User talk:Lupo

You might want to consider leaving messages at my talk page at the English Wikipedia, which I check more often than this page. Lupo 14:55, 10 July 2006 (UTC)

Images

I left a message on your english page. --mac 12:48, 11 July 2006 (UTC)

World Cup photos

Thanks a lot for tagging 'em... pfctdayelise (translate?) 15:20, 11 July 2006 (UTC)

photo of Babe Ruth statue

I responded to your excellent follow up on the deletion request page here. Because I don't know, and perhaps don't right now care to know, all the ins-and-outs of copyright law doesn't make it right in my mind, that if the sculptor is acknowledged, that she has any so-say in this imaged being posted here on Commons. If how Commons applies its copyright tag is the issue, then note that I leave that to the community... because the photograph is released to it. -Edbrown05 06:14, 17 July 2006 (UTC)

Re: Flags and other stuff

Hey, w:Wikipedia:Copyright on emblems seems to be pretty US-law-centric. Now, is that the right position to have? Should international laws be considered or not? We don't even know that much. People here do frequently refer to the laws of other countries though. Thanks for the idea, I think I will repost it to foundation-l (although the troll and random-unuseful-comment ratio is sadly growing higher). pfctdayelise (translate?) 11:27, 20 July 2006 (UTC)

BTW, prediction: certain people will take my mentioning Commons as an opportunity to make snide remarks about the Commons project and community (regardless of the actual topic at hand). I would bet money on it if I could. :) pfctdayelise (translate?) 11:40, 20 July 2006 (UTC)

No panorama freedom in Belarus?

Please take a look to panorama freedom in Belarus discussion. --EugeneZelenko 15:48, 23 July 2006 (UTC)

I agree with you. See this edit of mine from May 29, 2006 on User:Alx/Sandbox. Lupo 20:27, 29 July 2006 (UTC)

Draft of ItalyGov Template

I have placed a draft at Template:PD-ItalyGov. Your thoughts? -> Discussion at Commons_talk:Licensing#PD-ItalyGov -Mak 04:26, 1 August 2006 (UTC)

Please stop Mak's nonsens ASAP. He has edited Commons:Licensing and is causing damages for this project! --Historiograf 18:40, 21 August 2006 (UTC)

See Template talk:PD-Italy. But Historiograf, you know perfectly well that I can't stop nonsense. I can only try to educate. Lupo 19:14, 21 August 2006 (UTC)

Really, histrionics do not elevate the discussion. Facts supported by citations of law are educational. This is the method for dispelling ignorance. Inviting someone to be convinced by citation of commentary in other languages which clearly the person has not read, is not especially educational and sets a bad example. Let us pursue resolution of this matter in a rigorous and civil manner. -Mak 22:00, 21 August 2006 (UTC)

Admin

Ich wäre dir sehr verbunden und viele andere auch, wenn du dich zur Wahl als Admin hier auf Commons stellen würdest. Ich habe nicht den Eindruck, als könnte irgendjemand aus dem Board oder Brad bewegt wegen, den nötigen juristischen Beistand zu geben. Abgesehen von einer ergebnislosen Mail an das Board stützt sich dieser Eindruck auf Aussagen der Benutzerin Elian. Auch wenn du immer wieder betonst, dass du kein Jurist bist, bist du doch ein exzellenter Kenner des relevanten Rechts, der (anders als ich) bereit ist, sich in entlegene nationale Rechte einzuarbeiten. Du bist im Umgang außerordentlich angenehm (im Gegensatz zu mir), vielleicht eine Spur zu bescheiden. Du könntest als Admin viel dagegen tun, dass man den Eindruck hat, die Commons-Admins seien hilflose, in Bildrechtefragen überforderte Gestalten, die ohne Konzept willkürlich löschen oder behalten. Gruß --Historiograf 16:31, 31 August 2006 (UTC)

Ich möchte mich dem Vorschlag Histos in vollem Umfange anschließen und bitte dich um deine Zustimmung zu einer Kandidatur. Es wäre mir eine Freue, dir meine Stimme zu geben, damit hier endlich ein wenig Sachverstand Einzug hält. Gruß --Steschke 16:47, 31 August 2006 (UTC)

Dankeschön für das Vertrauen. Lasst mir etwas Zeit, darüber nachzudenken—der jetzige Zeitpunkt ist wahrscheinlich sowieso etwas ungünstig. Übrigens gibt es sehr wohl einige Admins hier, die einigermassen bewandert sind in Sachen Copyright/Urheberrecht. Der Status eines Admins würde meinen Argumenten auch nicht mehr Gewicht verleihen. Lupo 07:24, 1 September 2006 (UTC)

Translation for bystanders: (Historiograf and Steschke have asked whether I'd run for adminship.) Thanks for this expression of your trust in me. Give me some time to think about it—right now is probably bad timing anyway. By the way, there are some admins here who have a reasonable grasp of copyright/authors' rights. Being an admin wouldn't increase the weight of my arguments, would it? Lupo 07:24, 1 September 2006 (UTC)

Das ist allerdings ein bedenkenswerter Einwurf. Beteiligst du dich an der Disk, was m. E. oftmals unumgänglich sein wird, kannst du als Admin kaum die letzte Entscheidung treffen ohne Gefahr zu laufen in die Kritik zu geraten. Allerdings hat das Wort eines Admins durchaus mehr Gewicht. Es zeigt zumindest, dass die community dir ihr Vertrauen ausgesprochen hat. In Abwägung beider Gesichtspunkte scheint mir der Adminstatus eher von Vorteil. Eine Einschränkung deiner Möglichkeiten ist darin jedenfalls nicht zu sehen. --Steschke 20:12, 1 September 2006 (UTC)

