User:G.dallorto/Freedom of Panorama issues

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Abstract from the Village pump

Freedom of Panorama issues[edit]

Another problem with Italy[edit]

Category:Ara Pacis museum in Rome: Italy apparently has no freedom of panorama and the architect, Category:Richard Meier, is alive. Ditto for:

Shall we simply get rid of all architecture of Italy built less than 140 years ago?

This "freedom of panorama" is not under control
Stop this nonsense (this may be POV ;o). For the one I know: indeed, in France, architects have claimed that it was an infringment of laws on intellectual property, but this has never been subject to any jugement, so this might as well amount to intellectual terrorism. What has been juged, is that the owner of a photographied place must demonstrate a prejudice if he wants to attack any given picture of his property. So the factual situation in France is: you may freely take and reproduce picture, but you must take into account object property and artistical property, and make sure that the use of the picture will not cause (economical, mainly) prejudice to the owner.

Publicly exposed material is "free", insofar as no payment nor authorisation is needed to use the picture most of the time; this amounts to "free with pendant right", and for any thinkable use in the wikipedian world, the restriction on pendant rights is pointless.

Instead of systematically asking for the suppression of such images based on non-juged claims and lack of juridical framework, we should acknowledge that there is debate on the juridical status of such picture, and debate on what would be a sensible Commons policy (limits on what seems acceptable / warning model to explicit private rights / ask for authorization or confirmation ...). If the debate leads to sensible "home rules", chances are that they will make their way through jurisprudence toward legislation anyway.

So please apply the Wikipedia rule: when facing a problem, be creative and think of what a solution might be! Michelet-密是力 18:56, 18 April 2007 (UTC)

On "free content"[edit]

Re ‘Publicly exposed material is "free", insofar as no payment nor authorisation is needed to use the picture most of the time’: we use a different definition of ‘free’. And I do not see why a judge or a legislative body would add exceptions to existing laws just because somebody on the WWW doesn’t like those laws. —xyzzyn 19:56, 18 April 2007 (UTC)

♦ You seem not to be aware of how legislation evolves.

♦ The freedomdefined.org definition is irresponsible and lunatic, as far as law is concerned. You can't say that a "free picture" may be used for any purpose, or may have any transformation, because some legal restrictions will always apply some way or another. For instance, even when a painting has fallen into public domain, it is still subject to the "moral rights" - which are "perpetual, inalienable and imprescriptible" - that definitely restrict the right to make changes, since the "respect due to the work" is imprescriptible. It has been juged in France that this "respect to the work" is enough to forbid a TV channel to put its logo while transmitting a film, or cut it to allow for ads. If freedomdefined.org definition is accepted, then all PD-old art must be suppressed because the freedom to transform the work is not absolute? - ridiculous. If you want to seriously discuss legal matters, please don't use this freedomdefined.org definition, it's mere propaganda.

Michelet-密是力 05:33, 19 April 2007 (UTC)

