, sculptures or any other object. Presenti discusses the works presented in the museum generally, not with regard to a specific kind. "היצירות שמוצגות בו" means "the works displayed in it". Notice the "the" (I apologize, but I forgot it in my translation you linked to above). The "the" is the direct translation of the "ה" preceding the word "יצירות" (works, creations). "Works" is not qualified in any way, which means she's discussing all kinds of works displayed in a museum. Frankly, this is clear, and there's no point in discussing this any more - we have a somewhat unclear statute, but a clear practice, and a legal opinion to support it. Whatever we might think of the confusing term "אמנות שימושית" ("useful art" or close) is simply irrelevant. Okedem (talk) 10:14, 30 November 2009 (UTC)

You are reading Presenti as if it is infallible Scripture where every letter has a meaning. So this whole FOP-theory hangs on the thin thread of the definite article ה? But "the" does not generally mean "all" (which is כל, a word that Presenti did not use). If such overinterpretations do not make sense, they must be discarded. Certainly, such speculations must not be ascribed to Presenti as if she actually wrote it. /Pieter Kuiper (talk) 10:36, 30 November 2009 (UTC)

And certainly, people who do not speak the language, should not argue over its subtleties. It is nothing short of insulting that you continue to try to interpret a text in a language you do not understand, relying on nothing but google translation.

"ה", in this context, means "all", and its use is very different from using the word "יצירות" without "ה"; the difference is clear to any Hebrew speakers, especially a legal expert, and there's no use for the word "כל". Okedem (talk) 10:54, 30 November 2009 (UTC)

<unindent>Guys, the point I was making with my statement above is we have 3 sentences of Presenti's opinion. I need additional context to evaluate what she is trying to say in her book. All that I really know is that it is located in a chapter that deals with applied art. If I evaluate the quote in that context, "the works" it talks about will be "works of applied art" but it tells me nothing about the scope of the term "applied art" (or "useful art"). The definition of that term is the problem. A quote without its context is not anything like as useful as a quote with context. I'd also like to see some evidence that it is common practice in Israel to apply FOP to 2D artwork.--Nilfanion (talk) 12:05, 30 November 2009 (UTC)

As for evidence, it is a bit hard, because the books I have on my shelf are copyrighted, but they include many examples of 2D FOP, here are some references:

• Nathan Alterman&Alex Levac, Tel Aviv Serenade, Hakibbutz Hameuchad Publishing House Ltd., Tel Aviv 1999, pp. 41, 42, 46, 50, 54, 74, 75, 106, 107.

I'll try to find more examples, this is just something I picked off my shelf. Drork (talk) 12:45, 30 November 2009 (UTC)

Clarification?

Hello, everyone. It seems to me that a clarification of terms would help this discussion along. Reading both sides' arguments, I think I see an unacknowledged ambiguity in the denotation of אמנות שימושית (applied/useful art), and perhaps spelling it out would help a bit:

• One sense of אמנות שימושית is clearly "applied art", as distinct from "fine art", e.g. an illustration, a diagram, etc. This is, I believe, agreed upon by all participants.
• Another' sense of אמנות שימושית is an inclusive sense, encompassing both fine art and applied art, as mere אמנות (art) is usually shorthand for "fine art".

I believe Deror_Avi's claim is that this is the sense used in the new Israeli Copyright Law in section 1 (definitions); this is certainly a matter of interpretation on Deror_Avi's side, but since the term is not, in fact, clearly defined, and since there has not yet been any court case interpreting it authoritatively yet, Deror_Avi's interpretation cannot be rejected out of hand.

That said, it is not clear to me that the Commons should necessarily choose the more conservative position. Wikimedia could certainly try to "be bold", as the Wikipedia spirit encourages us to be, and seek to test this interpretation by allowing 2D panorama works into the commons, at least until a decisive ruling against it is given. Just my two cents, and I am not a lawyer. Ijon (talk) 17:16, 30 November 2009 (UTC)

Please give examples of the second usage. /Pieter Kuiper (talk) 17:31, 30 November 2009 (UTC)

here is one example (be warned - google translation gives horibble mistakes in translating this). Deror avi (talk) 17:56, 30 November 2009 (UTC)

It is about the Ilins. A press release in English shows that their main area is design of functional items. They also included paintings in their concept of interior decorating. This seems to be their design philosophy, and non-standard use of the term in order to make a point. /Pieter Kuiper (talk) 18:16, 30 November 2009 (UTC)

I think we should wrap up this discussion. For every argument there is a counter-argument, as Pieter Kuiper teaches us, but since we are trying to be practical rather than learn the art of debating, I don't see the point in sending the Israeli users here to find answers to every doubt Pieter Kuiper raises. In other words, are there any more SERIOUS questions about FOP in Israel? Otherwise, I think things have been clarified. Drork (talk) 02:37, 1 December 2009 (UTC)

The issue is settled. The law is very clear that 2D-stuff like paintings, drawings, and maps is not included. This was stated explicitly by Tamir Afori, the expert of the Ministry of Justice: בסעיף 23 יש רשימה מאוד מוגדרת של יצירות שזה חל עליהן: יצירה אדריכלית, יצירת פיסול ויצירת אמנות שימושית, לא ציור ולא צילום, למשל /Pieter Kuiper (talk) 06:54, 1 December 2009 (UTC)

What Mr. Afori thinks is beside the point. The only relevant points are the statute, and the court's opinion. The courts don't turn to the Ministry of Justice for their opinions - that's what the separation of powers is. If the lawmakers wanted to make it so clear, they would have explicitly excluded photography and photography in the text of the law, but they didn't. So, if Mr. Afori thinks something is unclear, his office can draft an amendment to the law, but until then - he's irrelevant. Okedem (talk) 08:35, 1 December 2009 (UTC)

The issue is settled. The law is very clear - and the Law as a whole makes no distinction between 2D art and 3D (the courts specificaly said this - I brought quotes above), so no difference should be applied to section 23. Deror avi (talk) 13:08, 1 December 2009 (UTC)

There are at least three Israelis here who made their best effort to explain the Israeli law and norms, and they soothed all of the doubts raised by Pieter Kuiper's, including the issue of Tamir Afori to which he clings on so badly. It would be an absurd and a very problematic precedence for the Commons' to trust the opinion of a person living in the NL (or anywhere else for the matter) without relevant knowledge of the subject, and reject the opinion of people living in the relevant country and possessing the relevant knowledge. It would also be a problematic message to the Israeli users, if the Commons' admins suggest that they try to break their own country's law or to mislead the Commons' users. I think there is no reason to continue this discussion. Drork (talk) 17:07, 1 December 2009 (UTC)

Dr Presenti

On my request, Deror provided me with a copy of the relevant page of Dr Presenti's work - I want to thank him for doing so. This has given me the context I have needed to evaluate the quote. It is the start of a section of the book addressing FOP. She starts by quoting the law of the time (the 1911 British mandate law, S 2 1 (iii)). This provides for "The making or publishing of paintings, drawings, engravings, or photographs of a work of sculpture or artistic craftsmanship, if permanently situated in a public place, or building, or the making or publishing of paintings, drawings, engravings, or photographs (which are not in the nature of architectural drawings or plans) of any architectural work of art".

She also mentions how the English legislature reiterated this in Article 9 (3) of a 1956 law and Article 62 of a 1988 law. (The 1988 law is the current copyright law of the UK, with discussion of UK FOP here).

She then goes on to the paragraph we already have. Paraphrasing: A public place that visitors pay to enter (such as a museum) may restrict photography. If this restriction is ignored it is a breach of contract not a breach of copyright.

Further references are to new technology (broadcast by television is OK, and she then justifies this). I'm not sure how much more she writes on this matter but the meaning of the quote is clear:

1. Dr Presenti indicates that FOP (in 2000) applies to sculpture, architecture and works of artistic craftsmanship, if permanently placed in a public place.
2. Taking pictures in breach of a restriction is a contractual matter.

The English phrase "Works of artistic craftsmanship" is the relevant phrase in the context of her quote not the Hebrew phrase "אמנות שימושית". The English phrase is somewhat clearer than the Hebrew in meaning, and I'm also sure it has substantial case law defining it (as Israeli courts followed English precedence until ~1980). I have to conclude that Dr Presenti's opinion does not match that ascribed to her on the project page and I have removed the sentence ascribed to her. I've also unprotected the page, but will immediately report any reinstatement of that sentence to the AN for another administrator to handle.

However, this does not resolve the question of 2D FOP in itself. As the 2008 law has changed the phrase from "works of artistic craftsmanship" to "works of applied art", which is more vague, the situation may allow 2D FOP now.--Nilfanion (talk) 11:53, 2 December 2009 (UTC)

I sent you some examples of the practical use of the FoP principle in Israel. I cannot publish them here because they are taken from copyrighted books or magazines. In these examples, taken before the introduction of the new statute, 2D works like posters or wall paintings take a significant portion of artistic or illustrative photographs. Credits are given only to the photographers and there is no remark about copyrights reserved to the authors of the "inner" works. I took the examples from books of well established publishers, not the kind of people who would break the law or be unaware of it. The official explanations to the new law specifically say that the status qou regarding FoP is meant to remain intact. Drork (talk) 12:47, 2 December 2009 (UTC)

The fact is that presanti wrote her book in 2000, based on the customs of Israel as of that year, and refered to "works hung in a museum" - which does include 2D objects. Therefore I see no reason for the removal of the quote, which is clear. Deror avi (talk) 22:11, 2 December 2009 (UTC)

It is not a fact. There is no basis for those quotation marks. The quote makes perfect sense when one interprets it as concerning a museum with modern sculpture and/or applied art. /Pieter Kuiper (talk) 22:19, 2 December 2009 (UTC)

Adv. Yoram Lichtenstein talks about different aspects of FoP in Israel based on Presenti's book, and he understand her words exactly like Deror [4] (under the title "העתקת יצירות אומנותיות המוצגות בציבור"). He refers to article 2(1)(iii) in the old 1911 statute saying "the article allegedly applies only to photographs, sculptures, works of art, architectural works and the like (...) Dr. Presenti says in her book that this article also applies to movies, and necessarily to any other creative works situated permanently in a public place." Drork (talk) 01:08, 3 December 2009 (UTC)

Another example [5]. In this site, run by Israeli lawyers and dedicated to copyright issues, they refer to the FoP-related article in the new statute saying "it is allowed to use a copy of architectural, sculptural or artistic work by way of photographing, drawing or sketching, providing that the work is placed permanently in a public place". This group of lawyers (here are their names: [6]) also interpret the term omanut shimushit simply as "artistic work". Drork (talk) 01:29, 3 December 2009 (UTC)

Lichtenstein is another appalling example of an Israeli lawyer stretching the law. First he quotes the old law correctly: "sculpture, architecture". Then he kind of ignores "permanently", emphasizing "in public". Then he suddenly includes photography. And the he goes on to include movies, attributing this to Presenti, although it is absolutely clear that Presenti talks about the inclusion of statues and buildings in film. Then this guy Yoram Lichtenstein extends this to a permission to copy "songs, movies, games, software"! Because such works are permanently in the public!! With this the state of copyright in Israel being like this, one understands why the country is on the US Trade Department's priority watch list. In Drork's second example it is not correct that those lawyers "interpret"; it looks more like a somewhat sloppy quote of the wording of the law. /Pieter Kuiper (talk) 07:17, 3 December 2009 (UTC)

Pieter Kuiper thinks the Israeli legal system is bad. Fair enough. Your criticism is noted. If you ever want to be an Israeli citizen, you could vote to change the local laws. Until further notice, this is the Israeli law and this is how it is interpreted. End of story. You can feel lucky for living in the Netherlands where the rules are slightly different. Drork (talk) 08:01, 3 December 2009 (UTC)

At least some piracy of music, film, games, or software must have been brought to court in Israel. Has anybody ever tried the defense suggested by Lichtenstein? Has anybody ever adduced this quote by Presenti as evidence for the defense? Has any judge accepted it? /Pieter Kuiper (talk) 12:47, 3 December 2009 (UTC)

In my book "Lichtenstein is another appalling example of an Israeli lawyer stretching the law" is a slanderous remark. An Isreali Court has ruled yesterday (Justice Yinon of the Tel Aviv Court) that a similar remark which appeard in a wikipedia talk page is slander, and oredered a compensation of NIS 20,000 (about $5,000). Pieter, if I were you I would appologize to Adv. Lichtenstein. Deror avi (talk) 12:50, 3 December 2009 (UTC)

And another comment - regarding Pieter' statment "With this the state of copyright in Israel being like this, one understands why the country is on the US Trade Department's priority watch list." - it is not the commons place to give criticizm of other countries Laws. The commons should accept each countries laws without any caltural bias. Deror avi (talk) 12:52, 3 December 2009 (UTC)

I repeat my question: has anybody ever used Lichtenstein's version of Presenti's opinion in a court case involving piracy of music, film, games, or software? /Pieter Kuiper (talk) 19:02, 3 December 2009 (UTC)

Have we been talking about piracy here? The fact that you cannot read Hebrew and don't trust Hebrew speakers is not something to bother the Commons' users with. Piracy is one thing and FoP is another, and we are talking here about FoP. No one in Israel ever questioned the idea that a creative work placed permanently in a public place can be photographed, filmed drawn or sketched. The law acknowledges it, the common legal interpretation is clear and the accepted social norms in Israel allow it. Obviously you used a very poor machine translation to read Adv. Lichtenstein's words and you definitely took them out of context. Now, please stop harassing us. Drork (talk) 19:39, 3 December 2009 (UTC)

I apologize for not remembering my Wiki username but this is Adv. Yoram Lichtenstein in person (yoramATy-law.co.il). As always in Israel, (and worldwide) copyright law trails way after technological and cultural advances and needs interpretory adjustment by the courts. I used such a defense myself on the District Court of Haifa by Judge Ginat in the case where certain movie and music companies and partnerships sued the first Israeli P2P sites(Lionetwork and Lala.I represented Lala). The case was never litigated as I managed to remove the injunction laid on Lala and then settle this case with peanuts. Yoram Lichtenstein.

Dr. Presanti's new book

I have just obtained a copy of Dr. Presanti's new book [7], which came out a short while ago (copyright Law third addition), which relates to the new Law. In the section titled: "שידור או העתקה של יצירה שממוקמת במקום ציבורי" ("broadcust or copying an artwork located in a public location")

Dr. Presenti, the leading Israeli copyright scholar, states on pages 1214 - 1215:

"על פי סעיף 23 לחוק מ-2007

"שידור או העתקה בדרך של צילום, ציור, שרטוט או תיאור חזותי דומה, של יצירה אדריכלית, יצירת פיסול או יצירת אמנו תשימושית, מותרים אם היצריה ממוקמת בקביעות במקום ציבורי."

מותרת עשייתם או פרסומם של ציורים, שרטוטים, פיתוחים או צילומים, לרבות שרטוטים אדריכלים של כל יצירה אמנותית שמצויה במקומות ציבוריים.

התנאי להתרת הפעולות של שידור או העתקה בסעיף 23 לחוק מ-2007 הוא שהן מוצגות דרך קבע במקום ציבורי

הפעולות המותרות על פי החסינות שבסעיף זה:

א. ליצור יצירה גרפית שמייצגת את היצירה (ציור, רישום וכדומה)

ב. לצלם את היצירה. ג. לפרסם את עותקי היצירה בכל דרך שידועה כולל הצגתם בפומבי לציבור.

מקום ציבורי שהמבקר בו נכנס אליו תמורת תשלום או בהרשאה, (לדוגמא: מוזיאון) רשאי בעליו להגביל את הצילום או ההעתקה של היצירות שמוצגות בו. העובר על הגבלה זו מפר הסכם בינו לבין בעל המקרקעין או בעל זכות היוצרים אך אינו מפר זכוית יוצרים ביצירה. גם העותקים שיצר אינם עותקים מפירים. התרופות שיעמדו לבעל המקרקעין או לבעל זכות היוצרים הן תרופות בגין הפרת חוזה."

Translation:

According to Section 23 of the Law from 2007:

"Broadcasting, or copying by way of photography, drawing, sketch or similar visual description, of an architectural work, a work of sculpture or work of applied art, are permitted where the aforesaid work is permanently situated in a public place."

It is allowed to make or publish a drawing, sketch, development or photographs including architectural sketches of all works of art located in a public location. The condiction for allowing the broadcast or copying according to Section 23 of the 2007 Law is that the artwork is permenantly located in a public location.

The activities that are immune from claims and are allowed according to this section are:

a. to create a graphic reprentation of the artwork (drawing, sketch, etc.)

b. to photograph the artwork.

c. to publish the copies of the artwork in any known possible way including presenting thereof in public.

Any public location in which a visitor is allowed to enter by paying enterance fees or by permission (for example: a museum), the owner of the location may limit photography or copying of the artworks presented therein. Any person breaching this limit, is in breach of a cotract between him and the property owner or copyright holder, but is not in breach of the copyright of the artwork. Nor are the copies he created in breach of the copyright. The only remedies for the property owner or the copyright holder are contractual remedies.

I think that it is clear from this that any artwork in a public location (whether 2D or 3D) are free to photograph. Deror avi (talk) 12:45, 3 December 2009 (UTC)

There is no use in the above citation. Pieter Kuiper has made up his mind, and he is the supreme leader of the Commons. Drork (talk) 12:51, 3 December 2009 (UTC)

Is he now? Well, I'm the Commander-in-chief of the US Armed Forces. I'm supreme compared to him.

Now seriously. The law was clear from the beginning, and the book of Dr. Presanti made it even more. I do believe it is time to end this discussion with a call to Pieter Kuiper to avoid dealing in things he has no knowledge about them. Barack Hussein Obama II (talk) 13:01, 3 December 2009 (UTC)

Indeed, in this version it says "all": כל יצירה אמנותית שמצויה במקומות ציבוריים

This is weird (unless one interprets יצירה as applying here to 3D objects). Does the book have any footnotes or references in this section? Does Presenti say anything about how extreme a 2D indoors FOP would be in an international comparison? /Pieter Kuiper (talk) 13:00, 3 December 2009 (UTC)

no footnotes. And I have mentioned before - the Israeli Court specificaly ruled that there is no difference in Israeli Law between 2D or 3D or 0D. An artwork is a concpet, and it doesn't matter its shape. Indoor 2D artwork have been photographed in Israel for many years, never objected by the Courts. Presnti has mentioned it in her 2000 book as mentioned above. This should not surprise Law. Deror avi (talk) 13:06, 3 December 2009 (UTC)

Ok, I accept that Deror avi gives a correct interpretation of the opinion expressed by Sarah Presenti. She writes כל יצירה אמנותית ("all artistic works"), using the exact same Hebrew words as in the definition of artistic works in article 1: "including drawings, paintings, works of sculpture, engravings, lithography, maps, charts, architectural works, photographic works and works of applied art."