User:Lupo/Simple Photographs

Hallo Lupo, ich glaube, dass Deine Darstellung der Sachlage in der EU recht irreführend ist. Was ein "photographic work" ist, das ist in der EU einheitlich durch die Richtlinie geregelt und in nationales Recht einheitlich umgesetzt. Die Aussage "The rules which kinds of photographs are considered 'works' and which are 'simple' vary from one country to another" im allgemeinen und die Annahme im Besondered , dass ein "simple photo" ausschließt, was ein "photographic work" sein kann, halte ich für falsch, tatsächlich sind "photographic work" und "simple photo" unabhängig voneinander und natürlich verdrängt dann das "photographic work" als lex specialis bzw. wegen der längeren Schutzdauer das "simple photo" (in Italien wird auch explizit gesagt, dass "simple photo" nur das einschließt, was nicht bereits kreativ im Sinne des einheitlichen "photographic work" ist). Das erkennt man sehr gut in Deutschland, wo Lichtbilder gesetzlich pauschal 50 pp geschützt sind.[1] Natürlich ist in dem Sinne jedes Lichtbildwerk auch ein Lichtbild und natürlich führt das nicht dazu, dass jedes Foto nur 50 pp hat! Die Sachlage für die photograph-Definition in Italien ist völlig analog, sie schränkt es nur ein, was überhaupt als Lichtbild-Motiv in Betracht kommt, aber sie würde genausogut auch auf jedes "photographic work" passen, wenn nicht noch die genannte zusätzliche Einschränkung auf kreativ wäre. Man sieht es auch sehr schön in der Direktive: Sie sagt, was ein "photographic work" ist und dass es 70 pma geschützt ist und dann wird hinzugefügt "the protection of other photographs should be left to national law". Es muss also in den nationalen Gesetzen jeweils erst in Betracht gezogen werden, ob etwas ein photographic work ist und dann, falls das nicht der Fall ist, überprüft werden, ob ein simple photograph vorliegt. Die nationalen "simple photograph" definitionen haben somit keinen Einfluss darauf, was als (einheitlich) als "photographic work" geschützt ist, und wie weitgehend dieser Schutz ist, wurde ja bereits durch BGH und die österrreicher Gerichte geklärt. Die korrekte Aussage wäre also "The rules which kinds of photographs are considered 'works' are uniform all over the EU, the rules if the other photographs (the rest) are protected and, if yes, how long and under which addtional conditions, vary from one country to another" --Rtc 08:23, 11 September 2006 (UTC)

Article 6 of 93/98/EEC says:

Protection of photographs –Photographs which are original in the sense that they are the author's own intellectual creation shall be protected in accordance with Article 1. No other criteria shall be applied to determine their eligibility for protection. Member States may provide for the protection of other photographs.

Consideration 17 of 93/98/EEC says:

... to achieve ... harmonization of the term of protection of photographic works, in particular of those which, due to their artistic or professional character, are of importance within the internal market, it is necessary to define the level of originality ...

The "definition" in article 6 is then "own intellectual creation". Bah! Looks a lot like the typical bureaucratic weaseling to make the directive pass despite the differing practices in the EU member countries. Remember that one veto would have sufficed to bring the directive down. Essentially, we're no wiser because they left open what an "own intellectual creation" was!

For Germany and Austria, there are several concrete court cases (we all know them) that elaborate on that "own intellectual creation", and we know that in these two countries basically all photographs are works. From all these cases, methinks that "own intellectual creation" corresponds to Schöpfungshöhe, or threshold of originality. You say that if a work passes the threshold of originality it is a work, irrespective of what provisions a local law may have concerning "simple photographs". I agree. However, I am not sure this threshold of originality was the same in all EU member countries. Doesn't national treatment apply within the EU? Do these German and Austrian decisions have any significance in other EU countries? If so, why?

Italy appears to have a rather high threshold of originality, see this comment of mine, second paragraph, where I quote from [2]: "The minimum level of creativity required to make a photograph copyrightable as a work is controversial. While the legal practice has so far used a particularly high level, various guidelines suggest the opposite, in accordance with the general tendency of continually lowering the requirements for copyrightability." That seems to indicate that the threshold of originality is currently still high in Italy (but might perhaps be lowered in the future).

My impression is that the Italian courts are well within the bounds of the directive if they apply a high threshold of originality, capitalizing on the consideration that in particular those photos of artistic or professional character were to be considered works. You, on the other hand, assert that Italian courts have to apply a low threshold of originality because of these German and Austrian decisions. Or as an alternative formulation, you say that all EU members have to apply the same low threshold of originality as Germany and Austria. (At least that's how I understood it. If I misunderstood you, please correct!) Can you source this claim?

Anyway, the difference in practice is small, I think. If you're right, then even within countries with "simple photograph" provisions most photos are works, and a "simple photograph" tag should not be used because it applied only to a very small subset of all photos. If you're wrong, I think we still shouldn't use such a tag because (a) we have no way of knowing where exactly the line was in any country (that was the point I was trying to make for Italy in my above-linked comment), and (b) a photo that might be a "simple photograph" in one country would still be considered a work in those other countries where it would pass the threshold of originality (such as Germany and Austria, and AFAIK also the U.S). Lupo 19:10, 11 September 2006 (UTC)

You say that "own intellectual creation" is subjective and may be subject to local laws. It's much easier than you think. Because the 1993 EU directive merely cites the Berne Convention, it is clear that the Berne Convention definition of photographic "originality" is refered to and is to be implemented uniformly in all local laws. This originality is a) well established, b) well known, c) has juristic literature behind it, d) has been worked out often and in many times in international court cases I guess, e) is very objective: If the purpose of the photo already determines camera position and content of the photograph in such a way that every photographer with the same skill could not even in principle make a different photo, then it is not original. This is true for some areas of technical photography, for example, mug shots, passport photography machines, cartographic photos from the helicopter with predetermined position and angle for the area to map, because in any case content and camera position cannot be influenced and every skilled photographer will produce about the same picture. Did you read [3][4][5][6]? They are very clear about this and the aspects I refered to and are entirely EU-general (they refer solely to the directive and by reference the Berne Convention when interpreting the "threshold of originality", especially the BGH one; local law not being taken into account). You say that Germany/Austria apply a low threshold of originality—that's not the case. Before the EU directive came into effect, the threshold of originality was exactly judged with artistic merit of the content etc just as Italians and other countries believe they still can to today—because in contrast to the Austrian and German courts they are not considering the background I described and are still arguing based on obsolte connotations of pre-1993-directive law I guess. After the implementation of the 1993 directive, and as you can see in the rulings above, Austrian and German courts have instead applied the uniform and well-known Berne Convention criteria. It is also not the case that "all EU members have to apply the same low threshold of originality as Germany and Austria", the correct statement would be that all EU members have to apply the same low threshold of originality as defined by the Berne Convention. Of course I agree with the "If you're wrong". For sources, I have given the four links above, even if they may be local court decisions they are very specific about the interaction and are very clear about that this would apply in any other EU country. Just read them and tell me if they are enough source. They also themselves contain references to other literature etc. I think you will be enlightened if you read them. PS: Thanks for the very illuminating [7] which I read only after finishing this message. Together with my presentation it gives a full understanding, since when Marchetti/Ubertazzi talk about "a gray area" they are obviously refering to exactly my representation of the EU directive and the possibility that obsolete connotations and the very prominent definition of "simple photographs" in italian law (which would with strict correct interpretation in light of the EU directive almost entirely be displaced by photographic work), may seduce courts into believing (because EU directives are not law and should not be taken into account) that the law should be read not in light of the EU directive, and, by consequence, that originality criteria should not be used as defined by the Berne Convention, but as suggested by the "simple photograph" definition. --Rtc 19:36, 11 September 2006 (UTC)

Now I'm confused.