The freedomdefined.org definition is authoritative. —xyzzyn 07:00, 19 April 2007 (UTC)
Perhaps it is authoritative but this definition, while perhaps fitting on US law, does not fit (if taken strictly) on European legal systems that have a notion of "moral rights". Unless you want to declare all European content to be unfree, you'll have to take this definition with a pinch of salt. David.Monniaux 07:06, 19 April 2007 (UTC)
Moral rights, a concept present in the Berne Convention (Article 6bis) and in United States law (U.S.C. 17 §106A), have two major purposes: to allow the author to demand attribution and to give the author a means to object to uses and modifications of the work that are ‘prejudicial to [the author’s] honor or reputation’. The major difference between European and US law is that the latter gives the author a means to waive these rights. However, my impression from reading §106A is that even in the United States, a universal waiver of moral rights would be difficult or impossible. So if moral rights are a problem, then the problem is (almost?) world-wide. However, the definition explicitly allows a requirement of attribution and I interpret the phrase ‘some restrictions may be applied to protect these essential freedoms’ to mean, in particular, that it is permissible for a free content licence by omission to imply restrictions without which the licence would contradict copyright law. This is why I see moral rights not as a problem, in the same way that a free content licence needs not e. g. try to exempt the user from liability for crossing a street on a red light while reading the work. In the words of w:Lawrence Lessig, ‘we’re not trying to “strip” anyone of moral rights. Indeed, we don’t do moral rights.’[1]xyzzyn 10:37, 19 April 2007 (UTC)
Precisely. Since no "free licence" can cancel moral rights, you can't say that such a licence gives you complete freedom to make whatever transformation you want: this is why the "authorative definition" is excessive, at best a militant one, but unrealistic. If you want a realistic definition with due respect to legal constraints, limit yourself to something like:
♦ No payment nor authorisation is required to use or reproduce the picture. ♦ No conventional restriction clause is made to limit reproduction or usage. ♦ The only restrictions on usage, reproduction or transformation are those imposed by law, due to the very nature of the picture (eg, seals or trade marks) and/or moral rights of the author and/or rights linked to the object represented.
The question of derivative works is embarassing, though. An author may licence his work under a free licence (GFDL) allowing uncontrolled derivative work, but a PD-old work has not such a licence, so any modification is made under the user's responsability: though not problematic, Wikipedia cannot say it is "free" material if the definition of freedomdefined.org is stricly required. IMHO, this is an very theoretical and academical question, though: any usage I can think of on wikipedia is not problematic for PD-old, there is no need for an "unlimited derivative right" on pictures anyway. Michelet-密是力 12:45, 19 April 2007 (UTC)
I don’t think ‘complete freedom’ is mentioned anywhere in the definition. The extent of rights to be granted to users is defined in the ‘Essential freedoms’ section[2], to which I refer in my analysis above. I don’t understand what your point regarding PD-old is. By the way, the free {software,content} movement is indeed ‘militant’ in the sense that it challenges the traditional method of distributing copyrighted works and this website happens to be a part of that. —xyzzyn 16:22, 19 April 2007 (UTC)
I do know we're on a militant site, but legal analysis must nevertheless be realistic. Michelet-密是力 12:31, 20 April 2007 (UTC)
The problem is the sentence "a license must grant the following freedoms without limitation": some pictures are such that the corresponding freedoms cannot be "granted" by any kind of licence, because that would be illegal (for instance, you can't say that a CC photo licence grants you the freedom to use it for public insults, because there is no such freedom, nor that a PD-old material inserted in a GFDL wikipedia article may be transformed at will, because the moral rights of the author must nevertheless be respected). The sentense would be perfectly OK if it ran "a license must state no limitation to the following freedoms", because it would not have excluded limitations that are imposed by law for the respect of "public order" & which therefore cannot be contracted out. This (militant and unrrealistic) formulation causes two kind of problems: (1) it lets the contributors under the impression that anything can be made with "free" material, which is false, and (2) when a legal restriction is discovered by the "free" community, it leads to systematically exclude the corresponding material, which is an overreaction. Hence my advocating for more realism. Michelet-密是力 12:32, 20 April 2007 (UTC)
This is nonsense. The ‘right’ to insult people, just like the ‘right’ to ignore a red light (see above), has nothing to do with copyright and is therefore outside the scope of the entire discussion. As for whether the licence is required to ‘grant’ freedoms or to ‘state no limitation’, the latter version fails to imply that the licence should grant the user rights that are a priori exclusive rights of the copyright holder and is therefore useless. —xyzzyn 21:20, 20 April 2007 (UTC)
It is nonsense indeed, but that's the way WP users react. I've seen tons of discussions based on the line "this polititian can't have allowed his picture to be put under free licence, because it would amount to allow any insulting derivative". I've seen plenty of arguments based on "there is such and such legal limitation, therefore the picture can't be free". I know this is nonsense - this is precisely my point. The militant definition leads to such nonsense, and therefore is de facto problematic and irrealistic. Michelet-密是力 03:55, 21 April 2007 (UTC)
The definition does not say this. Have you seen these tons of discussions only after the definition was made official (2007-03-23)? —xyzzyn 11:10, 21 April 2007 (UTC)

Commons:Freedom of panorama[edit]

For the one I know: indeed, in France, architects have claimed that it was an infringment of laws on intellectual property, but this has never been subject to any jugement

Mmmh. Actually, there was a ruling of Cassation in 2005 that denied the right of sculptors / architects (Daniel Buren and another person) to monetary compensation from a postcard company... but the reason cited by the Court was that their protected work was an element integrated into a larger scene. Thus, the Court left open the possibility that a photograph that represents one building (as opposed to a building in a whole panorama) is a derived work of the building.

I don't know recent rulings off the top of my head granting money to architects, but certainly, they do request money or authorizations, there's ample evidence to that (see the SPMI Observatoire de l'Image newsletter). David.Monniaux 20:43, 18 April 2007 (UTC)

  • What does Italian case law tell us about photographs of contemporary buildings in Italy? Lupo 20:53, 18 April 2007 (UTC)
Excellent question! David.Monniaux 21:14, 18 April 2007 (UTC)
I asked in Wikipedia Italy, and at the moment no one seems to know the answer. If you can read Italian you can find about it here. --G.dallorto 12:23, 19 April 2007 (UTC)

ceterum censeo, once again: Remember that Freedom of Panorama does not magically turn copyrighted material into free material. It just relieves SOME restrictions on USAGE of the photo. Plus, it does so only in countries with a liberal FOP jurisdiction. FOP is not automatically "attached" to the photo. It applies in the country where you go to court, not in the country where you take the picture. --Fb78 09:42, 19 April 2007 (UTC)