But her opinion is strange. It is not supported by court decisions. It goes against a simple reading of the law text, and it goes against the expert opinion by Tamir Afori. This is not established law. According to COM:PRP, Deror avi's reintroduction of Presenti's opinion on the main page is not justified. /Pieter Kuiper (talk) 13:44, 3 December 2009 (UTC)

I know Pieter Kuiper will never be convinced. He has a bias and it is deeply rooted no matter what evidence we will bring him. All I have to say is this- Aforis' opinion is his own - and can not be brought before the court as evidence being hearsay. Presanti is the leading copyright expert and her book is considered the "אורים ותומים" (Urim and Thummim) on copyrights in Israel. Her books are referenced and quoted by the Courts. It should be sufficient for the commons. The quote is not ambiguous nor is out of context. Therefore it should remain being a clear representation of the leading Israeli expert on the subject. Deror avi (talk) 13:54, 3 December 2009 (UTC)

In a civil suit, there could not be a problem using the Knesset protocol as evidence, I think. And if the procedural rules of a criminal trial would be in the way, the prosecution could just call on Afori as an expert witness, to give evidence and be cross-examined in a court session. There is no doubt what he would say. Also, one may expect that the opinion of Presenti will be scrutinized in book reviews and scholarly papers. This is not established law. /Pieter Kuiper (talk) 16:07, 3 December 2009 (UTC)

And now you pretend to be an expert on Israeli Evidence Law? well first of all this is not a Knesset protocole, but a comittee protocole. And no - it has no value as evidence. Afori will need to testify (which he can not, being a civil servant). A criminal claim can also not be brought for various reasons which I am not going to list as this is irrelevant. When scrutinized in book reviews and scholarly papers are written, we can adress them. The Law may also be changes in the future. When that event will also happen, we will address it. The current Law is clear, it uses a term clear to all Hebrew speakes (the Law does not make any diference between 2D and 3D artwork which you are so insistant about), and the current writting of a leading scholar on the subject is even clearer (though I am sure not to your liking. But it has been ascertained before that most Israeli pictures are not to your liking). Deror avi (talk) 16:22, 3 December 2009 (UTC)

Tamir Afori recently joined a Law office, he can testify as an expert. There are of course also other experts that would disagree with Presenti. /Pieter Kuiper (talk) 16:31, 3 December 2009 (UTC)

When a Court will issue a rulling based on such an opinion, we will need to readress this issue. Until then the Law is clear. And its interpretation by the leading expert on the subject is also very clear. Deror avi (talk) 16:39, 3 December 2009 (UTC)

Pieter Kuiper, you are a wealthy man with a lot of free time. Do call Mr. Afori's office, phrase a question for him, pay his fee, and send us his legal advice. If you are so concerned, I think you should be more than willing to pay for a legal advice from an Israeli lawyer whom you trust. Drork (talk) 17:04, 3 December 2009 (UTC)

Just as I thought. You know the answer and rightfully prefer to spare your effort and money. I hope that's finally the end of this discussion. Drork (talk) 19:41, 3 December 2009 (UTC)

What Sarah Presenti seems to say about museums does not agree with מותר ללא הגבלה on Hebrew wikipedia. That section says that photos of works in museums by artists that died less than 70 years ago are not free. Of course, a wikipedia article is not Urim and Thummim in a court of law, but it shows that Drork and Deror avi are not representing a unanimous Israeli opinion in this matter. /Pieter Kuiper (talk) 11:42, 6 December 2009 (UTC)

The section in Hebrew Wikipedia stated exactly the oposite "צילום של כל אובייקט המוצג במקום ציבורי דרך קבע" - but you cant read Heberw so you don't have a clue. There was reference to Museums outside Isreal which I now clarified.

Also - why read the Hebrew wikipedia user manueal and not the article - see here: "בעת צילום של יצירה מוגנת בזכויות יוצרים (ציור או פסל, לדוגמה), ניתן להשתמש בצילום רק בתנאי שהתקבל אישור מבעלי זכויות היוצרים של היצירה המוגנת. אין צורך באישור כזה כאשר היצירה מוצגת לציבור, ובלבד שיצירה זו מוצגת דרך קבע במקום ציבורי". Deror avi (talk) 12:58, 6 December 2009 (UTC)

It is interesting to see that it was Deror avi who had added the restrictions about exhibited works that were still copyrighted. But that was almost two years ago. /Pieter Kuiper (talk) 16:57, 6 December 2009 (UTC)

A a person who can't read the language it always surprises me how much you try (without success) to interpret it using google. I am going to put it bluntly - you got it wrong - you misunderstood what was written there by me. You have no clue in general of the Israeli Law and your attemtps to understand it using google translation show your childlike behaviour. You pick and choose one sentence ignoring the one before it. And google, apperantly doesn't realy help you. If you wish to apply the policy of Hebrew Wiki here - then take notice it allows upload of all photography of all works of art permenantly in the public view (including 2D images), based on the Law. It is true that most Hebrew users prefer not to upload images to the commons just to aviod endless arguments with you. it has been advised before that Hebrew wikipedia would stop using commons images and start holding all images localy (and advise all Hebrew speakers not to upload images here), but I personaly think it is against the aims of the foundation to have such seperation. I think that, in general, the commons project will be better without your assistance. Deror avi (talk) 17:21, 6 December 2009 (UTC)

Tony Greenman

I would like to know what Tony Greenman says about the issue in chapter 6.5 of the new edition of his book זכויות יוצרים ("Copyright" - a detailed table of contents is here) /Pieter Kuiper (talk) 10:34, 6 December 2009 (UTC)

Greenman explains the rational of allowing photography of works of art in the public view:

"בהצעת החוק או בדיונים שהתנהלו בוועדת הכלכלה של הכנסת לא ניתן הסבר להיתר זה, מלבד העובדה כי היתר דומה היה קיים בחוק הקודם כי מקובל לבצע את הפעולות האמרונות, וכי היצירה האדריכלית, יצירת הפיסול או יצירת האמנות השימושית הנתונות להיתר נמצאות במקום ציבורי. הרציונל האחרון הוא המשכנע. הצבתן במקום ציבורי הפכה את היצירות הנדונות ל"חלק מהנוף". ממילא זכאי הציבור להביט ביצירות הללו ולהפיק מהן הנאה אסתטית. החוק מאפשר להעביר הנאה בו גם באמצעים בלתי ישרים."

Translation: "At the explenation to the Law and the debates in the Knesset economics committe no rational was given to this section, apart from the fact that a similar premision existed in the previous law, and it is a common practice to do such actions, and that the architecture, the statue or the work of useful art is located in a public place. The last rational is the main one. The placing thereof in a public place makes the works of art "part of the view". The public is entitled to view this works of art and enjoy them anyhow, therefore the Law allowes the provide this enjoyment also in indirect manner."

Thus Greenmen explains why the Israeli Legislator deems everything in the public domain to be FOP. Deror avi (talk) 13:12, 6 December 2009 (UTC)

Thank you. So Greenman does not extend the freedom of panorama to all artistic works, but he is listing only the 3D categories of architecture, sculpture, and applied art. He refers to common practice. This must refer to international customs of copyright legislation in many countries, as also Afori did in the Knesset committee. If Israel had been the extremely libertarian exception to international custom, Greenman could not have said that this is common practice. /Pieter Kuiper (talk) 13:50, 6 December 2009 (UTC)

No - read again - he extended it to all works of art located in public domain - as is the rational of the Law - whatever in the public view may remain in the public view, even by derivative work. His opinion is the same as Persanti. Every person who reads this text understands this (exept you - but you cant read Hebrew or English and googles translates). Deror avi (talk) 13:56, 6 December 2009 (UTC)

And I know Kuiper can read English, for I have mentioned it about 7 times before and he still doesn't comprehand - The Israeli law does not make any difference between 2D work and 3D. The Court have ruled that the Law applies to all dimentions (and all terms apply both to 2D and 3D as art is a concept and not a dimentional object, a painting may be 2D, 3D or 0D). "Useful art" may be 2D or 3D or 0D. The Courts have rulled for example that "Useful art" inclueds building and architectural works (3D), a two dimentional picture menu for a resturant (2D), a photograph (2D), as well as for arrangment of images on a billboard sign (0D - a concept) (all for the puprose of copyright law but not in relevance to Section 23, on which there are no court rullings). Deror avi (talk) 14:09, 6 December 2009 (UTC)

The Israeli copyright law makes an implicit but clear distinction between 2D and 3D. Article 1 enumerates artistic works in a mixed list. Of this list only the 3D items (architecture, sculpture, applied art) are exempted from copyright protection when permanently situated in a public place. However, the exemption is limited to making 2D derivatives ("photography, drawing, sketch or similar visual description"). Also Tamir Afori used these terms in the committee of the Knesset.

As for Greenman: the whole purpose of copyright law is to give economic rights to creators that make their work available to the public. Only some things in public view are free. Most countries agree that images of buildings should be free (exceptions: Italy, France, Belgium, Iceland). But I know of no country that permits the commercial exploitations of copies of recent 2D images exhibited indoors. It is a departure from the whole idea behind copyright (and the Bern convention). Tony Greenman is not saying anything like that. His words apply to almost every country. /Pieter Kuiper (talk) 14:37, 6 December 2009 (UTC)

Aparently Kuiper is realy too daft to understand, so I am going to say it for the last time. The Court have rulled many times that objects that are 2D are "useful art". There is no distincition in the Law, apart from the mind of Kuiper. Greenman specificaly explains the rational of the Law - everything in the public view permenantly may remain in the public view (derivative works allowed). Afori's personal opinion was not accepted by the members of the Knesset, nor is it accepted by the scholars and the courts. As for the Bern convention - apparently you do not understand it either. Its purpose is to protect in other countries whatever is protecte in one. What is protected in Israel should be protected elsewhere, and what is free in Israel should be free elsewhere. If an image becomes free in Israel (a painting permenantly in Israel is free in Israel and should be free elsewhere). Deror avi (talk) 14:58, 6 December 2009 (UTC)

I think Afori's professional opinion as the Government's expert was accepted by the Knesset politicians, because otherwise for example Limor Livnat would probably have proposed the limitation of FOP to non-commercial purposes, or Dov Khenin would have proposed a definition of "applied art". They did not want a FOP with extremely loose limits. They wanted that artists should get paid for their work. /Pieter Kuiper (talk) 15:12, 6 December 2009 (UTC)

And as to Bern - also Israel agreed to:Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder. (en:Berne three-step test) /Pieter Kuiper (talk) 09:26, 7 December 2009 (UTC)

As before, you can't read Hebrew, and apparently your google translation jumbles all the meanings. Both Livnat and Hanin said what she they exactly because they disagreed with Afori (and was against commercial use of statues in public locals). Eventually the Law was not changes, and as Greeenman and Presenti state - all works of art permenatly in the public view are free to be photographed. The Law is clear and its interpretation is clear (as can be seen above). However you may dislike it, Israelis, or Israel in genral, you can not change the Israeli law. I know I will not be able to convince you, and it is pointless to try. Everything you mentioned above is incorrect. The term "אמנות שימושית" - "useful art" in common Hebrew (which you are clueless of), and as it is used by the Courts include 2D artworks. Nowhere in the Law it is said otherwise. Deror avi (talk) 15:20, 6 December 2009 (UTC)

After I have read the documents mentioned above, I must say that Deror avi is right. Pieter Kuiper tries once more to understand complicated texts with machine translation, and yet again fails miserably. Since he is clearly determined to continue this harassment, I will report him to the administrators. We have better things to do rather with arguing with someone who doesn't want to listen or learn the necessary subjects in order to understand. Kooritza (talk) 15:52, 6 December 2009 (UTC)

I had a closer look at the Greenman quote, and I do not think its translation is accurate. At a crucial point, I regard Deror avi's rendition as misleading. Greenman wrote: הצבתן במקום ציבורי הפכה את היצירות הנדונות ל"חלק מהנוף" Deror avi translates it as: "The placing thereof in a public place makes the works of art "part of the view"." But Greenman does not use the technical term for "works of art". He refers to the "works discussed", i.e. the works in the list of 3D items in article 23: architecture, sculpture, and applied art. Also "חלק מהנוף" seems to be more related to panorama or landscape, than to a very general concept of what is "in view". /Pieter Kuiper (talk) 16:18, 6 December 2009 (UTC)

The wonders of google translation. And still - all works of art in public view are free to be photographed. That what the Laws says, and that what the leading Israeli copyright scholar says. I think this discussion should end with that, And Kuiper's attempts to delete as many Israeli pictures as he can without any legal basis should be stoped. Deror avi (talk) 16:51, 6 December 2009 (UTC)

But Greenman does not say it. Greenman refers to architecture, sculpture, and applied art – not to "all works of art in public view". Deror avi just dismisses the top legislative expert on copyright of the Israeli Ministry of Justice. He seems to have the same esteem Afori as of me. /Pieter Kuiper (talk) 17:19, 6 December 2009 (UTC)

Afori is not the top legislative expert of the ministry of justice, he was just the representative at that meeting. As for dismissing - Presenti is without doubt the leading Israeli expert on the matter, and Kuiper ignores her compeletly just because her clear statment does not comply with his unjustified prejudiced opinion. Deror avi (talk) 08:37, 7 December 2009 (UTC)

Afori was the Government's foremost expert on copyright. It seems that he was the civil servant assigned to the task of drafting the Government's proposal for the text of the 2007 law. /Pieter Kuiper (talk) 08:50, 7 December 2009 (UTC)

That's not accurate. There were at least two state-lawyers who drafted this law. As I mentioned before, I was present at one of the parliamentary hearings on behalf of Wikimedia Israel. There were two state-lawyers there, and the two of them were responsible for drafting the law and introducing changes as requested by the MPs. In any case, once the law is approved it is the state's law, to be interpreted by Israeli courts of law and/or Israeli authorized legal scholars. The opinion of the specific person who drafted the law is not compelling nor prevailing. Drork (talk) 09:00, 7 December 2009 (UTC)

Drork said "The opinion of the specific person who drafted the law is not compelling nor prevailing" and i would add - "and is of no importance whatsoever". Moreso - the opinions of the MK's at the debate is of no improtance and is ignored by the Courts. It is the Court's job to interpret the Law based on the official purpose of the Law "דברי ההסבר". Deror avi (talk) 09:41, 7 December 2009 (UTC)

Outside view, December 2009

OK, I've been watching this dispute for a while now and trying not express an opinion as such, until I'm sure where I stand. Its clear is that neither side is going to change the other side's opinion and there is no prospect of that happening in the foreseeable future (as nothing short of an actual court ruling will do that). Therefore IMO there is no prospect of any sort of consensus being acheived by further discussion.

I'm going to try and summarise what I think of the situation and ask for endorsement (or otherwise) of my view from the broader community.

1. The dispute is about the scope of Freedom of Panorama in Israel. Specifically does it extend to cover 2-dimensional artwork?
2. What is not in dispute is that an artwork must be permanently situated in a public place to be covered by the FOP provisions. 3D works such as architecture and sculpture are clearly covered by FOP.
3. The precautionary principle states that if the law is unclear we err on the side of caution. This means solid evidence needs to be provided that an exemption exists before we will accept material under that exemption. The burden of proof is on those who believe the exemption exists.
4. The actual law is not clear. Apparently this was a deliberate decision to give the courts freedom to decide how to interpret it.
5. The opinions of a number of lawyers have been mentioned. Whilst these are not binding, they give an indication into how the law is interpreted.
   1. Sarah Presenti states in her 2008 book "Copyright Laws" (pp1214-1215) that all art permanently situated in a public place is covered by FOP (quote and translation). This is a strong statement that cannot be misinterpreted. Her book is also likely to be consulted in any case, so her thinking is likely to influence the decision of the court.
   2. Tony Greenman in chapter 6.5 of his book on copyright (Table of contents)(quote and translation) restates the law and provides no real indication of its scope beyond the letter of the law. He indicates that he believes "applied art" has a broad application, though his phrasing is more ambiguous. This agrees with Dr Presenti. His book is likely to be consulted by a court. (For explanation of struck statement, see this edit.)
   3. Tamir Afori: The quote attributed to him comes from Kneeset discussion of the copyright law (source), and indicates that he believes 2D works are excluded from FOP quote. As I cannot read Hebrew I cannot interpret the broader document myself effectively, and evaluate whether his opinion on this matter was accepted or rejected by the MKs. In any case, his opinion was given in Kneeset debates before the law was passed and the courts are relatively likely to discount it. I'm curious at to whether the committee returned to that issue at all.
6. Drork has provided me with a selection of photographs of 2D artwork, some by Alex Levac (a photographer who has had his work published in a number of books). The context provided indicates that the FOP being is exploited as oppposed to permission being sought. This matches up with references in the discussion above.

It is not totally conclusive, but I believe that the preponderance of the evidence indicates that the law allows for a broad scope to FOP in Israel - including two dimensional work.