• I wasn't aware that the Berne Convention defined criteria for the threshold of originality. Can you show me where it does? Note that consideration 17 of 93/98/EEC does not say "...a photograph is a work if it is an author's own intellectual creation as defined by the Berne Convention...", it does say "...a photographic work within the meaning of the Berne Convention is to be considered original if it is the author's own intellectual creation..." That's something else entirely, and attempts to plug the big hole in the Berne Convention, which doesn't even specify what a work is, but the directive still leaves open what an "own intellectual creation" was...
• As I said above, I am aware of these Austrian and German court cases. In Eurobike, the Austrian court concluded that the threshold of originality was lowered in Austria by 93/98/EEC. In Felsritzzeichnungen, which references Eurobike, the court also opted for a low threshold of originality, and again in Weinatlas. These cases clearly establish that in Austria, a low threshold of originality applies. That's undisputed.
• BGH confirms that for Germany; the court says that since 93/98/EEC, the threshold of originality was very low in Germany. It leaves it open whether it was higher before.
• I still don't see how these Austrian and German cases have any bearing on the situation in Italy. We either have have to show that they do (i.e., that within the EU, there was some sort of supra-national treatment, which I really doubt), or we have to find commentaries and decisions from Italy itself that would show that Italian courts interprete the threshold of originality in the same way.
• When Marchetti/Ubertazzi talk about a "gray area", they talk about §29 of the Italian copyright law, i.e. about the 20-year copyright term on works produced by or for the government, i.e., about PD-ItalyGov. They do not call the Italian "simple photographs" provision (§87) a gray area.
• On "simple photographs", the best source I could find is [8] (already quoted above), which says (in a discussion of "photographic works") that Italian courts have so far applied a high threshold of originality, but that various guidelines suggest the opposite. They then go on to enumerate a series of criteria (with references to Italian commentaries and court cases) that would make a photograph a work. I think I'll have to go to the library and see what Marchetti/Ubertazzi say on §87... [9] only says that the distinction between "simple photographs" and works was difficult to make.

In summary: it may well be that you are right and that 93/98/EEC requires a low threshold of originality in all EU member countries, but that remains to be shown. Either by showing that the Austrian and German cases are also significant for other EU members, or by showing it individually for the other EU member countries. Lupo 07:17, 12 September 2006 (UTC)

"Can you show me where it does?" I'll try. Here's how I read the EU directive:

Whereas the protection of photographs in the Member States is the subject of varying regimes; whereas in order to achieve a sufficient harmonization of the term of protection of photographic works, in particular of those which, due to their artistic or professional character, are of importance within the internal market,

This explicitly says that the directive is supposed to establish uniform demarcation criteria ("achieve a sufficient harmonization"). It lists artistic and professional character as examples but it does not say that these are the criteria.

it is necessary to define the level of originality required in this Directive

Here it explicitly says that the directive is supposed to define (a lower bound on) the "level of originality" (or threshold of originality, as you call it), and obviously this is to be done for it to become uniform all around the EU.

whereas a photographic work within the meaning of the Berne Convention is to be considered original if it is the author's own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account; whereas the protection of other photographs should be left to national law;

I think this is quite ambiguous, and I should mention that I used the German translation for disambiguation. It reads "Im Sinne der Berner Übereinkunft ist ein fotografisches Werk als ein individuelles Werk zu betrachten, wenn es die eigene geistige Schöpfung des Urhebers darstellt, in der seine Persönlichkeit zum Ausdruck kommt; andere Kriterien wie z. B. Wert oder Zwecksetzung sind hierbei nicht zu berücksichtigen." Note that it does not read "Ein fotografisches Werk im Sinne der Berner Übereinkunft ist als ein individuelles Werk zu betrachten ...", which is the reading you are suggesting, as far as I understood. As I see it, this explicitly says that when they are talking of originality they are explicitly refering to the Berne Convention. Now you say that the Berne Convention itself does not define any originality for photographic works. But perhaps they are refering to how the Berne Convention is usually understood? I see your "plug the hole" theory, but this disagrees with the German translation, which does not plug the hole. I accept that there is some dark area here in the interpretation and that how you see may make sense, too. An explanation would that the German version may be a mistranslation (which may, in turn, explain the court decisions, if they relied on it). In any case however, note, that they say they want to define the level of originality, and regardless of whether this refers to a Berne Convention understanding or not, it is still supposed to be a uniform definition.

The actual directive reads.

Photographs which are original in the sense that they are the author's own intellectual creation shall be protected in accordance with Article 1. No other criteria shall be applied to determine their eligibility for protection. Member States may provide for the protection of other photographs.

This is the actual definition and "original in the sense that they are the author's own intellectual creation" literally repeats definition cited above and attributed to the Berne convention in the German translation. So in light of the German translation I read it "Photographs which are original in the meaning of the Berne Convention shall be protected in accordance with Article 1". In any case the criteria given in the rationale stand for themselves (as shown by the BGH and Austrian decisions)

You said "It leaves it open whether it was higher before." Not really. It says "Bei dieser Beurteilung ist das Berufungsgericht von Anforderungen an die Schutzfähigkeit von Fotografien ausgegangen, die jedenfalls seit dem 1. Juli 1995 nicht mehr gelten" This clearly shows that the situation was different and the barrier was higher before. Any sources I read see it this way and in fact many sources still claim it is this way, so I don't see a reason do doubt it was.

"still don't see how these Austrian and German cases have any bearing on the situation in Italy" I am not trying to claim that. I am merely trying to argue that, because the level of originality is defined uniformly, and if my reading above was correct and the directive was implemented correctly in all countries, these rulings can be generalized (not in a binding fashion of course!) for the whole EU. The BGH solely refers to the EU directive when it interpretes the originality criterion. As far as I have seen the laws, they actually have are the same as the german situation. They all uniformly define some "photographic work", which is a photo as long as it is "original", no other criteria being given. They then go on to define their "simple photographies", partly in a very suggestive way that could easily be understood to rise the level of originality.

I agree about the "gray area".

About "simple photographs" in italy, please check if they were before or after the implementation of the EU directive, and if they consider, as the German and Austrian courts, the EU directive definition or if they are solely arguing based on local law. That's very important.