That's true in general. Remember "national treatment"? But we have this idea that in order to host an image at the commons, it must be ok to publish the image under the copyright laws of both the country of origin and of the U.S. With freedom of panorama (FOP), we get into troubles. If we'd apply that strictly, we could delete all images of copyrighted sculptures, because the U.S. has no FOP for these (only for buildings). We could also delete all FOP-images from eastern European countries, where FOP is only for non-commercial uses. So what options do we have:
  1. Allow FOP-images generally. We'd host files that we couldn't publish under U.S. law (sculptures), and we'd host files that couldn't be published in their source country (e.g., FOP images from Italy), and we'd host non-commercial-only FOP images (Eastern Europe). We could also host images of the Atomium under that rule. (I'm not saying that'd be wise!)
  2. Allow only images that would be fine under U.S. FOP. Bye-bye to all sculptures, but keep all buildings, even if not ok under the law of the source country.
  3. Allow only images that would be fine under the FOP of the source country. Bye-bye to images from no-FOP and non-commercial-FOP countries, but keep FOP images of sculptures from countries where FOP allows that, even though not ok under U.S. law.
  4. Allow only images fine under FOP in the U.S. and in the source country. Bye-bye to sculptures (even if fine in source country, because not ok in the U.S.), and bye-bye to images from no-FOP or non-commercial-FOP countries (because although fine in the U.S., publishing those images is not ok (or not ok for commercial purposes) in the source country).
  5. Allow images that are ok under FOP in the U.S. or in the source country. That appears to be our current practice, but it is inconsistent. We host images of non-U.S. sculptures if fine under FOP in the country of origin, even though that's not ok under U.S. law. We don't host images of U.S. sculptures. We currently also host FOP images from no-FOP countries (e.g., Italy) and from non-commercial-FOP countries (Eastern Europe) because they're fine in the U.S. and other FOP-countries. In fact, we even seem to ignore the "non-commercial" restriction in non-commercial-FOP countries (we have quite a few images of copyrighted sculptures from Eastern Europe). But we don't host Atomium images, or nighttime images of the Eiffel tower.
Some explanations:
  • The source country (or country of origin) is a non-obvious concept itself (see Berne Convention, article 5). A work may even have several "source countries" at the same time. Since most countries of the world are members of the BC and buildings and sculptures are not "published" by being erected, I think for buildings and sculptures the source country would be in general the country where the work is placed. (Article 5(4)(c)(ii) BC).
  • In any case, images of sculptures or buildings where we have the consent of the copyright holder of the pictured work to publish the image under a free license are fine.
  • For buildings, not all contemporary buildings are subject to copyright. Some minimum creativity is still required. A standard, run-of-the-mill suburban single-family home might not be copyrighted, but the works of star architects certainly are. But the precise standards for that required creativity may vary amongst countries, and they may be low. The copyright remains with the architect, not the owner of the building, unless explicitly transferred in the construction contract. The author is in any case the architect (important for calculating the copyright term).
  • For countries where the copyright law does not have an explicit provision for FOP, we do have the option of looking at case law (if there are cases dealing with similar issues). That even applies to civil law countries. If courts in a country decide in a way indicating that FOP-images are fine or tolerated, we could treat such countries as "de-facto FOP". If there is no relevant case law in a no-FOP country, I think we should consider it a strict no-FOP country.
I can understand that G.dallorto wants to have all that mess clarified in one way or another. What do we do? Keep on going (do as you like), or do we try to decide on a clear rule? Lupo 08:29, 20 April 2007 (UTC)
An extremely well set out analysis, Lupo. The problem we have is that the safest option is number 4, ie to require images to be fully usable in both the country of origin and in the US. But, as you say, that means we lose very many useful images. I don't believe that courts in all jurisdictions would be consistent in applying the FOP provisions of the court's country to any alleged infringement, even though that may often be the case. In the US Bridgeman -v- Corel case, for example, the court first held that UK law should be applied to the question of originality, but on a re-hearing changed its mind and held that orginality should be decided under US law. Admittedly that was to do with originality, not FOP, but the fact is that courts aren't always very consistent. Ultimately, though, is this a question for Commons users to decide? I'd have thought that the important issue is that the Wikimedia Foundation is happy that it's not being unduly exposed to legal actions in the US. So it's really an issue for the Foundation's lawyer to tell us what he/she is prepared to allow us to do. Obviously, the broader the better as far as we are concerned. --MichaelMaggs 12:11, 20 April 2007 (UTC)
You realize that this means "just keep on muddling along"? Past experience has shown that we're highly unlikely to get any input from the foundation on such questions. Does the foundation even have a lawyer presently? I thought they were in the process of hiring one? Lupo 13:08, 20 April 2007 (UTC)
No, I didn't know that. So, we have to do the best we can, then. I've made a practical proposal below. --MichaelMaggs 06:54, 23 April 2007 (UTC)

This is a case of being frightned by one's own shadow, at least for the cases I know: There has been indeed a jugement stating that the specific firework and illumination created for the 100th anniversary of the Eiffel tower was copyrighted (a one-shot event), and after that everybody says that night pictures (note the plural - a permanent vision) are forbidden. This is very different from what has been juged, the prohibition flows from the one that applies to a public performance, not to a building. For the Bruxelles atomium, the landlord refuses to authorize pictures, because of artistical proprety rights - OK, but the architect never has said a word on that AFAIK, and the case certainly wasen't juged.