If anyone has an objection to any of my numbered points (as opposed to my conclusion) please talk about it at User talk:Nilfanion/Israel. All I really want here is for people to  Support or  Oppose, depending on if they agree with my interpretation or not. One thing I would say is that if there isn't a clear consensus that agrees with me then we ought to reject my interpretation - default in a no-consensus situation has to be to not accept the images.--Nilfanion (talk) 22:58, 6 December 2009 (UTC)

"clearly covered" is very poor wording. Does it mean "clearly covered by intellectual property rights, and hence should not be here", or (as I suspect) "clearly covered by freedom of panorama, and hence acceptable"? Either way, this should be made clear. - Jmabel ! talk 21:24, 6 December 2009 (UTC)

Ok fixed (sorry).--Nilfanion (talk) 21:25, 6 December 2009 (UTC)

Talking without voting resumes here

Tony Greenman in his book indicates that he believes "applied art" has a broad application--> Can you provide the quote and the page number, please ? Teofilo (talk) 15:31, 7 December 2009 (UTC)

"applied art" has a broad application, though his phrasing is more ambiguous. This agrees with Dr Presenti--> Can you provide a quote and the corresponding page number from a Presenti book, showing that Presenti's view on 2D works is based on an interpretation of "applied art" ? If so, does Presenti suggest that while applied 2D art might be OK, non-applied 2D art remain strictly protected by copyright law? Teofilo (talk) 15:31, 7 December 2009 (UTC)

Presenti says that the law allows 2D derivatives of "all artistic works" located in a public place. She uses the same Hebrew words as in the definition of artistic works in article 1. It would only exclude literary works. In my opinion, such a broad interpretation of the exception in article 23 is not compatible with the en:Berne three-step test that also Israel has signed. /Pieter Kuiper (talk) 15:43, 7 December 2009 (UTC)

As explained before - this has nothing to do with the Bern convention, nor does it contradict Berne. Just as the fact the Itali and France protect architectural works and forbid photography, and the UK and US do not. It doesn't mean that the UK and US contradict Berne. And just as the fact that statues in public in the UK can be photographed and in the US they can not - again - nothing against Berne and nothing to do with it. Israel also allowes 2D work which is in public. Deror avi (talk) 16:04, 7 December 2009 (UTC)

It remains to be seen what Greenman actually says, but there seems to be a disagreement, not an agreement between a "broad applied 2D art" supporter and an "all 2D art" supporter. "Broad" and "all" do not mean the same. Teofilo (talk) 16:15, 7 December 2009 (UTC)

First it is not "applied art" but rather "useful art". And the only disagrement is whether the term includes 2D works or just 3D. As I mentioned above, with examples, the Courts have rulled before that photographs are "useful art". So the only remaining argument is whether paintings are included or not. Presanti, the leading Israeli expert, in her legal textbook sais it does. Greenman does not, but he does refer to "useful art" and explains that whatever is in the public view should remain in the public view allowing derivative work. Deror avi (talk) 16:22, 7 December 2009 (UTC)

I do not think Greenman is "broad". He just repeats the 3D categories mentioned in article 23. And he refers to these as "the works discussed" or something like that (Deror avi's translation is not accurate). /Pieter Kuiper (talk) 16:24, 7 December 2009 (UTC)

You are the last one that can say something about translation, since you use google translate so frequently. Kooritza (talk) 16:30, 7 December 2009 (UTC)

OK in answer to Teofilo's questions (and to correct a stupid mistake I made in my original statement). Presenti's quote comes from page 1214-1215 of her Copyright Laws book. Greenman's quote comes from Chapter 6.5 of his book, but no detailed page ref has been provided. Afori's comes from the Kneeset debates on the issue (source).

Just to amplify my original views [and correct that mistake]:

1. Presenti is clearly in favour of a very broad interpretation. I do not believe that a respected lawyer would make a statement which is very different both from the text of the law and her own previous opinion on the matter (she did not make such a broad reaching statement in her previous book) without detailed reasoning. Therefore the surrounding text would likely provide evidence as to why she expressed her opinion in that way.
2. Greenman's quote is a just restatement of the law. I apologise for my initial take of this: I misread the operative part of the "important bit" as applying to "applied art" not "public place". On evidence provided I can conclude nothing about his opinion on the matter. Its possible he expresses an opinion on the scope of FOP elsewhere in his book but we have not that provided.
3. Afori's quote is just as clear as Presenti's, but in the opposite direction. What isn't as clear is how the MKs received that statement. His justification for that statement is not present in the parliamentary records provided.

I would appreciate high-quality translations of the quotes from a neutral source. However, its clear that the information that has not been provided is the really important part. In the case of Presenti, that's the justification for her opinion. That information would be as useful for us here as it was for her in compiling her book. In the case of Greenman, that additional info would indicate if he expresses an opinion which is of value to this discussion.

I apologise for misrepresenting Greenman's quote (proof you shouldn't edit when tired), I've struck that out and corrected it. I've also provided links to sources and the exact quotes in the summary.--Nilfanion (talk) 11:54, 8 December 2009 (UTC)

Greenman's quote is not a restament of the Law, but an elaboration - he gives an explenation to the rational of the Law: "The placing thereof in a public place makes the works of art "part of the view". The public is entitled to view this works of art and enjoy them anyhow, therefore the Law allowes the provide this enjoyment also in indirect manner". This rational should be kept in mind when trying to understand the Law. In my view this is a clear support of the broader definition of the term. Deror avi (talk) 12:11, 8 December 2009 (UTC)

The reason I softened my statement on that is Greenman says FOP applies to the 3 types of art listed in the law, as opposed to altering it to "all artistic works" like Presenti does. Therefore it depends how you interpret "applied/useful art". The follow-up statement only applies to the classes of work he has listed. It doesn't apply to any artistic works that are not useful nor does it apply to literary works. Pieter belives that there are many types of artistic work that are not useful, whilst I think I'm correct in saying that you believe almost all artistic works are useful. Therefore your interpretation of Greenman's statement depends on your interpretation of "applied / useful art" - it doesn't give indication as to Greenman's opinion of the term.--Nilfanion (talk) 12:19, 8 December 2009 (UTC)

It is really problematic that Deror avi repeats his inaccurate translation of Greenman. In that phrase, he does not use the Hebrew words for "works of art". He refers to "the works discussed", or something like that. So he refers back to the list of works mentioned in the law: architecture, sculpture, and applied art. He gives a standard rationale for the exemption - it would also be true in the UK or in Germany: stuff that is part of the permanent panorama might just as well be free for all. /Pieter Kuiper (talk) 12:28, 8 December 2009 (UTC)

I think we should stop this ping-pong which seems to lead nowhere. We have better things to do. There is no reason to doubt the legitimacy of the images in question, and there is no reason to encourage Pieter Kuiper's provocative behavior, which is clearly not going to end. I urge Deror to leave the last remarks unanswered in order to bring this discussion to an end. Any deletion request based on Pieter Kuiper's attempt to interpret the Israeli law should be regarded as harassment and as an attempt of censorship. Drork (talk) 12:52, 8 December 2009 (UTC)

Ah! Drork is censoring Deror avi... /Pieter Kuiper (talk) 12:55, 8 December 2009 (UTC)

I regard this last remark as an harassment. Another remark like that and I'll ask to block you. Drork (talk) 13:03, 8 December 2009 (UTC)

There is a large Hebrew-speaking crowd supporting 2D FOP, but they do not contribute any links to web pages that support their opinion. So I continued searching. And although this is a bit of a challenge for me, I found an iteresting court case. It is about the photographer Amir Weinberg, who sued the maker of a medal with a portrait of Yitzhak Rabin (English article in Haaretz). The medal is shown here. It was this photo that had been used for the medal, also in this earlier logo of the Rabin Center, and here. The photographer gave many more examples of its use. It was certainly on permanent display at the Rabin Center. Yet the medal maker does not invoke FOP as far as I can see in the machine translation of part of the court protocol. My conclusion is that such a defense against a lawsuit for copyright infringement was not even worth trying in court. /Pieter Kuiper (talk) 08:08, 9 December 2009 (UTC)

Your conclusion is unfounded and hasty, this case is from 2006, the new law is from 2007. 93.173.125.26 10:58, 9 December 2009 (UTC)

The 2007 law was not supposed to change FOP. Deror avi has been trying to argue that this is a long-established right in Israel, already exposed in older editions of Presenti's book. But in an actual court case where it would have been useful, the defense lawyer was not using it. So there has never been a FOP for photography (not even for "applied photography" as in the Rabin Center logo). And there is no FOP for 2D now. /Pieter Kuiper (talk) 11:08, 9 December 2009 (UTC)

I have read the judgement (it is not a protocole) carefuly at the original languge. That image was never displayed permenanlty publicly. On the contrary - it appeared on a logo (protected) in a newspaper a postage stamp and on a medal. It was never FOP - so Section 23 is irrelevant (the judgement deals with a completely different question - whether a "news photography" is protected as art or not). I would suggest that you stop trying to google translate languages you don't understand. This discussion is futile. And a last comment - that judgement has been appealed to the supreme Court and the appeal is still pending. Deror avi (talk) 13:19, 9 December 2009 (UTC)

I am quite convinced that this photo was on permanent display at the Rabin center. The Center used it as its logo. FOP would have been an obvious defense, if such reasoning would have had any remote chance of being credible to the court.

Your constant harping on my lack of skills in Hebrew is counterproductive: if I can find these arguments without a command of the language, it would be so much easier for a legal expert with good access to relevant texts in Law Reviews etcetera to refute what you are saying. /Pieter Kuiper (talk) 13:45, 9 December 2009 (UTC)

I have read the Judgement (in full, and not just the section you bring), as well as the decision in the appeal to the District Court and the motion for appeal to the Supreme Court. Have you? In all of them the FOP defence nor the equivelence of Section 23 in the 1911 Law is never mentioned. Nor is it states that the image was permenantly in display in the Rabin center. It is irrelevant. And your obsessivness is also odd. Deror avi (talk) 14:04, 9 December 2009 (UTC)

Excellent! Now you confirmed my impression that FOP was never mentioned in that case, thank you for checking that. Apparently, it was not even worthwhile arguing whether the portrait at the Rabin Center was permanently situated or not. It would not have mattered. FOP is indeed utterly irrelevant for 2D. /Pieter Kuiper (talk) 14:12, 9 December 2009 (UTC)

Aparently your english is not good so I will use simple words: In Israel, All works of art that are permenantly based in public locations can be photographed. All works of art - whether 2D or 3D. If it is not in public location permenantly it can not be photographed. A judgement relating to an infringment of a news photography which appeared on a sticker or a newspaper and was never not permenantly in a public location is not relevant to the FOP question or to section 23 of the Law. That is why the FOP section is not mentioned in the judgement. If you do not understand any of the words in this paragraph please contact me and I will explain it more simply. Deror avi (talk) 14:26, 9 December 2009 (UTC)

Pieter, I know for sure that you have no interest in promoting this project for the benefit of all of us. You are here to ruin this project, and you are quite successful in doing so. You manage to waste our time and energy in a way that makes me wonder if you do not treat the discussions on this site as a kind of grotesque amusement. Now I am going to explain (again) why I am attacking you like this: (1) You claim Hebrew speaking Israelis do not know their own country's law nor read their native tongue. Alternatively, you claim that Israeli users are here to mislead the rest of the users. Had I said Dutch people cannot understand the laws of the Kingdom of the Netherlands or that I understand text written in Dutch better than the Dutch users here, I would have been laughed at and then banned from this site. (2) You claim no reference sources were offered to you. I don't know if I should laugh or cry. All the references in the world had been offered. You keep looking for sources in a language you don't understand and force us to explain to you why these texts are irrelevant. I suppose you next step would be quoting from Hammurabi Code, and we will have to explain that copyrights never existed at that time, which you would regard as a biased unsatisfactory reply, of course. (3) Deror explained to you that FoP was not mentioned in the last text you dug up, nor does it say that the image in question was placed permanently in a public place. You say the fact that none of the issues relevant to this discussion proves your point. What's next? Saying that the Israeli Law of Return also proves your point? How about the law which established the New Sheqel as the official currency in lieu of the old Sheqel? Does it prove you point as well? I can offer you a huge pool of irrelevant statutes and court rulings. Apparently they would all prove your point being irrelevant to this discussion. 14:32, 9 December 2009 (UTC)— Preceding unsigned comment added by Drork (talk • contribs) (diff)

Back to the subject. The management of the Opera Tower building in Tel Aviv tried to forbid the amateur photographer Ziv Mizrahi to make photos of the building. This became known on the internet, and it led to a flash mob, asserting Freedom of Panorama. See blog entry in English and the Flickr set. Excellent, of course, I uploaded two of those photos to commons. But if the right to make photos of buildings on the street needs to be asserted, it is just not credible that Israeli law would permit anyone to market postcards of paintings in museums. Such a right does not exist. /Pieter Kuiper (talk) 15:13, 9 December 2009 (UTC)

I think it was an Israeli legislator who said: אל תען כסיל כאיוולתו פן תשווה לו גם אתה. Pieter, that means Tan dwaas om hem te vergelijken met Penn Caioolto U according to google.Deror avi (talk) 15:33, 9 December 2009 (UTC)

Google translate has problems with the Book of Proverbs, probably because Biblical Hebrew lacks matres lectionis. "Antwoord den dwaas naar zijne dwaasheid niet."/Pieter Kuiper (talk) 15:44, 9 December 2009 (UTC)

No - that is "תשובה השוטה לפי הטיפשות שלו" and not what I said. Deror avi (talk) 15:46, 9 December 2009 (UTC)

As usual, you are wrong. /Pieter Kuiper (talk) 16:09, 9 December 2009 (UTC)

Well, Hebrew speakers might have noticed that Deror spelled the proverb according to Modern Hebrew norms, i.e. with immot qri'a (matres lectionis). This is a common habit when you are not sure the reader (or in this case the machine) is acquainted with the ancient spelling method. As you can see it didn't help Google much. Drork (talk) 16:21, 9 December 2009 (UTC)

By the way, Pieter's remark about the Opera Tower in Tlv, remarkably demonstrates his way of thinking. According to him, if a bully blocks your way, it means your freedom of movement is contested and you have prove beyond any reasonable and unreasonable doubt that you have the right to keep walking, otherwise the bully's claim becomes the law. That explains a lot about the way Mr. Kuiper behaves here. Drork (talk) 16:27, 9 December 2009 (UTC)

Enough, Drork. Putting Kuiper's behavior aside here, every time this comes up, you decide to show up and verbally abuse him personally. It's obnoxious, annoying, and not appropriate behavior.--Prosfilaes (talk) 16:54, 9 December 2009 (UTC)

Pieter Kuiper has been abusing me personally, as well as Deror and other Israeli users here. He repeatedly suggests that we act in bad faith and/or try to deceive other users, he repeatedly questions our integrity and our intelligence. I thought we deserved some protection from his behavior, but apparently you think I should be condemned for pointing out how grotesque this situation has become. So be it. Drork (talk) 17:00, 9 December 2009 (UTC)

And gee, here I thought we were old enough not to think that "he started it!" was a reasonable answer. It's not about what he's doing; it's about what you're doing. If you want to ask for Commons:Arbitration or a like process, go for it. Just turning every discussion into complaints about Pieter Kuiper doesn't help anything, and doesn't make it look like he's the only one at fault.--Prosfilaes (talk) 17:53, 9 December 2009 (UTC)

"He started it" is NOT an acceptable approach. Everyone needs to stop behaving badly. This conversation represents a very big investment of time on the part of a lot of people to come to grips with a thorny issue, it's come closer than we have in a while, and I for one do not want it derailed with bickering. If exhortations to be mellow are not enough, stronger measures will be taken. This warning applies to multiple parties. ++Lar: t/c 03:15, 10 December 2009 (UTC)

here is a blog entry by Ron Almog about the new law. It steps through the law chapter by chapter, mainly commenting on the copyright situation for software. There is also a short section about article 23. For the exempted categories of works, it just cites the law: architecture, sculpture, and applied art. It goes on to say that the requirement of "permanent" is slightly relaxed in comparison with Mandate law, but that the word is not clearly defined. It also says that "public place" could have been worded better. Nothing here indicates a very broad FOP including 2D works. /Pieter Kuiper (talk) 18:32, 10 December 2009 (UTC)

And nothing indicates the opposite either, but why to look at the blogs, why not to follow the low itself?--Mbz1 (talk) 18:42, 10 December 2009 (UTC)

Nothing in the text of the law indicates a FOP exemption for 2D works. Tamir Afori (who drafted the text, so he should know) stated that paintings were not included. There is only this strange statement in Sarah Presenti's book about FOP for all artistic works. My intention with searching the internet is to see if there is widespread support or some motivation for that opinion. /Pieter Kuiper (talk) 18:56, 10 December 2009 (UTC)

Yet another irrelevant source courtesy of Pieter Kuiper. Ron Almog does not present himself as a lawyer or jurist. He makes innocent non-authorized comments. He says nothing relevant to our subject here. He deplores the fact that the law does not define the terms "public place" and "permanently" (he says nothing about omanut shimushit, so he probably thinks this term is straightforward). The term "public place" is defined in court rulings, so there is no problem there. The term "permanently" is also quite straightforward. I am waiting anxiously to the next irrelevant source brought here by Mr. Kuiper. When we get to Hammurabi's laws we will know he exhausted to World Wide Web. Drork (talk) 06:15, 11 December 2009 (UTC)

Not a helpful comment. In case you were not clear about whether I was talking to you as well as others, just above, I was. Contribute peacefully and constructively, please, without making disparaging remarks about others. ++Lar: t/c 21:48, 11 December 2009 (UTC)

As mentioned - blogs and personal opinions (such as Affori's) are not applicable in Court. The only appilcable quotes are those of leading experts - Dr. Presanti's. There is nothing in the Law that says that "Useful art" is only 3D. On the contrary. The Courts have rulled it is also 2D. Deror avi (talk) 10:48, 12 December 2009 (UTC)

Presenti's opinion is her own only. She just expresses it, without references, without any reasoning. But Afori was speaking as the Government's expert in a meeting with Knesset members. He is brief, but he explains why paintings cannot be considered applied art - paintings are listed as a distinct category in the different genres in the law's definition of artistic works. If the protocol of that meeting would not be of interest to the court, Afori can be called as a witness. There is no doubt what he would say. /Pieter Kuiper (talk) 11:12, 12 December 2009 (UTC)

Pieter, there is only one way in which your personal opinion can become compelling. You can sue one of the uploaders in an Israeli court and convince the local judge that you are right. You can try calling Afori as a witness (considering that the uploader would call Presenti and many other legal experts who do not share the view you advocate here so enthusiastically). If you lose, which is very likely, you'll probably have to pay the trial's expances. Are you going to take this trouble? If not (which is probably the case) you have no alternative but to trust the Israeli users here. And another word - anyone who let Pieter Kuiper drag this discussion forever while questionning other users' good faith and discernment, takes the rist of it beoming ugly. Ending this discussion is the right thing to do. Drork (talk) 11:45, 12 December 2009 (UTC)

I cannot sue, as I do not have copyright claims on any of these works. The point is whether commons considers photos of Chagalls and Lichtensteins in Israeli museums as free images. Can someone make postcards of those without permission? I think the postcard publisher would get an invoice with a claim for damages. Would you advise him to refuse to pay? /Pieter Kuiper (talk) 12:09, 12 December 2009 (UTC)

Neither you nor I nor anybody else here can advise anything, we are not jurists, and we do not offer legal advices. The question here is whether the Commons recognize the Israeli law as it recognizes any other local law, or whether the Commons make special rules when it comes to Israel. As mentioned above, photography is forbidden in most Israeli museums, and anyone who takes images despite the prohibition can be sued for violating contractual agreement with the museum's management. I doubt if any Israeli here would like to take this risk, unless the museum gives its consent, which is another story altogether. Furthermore, most paintings Chagalls and Lichtensteins are not permanently displayed in one place, so they are not part of FoP anyway. We are talking here only about Frescoes, wall paintings, wall carpets, mosaics, images fixed to walls or posters that are used for a single purpose in a single public place. All of these can be photographed, with the photograph distributed freely, according to the Israeli law. There are plenty of examples for such photographs in Israeli books, albums and magazines, and Nilfanion can confirm that, because I sent him some examples. Drork (talk) 16:33, 13 December 2009 (UTC)