You said "that remains to be shown". I think, as far as the directive's intention is concerned, and independent from the unclear Berne Convention reference, it has clearly been shown and is clearly expressed by the rationale. It remains to be shown if the directive has been implemented correctly in all countries. Since I strongly suppose that it is not the case "that the Austrian and German cases are also significant for other EU members", you are of course right that "showing it individually for the other EU member countries" is the only way to find out. However, as far as I see and considering all the circumstance, the careful and EU-directive compliant interpetation of law must be assumed, especially since in countries which would follow German and Austrian decisions, most previously "simple photographies" will be protected, because of the anti-discrimination which invalidates the rule of shorter term.

--Rtc 08:49, 12 September 2006 (UTC)

The French ("...une oeuvre photographique au sens de la convention de Berne doit être considérée comme originale si elle est une création intellectuelle de l'auteur..."), the Italian ("...un'opera fotografica ai sensi della convenzione di Berna deve essere considerata originale se è il risultato della creazione intellettuale dell'autore..."), and the Spanish ("...una obra fotográfica con arreglo al Convenio de Berna debe considerarse original si constituye una creación intelectual del autor...") all say "a work in the sense of the Berne Convention is to be considered original if it is the own intellectual creation of an author". But I agree that the German translation differs and means "according to the spirit of the Berne Convention, a photographic work is to be considered original if it is the own intellectual creation of an author". Ho-hum. At least they didn't write "Laut der Berner Übereinkunft..."! The text of the Berne Convention doesn't say anything like that — or if it does, I must have consistently overlooked it.

Regarding "It [BGH] leaves it open whether it [the threshold of originality] was higher before." I was referring to the paragraphs following the one you quoted: "Ob vor der Umsetzung der Richtlinie und damit bereits zu der Zeit, in der die behaupteten Schutzrechtsverletzungen stattgefunden haben sollen, bei Fotografien dieselben oder höhere Schutzanforderungen gegolten haben, ist umstritten... Die Frage, welche Schutzvoraussetzungen im Zeitpunkt der behaupteten Verletzungshandlungen für Lichtbildwerke gegolten haben, kann jedoch offenbleiben, weil die benutzten Fotografien jedenfalls als Lichtbilder im Sinne des §72 UrhG geschützt sind."

Finally, I do not have the resources to look up actual Italian court decisions. And I just found out that my library here does not have the Marchetti/Ubertazzi commentary (nor any other Italian commentaries)... :-( I'm limited to web searches for that one... Lupo 09:35, 12 September 2006 (UTC)

BTW, §2(7) of the Italian copyright law says "Protected works...(7) works of photographic art and works expressed with processes analogous to photograph[y], provided they are not simple photographs, protected according to the provisions of Chapter V of Part II [i.e., §§87ff]"... Lupo 10:00, 12 September 2006 (UTC)

See also [10], affirming the high level of the threshold of originality in Italy with two decisions from 2003 and 2004. Lupo 10:14, 12 September 2006 (UTC)

I must say that I am quite handicapped, because I only speak German and English and understand other languages only in a very rudimentary fashion, and often with the help of babelfish. If only there were some English translation of the italian copyright law... I skimmed the Berne Convention text too, and you are right that it does not really seems to define what a photographic work is. So my suspicion was that it might refer to some rationale or well-known commentary, or to some well-established practice? It seemed not unthinkable to me, since I somehow remember that I already heard about exactly the same demarcation criteria used by BGH and Austrian courts, but in non-european context.

The other translations are all as ambiguous in the same way as the english one is, if I understand them correctly. Now it may either be that the German translator took special knowledge into account when doing the translation or that he simply disambiguated it by accident, possibly in the incorrect way. In any case, considering the other translations shows that the German one is clearly an anomaly, whatever that means.

Okay, I see, according to the BGH it may have been a little bit controversial before. But as I understand it, the EU directive definitely eliminated this controvery. So we have Austria, where a clearly high threshold of originality (ToO) was turned into a low one by the directive, and Germany, where a possibly controversial ToO situation turned into the exact same low one. That's all within my hypothesis that it's uniform now, but of course it's not very much to back such a claim.

§2(7) is in fact very suggestive, and it is understandable why it may easily be read the way many italians do. It would still be possible to read the law in light of the EU directive: Because simple photographies are part of "TITOLO II - Disposizioni sui diritti connessi all'esercizio del diritto di autore", it is implied that the definition of "simple photogaphies" is restricted to non-original ones, which would turn §2(7) into "works of photographic art and works expressed with processes analogous to photograph[y], provided they are original" and then it comes down again to how you define "original", which, if I am correct, must be understood according to the uniform EU directive's definition. Some originality aspect must be relevant, since if one reads it in the uncritical and literal sense, one can hardly explain the Italian controversy about the range of simple photographs you described at [11].

The italian decisions are surely interesting. Can you describe them more in detail? Was the distinction a relevant issue for the result? Did they discuss effects of the 1993 EU directive? Was it a higher court? I am asking because of a similar case in Germany ([12]) --Rtc 11:15, 12 September 2006 (UTC)

I will throw a cat among the pigeons here, without having had time to study all the above (which I will do). The WIPO Copyright Treaty (in force in the US and some EU countries) prohibits the Berne convention lower limit for photographic works. The reference to a Berne Convention definition of a photographic work can only refer to Art. 2(1), which is pretty wide-ranging. It is very dangerous to argue that a work does not fall within the Berne Convention definition of original, and, in general, the test of originality is being lowered in all jurisdiction. IMHO, Commons should not allow photos today which it might have to delete tomorrow. Physchim62 11:57, 12 September 2006 (UTC)

Oh, I quite agree we shouldn't use tags based on "simple photographs" provisions. Either the threshold of originality is universally low, and thus only very few photos would be "simple photographs" anyway, or the threshold of originality varies, and then we shouldn't use such tags because we don't know where to draw the line and high thresholds would apply within a few countries only. As I understand this discussion, we're trying to figure out whether some countries may have high thresholds, or whether it must be low anywhere (in the EU).

Where does the WIPO Copyright Treaty say that it "prohibits the Berne convention lower limit for photographic works"? There are two problems here: first, I don't see any such lower limit in the Berne Convention. Second, the WIPO treaty says only in article 9 that "In respect of photographic works, the Contracting Parties shall not apply the provisions of Article 7(4) of the Berne Convention." (emphasis added). Article 7(4) of the Berne Convention says "It shall be a matter for legislation in the countries of the Union to determine the term of protection of photographic works ...; however, this term shall last at least until the end of a period of twenty-five years from the making of such a work." (emphasis added). In other words, the WIPO Copyright Treaty requires a "normal" (at least 50y p.m.a.) term for photographic works. But the precise point of "simple photographs" is that they are not "works"! So I doubt that the WIPO Copyright Treaty would abolish such "simple photograph" provisions... Lupo 13:34, 12 September 2006 (UTC)

Requesting assistance

Hi Lupo.