So here we are, discussing on what laws allow or not in each country, when the facts are mere claims and urban legends? this is nonsense! This means that each and every time someone somewhere in the world will make an abusive claim on reproduction restrictions, thousands of pictures will have to be suppressed in commons? This is ridiculous! Reacting to rumors cannot be a good legal policy.

Find the references for laws and jugement facts, let's study the cases, and let's discuss of a decent policy that might be applicable worldwide. Michelet-密是力 12:14, 20 April 2007 (UTC)

Michelet, it's not about "finding a policy that might be applicable worldwide". You know perfectly well that such a policy doesn't exist: "national treatment" bites again. It's about whether we want to clarify our policies on what content we're prepared host, and if so, how our policy should look. It may or may not be necessary, but evidently the current situation is confusing. It's not the only place where our policies are a little at odds. Take PD-old images, for instance: non-US works published 1923 or later may not be PD in the US, even if the author died more than 70 years ago. And pre-1923 US works may not be PD elsewhere... We generally ignore these cases. And in any case, the ultimate responsibility for re-using the images we host is with the re-users, who are responsible themselves to make sure that their re-use is ok by their local laws. Lupo 13:08, 20 April 2007 (UTC)
I disagree, the situation is different and calls for a different approach. But thanks for your analysis, of course ;o) let's examine the case. ♦ For PD, we have to determine which are the explicit limits set by law in different countries, because Berne traty says that when an artistic work looses its protection in the country of publication, it is the case worldwide (unless otherwise specified). Local law is precise and final, and its examination relevant to us. ♦ For so-called FoP, the problem is to determine wether or not a given picture must be given the protection of the convention on artistic property (Berne treaty), because of the object represented. This is a jurisprudential problem, not a legal one: the conflict is between a public liberty (take picture) and a public right (artistic property), both protected by law, and the line has to be drawn somewhere in equity (and common sense). The solution depends on interests at stake, public welfare, simplicity of determination,... ♦ The jurisprudential solution will not be immediatly clear-cut, but once it becomes fed with relevant cases, the formulation may be generalized and may be adopted world-wide. Since Wikipedia is one of the place where such problems are discussed daily, our interest is to formulate sensible guidelines that might be adopted by further jurisprudences. ♦ Hence my position: IMHO, we should'nt be passive on such a problem, but actively discuss a possible NPOV solution, considering interests at stake, and promote it. Michelet-密是力 14:18, 20 April 2007 (UTC)
Ah, you were looking further. Did you mean "if we could come up with a sensible policy, it might be picked up and eventually be applied world-wide"? That'd of course be great. BTW, FOP is not primarily about taking the picture, it is about publishing the picture. I think in most jurisdictions, taking a picture for personal use is fine anyway. Lupo 14:45, 20 April 2007 (UTC)
A marginal note about: "A standard, run-of-the-mill suburban single-family home might not be copyrighted, but the works of star architects certainly are". Well, of course it is the images of contemporary Italian "star architects" I was uploading. Otherwise there would be no point in uploading them. :-)
As for court cases, that would be relevant in my case, I posted a request in the it.Wiki bar (in the sense of discussion area :-) ) to know whether some of the lawyers contributing to the project is aware of any such cases. I'll let you know if I get an answer. --G.dallorto 15:35, 20 April 2007 (UTC)

Problem with Italy two[edit]

The scope of my question is pratical, the theoretical question about "how laws ought to be to be just" is beyond my scope. The point is: freedom of panorama applies whenever the intellectual rights of the author are not harmed (the "famous" French case - cited again and again and again... and again - while denying rights to one artist alone, still did not discard the fact - established by laws - that monetary compensation is necessary if these rights were harmed: simply, the judge decided in this case that they were not harmed, since his work was not the main subject of the postcard. Which does not mean that other rulings could not overturn this one, should the moral rights of the artist be considered harmed...).

This said, if I take and publish in Commons (as I did) pictures of the most important works of art of contemporary architects in Italy (whose laws do not conteplate "freedom of Panorama"), they are made available also for commercial use. This is a conditio sine qua non, freely chosen by the Wikipedia foundation; this is not something the laws obliges us to do. But if I don't accept the "commercial" clause, my uploads will be deleted.

Now, if someone prints a postcard featuring one such picture of mine of such works of art, the architect might complain about such a use as harming his interest, id est to sell images of this work to a postcard company in exchange for a fee or a royalty. I think in this case is pretty self-evident that the freedom of panorama clause might not be invoked, not certainly in Italy, and perhaps even elsewhere.

My point is whether a different policy about copyrighted works should be implemented here, such as the "Green copyright" and the "Red copyright" available on national wikis ("Available for non-commercial uses only"). By the way, non-commercial and educational uses are allowed by any copyright laws in a much wider and much more free way than commercial ones.

When we are talking of a picture which is copyrighted because of the photographer who took it, the solution is easy: we should delete it, and wait for someone of us to shoot a new one and publish it under a free license. This is what I am doing with works of art of Italy, especially Milan. But when we speak of an image which is not free because it is an architectonical work of art whose author did not die at least 70 years ago, a different approch may be -- is -- necessary. At least for those countries, such as Italy, where freedom of panorama is not contemplated (to date).