This looks like a tactical withdrawal from paintings. Is Drork now saying that File:Abba Yavniel.JPG should be deleted? And here is a CC Flicktr image of a Lichtenstein permanently displayed at the Tel Aviv Museum. It was custom made in 1989, fixed to the wall; is Drork going to upload it to Commons? /Pieter Kuiper (talk) 18:47, 13 December 2009 (UTC)

And, of course, when a museum allows photography, it, being the commercial copyright holder, allowes it knowing that the images may be reused (even as postcards). Deror avi (talk) 16:58, 13 December 2009 (UTC)

Please give a reference for this. /Pieter Kuiper (talk) 18:47, 13 December 2009 (UTC)

Do you not think the museum is the copyright holder? If it is not, how does it sell postcards? It is you who should bring reference to the contratry. You keep mentioning File:Abba Yavniel.JPG - well - as I stated at the deletion vote which you started - the copyright holder (the current owner of the drawing who recieved the right from the artist) allowed upload to the commons - so it is irrelevant. Deror avi (talk) 10:05, 14 December 2009 (UTC)

I would just like to point out, in response to a remark I saw in the voting. The only person who does wikilawyering here is Pieter Kuiper. The Israeli law and common practical interpretation of the law is clear and does not leave much room for doubt. Pieter Kuiper has his doubts, so some Israeli users bothered to check, and recheck, and came up with the a calming answer. Pieter Kuiper refuses to accept it, and he keeps this debate alive for nothing. Now he thinks I'm making tactical moves, as if we were in war here. There is no tactics here, there is an Israeli law which applies for images taken within the Israeli border, and there is a user who thinks Israeli users are not trustworthy. Drork (talk) 14:25, 14 December 2009 (UTC)

Deror avi: ownership of an original of a work of art does not automatically imply ownership of the right to make reproductions (reference: copyright 101). A museum will often need to negotiate about permission for selling postcards. The copyright owner may claim royalties. Israel is no exotic exception to this. The Israel Museum says that it owns and manages the copyright of four artists; for the host of other artists the museum maintains a database with contact information for clearing artists' copyrights (source). /Pieter Kuiper (talk) 10:55, 15 December 2009 (UTC)

The common practical interpretation of the law is not clear; your interpretation would deprive paintings of copyright. Buy a painting or print, hang it outside, and you can photograph and make exact copies of it to your heart's content. That can't be how the law is meant to be read, and without more evidence I don't think we should be reading it that way.--Prosfilaes (talk) 15:00, 15 December 2009 (UTC)

That's not what the law says. The condition is that the object, 2d or 3d, will be displayed permanently. If you take a painting that you have purchased from the artist and hangs it outside your house it is not free since it is only temporary. Kooritza (talk) 20:20, 15 December 2009 (UTC)

Which misses the point; whether it's permanently fixed outside the house, or hung in an commercial building open to the public permanently, it's still a way for us take paintings that are supposedly copyrighted, make reasonably exact copies, and upload them to Commons. That strikes me as outside the intent of the lawmakers and international copyright law.--Prosfilaes (talk) 20:57, 15 December 2009 (UTC)

I'm afraid you are the one who misses the point here. As "Kooritza" said, we are talking about works permanently displayed in a public place. There aren't too many paintings that qualify to this condition. Now, let's make one thing straight - the distinction between 2D and 3D works is irrelevant here. You try to impose foreign criteria on the Israeli law, which is not right. Each country has its laws and norms, and in Israel pictures of frescoes, murals, mosaics,wall carpets, permanently displayed posters and all kind of 2D works permanently displayed in public, are regularly published in books and magazines and no one ever questioned this habit. Furthermore, a leading legal expert wrote an authorized opinion saying this was perfectly legal. As mentioned above, most museums and galleries in Israel forbid photographing anyway. Many even demand leaving the cameras at the front desk. Therefore, it is very unlikely that the dilemma you raised will become practical. BTW, museums often display works whose copyrights expired. You probably won't see photographs of them here either due to the ban on photographing in most of the museum. Drork (talk) 23:16, 15 December 2009 (UTC)

(after Edit conflict)No, that should be only in public place (museum etc.). It is clear when you read the law in Hebrew. I do hope that you are not hinting that I'm trying to turn commons into a place full of copyvio. I think that after over 92,000 edits and hundreds of articles (12 featured) in he.wiki I can be trusted when I'm saying in English what the Israeli law and a leading scholar has to say about this. The international copyright law isn't relevant, because the MK's knows how to draft the law without violating international agreements which were signed by the government. Kooritza (talk) 23:27, 15 December 2009 (UTC)

If the MKs know how to draft the law without violating international agreements, then those agreements are relevant, as any interpretation of the law that violates those agreements is obviously wrong.--Prosfilaes (talk) 19:00, 16 December 2009 (UTC)

I don't see why the Law violates any agreement of Israel. When an artist donates a picture to a museum in Israel he should be aware of the Law - and as mentioned before, there is no difference in Israel between a 2D artwork and a 3D artwork - and as it is OK that a 3D artwork in the UK is free to be photographed and this is in no violation of any international agreement, so is the case for Israel (which allows photography of all artwork permenantly in public). Deror avi (talk) 21:49, 16 December 2009 (UTC)

And when an artist sells the painting to an American who then donates it to an Israeli museum?--Prosfilaes (talk) 22:13, 16 December 2009 (UTC)

I asked a similar question. The answer that Deror avi gave was very surprising for a lawyer claiming to be familiar with copyright. /Pieter Kuiper (talk) 22:57, 16 December 2009 (UTC)

As usuall Pieter Kuiper is talking nonsence. a sale agreement must be in writing - and therefore must adress the copyright issue specifically. If the sale includes the copyright then it is transfered. And when an artist sells the painting to an American who then donates it to an a UK municipality and places it in a centeral location - it can be freely photographed. And if that aristis donates the statue to a UK museum - its still can be freely photographed? what is the problem with it? The Israeli Law demands that the transfer of rights is in writing, so the artist or the donour of the artwork knows it has been transferred and there is no question about it. Any museum who creates postcards of an image is also the owner of the rights (and not the original artist). Deror avi (talk) 23:20, 16 December 2009 (UTC)

A sale agreement must be in writing? Where? Since when? I bought a painting recently, with less fuss and formality than buying a can of soup at the supermarket. No receipt, no paperwork at all, simply cash and carry. A statue is fundamentally different here; the analogy would be complete if you could make an exact copy of the statue in a public place and sell that.--Prosfilaes (talk) 00:53, 17 December 2009 (UTC)

This just shows you that the Law in different countries is different - in the UK there is no problem with photographing a statue in a public place (and so is New Ziland, Australia and Canada and Israel). Israel allows also other works of art. In Israel (as well as other commonwealth countries) a purchase agreement of a copyrighted work of art must be in writing. Therefore when a museum in Israel purchases a work of art (or is gifted one) there must be, according to Law, a written agreement in which it is clear that the museum (or any other person for that matter) is the owner of the copyrights. Thus the artists rights transfer to the purchaser, and if the purchased chooses to place the work of art permenantly in a public location - it is in fact free to be photographed. Deror avi (talk) 11:25, 17 December 2009 (UTC)

You can easily purchase an artwork in the UK without a formal written contract (example). Purchasing the copyright to that artwork is a different matter. Ownership of an item is different to ownership of the intellectual rights of that property.--Nilfanion (talk) 11:43, 17 December 2009 (UTC)

Probably, Deror avi misread something. Maybe a statement like: "for the purchaser of a painting to obtain the right to make postcards, a contract transferring copyright is necessary." Because also in Israel one can buy art at auctions. /Pieter Kuiper (talk) 11:51, 17 December 2009 (UTC)

I am not familiar with the Iclandic Law, but apperantly it does not differentiate between 2D and 3D artwork outdoors as well. The only difference between it and the Israeli Law is that the Israeli Law does allow commercial usage. Deror avi (talk) 18:59, 20 December 2009 (UTC)

Wait a minute. Is Deror avi claiming that in commonwealth countries—or in Israel—art may not be sold without a written contract that explicitly assigns copyright to the purchaser?! That is a truly bizarre claim, and if he really meant to say that then I have to say I'm beginning to see Pieter Kuiper's point. It's pretty fundamental that when one buys a painting one does not get copyright; if one wants the copyright one must negotiate for and purchase it separately from whoever owns it, which will generally not be the same person who sold the painting. -- Zsero (talk) 06:12, 21 December 2009 (UTC)

I believe he didn't mean that it is prohibited by law (it is not), but that this is the best way to settle any legal problems that may arise because of copyright issues. Be that as it be, all those things belong to contractual law and not to copyright. Kooritza (talk) 10:53, 21 December 2009 (UTC)

The way I'd interpret this point: You can purchase an artwork in the Commonwealth (and Israel) by any means, without a formal contract. However, the copyright is not transferred. You can purchase the copyright to the work, and that transfer of copyright requires a formal contract. And of course, moral rights are non-transferable. In the case of these postcards, the museum may do any of the following: Negotiate licensing from the copyright holder, require the ability to exploit the work before they would display it, formally purchase the copyright. They could also just exploit the provisions of section 23, assuming FOP does cover the subject of the postcard of course, and may even just go ahead in violation of copyright (figuring that the copyright holder won't complain). There are a few scenarios here whereby a museum could produce postcards of copyrighted works, some more plausible than others, only one of which requires that the museum obtains the copyright.--Nilfanion (talk) 11:34, 21 December 2009 (UTC)

Nilfanion you are correct. What I said is that when a museum purchases a work of art - it will be in writing and in such case the copyright issue will be addressed. The purchase of copyrights in Israel (I don't know about other countries) must be in writing. However - a museum is usually not the issue. It usually will not allow photography and if it allows it without haveing recieved permission of the artist or without ownership of the copyrights, while the derivative work is allowed by Law, it is the museum that is in breach of contract, as Presanti said; If it indeed forbade photography, then the photographer is in breach of a contract - but still - not in breach of copyright because of the previsions of the Law. Deror avi (talk) 14:58, 21 December 2009 (UTC)

There are special exceptions for libraries and archives, but museums have no special status in copyright law. And the exceptions for archives do not allow selling postcards of copyrighted works. Museums need to get permission, ownership does not give reproduction rights. /Pieter Kuiper (talk) 20:02, 25 December 2009 (UTC)

What you're doing here is getting into small corners, which is not the purpose of this discussion. You are discussing an unlikely event in which a person enters a museum with a good camera (with flash and good focus) and take pictures of paintings hung there without the permission of the museum. In most cases this would be impossible, because the guard would stop him. If he can get away with that, he might be sued by the museum for violating an unwritten agreement between them, and even more importantly - the chances that a copyrighted painting would be displayed permanently in the museum are quite slim. So what we have here is a theoretical case, by which you try to prove that all photographs of 2D works in Israel are illegal. This trick is called "ad-absurdum", bringing an absurd or unlikely example in order to dismiss an argument. Ad-absurdum is a well-known logical fallacy, so we'd better leave it and get to the point. BTW, the whole nature of this debate is "getting into small corners". The whole debate started from Pieter Kuiper's demand to delete any picture coming from Israel that depicts a 2D work. This is nonsense. The Israeli law does not forbid taking picture of 2D works permanently displayed in public places, and there is nothing in the international conventions that say it is not right. Surely there are borderline cases. As long as we all act in good faith, we can work them out. There is no need to order a sweeping ban on all photographs from Israel in order to account for the borderline cases. Drork (talk) 08:24, 18 December 2009 (UTC)

Version by Avi/Avraham

Now User:Avraham has just gone in and made a new version. It appeals to a consensus on Commons, with ref to the straw poll above. I think it would be more accurate to call that a consensus of hewp users, that came here after canvassing on the Hebrew wikipedia. The messages on the Hebrew village pump were more concerned with villifying me than with explaining the legal issue. Avi then talks about "Presenti et al", which seems to be a peacock term for "Presenti + Deror avi". /Pieter Kuiper (talk) 22:35, 28 December 2009 (UTC)

Yet another attack by Pieter Kuiper on Israeli users, assuming they act in bad faith. I hope it will be ignored. We wasted enough time on this subject. Drork (talk) 22:38, 28 December 2009 (UTC)

For the record, I'm American, not Israeli -- Avi (talk) 22:44, 28 December 2009 (UTC)

I note Deror avi has now reverted Avi's edits. Those changes were made in response to my comments elsewhere that the section contradicts itself. That problem remains. The first sentence says that "an architectural work, a work of sculpture or work of applied art" are permitted and then the final sentence suggests "all works of art" are permitted. It is either one or the other surely? Adambro (talk) 22:58, 28 December 2009 (UTC)

I believe Dror is relying on the Presenti clarification below, although I think a clearer statement is warranted in my opinion as well. -- Avi (talk) 23:07, 28 December 2009 (UTC)

I agree that the text of section is problematic and both forms used aren't perfect due to the lack of an attempt to address this dichotomy. Presenti's quote states FOP applies to all works of art, the text of the law says the restrictive thing. These statements can be easily reconciled in two ways: (1) Presenti's quote is incorrect or (2) she provides reasoning as to how all works of art fall into one of the three classes - the implication here that "applied art" has a broad scope is the centre of all this discussion.--Nilfanion (talk) 23:17, 28 December 2009 (UTC)

The consensus view of the commons was that Presenti can be taken at face value. The issue is do we need to have the clarification in the quotation of the law or is the sentence after the links sufficient? -- Avi (talk) 23:36, 28 December 2009 (UTC)

I'm trying to summarise the vote now (basically for diff-linking) give me a few minutes. When I've done that I'll address the project page, and get a phrasing that addresses Adambro's concern.--Nilfanion (talk) 23:38, 28 December 2009 (UTC)

Presenti is the leading expert - and her text book explains the Law. Deror avi (talk) 23:39, 28 December 2009 (UTC)

As is constantly repeated yet as it stands the quote from her isn't consistent with the quote from the law. One says "all art", the other says "of an architectural work, a work of sculpture or work of applied art". Can you recognise my concern? Adambro (talk) 23:53, 28 December 2009 (UTC)

I agree it appears problematic. The thing is, the quote is an assertion by a respected lawyer in a 1000+ page book. She quotes the law and then indicates a very broad interpretation of it. I would be shocked if she did not provide reasoning for that interpretation within her book. Of course, I'd feel happier if the details of that reasoning were provided (who knows she might reference a case that proves the point?). I think AGF covers this: Deror provided a clear quote and its unreasonable to suppose the original statement is unsupported. The obvious mechanism for reconciling the two statements is that "work of applied art" has a very broad legal meaning and is effectively equivalent to "artistic work", however I cannot be certain of that.--Nilfanion (talk) 00:11, 29 December 2009 (UTC)

But Presenti gives no supporting references or reasoning. Apparently, Homer slept. /Pieter Kuiper (talk) 00:15, 29 December 2009 (UTC)

That's not necessarily true. Deror has not given the supporting references or reasoning on Commons at this time just the bare quote. That's unfortunate. I'm saying that I believe that Dr Presenti gives supporting references or reasoning in her book.--Nilfanion (talk) 00:27, 29 December 2009 (UTC)

I asked, and Deror avi answered that Presenti gave no references. No mentioning of how unique such an exemption would be in an international perspective. /Pieter Kuiper (talk) 00:34, 29 December 2009 (UTC)

"No footnotes in that section" is not the same as "no supporting information". Maybe the remainder of that chapter of the book is a discussion of the details, who knows? Are you saying that a respected lawyer would give a novel legal opinion without some rationale? The international perspective is, ultimately, irrelevant...--Nilfanion (talk) 00:43, 29 December 2009 (UTC)

Copyright legislation is international. I am not only thinking of the Berne convention which says that exemptions like FOP must be limited, but also of the Israeli connection with Commonwealth legislation on copyright. An extreme position would likely atteact some comment. Writing Commons policy on the basis of "there must be some darn good reasons in the book somewhere" is just not serious. /Pieter Kuiper (talk) 00:50, 29 December 2009 (UTC)

Commons policy (in this case) is ultimately following the opinion of a lawyer with substantial experience of the relevant law; and consensus (as expressed through the vote) is to accept the view of that lawyer. The basis of her opinion would be helpful but if it was provided, it would still boil down to Commons following the opinion of a lawyer. I'd point out one thing you mentioned: An extreme position would likely attract comment. Therefore, if a lawyer makes an extreme assertion in a book that has been out for some time, there would likely be commentary on that by others. That commentary would be a useful information for us, have a look to see if you can find it?--Nilfanion (talk) 01:02, 29 December 2009 (UTC)

The book is very recent (2009). Very strange to adopt it as established law. /Pieter Kuiper (talk) 01:07, 29 December 2009 (UTC)

Just to clear something up - Israel previously used an inherited British Mandate law that was written in mix of English and Hebrew (original phrasing and pre-1948 amendments in English, post-1948 amendments in Hebrew). The current law is written entirely in Hebrew, and there is no official translation to any other language. Now, the term "applied art" is one possible translation of omanut shimushit and definitely not the only one, especially in legal context. Dr. Presenti and other scholars do not take this Hebrew term to be equivalent to "applied art" in English. Their interpretation complies with the official explanation of the law (the "Words of Explanation" offered to the lawmakers before voting), which states the new law does not change the status quo regarding FoP. The International conventions define limits, but leave room for local nuances. For example, WIPO determines that the copyright period must not be less than life+50 years, but does not specify a specific period of time. It also allows flexibility in the definition of "creative work", for example, in Egypt the new law defines certain categories of works that are protected for less than life+50, and it is not considered a violation of WIPO. WIPO did order member countries to cancel the special treatment of photographs, and start treating them as any other creative work. The Israeli draft law was indeed changed accordingly (though the final compelling phrasing says this change is not retrospective). Drork (talk) 07:27, 29 December 2009 (UTC)

Preseanti explained in her book of 2000 that based on the rational of the Law (as is also explained in Greenman's book), all works of art in a public place are free, and gave an example of works of art in a museum. Most commonwealth countries agree that 3D art is FOP, and the UK Courts have rulled that some 2D are free (stained glass and mosaic if in public place). The Israeli Legislator's rational is simple - whatever is viewed permenantly by the public sould remain so, and the right of viewing is a basic right, therefor derivative work is allowed. This is no breach of the Bern convention, just as the fact that photography of works of art (3D) in the UK, Australia, New Zealand, and some types of 2D works of art in these countries that is permenantly in public is FOP, is not a breach of the Berne convention. Presanti's opinion is in fact there from 2000. There has never been a Court case stating otherwise, as it is clear to all that such photographs are free. Her new book explains that the term "useful art" in Section 23 is a borad term including all work of Art. The Court have ruled (with regards to other sections of the Law, that the Legislator ment to expand the meaning of the term and not to narrow it. Deror avi (talk) 07:51, 29 December 2009 (UTC)

This could be, partially, solved by answering a simple question. Was the interpretation of dr. Presenti ever challenged in court, and if it was, did the court follow this interpretation. If the court did, then it must be assumed to be correct for Israel. If it wasn't challenged in court, this is simply an interpretation of the law and our "policy" would be based on the fact that "because our interpretation is the same as dr. Presenti, we won't get sued". This is clearly a violation of the precautionary principle.
Kind regards, Kameraad Pjotr 08:12, 29 December 2009 (UTC)

The FOP issue is so clear in Israel that no claims have been filed. However other copyright claims are filed on daily basis, and in many of those claims the Court's quote Presanti's book, as she is considered the leading authority in Israel. As for the precautionary principle, there is no doubt once you base your policy on a leading textbook, which has been qouted by the Israeli Courts many times. We fall into none of the categories of the precautionary priniciple.

and one more thing. If we are consideting what "might happen" then it has been rulled by the US Courts that "The Congress that can extend the protection of an existing work from 100 years to 120 years; can extend that protection from 120 years to 140; and from 140 to 200; and from 200 to 300". According to your interpretation of the precautionary principle, we should delete all images from the US that are less than 300 years old because we are just hoping it might not happen, and we will not get sued.