I have written a rather short question at the Commons:Licensing, at Commons talk:Licensing#Question about expiration of copyright after author's been dead for 70 years. Since I am familiar with your knowledge in copyrights, I wonder if you might give a minute of your time to clarify whether I have the completely wrong view, or if I have a point?

Thank you.
Fred Chess 22:22, 15 September 2006 (UTC)

Revised license templates

Hi Lupo. At first thanks a lot for your hard at the complicate copyright matters. It did really help us a lot. I noticed that there is a duplication of Template:PD-Russia and Template:PD-Soviet-revised. As you know the subject best could you merge these two somehow? Another question is Template:PD-Italy. I have now transformed it into a deteletion request. However there is AFAIK some narrow room for a revised PD-Italy. There were already some suggest at Commons:Deletion requests/Template:PD-Italy but I didn't like them really (strange wording, confusing and long text or not clear enough). So I would be really glad if you can create a PD-Italy-revised that can be used for these narrow cases and which will eventually be moved over the old PD-Italy after all its usages were deleted/moved. Arnomane 19:02, 23 September 2006 (UTC)

I don't know if you speak Italian, but I was given this link that should be related to the discussion, maybe you would like to take a look at it: http://www.alai.it/legale/leggi/au06rela.htm

Fred Chess 21:22, 23 September 2006 (UTC)

I'm sorry about the long silence of my part; I was away. Yes, {{PD-Soviet-revised}} and {{PD-Russia}} have some duplication. I wrote {{PD-Soviet-revised}} when Fred wanted to see a possible replacement tag; he then created {{PD-Russia}} from that, and I then modified the latter. PD-Soviet-revised is based upon the assumption that the Georgian 1999 law was relevant (simultaneous publication). As I have pointed out long ago at the talk page, I am not sure that this indeed is 100% correct. For the U.S., the 1999 Georgian law probably is irrelevant, as it became effective three years after the crucial URAA date of January 1, 1996. For other countries, such as the EU states, it might play a role.

Which one of these tags is to be used is largely a question of commons policies. If we go just by "PD in country of origin", we don't need PD-Soviet-revised. We can go by PD-Russia for anything published in the Russian SFSR. If we require "PD in country of origin + PD in the U.S.", we also don't need it (because the 70y p.m.a. comes from the Georgian 1999 law, which probably is irrelevant for the U.S.). If we require even more, we should use PD-Soviet-revised and not use PD-Russia.

Note that it is not entirely clear to me what the commons wants. If it's "PD in country of origin + PD in the U.S.", then we'd also have to stop any deliberations about "freedom of panorama" for statues, murals, and sculptures, because the U.S. copyright law doesn't have any such freedom.

At en:, we're using PD-Russia for any work first published in the USSR (either in the RSFSR or with unknown place of first publication inside the USSR). We're in the process of figuring out what the rules might be for works first published in one of the other SSRs. (See en:User:Lupo/Notes and its talk page.)

If that'd be acceptable for the commons, I'd suggest simply redirecting PD-Soviet-revised to PD-Russia.

On {{PD-Italy}}: Fred, http://www.alai.it/legale/leggi/au06rela.htm doesn't help a lot. They don't know either how to make the distinction between simple pohotographs and photographic works. The cite two court decisions on photos of persons of public interest. The first says that a shot of an artist at an exhibition was a simple photograph, the second says that the reproduction of images of persons of public interest that appeared in newspapers was allowed subject to payment of a fee to the photographer. The commentary cited (Auteri) is from 1981. They say "Anche in dottrina si è più volte sottolineata l’estrema difficoltà di individuazione, ..." ("Also the doctrine emphasises the extreme difficulty of distinguishing [simple photographs from photographic works]..."), which is a conclusion that is also supported by the Ubertazzi commentary (which is more recent than Auteri, and updated regularly).

Arnomane, I don't know what that narrow category would be. We do not know where to draw the line between simple photographs and photographic works. In my opinion, we should not use any such tags at all. (I understand there are a few more, on Finnish and Swedish images, and such...)

BTW, {{PD-ItalyGov}} is also far from clear; there are two schools of thought: the older one saying that the copyright simply expires after 20 years for governmental works (which would conflict with directive 93/98/EEC?), and a newer one saying that the copyright after 20 years reverts to the author, and then keeps on running until 70y p.m.a. See User talk:Wikipeder#Simple photographs...

HTH, Lupo 12:08, 2 October 2006 (UTC)

FYI

Commons:Administrators/Requests and votes/Historiograf and consistent to the above section: Commons:Deletion requests/Template:PD-Finland50. Greetings from the Wiesn :-) --Wiggum 13:22, 2 October 2006 (UTC)

Image:Wojciech Świętosławski.jpg

Licence fixed. --Hiuppo 10:42, 4 October 2006 (UTC)

As you can see, this foto was taken in Wojciech Świętosławski's early age (between 1918-1939) - that's why photographer is unknown and I suppose he's died. Picture in my source was not signed. --Hiuppo 14:44, 5 October 2006 (UTC)

Licence fixed again. --Hiuppo 17:21, 7 October 2006 (UTC)

Image:Wysadzenie zamku w Królewcu2.jpg

Nie pamiętam adresów wszystkich stron, które oglądam, ale ta grafika ma na pewno poprawną licencję ponieważ w 1968 r. po za ruskimi w Królewcu nikt nie mógł się znajdować. Był to obszar zamknięty. Jeśli kiedyś jeszcze natknę się na tą stronę to wstawię do niej link. Poznaniak 12:50, 5 October 2006 (UTC)

re: That clear speedy candidate

Yes...speaking of, why aren't you?? :) It was more a note to other observers for future reference rather than you personally. pfctdayelise (说什么?) 11:51, 10 October 2006 (UTC)

And that's exactly the kind of selfless, clearheaded thinking that would make you a very valuable admin.Well, I understand and respect your reasoning, but if you reconsider in the future (and get a better net connection), just give m a nudge. :) cheers, pfctdayelise (说什么?) 12:24, 10 October 2006 (UTC)

Image:Elizabeth Drexel.jpg

Image deletion warning

Image:Elizabeth Drexel.jpg has been listed at Commons:Deletion requests so that the community can discuss whether it should be kept or not. We would appreciate it if you could go to voice your opinion about this at its entry. If you created this image, please note that the fact that it has been proposed for deletion does not necessarily mean that we do not value your kind contribution. It simply means that one person believes that there is some specific problem with it, such as a copyright issue. If the file is up for deletion because it has been superseded by a superior derivative of your work, consider the notion that although the file may be deleted, your hard work (which we all greatly appreciate) lives on in the new file. In all cases, please do not take the deletion request personally. It is never intended as such. Thank you!