Please remind that I am the sole responsible of the pictures I upload here (and before you accuse me again of being "disruptive" no, I am not "nominating for deletion" pictures by other people: at the moment I am discussing about pictures taken by me). If WikiCommons is sued, they would turn the litigation to me as the main offender (a similar case with the Sovraintendenza alle Belle Arti in Florence asking for pictures publicly displayed of ancient PD objects to be removed from Wikipedia under Italian laws giving intellectual rights over object in the PD they own, resulted in Wikipedia saying: "It's not our business, it's the photographer's alone, talk to him". Given the support the Wikipedia foundation gives you if you get in trouble, I'd rather do without, thanks). And I sincerely don't need any troubles for volunteering my work and making it available to anybody for free.

IMHO, this attitude is impossible to defend, and would not stand in case of litigation. Indeed, the photograph has his own responsability when uploading something. But Wikipedia takes the responsability for maintaining it available on the net, has the organisation admins,...) to chase illegal material, and must do so actively. If wikipedia states that such or such problem is "outside control", then volontarily putting it outside control is its responsability, and Wikipedia can be sued for that, of course. Wikipedia's responsability cannot be absolute, of course (especially considering its anarchical organisation), but it is there nevertheless. Michelet-密是力 14:47, 20 April 2007 (UTC)
Unfortunately it did happen, but recriminating will not, of course, be useful for anybody so let's forget about it. The point is: nowhere we are promised we will get legal assistance from Wikipedia foundation in case we were unjustly sued. So it is not unwise acting in a preemptive way, by deleting our own images that might prove controversial. --G.dallorto 16:16, 20 April 2007 (UTC)
Giovanni, there are some points in your remarks that I don't understand. “Freedom of panorama applies whenever the intellectual rights of the author are not harmed”: can you elaborate? How do you understand full FOP--that is, when usage is not explicitly restricted to non-commercial usage, such as in Germany? What do you mean by “other rulings could not overturn this one, should the moral rights of the artist be considered harmed”? How would the moral rights of the artist be harmed by taking a picture of the entire place, including the said work of art? Btw, the Terreaux case, which I suppose you are refering to in your first paragraph, is supported by another ruling of the Cour de Cassation (Sté Antenne 2 c/ Sté Spadem). Jastrow (Λέγετε) 16:14, 20 April 2007 (UTC)
No, no, I did not express myself clearly. In the case you mention, the decision is clear, I am NOT saying it does not stand as a precedent. I was just pointing at the fact that it cannot stand as a cover-up-all for cases that are different from that one, such are my portraits of a building of a famous contemporary architect, as a main subject. In such a case, my pix (provided they were not amateurish, as they are :-) ) if published could constitute a free, and royalty-free, alternative to an image licensed by the artist, whose economical rights would be thus be harmed. Sorry for not having being clear. --G.dallorto 16:30, 20 April 2007 (UTC)
Thanks for your precisions. It's hard to be clear and conversely, to understand properly, on such complex matters when one is not a native speaker :-) Jastrow (Λέγετε) 16:58, 20 April 2007 (UTC) Yeah - let's discuss it in french, such a precise language ;o)) Michelet-密是力 17:28, 20 April 2007 (UTC) Hi there, Jastrow... Si tu organises une visite de musée, je suis fana...
G.dallorto, see the discussion below: in that case, if you release your picture under a GFDL licence, the "alternative licence" is de facto limited to non-profit publications (and their drawbacks: cheap n' dirty). Whether or not non-profit publications make a competition to profit-making publications may be arguable, but it's at best a second-order competition - not the real thing. So, the legal risk of being accused to harm economical right is accordingly lessened. - Well ... at least, as far as I understand it. This is why I advocate for a GFDL licence whenever private rights are involved: the commercial fields infolved are most of the time distinct. Now, if someone has an analysis on the CC case, I'd be glad to read it. Michelet-密是力 17:42, 20 April 2007 (UTC)

My proposal is: the current policy is flawed when we come to letting pictures like those I listed above to be kept here. In fact, we may not allow commercial use of works whose commercial rights are owned by someone else. Fullstop. We should either delete them, or restrict re-use to educational, review and noncommercial uses, that the laws grant to users anywhere in the world. But this requests a change of policy in WikiCommons.

The same applies to the ongoing debate concerning images documenting news and facts happening arouns us. Otherwise Wikipedia will become a pretty repository of babies photographed by their dads (btw even this will lead us into trouble soon or late: image rights MUST ALWAYS be waived in written form, ESPECIALLY if the image is released for commercial uses also), flowers, trees, stones, dogs & cats (and cows) and of works of art produced no later than 1920.... How exciting. --G.dallorto 12:11, 19 April 2007 (UTC)

Not quite. The main problem with commercial rights is unfair commercial practice, but GFDL licence is so strict that it cannot be used for profit. The commercial use allowed by GFDL is practically limited to financing the diffusion of the media, because GFDL imposes to make freely available a source of the work sold, and imposes it to be sold under deliberatly unfair competition conditions (the source is here for anyone to take: you do the conception work, I take it and sell it independently). As long as public availability of the work is required by the licence, no monopolistic profit can be made. So the "commercial use" is not a relevant limit in that case. I haven't studied the CC case, though.