I beilieve that following a leading text book is enough for the commons, and not a question of "might happen". Deror avi (talk) 08:36, 29 December 2009 (UTC)

Has the Congress extended this protection? No it hasn't. Has dr. Presenti's interpretation been proven correct in court? No it hasn't. Commons should not make such interpretations, because our defense is nothing more then "they won't sue us, because dr. Presenti says it". As she is neither lawmaker nor judge, that is not a valid argument. Kameraad Pjotr 08:44, 29 December 2009 (UTC)

There was a court case about a commemorative medal with the portrait of Yitzhak Rabin. The photographer sued the medal maker. The photo was on display at the Rabin Center. Yet the defendant did not bring up the FOP defense. Not even as a backdrop defense. Apparently because everybody knew that it would not apply. /Pieter Kuiper (talk) 08:58, 29 December 2009 (UTC)

I have mentioned befor Pieter Kuiper has not read the above rulling which has nothing to do with FOP. He only read a partial bad translation of a decision of a lower court which was appealed to the supreme Court. The above photo was never premenatnly displayed.

I understand that Kameraad Pjotr is not goind to abide by the concesus reached, and that it doesn't care about legal text book. To the best of my knowledge there was no German court rulling that a museum is not a "public place" however Pieter Kuiper was satsified by a legal opinion of an attorney found on the net. If the leading Israeli scholar can be so ignored, I think this should be applied to all legal opinion, and from now on the strict letter of the Law should be followed to all countries, this, of course would allow uploading images of all statues in Germany and would definitly change this for example. Deror avi (talk) 09:09, 29 December 2009 (UTC)

The issue whether the display at the Rabin Center was permanent or not was not even brought up. It would have been irrelevant, even if it had been executed as a mural. /Pieter Kuiper (talk) 09:22, 29 December 2009 (UTC)

"The issue whether the display at the Rabin Center was permanent or not was not even brought up" - hence it is irrelevant. If it were permenant -then the FOP claim would have brought. The Court specified it was not premenant (the image appeared on posters in a ceramony, on stemps, and on logo papers, and on sticker - never on a buliding or anywhere permenant). Deror avi (talk) 09:44, 29 December 2009 (UTC)

It was the photographer that brought the lawsuit who told the court how his image was used. I see no basis for your statement that "the Court specified it was not premenant." Are not stickers "permanently situated"? /Pieter Kuiper (talk) 10:39, 29 December 2009 (UTC)

No. it is placed on peoples shirts for ceramonies, and then taken off. And I have mentioned you have only read a short section of the rulling and not all of it. Deror avi (talk) 11:10, 29 December 2009 (UTC)

I see FOP Israel has now been updated slightly. I'm still somewhat concerned about how we seem to have a quote from the law and the below it a quote from a lawyer that seems to magically broaden what the law, as specified above, allows. I'm not saying that Presenti is wrong but it does read very strange. I'm not comfortable with the idea that applied art means all art. Perhaps someone who understands Hebrew could assist me? What is the definition given in the law of an "artistic work"? Adambro (talk) 10:56, 29 December 2009 (UTC)

the term is "usedul art", and not applied art. It is not defined by the Law, but it is a "basket term" ("מונח סל") to include most kind of art. As it is not defined, it has the meaning it would have to a common person in the street (according to rules of interpretation of laws) i.e. any work of art which is useful. This has been explained above in detail. The whole point of the discussion was to expect the leading textbook on the subject. That is what the leading textbook sais (it is more then just "a quote from a lawyer"). Deror avi (talk) 11:10, 29 December 2009 (UTC)

But it has not been confirmed in court nor is it a law, which makes it utterly useless for commons. Kameraad Pjotr 11:13, 29 December 2009 (UTC)

The Law says "useful art". The Courts rulled that the term include 2D images (not with regards to section 23, but with regards to other section of the Law). Thereofre the meaing for Section 23 should be the meaning given to it in other rulling i.e. all "art that is useful" including 2D. Presenti mearly states the obvious. Deror avi (talk) 11:18, 29 December 2009 (UTC)

Ooo I like the sound of that, finally something I can chase up! The "courts ruled that the term "useful art" include 2d images": Which court, which case, source please? I'm aware that that has likely been given already somewhere, but I can't readily see it. What I would like is link to the ruling itself not interpretation of it...--Nilfanion (talk) 11:22, 29 December 2009 (UTC)

I don't think anyone has yet helped me with a translation of the "artistic work" definition as given in the law, the fifth definition given on the second page. If someone could do so that would be appreciated. Adambro (talk) 11:38, 29 December 2009 (UTC)

The English translation provided on the page is reasonable I think - its only that "applied art" phrase that's causing any issues... I'm somewhat concerned at the magic leap too, but as its reflecting Presenti and consensus at present is to follow her interpretation. Consensus can change of course. What I really regret here is how many of the regulars in the copyright area of commons haven't really expressed any sort of opinion, I hope they do make their presence felt eventually...--Nilfanion (talk) 11:46, 29 December 2009 (UTC)

first and formost - the leading textbook which is relied upon by the Courts should be sufficient.

Second, several Courts have rulled that photographs (such as newspaper photogrpahs or commercials or photographs in a menu) - i.e. 2D objects are "usful art". The Israeli Supreme Court ruled this in CA 360/83 (where the Court delt with billboars pictures) and others there are other cases (such 3422/03 in which a blueprint for a patent is "useful art" according to the supreme Court - again a 2 image. In CC 976/86 the haifa District Court rulled that "הדברים נכונים לא רק באשר ליצירה אמנותית לשמה, אלא גם באשר ליצירה מוזמנת, בה משמשים בערבוביה מעשה אמנות עם תכלית שימושית . בקטגוריה זו נמנית הארכיטקטורה", that usfull art is a work of art with useful purpose - which even includes architctural work (i.e. buildings). In CC 022917/03 (Tel Aviv Court) it was rulled with regards to a 2D image that "אמנות שימושית גם היא בכלל אמנות, ויצירה שנועדה לתצרוכת מסחרית או לפרסומת גם היא זכאית להגנה" - i.e. that it is protected (it was not permenantly based anywhere), and so was the case in CC 23976/ 07 (Tel Aviv) where 2D images were involved. In none of the above cases FOP was an issue as in none of these cases the images were never permenantly palced in public. There are many more in which a 2D image is termed "useful art". The Law should be interpreted accordingly - the term in it simplest meaning "any art that is useful" Deror avi (talk) 11:49, 29 December 2009 (UTC)

I've seen the unofficial English translation which I am assuming is disputed. I'm looking for someone who understands Hebrew to provide their own translation so I can understand how the two differ. Adambro (talk) 11:52, 29 December 2009 (UTC)

its not realy in dispute - the question is what is the best translation for "אמנות שימושית" - which is "Useful art" and not "applied art" ("אמנות יישומית") see here. Deror avi (talk) 12:56, 29 December 2009 (UTC)

If using Google I translate "אמנות שימושית" it says "applied art". For " שימושית" alone it says "useful" and for "אמנות" it says art. Could it not be the case that whilst each of the words individual mean one thing, when formed into this phrase the best translation is "applied art" even if literally it would translate to "useful art"? It seems to me to be somewhat coincidental that if I translate the phrase using Google it returns "applied art" which is a common phrase in the FOP area. I'm sure you can see why that leaves me with doubts about this. Adambro (talk) 13:05, 29 December 2009 (UTC)

I understand your concerns, but you should remember that we are speaking about machine translation and not about a dictionary. If you would check the online dictionary Morfix than you will see that is indeed a difference in Hebrew between applied and useful. Kooritza (talk) 13:31, 29 December 2009 (UTC)

I am not doubting that useful and applied mean different things in Hebrew. My doubt is whether a literal translation of the two words into English as is being suggested is correct. It isn't unusual that a literal translation isn't correct and where we have an unoffical translation and Google both suggesting "applied art" is the correct translation and that being a common term in the area of FOP it is easy to come to the same conclusion. Adambro (talk) 14:43, 29 December 2009 (UTC)

try translating "אמנות יישומית" - that is the correct term for "applied art". Deror avi (talk) 14:46, 29 December 2009 (UTC)

In any event it does not matter how we translate. It matter what it means in Hebrew to a Hebrew speaker and how the Court used the term. As mentioned above, The courts used the term for both 3D objects (a hand bag, a statue and even a building), and 2D objects (including photographs), furthermore, the leading copyright expert that in this context it means all work of art (as a "basket term" - "סעיף סל" - i.e. all works of art in public view are useful. An example of a work of art that does not apply is a poem. A poem on its own can not be in the public view, unless it is a part of a statue or painting - but this is my example and not one appearing in litrature. In any case it should not matter to the commons. I again state that a leading textbook should be sufficient to satisfy all users here. Deror avi (talk) 14:52, 29 December 2009 (UTC)

I don't understand why the law would say "applied art", or as is being suggested, "useful art", if it actually means all art as Presenti apparently is suggesting. I'm not convinced but I'll take some time out to read up on this topic. Adambro (talk) 15:10, 29 December 2009 (UTC)

Matter in a nutshell

What I find somewhat surprising is that there are members of the commons who, when faced with a choice between taking the explanation of a fluent Hebrew speaking, Israeli copyright law expert who, according to posts above has been quoted numerous times as an authority on copyright cases before the Israeli courts, and non-Hebrew speaking, non-copyright law-experts (for example, a Swedish solid state physicist, a Belgian teenager, and a Swedish software developer and former computer game salesman) these people would prefer the latter misinterpretation? Furthermore, last I checked, machine-transaltions are not acceptable in courts of law -- if the law is written in Hebrew, then the Hebrew meaning rules, and we have one of the most preminent scholars of Israeli copyright clearly stating what the term means. I really do not understand how there can be an argument here. Lastly, the precautionary principle applies where "there is significant doubt about the freedom of a particular file". There is no significant doubt here, thanks to clear statements of Dr. Presenti. -- 16:06, 29 December 2009 (UTC)

There is a clear and unambiguous statement in Hebrew by the expert of the Ministry of Justice on copyright legislation. Tamir Afori, who was involved in drafting the text of the new law, made in a parliamentary committee statements like:

בסעיף 23 יש רשימה מאוד מוגדרת של יצירות שזה חל עליהן: יצירה אדריכלית, יצירת פיסול ויצירת אמנות שימושית, לא ציור ולא צילום, למשל.

Deror avi has said that he does not agree with Afori. One wonders if his qualifications outrank those of the civil sevant. /Pieter Kuiper (talk) 16:20, 29 December 2009 (UTC)

Dr Kuiper, you keep on bringing that up like a mantra, and the same response applies. That statement would not be acceptable in court, Dr. Presenti is, simple. -- Avi (talk) 16:21, 29 December 2009 (UTC)

This is not a court. That kind of formalia do not matter here for establishing what the law says. Besides, the book by Tony Greenman, equally authoritative, does not support Presenti's unreferenced opinions. /Pieter Kuiper (talk) 16:25, 29 December 2009 (UTC)

Nor is this the Israeli Knesset, Afori has neither the bona fides nor the gravitas of Presenti. Your arguments have been refuted numerous times; volume and quantity do not substitute for validity, Dr. Kuiper. What would you say to a student trying to argue a flawed theory on superconductivity quoting from a publisher of textbooks as opposed to the leading authority on superconductivity? -- Avi (talk) 16:28, 29 December 2009 (UTC)

How do you establish what is flawed? Authority does not matter, "the authority" does not exist in science, in law it would be the Supreme Court. With conflicting experts, you need to try to reason yourself. Not just choose what you would like, but to do what would be prudent. /Pieter Kuiper (talk) 16:36, 29 December 2009 (UTC)

And we have chosen the explanation of a legal scholar who has been quoted as an authority before the Supreme court many times according to posts above. It's rather simple, yet again. -- Avi (talk) 16:38, 29 December 2009 (UTC)

Avi describes Dr Presenti's statements as "clear" but I can't see that, whether this is a translation issue or the confusion exists in the original text isn't obvious. According to Deror avi (12:45, 3 December 2009) an extract from Presenti's book translates as follows: "According to Section 23 of the Law from 2007:

"Broadcasting, or copying by way of photography, drawing, sketch or similar visual description, of an architectural work, a work of sculpture or work of applied art, are permitted where the aforesaid work is permanently situated in a public place."

It is allowed to make or publish a drawing, sketch, development or photographs including architectural sketches of all works of art located in a public location. The condiction for allowing the broadcast or copying according to Section 23 of the 2007 Law is that the artwork is permenantly located in a public location."

This quote contains the "applied art" interpretation of the law which has been disputed but Presenti's statement below the quote from the law doesn't seem consistent. According to this translation, the law says "an architectural work, a work of sculpture or work of applied art" are permitted whilst Presenti says "all works of art". This is all very confusing, not at all clear. I also don't understand how Deror avi seems to have translated the law as "applied art" and then more recently "useful art" (11:10, 29 December 2009). There is little clarity here. Adambro (talk) 17:01, 29 December 2009 (UTC)

What is clear is Presenti explaining Section 23 as applying to all art. She has the most gravitas and best credentials of anyone, either on the commons or brought in the conversation, to clarify Section 23. She has. Quod erat demonstratum. Adambro, when you become a member of the Israeli Knesset, or accepted to the Israeli bar, you may choose to bring a case to test Presenti. However, until such time as you do, or anyone does, her statement is the strongest and most reliable AND the commons consensus as well. -- Avi (talk) 17:06, 29 December 2009 (UTC)

Presenti seems to be clear in referring to all artistic works, but a phrase like "architecture, sculpture, and all art" would be rather strange in a law text. /Pieter Kuiper (talk) 17:10, 29 December 2009 (UTC)

Wording that you consider strange is irrelevant to Dr. Presenti and the law. -- Avi (talk) 17:12, 29 December 2009 (UTC)

This discussion can go forever and it probably will. Pieter Kuiper is the main person here who keeps this debate alive, and it can be fairly said that his bias against Israel, which is reflected in some other edits of his, makes him an unreliable source for this issue. I strongly advise to ask him to keep away from this discussion, as he is far from being helpful. Now as for the recent remarks themselves - there is a clear ambiguity in the Israeli law, and this is quite evident from the protocols of the parliamentary hearings. I was present in one of the hearings and thoroughly read the protocols of other hearings (I am a native Hebrew speaker). These protocols have no value in court, but they shed some light about the choice of words. When MP Dov Hanin asked Adv. Tamir Afori to define omanut shimushit clearly within the law, Afori refused. Apparently these worlds were chosen in order to give some flexibility to the judges. In the "Words of Explanation" attached to the law, which are semi-compelling, it is clearly said that p. 23 is not meant to change anything in the status quo. The status quo is exactly as Dr. Presenti interpret the law (both the old and the new one). I personally contacted some publishers and asked them about their practice in such cases, and the answer I've got was clear: if the creative work, be it a poster, a statue or any other work, is placed in public, and it is reasonable to think that it is placed there permanently, then we (the publisher) don't bother to ask for permission. The fact that nobody ever appealed to a court of law against any of the publishers show that no one ever thought his rights were compromised. And one remark to end this saga - in Israel, like in any other democratic country, a prohibition must be stated explicitly in order to be valid. If the law is ambiguous, and there is no restrictive court ruling, then the laxer interpretation can be followed, especially if it is backed by an officially published interpretation of a leading Israeli jurist. Drork (talk) 17:32, 29 December 2009 (UTC)

I am concerned by an apparent enthusiasm for always seeking to adopt the most relaxed interpretation possible. Commons policy is clear that where there is reasonable doubt, we err on the side of caution. I remain confused as to the appropriate translation of the law which, as I've noted above, has apparently changed from Deror avi's earlier post, and would appreciate clarification of this. Adambro (talk) 18:01, 29 December 2009 (UTC)

Adambro, firstly, please review COM:PRP, the issue is not reasonable doubt, but significant doubt. Secondly, with the opinion of one of the pre-eminent legal scholars on record, there is not even reasonable doubt. It would be the equivalent of me, a statistician, doubting the work of a solid-state physicist such as Dr. Kuiper in the matter of X-ray emission spectroscopy, upon which he published a paper and I did not. It's even worse, since Dr. Kuiper is not, to my knowledge, considered a pre-eminent expert in that field, just a regular expert, whereas Presenti is considered among the very top scholars in the field in the world. My doubts don't count for reasonable there. -- Avi (talk) 18:11, 29 December 2009 (UTC)

Adambro, What you say is true when there is a reasonable doubt. Here the doubt is very far-fetched, and we know that because we checked the issue as thoroughly as possible. If you are concerned about the translation, we can use the term "useful art" or write omanut shimushit in trascription and add an explanation in a footnote. Very few issues have been so thoroughly examined on the Commons, and the Israeli and Hebrew-speaking users have been very cooperative in order to account for every doubt and soothe any concern. I think it's time to bring this discussion to an end, and trust the work we have done to settle it. Drork (talk) 18:15, 29 December 2009 (UTC)