Teofilo 12:53, 16 October 2006 (UTC)

Category:Nadezhda Udaltsova

Yes, you are right. Feel free to speedy the cat Alex Bakharev 08:07, 17 October 2006 (UTC)

Re: Image:Picasso Chicago 060409-2.jpg

Hi Lupo! I noticed the comment that you left at this image. As the sculpture is PD I think that the {{self|cc-by-sa-2.5}} tag that I have used is correct and there is no need for any other tag—the only copyright that needs to be taken into account is that of the photographer (in this case, me). This is just that same as if it were a 1000 year-old sculpture that I had photographed. I left a note in the image description pointing to the text of the Letter Edged in Black decision just in case anyone questions the fact that the sculpture is PD. —JeremyA 15:35, 24 October 2006 (UTC)

Of course it is correct! I didn't want to imply otherwise. I just thought at first that PD-US were phrased such that it could be used to make the status of the sculpture itself clear. That's all. See Template talk:PD-Art#Clarification needed for a related discussion that prompted this (clumsy and failed) attempt of mine. No criticism implied or meant! Lupo 15:43, 24 October 2006 (UTC)

UN

The UN headquarters are an extraterritorial territory - they are not under the jurisdiction of the US government. As such, one could very reasonably doubt the rules for normal works produced in the US were applicable. This was what I was concerned about.

One proof that these doubts were reasonable is that, as you noticed yourself (thanks for looking this information up), they had to put a special clause in US Copyright Law to protect works of the UN!

To summarize:

• They had to put this clause because normal clauses pertaining to works published in the US do not apply.
• Because they explicitly put this clause (again, thanks for looking it up) they apply these rules. David.Monniaux 20:14, 24 October 2006 (UTC)

It would be helpful if you took your conversation to Commons_talk:Licensing#United_Nations_works. / Fred Chess 21:10, 24 October 2006 (UTC)

Unless you're hyper-fast and this is a reply to my posting the links there at exactly 21:10, 24 October 2006 (UTC), I already did. :-) Or had you something else in mind? Lupo 21:21, 24 October 2006 (UTC)

freedom of panorama

Hi Lupo, I'm trying to get the pictures deleted that I once uploaded. Do the following pictures have problems with freedom of panorama? Image:Zarya training module.jpg, Image:Soyuz TMA module.jpg, Image:GCTC.jpg, Image:Mir training module.jpg. These pictures were all taken from within a building on the secure military compound of Star City in Russia. The picture Image:Antonov 24 Arkhangelsk Airlines.jpg was taken from within the airport of Murmansk. Images Image:Gagarin (Star City).jpg and Image:Superman.jpg were also taken from the secure compound of Star City in Russia, but of course outside any buildings. Thanks for the feedback. Errabee 17:13, 25 October 2006 (UTC)

No, you can't get them deleted by claiming "no freedom of panorama" :-) Most of them are perfectly ok:

• You may have broken the house rules for Image:Zarya training module.jpg, Image:Soyuz TMA module.jpg, and Image:Mir training module.jpg (I don't know whether they allow photography...), but in any case Wikipedia doesn't care about that. Breaking house rules is entirely your risk; if you then publish your images under a free license (or even dual license like GFDL/CC-BY-SA :-), these are prefectly fine free images.
• In Image:Antonov 24 Arkhangelsk Airlines.jpg, there's no copyrightable artwork visible. (That also applies to the three above). It's perfectly fine.
• Image:GCTC.jpg is a general view; I don't think it falls under the Russian freedom of panorama rules as no single building is the main object of the shot. It's fine.
• Image:Gagarin (Star City).jpg and Image:Superman.jpg are photos of sculptures evidently done after Yuri Gagarin's milestone flight in 1961. These two are derivative works of copyrighted sculptures, and may be used according to Russian law only for non-commercial purposes. These two should be deleted.

HTH. Lupo 21:41, 25 October 2006 (UTC)

Could you please explain to me why you want your fine pictures to be removed? Lupo 21:41, 25 October 2006 (UTC)

It did help, thank you. I want them removed because I don't feel comfortable with the way Commons deals with pictures that are absolutely necessary to have in an encyclopedia, e.g. the Guernica from Picasso. I know it's copyrighted , but I think more effort should be invested into finding out how images could be retained, rather than opting for the easy way out. I think that when Commons does not do this, the entire purpose of having a media repository for multiple projects is invalidated and should be abolished. Errabee 04:56, 26 October 2006 (UTC)

Might I bother you with two more pictures? Image:Chroesjtsjov grave.jpg and Image:Space museum (Kaluga).jpg probably aren't free, as the subject (a sculpture and a building resp.) is the main object of the shot. Both have been constructed after 1961, and should therefore be deleted as well? Errabee 15:59, 26 October 2006 (UTC)

Though ones. We have a second image of Khrushchev's grave. I would guess that the artwork was commissioned by the state, but I have no idea on its copyright status. The museum image would indeed seem to fall under the Russian rules on freedom of panorama, and could thus be used only non-commercially in Russia. In fact, this image highlights a huge problem since I suspect we have many more images of buildings in Russia that might be problematic because of this. :-( I would advise against immediately trying to get this one deleted. I've asked for more input on this matter at Commons talk:Licensing.

In any case, I think your initially expressed view that the Commons should be abolished if it cannot host images that you deem necessary for an encyclopedia is an unfortunate overreaction. We're trying to build free encyclopedias, and thus the Commons should only host free images. I agree that it is very unfortunate for us that the copyright terms are so long and thus prevent us from showing most modern art. (With the exception of "fair use" on the English Wikipedia, but "fair use" isn't free either.) But apart from the ideological foundation of the Wikipedias, where freeness is a cornerstone, we also cannot just ignore the copyright law, as inconvenient it may be for us. I see two main reasons for abiding to the law: first is that not doing so might get the project and/or the Foundation and/or possibly individual contributors in trouble, and second, it would be dishonest to our readers and downstream users if we claimed things were free that actually aren't. So it's not just a legal but also an ethical decision.