But this would rather lead to a recommandation like: when a picture is attached to commercial rights, put it under GFDL with an invariant section that states the identified private rights. When a material is reused in derivative work, this is not wikipedia's responsability anymore. Either the use is similar to that of WP, and there will be no problem, or the use is specific, and let the commercial user examine by himself if it's OK or not. Michelet-密是力 14:47, 20 April 2007 (UTC)

Your reasoning is sound. So perhaps after all my idea is not practically enforceable. I suspect/fear the only solution out of the doubt will be acting as we do in other cpopyrighted fields: asking case by case to copyright holder(s) the permission to publish images featuring their work, and file the permission, case by case, or else putting a warning on their page: "do not upload images featuring...". Many architects, actually, will enjoy the fact of their work being widespread. But the process will be long, time consuming and boring... :-( And in the meantimes, thousands of images will have to go. --G.dallorto 16:39, 20 April 2007 (UTC)
Clearly not: as for today, most architects obviously don't care it their building is photographed, exept -from time to time- when profit is involved: when a profit-making publication is made on their work, they may want to share a part. Good, & understaindable. The point will usually be: when no profit is involved, and non competition involved, they don't care a damm'. Michelet-密是力 17:49, 20 April 2007 (UTC)
If you can read Italian: a lawyer ("causidico": it's a hironical self-definition) posted an opinion saying he thinks it is the restrictive interpretation that applies in Italy. Another poster said he shot a picture in front of the Pescara Courthouse and asked a lawyer passing by whether he could post on Commons and he was said he might. All I gather it that there seems not to be any consent on the matter. We need an authoritative opinion. Furthermore, Wikipedia foundation just let know that non-commercial licenses will no longer be accepted, and that pages on it.Wiki already using them should either change it or be deleted. This is not helping either. --G.dallorto 18:12, 22 April 2007 (UTC)
I've went through it. It seems to boil down to "t'is illegal - yeah, but that souds stupid". Indeed... Michelet-密是力 05:36, 23 April 2007 (UTC)

FoP has no national exception[edit]

The "restrictive interpretation" of FoP applies worldwide, since the Berne convention allows legal exceptions only if this does not cause an economical prejudice to the architect. Therefore, no national legislation can say the contrary: when a building demonstrates artistical creation, it cannot be photographed as the main subject of a picture for profit exploitation without the architect's consent (and that's final). The only possible exceptions are (1) for private use, since private copying is allowed by Berne convention and generally written in national legislations (2) when the monument appears as a background (in a movie, a news event,...), not the main picture: this is where national legislation may introduce derogations.

If wikipedia wants to use the picture of a recent monument under any kind of "free" licence, this can only be done if (1) The architect gives his permission to do so - of course; (2) The building demonstrate no artistic creativity (eg: common road infrastructure), and is therefore outside the Berne convention object - but this is almost impossible to demonstrate; (3) The picture of the building laks any public interest (eg: harbour infrastructure), excluding any economical prejudice caused by the exploitation of the picture - hard to prove, borderline and probably illegal anyway.

Most of the time, pictures of new building are therefore not "free", whatever the country, and should be deleted. On the other hand, let's be pragmatic: architects only react when cash-making activity is involved: post cards or posters, usage of the building in a film, or commercial publication.

There may be a solution with the difference made between "profit use" and "commercial use": the well-known problem that a GFDL licence makes it impossible to use the picture alone, and the fact that GFDL imposes the conditions of unfair competition, making it impossible to use the work for "profit" (the one that makes cash flow) may be used to back a local policy: consider a picture used under GFDL as similar to "private use" as far as economic activity is concerned. The point is, the chances of wikipedia being sent to court because of its own activity, or benig involved in a trial as third party because a picture was placed under a GFDL licence, are practically nonexistent.

So the solution may be a specific licence tag, saying that the work has private rights attached, its use has been considered possible to illustrate a GFDL publication, and users willing to use the picture in another context should appreciate the legal risks by themselves. Michelet-密是力 05:36, 23 April 2007 (UTC)

Suggestion for a resolution[edit]

OK, time for an actual proposal for adoption or shooting down. I suggest the following as a pragmatic solution in the absence of any policy guidance from the Foundation, which it appears we are unlikely to get:

  • Photographs which are taken and uploaded under a local FOP law are accepted on Commons (this is analagous to the acceptance of images which may be PD in one country but which are still protected by copyright in the USA)
  • Such images should have a new FOP tag attached, as follows:
This photograph was taken and uploaded under Freedom of Panorama laws of the originating country, and may normally be freely used in that country. In other countries, usage-restrictions may apply.