I would be more grateful if you could assist my understanding of this issue so that my doubts, however unreasonable, can be shown to be incorrect rather than simply saying they are unreasonable. It does nothing to address my concerns. I remain concerned about how Deror avi's translation of the law can change in a few weeks. It all creates further confusion in my mind. Simply telling me I am wrong does little to convince me, please try to show why I am wrong to have these doubts. Adambro (talk) 18:28, 29 December 2009 (UTC)

Adambro, I am sorry that you are confused. However, as I pointed out above, the precautionary principle does not apply even to reasonable doubt, only significant. Secondly, why isn't the statement of a world-preeminent expert sufficient for you. Can you address my comments to you listed above, please? Thank you. -- Avi (talk) 18:33, 29 December 2009 (UTC)

"Reasonable" or "significant" makes little different. Whether the doubts I have about this are either is something that obviously those who don't share those doubts won't accept. I've already explained the problems with the quotes I've seen from Presenti. Not only do the translations of the law that she includes seem to keep changing, her comment below the quote from the law seems inconsistent. I would welcome clarification from Deror avi as to which translation of the law that he's presented is correct. Adambro (talk) 18:40, 29 December 2009 (UTC)

Please see that I have used the term "Useful art" already in my post on "07:23, 9 June 2009" (see above) - so there is no change to the translation in the past six month. I hope this calms you. Deror avi (talk) 18:42, 29 December 2009 (UTC)

So why did you translate the law as referring to "applied art" only a few weeks ago? It can hardly be a surprise that this is causing confusion. Adambro (talk) 18:49, 29 December 2009 (UTC)

Adambro, firstly, I think the difference between "reasonable" and "significant" is rather significant (pun intended). Secondly, the translation of the law is completely irrelevant. The law is in force in Israel, not in Florida where the COmmons's servers are. The translation is solely a courtesy for commons members who are not fluent in Hebrew. As per every other nation-specific legal issue, we trust the fluent speakers of that language to interpret it properly for the commons. Thirdly, we do not even have to rely on Deror avi, who is an Israeli lawyer, IIRC, but we have one of the world's leading scholars on Israeli copyright law making a clear statement about it. Adambro, your or my opinions are irrelevant here, only the Israeli law, and how it applies to the commons, and we have that. -- Avi (talk) 18:45, 29 December 2009 (UTC)

The translation is quoted from a source that is neither official nor authorized. We used it because it was available, not because it was fully reliable. We might find other problems with this translation, and readers are warned that the Hebrew version is the only one compelling. I personally did not feel it was right to change the translation while the discussion here is still ongoing. Considering the information we gathered, we can now change it to "useful work of art" with a note referring to Dr. Presenti. Drork (talk) 05:00, 31 December 2009 (UTC)

Go ahead. -- Avi (talk) 06:07, 31 December 2009 (UTC)

The translation is the one submitted by the Israeli Government to WIPO. Is Dork suggesting that the Israeli Government is misleading the other members of the treaties that Israel signed? A homebrew translation will only make the section more misleading. /Pieter Kuiper (talk) 09:15, 31 December 2009 (UTC)

Dr. Kuiper, if you would have read the English translation, you will see that on the first page it states clearly (emphasis added is my own):

“

The reproduction of the translation is not intended to be legal advice and is not substitute for such advice. Readers should be aware that the Hebrew official version will be controlling in the event that the translation does not accurately reflect the original.

”

Presenti is explaining the official Hebrew version, which is why we are following that. No misrepresentation is possible due to the Israeli government's own caveat. -- Avi (talk) 09:25, 31 December 2009 (UTC)

It is just a slip-up by Presenti. Now you have removed all language about the free-content movement on commons having chosen to exploit Presenti against the normal sense of the law, against Tony Greenman, against Tamir Afori, and against the continuity with British Mandate law. What happened to all the copyright hawks on Commons? /Pieter Kuiper (talk) 09:46, 31 December 2009 (UTC)

Professor Kuiper (You got a promotion. Congrt's!), please stop arguing with experts about topics that you have no understanding about them. It is very disruptive. Afory's opinion is meaningless, as you were told countless times. Stop this harassment at once. Enough is Enough. Kooritza (talk) 09:50, 31 December 2009 (UTC)

Well, go ahead, upload this Lichtenstein to commons, under your own name and address. /Pieter Kuiper (talk) 10:03, 31 December 2009 (UTC)

Well, Ill call the museum and check if it is permanently displayed. Than it will be okay. However, it would have to wait a little. You see, I do have life and I do have some articles to write. Kooritza (talk) 10:13, 31 December 2009 (UTC)

The mural has sat there for 20 years, see http://www.tamuseum.com/museum/roy.htm /Pieter Kuiper (talk) 10:18, 31 December 2009 (UTC)

Dr. Kuiper, when you become an accepted authority on Israeli copyright law, you may opine with gravitas on Dr. Presenti's work. Until such point, while you are welcome to your opinions, they not reflective of accepted interpretation of the Israeli law; non-scholar Knesset member uncertainty notwithstanding. When you create the Kuiperpedia Media Repository, you are more than welcome to install any criteria for acceptance you choose. Here in the Wikimedia Commons, however, we allow the law of the host nation to determine what is acceptable (with various caveats, however, in that it may need to be free-use in the US as well due to the location of the servers, we accepted the Bridgeman/Corel ruling regarding PD-Art regardless of status of photo in host country, etc.) -- Avi (talk) 10:06, 31 December 2009 (UTC)

I think the change to FOP Israel was premature. I'm still waiting for Deror avi to clear up the confusion regarding his recent translation of the law. FOP Israel seems now to be giving more weight to an interpretation, albeit from Presenti, rather than the law. That seems bizarre. I find it hard to be truly confident that what is being quoted from Presenti is the full picture. I find it odd that the law would include this "useful" or "applied" art phrase and then for it to be apparently of no significance.

I also don't understand how, if section 23 is to be taken to cover practically all art, it doesn't simply refer to "artistic works" as defined on the second page of the law, but only a few items included in that definition; works of sculpture or works of applied art" (or perhaps "useful art"). If section 23 included any art then surely it would refer to the already defined phrase "artistic works", which includes paintings for example. My conclusion from section 23 and the definitions is that "useful" or "applied art" doesn't include paintings else why would it be referred to separately. Adambro (talk) 10:54, 31 December 2009 (UTC)

I do think current form is wrong now actually. Whether its "applied" or "useful" art discussion isn't really important. The problem, the current form attributes the law to Presenti. Presenti's quote asserts "all artistic works" not "sculpture architecture and applied/useful art". In the information provided Presenti does not define the term "applied art/useful art" so the ref to her supplying the "useful" phrasing is therefore wrong, but we could arguably just provide the "all artwork" she does use in her book. That at leasts follows the source. The current form also doesn't indicate just what images are acceptable, if we follow the result of the straw poll and 2D stuff is OK - then we should indicate that somewhere.

I'm a bit disconcerted about the definitions as well, it certainly seems counter-intuitive. However, neither "applied art" nor "useful art" are defined in the law. Deror has provided court cases indicating that "useful art" has a broad meaning, much more than just that usually understood by "applied art". I'm curious as to whether those court cases actually use the same Hebrew phrase as Section 23 (אמנות שימושית), or some other term.--Nilfanion (talk) 11:09, 31 December 2009 (UTC)

Probably they don't. Deror avi refers to old cases, when the Mandate law was in effect, and the English text was authoritative. /Pieter Kuiper (talk) 11:14, 31 December 2009 (UTC)

Sure, the old law was different, it was an English-language law for a start. However, were the proceedings of the court and its ruling in Hebrew or English (I'm not sure)? If the court proceedings were in Hebrew, then it could well have used the exact phrase in the ruling. The real issue with all of this is the fact we have a new law. Case law takes time to develop...--Nilfanion (talk) 11:19, 31 December 2009 (UTC)

Court proceedings were of course in Hebrew. I strongly object to tampering with the translation. The translation "applied art" by the Ministry of Justice is correct; "useful art" is the stupidest of machine translations (worse than google translate); see User:Pieter Kuiper/Freedom of Panorama in Israel#אמנות שימושית - "useful art" - a loophole?. /Pieter Kuiper (talk) 11:27, 31 December 2009 (UTC)

Pieter, the "applied art" translation may or may not be more valid the "useful art". However the "useful art" translation has been provided by people not machines. They may, in your opinion, be de-constructing the phrase in an manner advantageous to their position and so producing an inadequate translation. But the translation is not "the stupidest of machine translations", I'd urge you to reconsider your statement.--Nilfanion (talk) 11:37, 31 December 2009 (UTC)

A deconstructing, word-by-word dictionary translation is what lowest-order computer translation programs can achieve. But it seems you would prefer me writing "a sophistic paraphrase to advance an agenda, twisting the law." That is fine too. /Pieter Kuiper (talk) 11:50, 31 December 2009 (UTC)

My assumption was that the unofficial translation, which uses "applied art", was translated by a human but I might be wrong. Adambro (talk) 11:48, 31 December 2009 (UTC)

Nilfanion and Adambro, the Court cases refer to "אמנות שימושית" - and as mentioned they do not refer to Section 23 of the Law (as it did not exist at that time) but to the meaning of this commonly used phrased which is translated best (in my opinion) to English as "Useful art". As to "applied art" - there is a Hebrew term for this - and it is "אמנות יישומית" - a different term in Hebrew. As to the "official" translations - they are nutoursly eroneous, as they are done by non prefesional translators (and definitly not by Legal translators). Deror avi (talk) 12:58, 31 December 2009 (UTC)

I assume you're referring to unofficial translation rather than official translations. It seems odd though if it wasn't a professional translator or someone involved in law, why would they translate the phrase as "applied art", rather coincidently an established phrase in the area of FOP, rather than simply deconstruct the phrase to the two words as "useful art"? You've also yet to answer why you so recently translated the law as "applied art". Adambro (talk) 13:06, 31 December 2009 (UTC)

I just copy pasted from the project page at that time. I think it is irrelevant how you translate it. The main point is that we have the work of the leading scholar to support us. And that should be sufficient for the commons. Deror avi (talk) 13:45, 31 December 2009 (UTC)

I'd disagree. Interpretations from scholars shouldn't take priority over the law. We should first try to make sure we correctly understand the law before referring to interpretations such as Presenti's to clarify any remaining confusion. To properly understand the law we need to try to understand what is a correct translation so that we can properly discuss it. I am surprised that the translation of the law you quoted was simply copied from the page at the time, particularly since you seem to disagree with the translation, but I would apologise that I assumed it was your own translation. You do though here translate the phrase as "applied art" rather than "useful art". What is your current position? Adambro (talk) 14:24, 31 December 2009 (UTC)

Another example of Deror avi's lawyering. As a google search on "אמנות יישומית" shows, this is not a common term in Hebrew. Only 24 hits. Only a single image in the image search. Compare that to an image searche on "omanut shimushit". /Pieter Kuiper (talk) 13:33, 31 December 2009 (UTC)

Adambro, my position is that a term in Israeli legisltation should be interpreted according to the rules of interpretation of Israel. I have detaled those above, and gave references to Court interpretation of the term "אמנות שימושית" in genreal which is does according to those interpretation rules. The rules are simple - a term not define by the Law shall have its simplest meaning as it is understood by a men in the street. This term has always been interpreted by the Court simply as "any work of art that is useful" (this includes buildings, statues, 2D pictures, 3D objects etc.). When a term is not interpreted by a Court (not this case), it is usually ment to have a simple meaning (and as was explained above by other hebrew speakers, the term means "any work of art that is useful" or "any useful object that is a work of art"). In this case, as a Lawyer, in order to understand the term I would go to the leading textbook relating to that Law. As it is copyright Law - the leading textbook is Presenti. If it were other subject I would check other textbooks. In this case, the Term is explained by Presanti as "any work of art". Further I would check Court rullings relating to this Section (there are none), and rullings relating to other Section of the Law or other Laws to see how the term is explained. I did so in this case, and advised you all accordingly. Again, I think this should be sufficent for the commons to accept this interpretation. Deror avi (talk) 15:34, 31 December 2009 (UTC)

The image search on "omanut shimushit" clearly shows us what kind of objects are described by the term in its everyday usage in Hebrew. You can also use a dictionary. Those is a much better sources than finding the term in some law book. If in Israeli legalese it would mean "any work of art that is useful" including buildings and statues, the text of the law in Hebrew is idiotic. Let us not assume that. /Pieter Kuiper (talk) 15:45, 31 December 2009 (UTC)

So instead, Dr. Kuiper, you are considering one of the world's pre-eminent experts on Israeli copyright law an idiot. That makes even less sense. -- Avi (talk) 16:04, 31 December 2009 (UTC)

You have more regard for Presenti than for the law?? "Urim and thumim" (Lady Justice herself?) seems to have made a mistake. That is my impression on the basis of only a few sentences – neither you nor me have seen any context. But you are considering that the Government's expert Tamir Afori has been misrepresenting the meaning of the law to members of the Knesset (the complete transcript gives context to his quotes that I refer to). You are also suggesting that the people drafting the law are incompetent, and that the Knesset does not have any idea of what legislation it adopts. /Pieter Kuiper (talk) 16:16, 31 December 2009 (UTC)

Scholars in a given subject who have been used as sources before the courts are more authoritative than government clerks whose statements cannot be used in court and thus have no legal ramifications. -- Avi (talk) 16:25, 31 December 2009 (UTC)

The formal argument does not matter. Tamir Afori can write an affadavit, and he can be called to testify. /Pieter Kuiper (talk) 16:34, 31 December 2009 (UTC)

No he can not. for various reasons of civil proceedure which I will not go into. And if my opnion would stand before the court against Affori's the Court would give them exectly the same value. (and turn the Presenti's or Greenman's book).Deror avi (talk) 16:43, 31 December 2009 (UTC)

The whole idea from Presenti of "any work of art" being permitted or "any work of art that is useful" seems quite odd and I hope you can least understand the reasons for my scepticism. The idea that "any work of art that is useful" would, and in this sense I perhaps am agreeing with Presenti, include any work of art, but I really struggle to see that as the intention given the context that the "applied art" or "useful art" phrase appears in section 23. As I said earlier but I don't think anyone has commented on, why would the law define "artistic works" as including for example maps, charts, paintings, sculptures and "applied art" or "useful art", and then refer in section 23 to only to sculptures and "applied art" or "useful art". If section 23 covered "any work of art" as per Presenti then surely it would refer to the already defined phrase "artistic works" which includes paintings. This is one of the major obstacles in the way of me accepting that art such as paintings are permitted by section 23. It doesn't make sense to me I'm afraid. Adambro (talk) 16:30, 31 December 2009 (UTC)

Avi, Presenti expressed her opinion with regards to the Israeli FOP already in her book of 2000, based on the comon practice in Israel, and what is understood by both the Knesser Legislators and the public. In the Knesset committee hearings, the Knesset members specificaly explained that they do not except Afori's interpretation. Presenti's 2009 book is even clearer. I am sure she did not make any mistake.

And Avi, one last comment. I don't speek German. So I don't try to interpret the German Law using google translations or book covers or based of partial google translation of partial court judgments (which are irrelvant and overturned). I do speek Hebrew, and I do believe that the Hebrew term in that context is clear, expecialy in view of the Court Judgements which explain that the term is used in its broadest sense to include all works of art that are usefull.

Adambro, the last definition in a long list is usually a "basket definition" - including all the previous ones. I alerady mentioned that the Court ruled that a statue is "אמנות שימושית" as well as a building is "אמנות שימושית" and a photograph is "אמנות שימושית". The term was chosen and not defined on puprose, to be the broadest term used (i.e. it ment to include both the list detailed as work of art but also, a hand bag, a curtain, a bench in the street, a light show, a decorated fountain - all of which are not usually deemed as "art objects" but are "useful art" (along with maps, paintings, mosaics, etc.) and it those are premenantly displayed in a public local, it may be photographed according to the rational of the law - that whatever is permenantly in the public eye should remain so (and thus its photography is allowed). Deror avi (talk) 16:39, 31 December 2009 (UTC)

This is so wrong. "Applied art" is a bit of a basket term, but the language of the law itself makes it clear that it is a category distinct from useful items like maps and architecture. If there had been FoP for any artistic work permantly situated in a public place, the law could have said so. That would have been shorter, clear, and free from idiocy. But Knesset members would not have agreed with so broad exemptions to copyright. /Pieter Kuiper (talk) 16:52, 31 December 2009 (UTC)

Deror avi, I'm grateful for you taking the time to answer. I think Pieter has a good point, and one which I was trying to make before, that if section 23 through this "basket definition" includes paintings and maps for example, why does the section not simply refer to the term that has been defined at the start of the document, that of "artistic works". I'm sure a lot of hard work went into writing this law yet it would seem a great mistake to go to the effort of defining "artistic works" and then not use it in section 23. The definition ends with "and works of applied art" or "useful art" depending on the translation. Surely if all those listed before in the definition are examples of "applied" or "useful" art it wouldn't say "and", it would say something such as "and other examples of applied (or useful) art". My interpretation is that whilst architecture, sculpture and applied art are, according to the definition given, examples of artistic works, section 23 doesn't apply to the other examples of artistic work such as paintings. If it did it would simply say "artistic works". Adambro (talk) 19:50, 31 December 2009 (UTC)

Am I the only one who has a feeling that this discussion ended ages ago, and yet some people insist on keeping it alive in order to waste other people's time? I'm sorry, but if Pieter Kuiper and Adambro are not convinced, so be it. Most people who were engaged in this discussion are convinced that there is no problem with 2D FoP in Israel (remember? this was the basic issue of this discussion). Dr. Presenti's book is as good as a legal advice, and we can adhere to her interpretation of the law safely and happily, so long as there is no court ruling or an amendment to the law. Considering the fact that no one ever complained about copyvio through FoP in Israel, and the importance local jurists attach to Dr. Presenti's opinion, the chances that an Israeli court would issue a contradictory ruling are very slim. As for an amendment to the law - we do not have a crystal ball and we cannot act according to speculations about the future. Drork (talk) 16:49, 31 December 2009 (UTC)

Adambro, what you are doing here is extremely unfair. Deror and I answered this question ages ago based on authorized legal interpretation, but you keep asking it, as if this discussion started yesterday. You interpretation is interesting, but is not supported by the leading Israeli jurists and the common practice in Israel. In order to be sure, Deror and other users, including myself, learned the issue, checked in books, asked local publishers, collected some useful examples, and came up with a detailed explanation, and yet you keep asking the same question over and over again. You can write the Israeli parliament and complain about their poor work, but you cannot force your own personal interpretation of a certain country's law, when this interpretation has no base in local authorized opinions and local norms. Drork (talk) 03:20, 1 January 2010 (UTC)

Please don't suggest I'm trying to force my own interpretation. All I have done here is express my concerns and welcome others to help me understand why those concerns aren't justified. As I've already explained on my talk page in response to your similar remarks there, you shouldn't feel compelled to try to answer my questions but I certainly appreciate it. Adambro (talk) 12:08, 1 January 2010 (UTC)

It is much more likely that Presenti made a mistake in her 1000 page book than to accept Drork's accusation that the Israeli Government and Knesset produce sloppy legislation. Her writing "all artistic works" is just a minor mistake. Accurate would have been if she had written "the listed categories of artistic works". I have now sent an e-mail to her office, to ask her what she meant. Unfortunately, I do not think an answer would help. You guys would just say that an email would not be admissible in court. /Pieter Kuiper (talk) 10:50, 1 January 2010 (UTC)

Yes, she could have made a mistake (the legislation could have too in leaving "applied art" undefined in the first place). However her writing "all artistic works" could be a mistake, that's different from saying it is a mistake, it is speculation on your part saying that it is a mistake. Please be careful not to jump to conclusions Pieter...--Nilfanion (talk) 11:23, 1 January 2010 (UTC)

There is no need to define "paintings", and there is no need to define "applied art".