I hope you can reconsider your position on that issue. You have taken some great images and published them under non-revocable free licenses, for which we are thankful. (Or at least I am, I can't really speak for all the other Wikipedians :-) Doing so is an important part of making and improving our free encyclopedias, because every free image of a subject of which there were only "all rights reserved" illustrations available enlarges the "free domain" (which I define ad-hoc as public domain + freely licensed works) and thus helps counteract this annoying worldwide trend to ever more restrictive copyright regulations. Lupo 10:29, 27 October 2006 (UTC)

Chagall

Copyviol???? All images are PD!!! Commons: bad project... I'll upload only in wp--Nick1915 19:54, 28 October 2006 (UTC)

Rubbish. Chagall died 1985; his works are under copyright, in Russia, in the U.S., and in all other countries that have signed the Berne Convention. It's a pity that his works aren't PD, but it's true. Lupo 22:12, 28 October 2006 (UTC)

Request for your opinion

Hi Lupo! I wonder if you would consider adding your thoughts to the discussion at w:Template talk:Statue. This template is by no means perfect, but it is better than nothing, and the user who is disputing it is doing so on the grounds that no one else takes any notice of the copyright on statues so why should we. Thanks —JeremyA 15:10, 31 October 2006 (UTC)

Oh boy. Irpen and I clashed already in the PD-Soviet mess. His position is untenable. I'm afraid arguing with him is no use; he still engages in the same tactics of trying to personalize things and making spurious OR claims. He now even rejects the text of the copyright law as a source. His behaviour fits my definition of trolling. I don't even quite get what he's trying to say. If he wants to claim that statues were PD, he shall provide proof. As in the PD-Soviet case, he will be unable to do so. If he's trying to argue that Wikipedia should claim statue images were PD because newspapers published such images, he shall provide proof that the newspapers published these images because they were not subject to the copyright of the base work. If he's trying to argue that the English Wikipedia should use statue images (because of whatever reason), he doesn't even need to argue, as the English WP already does so, under fair use. If he's trying to argue for a broader fair use rules at the English Wikipedia, he shall take it up at w:WP:FU.

Facts (which you already had pointed out to him):

• Statues, sculptures and also buildings (architectural works) are copyrightable works (17 USC 102, items 5 and 8, or Berne Convention, article 2
• For the rest, see Commons:Derivative works.

Even if photographs of statues, sculptures, or buildings were not derivative works, they'd be copies of the base work according to the definition in 17 USC 101 ("copies are material objects ... in which a work is fixed by any method now known or later developed, and from which the work can be perceived,..."), and again the copyright holder of the base work (statue, sculpture, or building) holds the exclusive right to distribute (or authorize the distribution of) such copies. See 17 USC 106, items 1, 2, and 3. Article 9 of the Berne Convention, points 1 and 3, agrees.

All these issues have been tackled by professional lawyers already, on the subject of the sculptures in Chacago's Millennium Park. See e.g. this article from Sculpture Magazine. Also interesting is this article from the American Society of Media Photography. (Note: newspapers are Media...)

I have until today not researched the legal situation of newspapers, but I also think they do base their publishing of images of copyrighted works on fair use. In fact, 17 USC 107 explicitly mentions "news reporting" as one of the purposes for which fair use is intended. But as you pointed out to him, it's not particularly relevant for us what newspapers do. Wikipedia isn't a newspaper. We have ample evidence that such images are subject to the copyright of the depicted base work (except for buildings, 17 USC 120, which you also already pointed out), and if he contests that evidence, it's up to him to provide proof to the contrary.

Beware of smoke-screen discussion tactics and distractions based on red-herring arguments. For instance, his example of the Saddam statue only confuses the matter, as Iraqi copyrights are rather unclear. If the going gets tough with him, and you want to follow this through, try to get more people from w:WP:FU or w:Wikipedia:WikiProject Law involved. I don't think it'd help if I approached him, I think he'd just dismiss anything I wrote. Just remember: if he wants to claim such images were PD or "free", it's up to him to provide proof. Not the other way 'round.

Finally, I should point out that one way of using images of copyrighted statues or sculptures on Wikipedia under a free license is to simply ask the copyright holder for permission. See Image:Babe Ruth statue.jpg for a recent success. Lupo 22:59, 31 October 2006 (UTC)

Thanks for the reply. I have taken your advice and gone to WP:FU. —JeremyA 01:57, 1 November 2006 (UTC)

Good. Actually I meant w:Wikipedia:WikiProject Fair use, though. I've posted a brief pointer there, too. Lupo 08:03, 1 November 2006 (UTC)

See also Gorman, R.: Copyright Law, 2nd ed. U.S. Federal Judicial Center, June 19, 2006. This is a publication of the U.S. authorities, and provides extensive discussion of all these issues (and then some!). Perhaps p. 9 is a good, clear, and concise summary (albeit in the context of discussion the difference between owning the copyright and owning the physical object): "A sculptor may create a bronze statue and sell it to another, who may in turn keep others from touching it and can place it on the back porch or in the basement; but the buyer does not have the right, accorded by copyright, to make and sell photographs or three-dimensional replicas of the statue. Those latter rights are held initially by the sculptor (as "author" of the sculptural work, under section 201(a) of the Act) and they may be retained by the sculptor despite the transfer of ownership of the physical object to another." Here we have a clear statement that only the author of a statue or such can authorize the distribution of photographs of his statue. (Gorman writes "may be retained" because the sculptor may of course also pass on some of his initial copyrights by contract to someone else, or they may pass to his heirs after his death.) Lupo 08:42, 1 November 2006 (UTC)

Image:Nemetskaya.jpg

Could you please explain me why did you request this picture to be deleted on commons? Thanks in advance, -- odder 11:38, 21 November 2006 (UTC)

I'm wondering if I can read English.. :) Ok, the picture will be deleted. Sorry for disturbing you. Regards, -- odder 11:41, 21 November 2006 (UTC)

Requesting a comment regarding US state seal

Hi. I don't know how active you are at this time of year, but I think you'd be interested in the deletion debate over at Commons:Deletion requests/Template:US state seal. Thanks for any input. / Fred Chess 19:33, 18 December 2006 (UTC)

It's a muddy area. See Wikipedia:Copyright on emblems for an attempt of mine to come to grips with all that. I note that the COA of the state of New York, for instance, was adopted in 1778,[13] thus the heraldic definition (the blazon) is certainly PD. I also note that the rendering (emblazon) shown at the official web pages of the state of New York [14] differs significantly from the rendering at the U.S. embassy in Germany [15]. Pictures of course are "information", too, and they don't give any copyright indication. So I'd be inclined to believe that the rendering at the U.S. embassy might indeed be PD, even if the state of New York might claim copyright on its rendering. The only way to know for sure is to ask. Try the U.S. embassy itself, or infoUSA (from the U.S. State Department). Lupo 10:45, 19 December 2006 (UTC)