--MichaelMaggs 06:51, 23 April 2007 (UTC)

I disagree. The exceptions found in "FoP" can be considered to apply worldwide, since they are guaranteed either by explicit national law (eg, Germany) or by jurisprudence (eg, France). This was my point above: whatever the country, jurisprudence will tend to align to common solutions, so we can as well anticipate this position. On the other hand, the problem raised about profit exploitation of picture (when the building is the main picture) will be the same in every country, since it takes its source in the Berne convention itself. In both cases, there is no point in making a national discussion in this tag: we should take into account identified exception to copyright laws, OK, but consider they apply worldwide. I'm in favor of such usage, btw, but be warned that it ressembles to a "fair use" exception... Michelet-密是力 08:14, 23 April 2007 (UTC)
Yet I think this might be the solution, if feasible, although with a different wording. Actually, this is what professional and for-profit images banks already do. They sell you the shot, but state that in case it portrays a copyrighted building, in case you want to use it for non-personal use you should take care yourself to contact the copyright holder for royalties issues. Fullstop. This is done by knowing that in 99% of cases architects won't bother (legal costs would be higher than royalties) on will not know that the building was published, therefore this is a way to go around copyright laws. However, when you are Coca-Cola and you are launching a world-wide ad campaing based on a building, then you contact the copyright-holders and strike a deal with them -- or else you give up the idea. Normally this part of the job is done by the advertisement agency, of course. But this is not our case.
However I have a doubt about the feasibility of such a thing: even if we published the shots - as for-profit image banks do in their catalogues - with a warning about the fact that the subject may be copyrighted, we have published it anyway, therefore we have broken the copyright. When "Fratelli Alinari" foundation sells you a paper reproduction of an old picture by an author that has not been dead for at least 70 years, what they sell you is the paper reproduction for personal and study use, but they state they are not selling the right of publication. Quite the opposite, they insist that they don't want you to publish it (they are rather prone to copyright piracy, claiming copyright on images whose authors died more than 70 years ago only because they own the paper original, claiming they are a museum -- too). But if we publish an image online, there is no paper object, the image is the real thing, and therefore we published it.
So, again, perhaps we should implement a policy asking to contact all architect estates and asking for permission... :-( --G.dallorto 11:30, 23 April 2007 (UTC)

Michelet, I'm not sure what your specific proposal would be, based upon what you've said above. You seem to be suggesting a sort of 'notional worldwide FOP rule', but the fact is that national laws do differ and we can't pretend they don't. There are countries that have no FOP provisions at all, whereas the UK, for example, has very broad provisions that allow for any re-use of photographs of buildings and 3D works of artistic craftsmnship both in all public places and also in places to which the public has access. No 'worldwide' rule such as you are suggesting can possibly fit both approaches. Could you indicate exactly what your proposal would be, if you don't like mine? --MichaelMaggs 12:35, 23 April 2007 (UTC)

I'm thinking of a two-level distinction:
  • Some exceptions to FoP (when the artwork is incidental in the picture) is common jurisprudential conclusion, even when not explicit in the legislation. This can (IMHO: safely) be considered to apply wordwise, with a warning saying that part of the picture consists in artwork/architecture protected by laws on artistic property, and therefore cannot be considered as "free of rights". (Typically: you can't make any kind of "derivative work" with such picture, since a change in the frame may resurrect the privative right).
  • Freedom of expression (http://www.lexinter.net/UE/droits_et_libertes.htm, art. 10) implies the right to collect and publish information at least for the needs of WP articles, which is the purpose of commons (see Commons:Project scope). The §5(3) of directive 2001/29/CE together with Berne convention art. 9 shows that the reproduction of publicly and pernanently displayed artwork idoes not "unreasonably prejudice the legitimate interests of the author" (it would otherwise be illegal, whatever the national law). Use of FoP information may (? with some possible legal contestation) therefore be considered legal within the scope of wikipedia project, and any GFDL-based derived product (right to inform + no economical prejudice). In this case (fhen the art work is the main subject of the picture) a clear warning must be put that the use of this picture in a WP project does not mean anything about the use of the same pictures in other contexts (see Commons:General disclaimer  : "Your use of any such or similar incorporeal property is at your own risk.").
These are two different situations: When the artwork is incidental to the picture, the picture may be used even in profit-making contexts, based on law or jurisprudence. When the artwork is the main subject, profit-making use will be illegal when not explicitly allowed, but non-profit use justified by the right to inform is legal. In this latter case, the justification is very similar to "fair use" consideration, with the big difference that it can apply worldwide. Well, at least this is my analysis so far. Michelet-密是力 17:41, 23 April 2007 (UTC)
This derivation does not make sense to me. First off, I don't see at all how you can conclude that article 10 of the ECHR implied anything about a "right" of the commons of the other Wikimedia projects that would top copyright law.
Second, in countries that do have FOP, evidently the legislator considers FOP not to infringe the authors legitimate interests (art 9(2) Berne Convention). But that doesn't help us much, as not all countries do think so: the no-FOP countries evidently have made the decision that FOP would indeed be detrimental to the legitimate interests of an author. And likewise for the non-commercial-FOP countries: why else would they have restricted FOP to non-commercial uses? (Well, actually, the no-FOP countries may just have "forgotten" to spell out FOP in their laws, which is why we should look at their case law. But non-commerical-FOP countries evidently did think about this.) §5(3)(h) of EU directive 2001/29/EEC is facultative ("Member states may provide..."); not all Eu member states have chosen to implement it. Before concluding from the fact that it is allowed at Union level to include FOP in a member state's laws that FOP would also be ok in countries that don't have it in their laws, I'd like to see some evidence for such a conclusion. Solid evidence, not unproven legal theories. To me, the allowance of FOP-provisions at the Union level looks more like a necessary compromise because some EU members already had FOP in their copyright laws.
Third, this EU-based argument doesn't help us much with non-EU countries.
And fourth, Wikimedia only considers images free if they can also be used commercially. Non-profit-use-only is not considered "free enough". So we cannot use this as an argument, but maybe our re-users in no-FOP countries can.
Lupo 21:46, 23 April 2007 (UTC)
Concerning Michael's proposal, there are two things to note:
  1. For PD images, we do not just require "PD in the source country". COM:L says it must be PD in the source country and PD in the U.S. (Although that statement from the policy apparently isn't always enforced.)
  2. Hence, either there's confirmation that the fact that our servers are in Florida, USA and we're thus publishing in the U.S. doesn't matter. In this case, we should also change the PD policy to require only "PD in source country". Or it turns out that we do also have to comply with U.S. law, and then this "FOP-images are ok if the source country has FOP that allows publication of the images" doesn't work.
Which is it? Lupo 21:46, 23 April 2007 (UTC)