Presenti's wording must be wrong. I assume that it is just a minor inaccuracy, so evident that it would be hardly worthwhile clearing up in a list of errata with her book. I find it hard to imagine that she would claim that paintings in museums are not protected by copyright. If she did, she should have elaborated about the reasoning behind such a doctrine. It seems to be your speculation that she did supply reasoning to support such a position. /Pieter Kuiper (talk) 11:42, 1 January 2010 (UTC)

Yes it was speculation, however I did say so and gave my reasoning. That doesn't excuse you saying that "her wording must be wrong" as opposed to "her wording could be wrong". The point is the "artistic work" quote is from her book. You are assuming that there was a minor mistake in printing as opposed to the alternate explanation that the quote is actually Presenti's opinion on the matter - and without a clarification we have to assume that the book is accurate. By saying the quote must be wrong, and excluding the likely probability that it is correct, you are saying that Presenti has to be wrong on this matter. That is not an appropriate mindset, and if you cannot concede the possibility that the quote may be an accurate statement of her opinion, and furthermore a correct interpretation of the law, then your actions here become questionable.--Nilfanion (talk) 12:01, 1 January 2010 (UTC)

My action here has been to try to get an answer from the horse's mouth. /Pieter Kuiper (talk) 12:45, 1 January 2010 (UTC)

Getting an actual comment from her (or her business) would be useful - no objection there. I was however referring to your actions in general on this page, not that one specific action.--Nilfanion (talk) 12:55, 1 January 2010 (UTC)

False argument. It would be the defending party that would bring up FoP if confronted with a lawsuit. Significantly, that did not happen in the case of the medal based on the photo of Yitzhak Rabin. It would not have had a chance of being succesful. /Pieter Kuiper (talk) 16:57, 31 December 2009 (UTC)

Pieter, what's your interest here? You sound as if you plan to sue the Commons. Is that you plan? If so, let me assure you that your claims won't stand in court, and any lawyer you hire will advise you to abanon the idea. I know you have a very bad opinion about Israel. If the idea of this discussion is to humiliate Israeli contributors to the Commons by suggesting they are fools who don't understand their own laws, or if you try to find an excuse to delete as many Israeli images as possible, I don't see why we should cooperate with this attitude of yours. Drork (talk) 17:03, 31 December 2009 (UTC)

I have no intention of suing. This is about what the Roy Lichtenstein foundation might do when a courageous Israeli would upload this mural. And especially about what might happen to someone who would use that design on merchandise. Are you willing to be our next Dcoetzee? /Pieter Kuiper (talk) 17:09, 31 December 2009 (UTC)

Dror, ignore Kuiper, as always he doesn't have the slightest clue of what he is talking about, the the photo of Yitzhak Rabin case was never a question of FOP. He never read the full judgment (not even a translation of it). It was never peremnantly in a public place, so no FOP issue was raided. In any case it was appealed to the superme court, so it can not even be deemed as a presedent for the questions that were raised in it. Deror avi (talk) 17:13, 31 December 2009 (UTC)

I think the time is ripe to boycott this project. I am going call upon all Israeli users to refrain from any further uploads to the Commons due to hostile environment and manipulations, including legal threats. Pieter Kuiper who is apparently the chief legal council of this project is constantly referring to Israeli users as lawbreakers and exercise shameful manipulations in order to humiliate them and harm their contribution to this project. The fact that he is backed up by most admins here sends a clear message to Israelis: you are not welcomed here. Therefore, as I said earlier, I think it is time to call upon all Israelis to boycott this project and I am going to do that as soon as possible. Drork (talk) 11:28, 2 January 2010 (UTC)

English translation proposal

COM:FOP#Israel has developed recently to become:

Sections 21 and 23 of the 2007 Copyright Act states that ""Broadcasting, or copying by way of photography, drawing, sketch or similar visual description, of an architectural work, a work of sculpture or useful work of art, are permitted if that work is permanently placed in a public place."

I note "work of applied art" has become "useful work of art". What I had previously overlooked was the introduction to the English translation which explains that it was "prepared by the Israeli Ministry of Justice" and would "be submitted to WIPO and the WTO". This same English translation (as far as I can tell) appears on the WIPO website. So whilst this translation isn't official in the sense that it is not legally binding, it has been prepared by the Israeli goverment and so is the most official English translation that we can hope to obtain. Therefore, I suggest that this part of FOP Israel is updated inline with this translation to read:

Section 23 of the 2007 Copyright Act states that "Broadcasting, or copying by way of photography, drawing, sketch or similar visual description, of an architectural work, a work of sculpture or work of applied art, are permitted where the aforesaid work is permanently situated in a public place."

This would mean the translation would be the one presented by the Israeli government to the WIPO/WTO rather than an alternative translation. This change would have no real impact to the principle of COM:FOP#Israel because I would accept that the meaning of "work of applied art" can vary from country to country. Adambro (talk) 19:04, 1 January 2010 (UTC)

No objection from me to either form. Ultimately, whether it states "useful art" or "applied art" is not really relevant to the matter at hand - as the English translation doesn't affect the interpretation of the law one bit. Given the "applied" form comes from the Israeli government's translation it makes sense to stick with it IMO.--Nilfanion (talk) 19:11, 1 January 2010 (UTC)

The problem is that it's not correct. -- Zsero (talk) 19:55, 1 January 2010 (UTC)

Maybe one form is a more "accurate" translation than the other, but neither is incorrect. The point is if the "applied art" form is good enough for the Israeli government to use in the WIPO submission, why is it not any good for us? It doesn't make any difference whatsoever to the meat of the section.--Nilfanion (talk) 20:01, 1 January 2010 (UTC)

You now reverted to "consensus". Please explain how commons consensus can improve on the translation by the Israeli Ministry of Justice of its own laws. /Pieter Kuiper (talk) 20:37, 2 January 2010 (UTC)

The comment consensus refers to the important bit - the quote (and its interpretation). As I've said multiple times in this section I don't care less about "applied art" or "useful art" as its really irrelevant ultimately!--Nilfanion (talk) 20:39, 2 January 2010 (UTC)

Why not use the official translation then? (There's also an article about applied art on en.wp, while there is none about useful art.) I agree that the difference is not essential to the matter, but this translation seems more official and natural. –Tryphon^☂ 20:44, 2 January 2010 (UTC)

No objection to anyone changing back to applied art (I don't want to be perceived as OWNing this mess and making all the changes myself :) ).--Nilfanion (talk) 20:52, 2 January 2010 (UTC)

OK, so I changed it. And I have to say, I don't see you as owning this mess; your involvement in the matter has been very constructive and you actually managed to put the focus back on the legal issue rather than personal disputes, without taking sides. I really admire your levelheadedness. –Tryphon^☂ 21:20, 2 January 2010 (UTC)

Answer from Sarah Presenti

Dr. Presenti has been amazingly fast in answering my query; I thank her very much. She wrote:

According to the new law (which repeated the law of 1911), only artistic works like sculputes, archtectual works or applied art which are permanently situated in public places, (meaning, displayed in public) may be photographed etc . A museum is considered a public place since the public may visit the place, either for free or with payment. I did mention in my book that the owner of the premises has the right to forbid photography of the above works since the nature of the place is private. But, if it is allowed to take pictures in a museum (only of above works! ), it shall not be considred an infringement of copyright. Photography in a museum against the explicit prohibition of the landlord is a breach of contract or trespassing but may not be considered as copyright infringement.(do see Sports and General Press Agency Ltd v. "Our Dogs" Publishing Co. Ltd [1916] 2K.B. 880 ; [1917] 2 K.B. 125)

Therefore, since paintings do not fall normally under the above category of works, the question of painting in a museum has nothing to do with section 23.

Unfortunately the Israeli lawyer has misunderstood the subject and my writting.

I hope this settles it. /Pieter Kuiper (talk) 09:50, 2 January 2010 (UTC)

not realy - she does not say "applied art" does not include 2D objects (as there are court precedents to that), which is the only issue in question. I don't know what you asked her, and in fact I don't even trust you to accurately represent the question and report her answer given your past reputation. I will send her a question myself with this regard and report her answer. Deror avi (talk) 10:00, 2 January 2010 (UTC)

For completeness then, my email:

Subject: A possible inaccuracy in your book "The Law of Copyright" ?

Sent: Friday, January 01, 2010 11:47 AM

Dear Dr. Presenti,

An Israeli lawyer quotes page 1214-1215 of the 2009 edition of your book as saying that article 23 of the new copyright law allows photography of "all artistic works" that are permanently situated in public places, see <http://commons.wikimedia.org/wiki/Commons_talk:Freedom_of_panorama#Dr._Presanti.27s_new_book>.

He argues that recent paintings in museums in Israel would not be protected by copyright, which I find hard to believe. And looking at an English translation of the law, I think that you meant that article 23 allows graphic reproduction of certain enumerated categories of artistic works, as article 23 only speaks of architecture, sculpture, and applied art.

Is my assumption correct?

I understand that your work is highly authoritative in the Israeli legal system.

Sincerely yours,

/Pieter Kuiper

Physics Department, Växjö University, Sweden

http://w3.msi.vxu.se/users/pku/

Deror's suggestion that I would not have been accurate in reproducing Dr. Presenti's email is an insult to me as well as to her. /Pieter Kuiper (talk) 10:08, 2 January 2010 (UTC)

The question should have been simple "does the term אמנות שימושית includes 2D objects or not". You did notr ast that. We are not dicussings if "paintings in museums in Israel would not be protected by copyright" - your questions implies that even temporary exhibitions are not protected by copyright - something we never claimed, and is wrong. You did not ask if "applied art" included 2D objects. Deror avi (talk) 10:38, 2 January 2010 (UTC)

Well, you have used Presenti's mentioning "all artistic works" as the decisive argument, and that she says is a misunderstand. She meant the categories of artistic works enumerated in article 23: architecture, sculpture, and applied art. As in most of the Commonwealth countires.

She explicitly wrote in her email that paintings are not normally included in the exempted categories of works. Of course, some 2D items could be applied art (like en:Placemats), but you are trying to include everything. /Pieter Kuiper (talk) 10:44, 2 January 2010 (UTC)

(ec) Your whole reasoning was based on Presenti saying that all works where covered by FOP. In her answer, she clearly says that FOP is limited to a few categories of works, and that paintings are not part of those categories. She even says that "the question of painting in a museum has nothing to do with section 23", which completely contradicts the point of view you've defended so far. –Tryphon^☂ 10:48, 2 January 2010 (UTC)

"not normally included" - why? perhaps due to the fact that photography is contractually not possible? or temporary exhibitions? and definityly sometimes may be included? notice that most pictures we argue about are 2D objects that are not in museums - such as information signs, pictures that are in other public places (streets, univercity), church murals? where does she say these are not "applied art". You limited your question to picture in a museum, hence a misrepresentation of the debate. Deror avi (talk) 11:03, 2 January 2010 (UTC)

I think you are embarassing yourself. Read the law. The definition of artistic works mentions "drawings, paintings, works of sculpture, engravings, lithography, maps, charts, architectural works, photographic works" as categories distinct from "applied art". That is what I have been saying for about a year now. /Pieter Kuiper (talk) 11:09, 2 January 2010 (UTC)

And I have explained to you for over a year now that the last term in a list is a "basket term" including all the ones befor it as well as additinal items, and so as in the list you state, as well as in Section 23 the last term "אמנות שימושית" includes both "drawings, paintings, works of sculpture, engravings, lithography, maps, charts, architectural works, photographic works" (section 1) as well as "buildings and sculptures" (Section 23) and indeed the courts have rulled the photographs (2D) are "אמנות שימושית" (and appear seperately in Section 1) as well as buildings are "אמנות שימושית" (appear seperatly in Sectioni 23). I gave the detales of the Court rullings above. Deror avi (talk) 11:14, 2 January 2010 (UTC)

Yep, sounds like the Commonwealth norms for FOP apply in Israel. There may be subtle differences, but nothing drastic. The broad interpretation almost exclusively depended on Presenti as no other lawyer quoted has said anything similar. The lack of basic research in this instance has dragged the debate out much longer than it could have. Presenti should have been contacted a long time ago. Deror, your assumption of bad faith is not helpful, you can always disagree with Pieter without saying he is lying. Bear in mind you have mentioned "artwork hung in a museum" as an example where you believed FOP applied repeatedly in the debate and Presenti specifically excluded that class of works in the response. The scope of "applied art" is still poorly defined, which is inevitable. If you want my guess as to Presenti's response (if you get one), she will likely indicate that some of the works you mention are covered by S23 and some are not. One thing I do not want to see here is Dr Presenti dragged into this debate as more than a source, the hostile atmosphere on this page would probably do Commons more harm than good if she took a more active role. Please don't start emailing her with "is this image allowed?" or "this one?".--Nilfanion (talk) 11:27, 2 January 2010 (UTC)

Agree with Nilfanion that Presenti should not be hassled with emails, really it would have been better if we had agreed on an email to send before Pieter contacted her but too late now. That could have made another email from Deror avi unnecessary. Adambro (talk) 12:33, 2 January 2010 (UTC)

I asked her what she meant in her book with by the phrase "all artistic works", the words that were quoted in COM:FOP#Israel as the basis for wide-ranging exemptions to copyright. It was a question to her as the author of a scholarly book. I did not want to ask her for legal opinions, as it might have reduced my chances of getting an answer for free. /Pieter Kuiper (talk) 15:37, 2 January 2010 (UTC)

no - you asked her if "all artistic works" means that artwork in a museum in general is not copyrighted. no one for example, stated that temporary exhibitions are not copyrighted. Her answer explained that FOP is mostly irrelevent for pictures in museums (but obveiously some times is). Basicly, you mislead her, and asked an irrelevent question expecially as none of the examples here, which are at the heart of the dispute, are from a museum. Deror avi (talk) 18:26, 2 January 2010 (UTC)

The question that I had asked her was: I think that you meant that article 23 allows graphic reproduction of certain enumerated categories of artistic works, as article 23 only speaks of architecture, sculpture, and applied art. Is my assumption correct? Presenti gave a clear answer.

You seem to become evasive. You have consistently claimed that Presenti applies FoP to paintings hung in museums. That was not at all true. /Pieter Kuiper (talk) 18:57, 2 January 2010 (UTC)

The fact that Pieter Kuiper is the Commons' man of the year has been well noticed. This man has been declared the undisputed legal council and expert on Hebrew terms by nearly all admins. The man does not hide his manipulations and hatred toward Israelis, and yet they are praised instead of condemned. By sending a manipulative letter which describes the issue in a misleading way, he tried once again to present Israeli users as a group of criminals who try to deceive other users. This is quite in line with his constant attempts to promote harsh offensive anti-Israeli drawings, and endless deltion requests for files originated in Israel. I have no further expectations from the admins of this site, and I deeply regret the efforts I made to promote it. I call upon all users, particularly the Israelis, to boycott this site. It is no longer Wikimedia Commons but rather Pieter Kuiper's visual blog. Drork (talk) 12:45, 2 January 2010 (UTC)

I now see that Nilfanion also restored the false attribution to Presenti. /Pieter Kuiper (talk) 20:58, 2 January 2010 (UTC)

Pieter, it is an accurate translation of the quote, therefore "false attribution" is incorrect. It is questionable what the quote actually means, but that's another matter. (The text of the page doesn't give any real interpretation of the meaning). Calling my action shameful is not exactly the best of conduct on your part...--Nilfanion (talk) 21:02, 2 January 2010 (UTC)

Her email made abundantly clear that it is not what she meant, so attributing such an opinion to her is not honest. /Pieter Kuiper (talk) 21:16, 2 January 2010 (UTC)

That viewpoint is not shared by everyone on this page, please demonstrate that consensus supports you before changing it and don't act unilaterally. I would say that [Presenti's interpretation of] the 2007 law is clearly more inclusive than the text of the 1911 law, as she mentions "architectural drawings" as being permitted when they were explicitly excluded by the old law (I know that this is of minor relevance to the bigger issue). Like I said, its a direct quote without additional interpretation. It is also presented in the same manner as the text of the law immediately followed by the "all artistic works" sentence structure occurs both her and in the book.--Nilfanion (talk) 21:26, 2 January 2010 (UTC)

We might as well give Presenti the chance to respond to Deror avi's email before worrying to much. At that point we can discuss whether FOP Israel needs changing. Adambro (talk) 21:31, 2 January 2010 (UTC)

A more accurate question sent to Sarah Presenti

I have asked her whether the term "אמנות שימושית" includes 2D objects such as stained glass windows, mosaics, grafiti, church murals, informative signs and maps in national parks, and photographs and paintings if those appear permenantly in public location (not neceseraly a museum - such as places of worship). I will update with regards to her answer. Deror avi (talk) 11:16, 2 January 2010 (UTC)

Please note, however, that at least in multiple Commonwealth jurisdictions a distinction is made between objects of artistic craftmanship and other 2D objects like murals. Stained glass windows belong to the former category, see this decision of the high court of Australia and the summary here. Because of this distinction, stained glass windows fall under FOP in quite some Commonwealth countries including the United Kingdom — murals, however, not. I do not know how much of this has been preserved in Israel law but I would not simply assume that all these objects fall into the same category according to Israel law. --AFBorchert (talk) 12:43, 2 January 2010 (UTC)

I read what you wrote about Australia, and Israel is similar with one exeption - in Israel the term does include photogrpahs and prints (according to Court decisions), and therefore, it includes more types of art. Deror avi (talk) 18:53, 2 January 2010 (UTC)

Well the email was sent to her, and I await her answer (which is not going to be today, as it is the weekend). Deror avi (talk) 12:56, 2 January 2010 (UTC)

I did not receive an answer yet. I called her office and was informed that an attorney from the office (not Presenti herself) checks the emails once in a while, and have not done so in the past few days. I will update once I get an answer from Presenti. Deror avi (talk) 13:39, 4 January 2010 (UTC)

I had sent my message on News Year's Day to the published office mail address, and received an answer from her own account about 4 hours later. /Pieter Kuiper (talk) 12:16, 5 January 2010 (UTC)

E-mails sent and received

It should be noted that neither Pieter Kuiper nor Deror Avi are reliable sources. We have a quote from Presenti's book, which is a reliable and verifiable source. If we are going to have clarification or refutation of that from Presenti herself, it needs to be sent to OTRS (preferably info-commonswikimedia.org). Adambro or I or Bastique can confirm the e-mail once it is receieved. Please have her cc: the above e-mail address when she responds. Thank you. -- Avi (talk) 03:19, 3 January 2010 (UTC)

You could of course simply ask Pieter Kuiper to forward the e-mail he received to OTRS. Kameraad Pjotr 12:54, 3 January 2010 (UTC)

Yes, but it is preferable to get the e-mails directly; we've had enough header spoofing issues that, when possible, regadless of who is forwarding it, we try to get direct e-mails. But forwarded is better than nothing, true. -- Avi (talk) 13:13, 3 January 2010 (UTC)

Indeed, direct would be better but if that isn't possible then forwarding the email(s) to OTRS would be helpful. Needless to say, I don't believe anyone involved in these discussions would attempt to deliberately mislead the community about any of these emails but if it turned out that was the case then they would find themselves blocked for a very significant period of time. Adambro (talk) 15:07, 3 January 2010 (UTC)

I don't think anyone here would deliberately try and mislead the commons either, but as per standing preferences with image release e-mails, the more direct the communication, the better. -- Avi (talk) 16:41, 3 January 2010 (UTC)

So I need to ask Prsenti's office to send her reply in English to info-commonswikimedia.org? am I correct? Deror avi (talk) 13:41, 4 January 2010 (UTC)

Ideally yes, if she sends a copy to info-commonswikimedia.org it would be very useful. Adambro (talk) 14:00, 4 January 2010 (UTC)

If she sends it in Hebrew, either I (if it isn't too complicated) or Tomer could verify it; but yes, many more OTRS respondents know English. I think a direct communication in Hebrew is better than an indirect one in English, personally. -- Avi (talk) 16:51, 4 January 2010 (UTC)

I now sent copies of the mail messages (in .eml source format) to OTRS, that should be more than enough. Do I understand that Deror avi received a reply? What did Presenti write? /Pieter Kuiper (talk) 10:54, 5 January 2010 (UTC)

Thanks. Ticket# 2010010510011627 for anyone else with an OTRS account. I don't think Deror avi has received a reply from Presenti yet. Adambro (talk) 11:23, 5 January 2010 (UTC)

I have replied to that ticket directly to Dr. Presenti asking for clarification re: 2-d/3-d using File:HaMakhtesh HaGadol IMG 5985.jpg as an example. The bigger question is not whether a museum is a public place, but does Section 23 cover ALL works including paintings, pictures, and maps, and her response to Pieter while not totally clear, does imply that it does not, in which case, we will have to delete a lot of images that were thought to be allowed. Hopefully she will respond to the ticket and it will come directly into the OTRS queue. -- Avi (talk) 15:36, 5 January 2010 (UTC)

Now this I do not like, that you use my correspondence to bother her with further email messages. Her response was perfectly clear about the law and about her book. If you want legal advice about what you can and cannot do with specific images, you will probably have to pay. /Pieter Kuiper (talk) 15:50, 5 January 2010 (UTC)

I am sorry that you do not like this Pieter, but you are not the only person on the Commons; you are just one of many. Once you already "bothered her" with your initial e-mail, which did not address the core issue directly, I took the opportunity to ask for clarification on that specific point. Otherwise, we may have devolved into a "what did she mean" discussion being that her primary focus was on the public and private nature of museums. If it makes you feel better, I specifically stated that we were not asking for legal advice, but for her opinion, nor did I quote your e-mail or name at all, so you personally have nothing to worry about. I would have thought you of all people would be interested in a clear answer to the 2-D/3-D issue and the meaning of applied art, as you have posted so much about it in the past. -- Avi (talk) 15:57, 5 January 2010 (UTC)

I may have misunderstood your "replied to that ticket directly to Dr. Presenti asking for clarification." But anyway, her answer to me was clear, and I think that you are not going to get anything more definite about your example image than "maps are not exempted in article 23" (if you get any answer at all. Both Nilfanion and Adambro have cautioned against barraging Presenti with emails. Now you are mailing, Deror is calling her office, it does not make sense. /Pieter Kuiper (talk) 16:06, 5 January 2010 (UTC)

Worst case, we are we are now. Best case, we get clarification, and if Section 23 does not cover paintings/photos, we have a lot of deleting to do. She is more than welcome to ignore my e-mail, and I tried to word it very apologetically. -- Avi (talk) 16:18, 5 January 2010 (UTC)

I did not recieve an answer from her yet, but I was informed that her office recieved my email and that it was transfered to her. Deror avi (talk) 16:30, 5 January 2010 (UTC)

The OTRS queue has just received an e-mail from Dr. Presenti saying that she will get back to us on Wednesday as she is very busy, but she will review the issue carefully. -- Avi (talk) 17:23, 5 January 2010 (UTC)

FWIW, she responded to Dror (OTRS queue too) that she will respond Thursday due to the pressure she under; either way, we will hopefully be getting some clarity this week. I have merged the tickets. -- Avi (talk) 17:27, 5 January 2010 (UTC)

Avi, The OTRS ticket is locked. Tomer A. (talk) 05:04, 7 January 2010 (UTC)

Seems unlocked to me Ticket#: 2010010510011627. -- Avi (talk) 05:45, 7 January 2010 (UTC)

I get "No Permission!" when trying to open. Tomer A. (talk) 15:00, 9 January 2010 (UTC)

Email from Dr Presenti (09/01/2010 11:11)

Dear Avi,

Sorry for the delay.
I have considered the matter very carefully and I believe that when the law
menthioned applied art, a map is within the meaning. It is not absolutly
clear what applied art means. In my opinion, it includes art work (like
adversts, advertising, maps etc) which transfers useful information.
Therefore, the map you have sent me, which is placed in a public place like
park etc, is within the  exemption of Section 23 .
In my opinion, artwork like the Shagal windows in Hadasa hospital or other
art works which are permanently installed in a public place or that can be
observed from a public place,  are within exemption of Section 23 .
But...!, I do believe that the whole exemption of sec.23 is covered by the
fair use doctrine.
It means that you may copy the work for private use and not for commercial
use. The consideration of 'what  fair use is' may be covered by sec. 19 (b)
of the 2007 law. I am aware that there is no linkage between the two
sections. But when we look at  chapter (d) that deals with the exemptions we
can see that sec. 18 & 19 are general section whereas sections 20-30 which
come next apply to specific uses.
Therefore, my conclutions may be summerized as follows:
1. Applied art includes art work (like adversts, advertising, maps etc)
which transfers useful information.
2. Other art works which are permanently installed in a public place or
which can be observed from a public place,  are within exemption of Section
23 .
3.The whole exemption of sec.23 is covered by the fair use doctrine (sec.
19).

I hope to have helped you in the discussion. Please place my reply on the
wikimedia commons.

Sarah

Email from Dr Presenti (09/01/2010 14:49)

Dear Avi,
Further to my previous e-mail, I have taken the time to read the debates on
the site.
I would like to add the following:
A public place is a place that everyone may enter with or without payment.
Section 49 has defined the wording "public entertainment place" in
connection with public performance. In the 1911 law,  same approach
concerning public performance was taken in section 2(2)(c) , but it referred
to "performance in public". The term "public" ond/or "publicly" was widely
discussed in many cases , even in the Supreme Court. The interpretation of
the law has been: any place to where the public is allowed entrance with or
without payment. Therefore it is widely understood that a park , a church, a
museum are public places.
As for applied art or useful art, It does not matter if it is 2D or 3D as
long as it is a work of art that is meant to deliver useful information.
Therefore, an artistic work created for artistc purpose is by no means
applied art ( e.g. painting).

I felt that my answer was not in full without the above clarification.

Sarah

Discussion of the above emails from Dr Presenti

Presented above are two emails from Dr Presenti which have been received and archive in OTRS ticket#2010010510011627. We all need to take the time to carefully read these emails and try to understand what they mean. My summary would be as follows: Applied/useful artwork is not defined but Presenti considers it to have a broad meaning including "art work (like adversts, advertising, maps etc) which transfers useful information", though it does not include paintings; "an artistic work created for artistc purpose is by no means applied art ( e.g. painting)". Adambro (talk) 16:13, 9 January 2010 (UTC)

It is probably worth noting that my above summary didn't consider the references that Presenti made to the fair use doctrine. That may make my summary incorrect although I'm not sure. Adambro (talk) 17:05, 9 January 2010 (UTC)

Fair use and article 23

I would respectfully disagree with Dr. Presenti on a few points, most significantly the fair-use limitation. I am quite certain that article 23 allows photos of buildings and permanent sculptures also for commercial use. Including a non-commercial limitation was discussed in a Knesset committee, but this was discouraged by Afori, and nothing came of it. /Pieter Kuiper (talk) 16:42, 9 January 2010 (UTC)

I didn't really consider her references to the fair use doctrine. I'm not clear on what she means, whether she is saying that the exemptions in section 23 are only apply to fair use, which I wouldn't think so, or, in my view more likely, that anything not covered by exemptions in section 23 could be still be used under the conditions of fair use. Adambro (talk) 17:05, 9 January 2010 (UTC)

Fair use is irrelevant to the commons, in that we only allow free-use. I am concerned about the possibility that Section 23 may only allow free and not fair use, and I have asked for clarification. Besides that, I believe we can make the following statements based on her e-mails:

1. Useful art does not cover all artistic works, only those that convey useful information. This would include things like maps and descriptions of places but would not include paintings.
2. Any place which allows entry to the public, for free or for pay, is public.

Thus, taking a picture of a map, poster, or advertisement in a museum would be allowed, but a painting would not be, even in public. I have also asked her why the Chagall windows would be covered if they are art and not meant to convey information. However, unless she is kind enough to reply, I think it clear that any image of a painting that we have allowed under Sect. 23 may be in jeopardy. -- Avi (talk) 23:48, 9 January 2010 (UTC)

A window is a useful object, and it is easy to argue that stained-glass windows are applied art. I find Presenti's inclusion of works that convey useful information quite a leap. Maps, technical drawings, etcetera are in some jurisdiction regarded as literary work, as their artistic content is often very low compared to their informative character. The Israeli law has "maps" as a distinct category in the definition of artistic works; I do not see how it could be comprised in the category of "applied art". /Pieter Kuiper (talk) 00:05, 10 January 2010 (UTC)

You are more than welcome to view it as a leap Pieter, but she is one of the foremost experts in Israeli coptright law, and you and I are not. The commons is on VERY safe grounds following her opinions, much safer than following my or your opinions. -- Avi (talk) 00:40, 10 January 2010 (UTC)

Safest and simplest would be to just follow the common denominator of most countries of the Commonwealth. Or do you suggest to delete all images of modern Israeli architecture and monumental sculpture, just because Presenti's email says that article 23 images would have non-commercial restrictions? /Pieter Kuiper (talk) 00:47, 10 January 2010 (UTC)

No Pieter. Section 23 lists 3 types:

של יצירה אדריכלית, יצירת פיסול או יצירת אמנות שימושית,

The first is architectural, the second is sculpture, and the third is the infamous "applied/useful art". Buildings and sculptures do not need to be useful to be covered by Section 23. -- Avi (talk) 00:52, 10 January 2010 (UTC)

What does that have to do with my question? Presenti's email says: "The whole exemption of sec.23 is covered by the fair use doctrine (sec. 19)." If you accept that, it means that also photos of architecture and permanently situated sculpture would be covered by fair-use limitations. My proposal remains to disregard contradictory local interpretations, and to assume that ecerything is still the same as under Mandate Law. /Pieter Kuiper (talk) 19:16, 10 January 2010 (UTC)

I've already asked her about that; however, what she means, I believe, and I could be wrong, is that anything covered under Sect 23 is ALSO covered under fair use, which is a wider and more inclusive doctrine. I have notified her about our requirement for free use. And, for what it is worth, it answered your question perfectly, as you were concerned about deleting architecture and sculpture, and I pointed out to you that those do not require "usefulness" as they are specifically mentioned on their own in the law. I understand you do not read Hebrew, but I thought I was clear in listing the three; my apologies if I was not.

יצירה אדריכלית

is architectural works,

יצירת פיסול

is suculpture, and

יצירת אמנות שימושית

is useful art. -- Avi (talk) 21:40, 10 January 2010 (UTC)

I haven't followed the discussion the whole time, but the letters (other than the fair use part) seem to make sense. It does seem as though the new Israeli law tweaked the "works of artistic craftsmanship" to be "applied/useful art". That may be just as hard to define, but I could see it including the type of maps you see in public ("You are here" in a floor map of a museum, etc.) -- i.e. works whose primary use is aimed at the people actually in that public place. Probably includes posters and possibly advertisements too. Architecture and sculpture are separate exemptions, I think, and don't have to be "useful". Maps meant for another purpose (i.e. paper maps normally sold) which are shown as a work of art may come down on the other side of the "useful art" line, and be fully copyrighted, and paintings etc. obviously are, and so derivatives of those are not allowed. Everything above seems pretty consistent with the old Mandate law, except tweaking the "works of artistic craftsmanship" bit to include certain 2-D works, it seems to me, and the English translations also make sense to me with that interpretation. That seems like a reasonable result of all of this discussion, and especially thanks to Dr. Presenti for responding to inquiries.

I must admit the fair use part of the email confuses me some. It is possible that she just meant that photos of non-useful art (and non-sculpture, non-architecture) are still usable under fair use, so photos of paintings are still sometimes OK, just in much more restricted circumstances. But, I can see interpreting it as saying the sec. 23 exemptions are limited by fair use, but that makes little sense to me -- if they are, there would seem to be no need to have a sec. 23 in the first place, since fair use would already cover it. The old Mandate law -- and the UK law of which it is almost a copy -- does by all indications allow commercial use and there is no indication the new Israeli law meant to change that. If Dr. Presenti is willing to answer another email that may be helpful, of course :-) Carl Lindberg (talk) 07:20, 11 January 2010 (UTC)

I haven't followed this dispute at all, but just a quick note on this "fair use" thing: FOP may be understood to imply that uses of a reproduction of a work under FOP may not curtail the normal exploitation of the work or the legitimate economic rights of the artist of the work. See e.g. Eu directive 2001/29/EC, article 5, point 5. Maybe something like that is meant? Lupo 07:51, 11 January 2010 (UTC)

That is in the en:Berne three-step test. It is a standard for legislation, but nobody knows what the limits of "normal exploitation" are. In France and Belgium, architects feel that making postcards is included in their normal rights of exploitation, while in other countries such claims are considered ludicrous. But indeed, this may be what Presenti is thinking of. /Pieter Kuiper (talk) 08:20, 11 January 2010 (UTC)

Just to be clear - Presnti thiks that this image is FOP. The Shagal windows are OK even according to the UK Law (House of Lords rullings). The only thing that is not OK according to presanti are paintings. She did not answer my question with regards to mosaics and murals (I did not get her answers as she corresponds directly with Avi and the OTRS - so Avi, if you corresponds with her again please ask her). As to fair use - my understanding of her answer is that she deems Section 23 (which allows commercial use) as a form of fair use. This is just definition term (I did mention before that the term FOP does not exist in the Israeli Law nor in Hebrew (we actually use the English) - in Hebrew it is "שידור או העתקה של יצירה הממוקמת במקום ציבורי" - "copying of artwork permenantly in public" (see the title of Section 23). Deror avi (talk) 11:12, 11 January 2010 (UTC)

Where does Presenti say that File:HaMakhtesh HaGadol IMG 5985.jpg is included in article 23? /Pieter Kuiper (talk) 12:09, 11 January 2010 (UTC)

"Therefore, the map you have sent me, which is placed in a public place like park etc, is within the exemption of Section 23" relates to File:HaMakhtesh HaGadol IMG 5985.jpg. Adambro (talk) 12:14, 11 January 2010 (UTC)

(ec) Dr. Presenti wrote Therefore, the map you have sent me, which is placed in a public place like park etc, is within the exemption of Section 23 . This map she is refering to is that of File:HaMakhtesh HaGadol IMG 5985.jpg as its link was sent as an example to Dr. Presenti by Avi (within OTRS ticket 2010010510011627). --AFBorchert (talk) 12:17, 11 January 2010 (UTC)

For what its worth, Presenti's emails are unclear about just how broad a term "applied art" is and while we may get further clarification as to what she believes is covered, we are not ever going to get a comprehensive concrete listing. One thing that is clear is she does not think that all artwork is covered, so I've removed that phrase from the project page and replaced it with saying Israeli FOP is broader than that in the Commonwealth, which is fairly clear to me. I'd suggest adding a second sentence saying "Examples of works that are permitted include ..." as well as an OTRS link.--Nilfanion (talk) 12:51, 11 January 2010 (UTC)

Presenti does not actually compare the Israeli concept with the UK concept. As to examples, there is the same problem as with occasional opinions by Goodwin (the Foundation's lawyer). /Pieter Kuiper (talk) 12:56, 11 January 2010 (UTC)

The attribution may not be appropriate (and so need rephrasing), but reading all of this thread indicates everything covered by UK FOP is covered, and in addition Presenti says things like the emailed map are included. As for examples, we can never get a full listing to cover all eventualities, but we should try to give some as it gives useful detail to the section (the whole point of this page is guidance after all). The section on UK FOP mentions stained glass, wrought iron gates etc (and the relevant cases). Negative examples should also be included, for the same reason.--Nilfanion (talk) 13:14, 11 January 2010 (UTC)

For what it is worth, I have asked Dr. Presenti about the fairuse issue and the windows. Also, Adambro, Tomer, and AFBorchert are all OTRS volunteers and can all access the e-mail, which thankfully was written in English. -- Avi (talk) 15:37, 11 January 2010 (UTC)