Are you suggesting we opt for your point 4, above (must be ok in both the US and the local country)? Fine, let's do that and accept we will lose sculptures and such imges as this from the UK. The issues seem clear enough, actually; it's now just a matter of policy. --MichaelMaggs 07:15, 24 April 2007 (UTC)

Yes, I am. I hate doing so, and I hope someone can present convincing arguments why only the law of the source country should be relevant, but I just cannot see how we can ignore U.S. law, given that both the WMF and the servers are in the U.S. If we could somehow argue or find technical means such that hosting images on U.S. servers did not also imply publishing in the U.S., the "source country only" interpretation might be made to work. But we currently do publish in the U.S. ... don't we? Lupo 08:22, 24 April 2007 (UTC)
Or, for FOP at least: are there any U.S. court cases about images of non-U.S. sculptures that would have been fine under the foreign FOP? If so, what were the verdicts? Did U.S. courts follow the foreign FOP (an argument similar to Michelet's above: if it doesn't infringe the authors legitimate interests in the source country, why should it do so in the U.S.?), or did they strictly apply U.S. law and considered the images derivative works? If we could determine that the U.S. were a "de-facto FOP" country at least regarding works from FOP-countries, we could also use the "source country only" approach, at least for FOP. Lupo 08:32, 24 April 2007 (UTC)
One not-so-legal argument in favour of the source country rule would be that the artist reputedly knows what copyright rules apply to his creation when he sells it to be publicly displayed. The purchase price should then compensate the loss of some rights due to FOP. Jastrow (Λέγετε) 08:55, 24 April 2007 (UTC)
Yes, that argument works in FOP countries. See e.g. [3] for the situation in Canada. Would U.S. courts follow such reasoning? Or rather, did they? Anyone with Lexis access here? Lupo 09:10, 24 April 2007 (UTC)
Forget it, see Berne convention art. 16: "Infringing copies of a work shall be liable to seizure in any country of the Union where the work enjoys legal protection (here, the USA where the work is legally protected) / The provisions of the preceding paragraph shall also apply to reproductions coming from a country where the work is not protected, or has ceased to be protected." (here, FoP country). If we adhere strictly to this, FoP pictures cannot be exported outside FoP countries, so they can't be published on a US server, since the artistic work itself is protected according to US laws. No, there has to be a deliberate policy sayng "we accept this kind of picture on commons, though it's borderline". Michelet-密是力 09:43, 24 April 2007 (UTC) Michelet, your use of identation is rather confusing. Who are you answering to? Your argument seems to plead in favour of 4), i.e., both local and US rules. Jastrow (Λέγετε) 09:52, 24 April 2007 (UTC) -- Sorry for that, Jastrow...
I knew that, Michelet. Nevertheless, the U.S. does some things that do not follow the letter of the BC. Their copyright law even states explicitly that "No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto." (17 USC 104(c)) Hence, looking for relevant U.S. case law, even if it's grasping at straws, just might turn up something useful. But if we don't find anything, I guess it'd have to be option 4. Lupo 10:08, 24 April 2007 (UTC)
...or use Jastrow's argument: since the work is permanently and publicly displayed in a FoP country, the author has necessarily abandonned the right of picture reproduction of his work, so publication of a picture is not a copyright infringment by itself. Publication in the FoP country is legal, and from there, the reproduction can legally be exported to non-FoP countries. The catch is: this does not mean that publication in non-FoP country is legal. If publication on commons is made in the US server, there should be a publication in the UK in the first place to legitimate the one in the US. I'm afraid there's no simple solution. Michelet-密是力 10:20, 24 April 2007 (UTC)