Deine Paranoia

Ich denke, mit deinem Fanatismus hilfst du diesem Projekt nicht. Das Grummeln in der deutschsprachigen Wikipedia über Commons wird - nicht zuletzt aufgrund deiner unmaßgeblichen Stellungnahme zu den verwaisten Werken - immer größer [16]. Es ist schade, dass die Idee eines gemeinsamen Datei-Repositoriums unter Beteiligung von de dank dir und deinesgleichen baden geht. Ich habe in de mir den Ruf eines Experten mit Strenge, aber auch mit Augenmaß (von Fachkenntnissen einmal ganz abgesehen) erarbeitet. Deine Position führt letztendlich dazu, dass man sich auf dem nur irgenddenkbaren nationalen Mindestlevel einpendelt (am besten bei Mexiko 100 Jahre pma). Statt dass die Foundation das Problem der Bildrechte offensiv unter Einsatz politischer Lobbyarbeit angeht, ignoriert sie es, wie du nur zu gut weisst. Dass du daraus die Folgerung ziehst, auf Commons dürfte nur das erlaubt sein, was hundertfünfzigprozentig frei ist, ist einfach nur erbärmlich. Ich verzichte darauf dir ein Frohes Fest zu wünschen --Historiograf 18:56, 22 December 2006 (UTC)

I will never understand why a grown-up, intelligent man like you feels the need to make such juvenile comments. Learn to read. In case you haven't noticed, I have so far only pointed out that the commons has not adopted the 100-years rule. I haven't stated my position on whether or not it should. I find it intriguing that you seem to know my stand on this issue already. Since when can you reads minds? Lupo 19:19, 23 December 2006 (UTC)

Sweat of the brow

http://commons.wikimedia.org/wiki/Commons:Forum#Meisterleistung_von_GeorgHH --Historiograf 00:34, 2 January 2007 (UTC)

I had noticed this image and the talk at your page on it before. I think you may be right. Isn't the issue more whether the title layout may be creative enough to be copyrightable? Your argument that it fails the Schöpfungshöhe criterion is likely sound, but of course (and strictly speaking) subjective. I don't think we need to re-hash the "sweat of the brow" arguments—commons (like en) has long accepted the Bridgeman v. Corel case as having closed that issue for us. A completely different question is whether the image is needed at Walter Stephens... maybe an image of the person would be more appropriate? A better reproduction of the painting is available now at Image:Abildgaard Nightmare.jpg :-) Lupo 20:50, 2 January 2007 (UTC)

FYI

http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Article_72_UrhG#direct_answer_to_Ebenda --Historiograf 19:05, 12 February 2007 (UTC)

Wow. Again and again and again. I don't know who would hold the copyright on these works today—the original copyright owner surely was the photographer, but he might have transferred the exploitation rights to a legal person such as a state agency—but that is not so important in these cases. In any case the legal successor of the "Deutsches Nachrichtenbüro" (DNB) appears to be dpa (see [17]). As we know, copyrights on German WWII-era photographs did expire indeed, but were restored in 1995 by EU directive 93/98/EEC throughout the whole European Union. And furthermore, these are clearly photographic works ("Lichtbildwerke"), not simple photographs ("Lichtbild"). Lupo 20:04, 12 February 2007 (UTC)

UrHG-and WWII

Thank you for speed and substancially answer. I'm ready for discuss after rethinking.We have partly common view , in particular cases a different one.

All the best: Andros64 14:18, 13 February 2007 (UTC)

UrHG-and WWII

Dear Lupo

Changing views with you is a pleasure in fact. I hope we can help each other with our knowledge. Don't take personally my texts - it a simple case. I am busy with my work and I think so do you. As you see - you are partly right and I am too.

I think the best solution in this case is old German ( volkisch) proverb " Leben und leben lassen", and in comment the quote from your mainly namesake -" In die Beschrankung zeigt sich der Meister" (J. Wolfgang G. - you know from (..) ).

In present I am in defend of right to present some photos. I do not want wide discussion about German Copyright Law in general - it isn't my interest at all. I defend my rights in this particular case as an historian and a lawyer. It is not a place for proceedings - you well know.

With best wishes:

Andrew

Andros64 17:09, 13 February 2007 (UTC)

PD-US

Hi Lupo. Would you be interested in checking my latest thought at Template talk:PD-US? Thank you. / Fred Chess 10:57, 15 February 2007 (UTC)

Template talk:PD-Canada

I'd like to invite you to help figure out how we can indicate to users when such material is also PD in the United States. Jkelly 21:47, 20 February 2007 (UTC)

Thank you

Thank for the picture. Humberto, Mex. 05:53, 24 February 2007 (UTC).

Pre World War I Austria-Hungary military maps

Please take a look on Commons talk:Licensing#Pre World War I Austria-Hungary military maps. Thank you. --EugeneZelenko 17:10, 27 February 2007 (UTC)

Replied there. Sorry I can't give you a definitive answer. Lupo 22:51, 27 February 2007 (UTC)

Nominating for adminship

Hey,

I just saw that contrary to what I've thought, you're not an admin. I think that it's obvious for all to see that you're quite knowledgeable in the field of copyright laws and would therefore be an asset as an admin. Please accept the nomination here and add the request here as I haven't done so yet in case you don't wish to accept.

Thanks, Yonatanh 14:13, 1 March 2007 (UTC)

Hey, thank you! :-) But I have declined your nomination; I'm on a slow line and don't have that much time for Wiki[pm]edia... Lupo 20:19, 1 March 2007 (UTC)

Info for Image:Gaston van de Werve 2.jpg

Lupo, I am still unsure about the appropriate information to add to Image:Gaston van de Werve 2.jpg. Would you please add it? I would sincerely appreciate that. Thank you very much. --Iamunknown 23:04, 16 March 2007 (UTC)

I'll do it once some admin who hasn't opined in the deletion request closes it as a "keep". Then I'll copy the info over from the deletion request page to the image description page and boldly mark it as {{PD-Art}}, even though I don't know whether Belgium has anything similar to the Bridgeman ruling. Lupo 23:12, 16 March 2007 (UTC)

I closed the discussion. Could you please further explain why the image wouldn't be in the public domain in the US even though it's already in the PD in the country where it was created (and if relevant, the country of the author as well)? Yonatan ^talk 03:59, 18 March 2007 (UTC)

Done. Lupo 09:11, 18 March 2007 (UTC)

Thanks. It looks great. BTW, do you have any recommended reading for copyright law? You seem to know so much. Thought I'd ask. --Iamunknown 06:15, 19 March 2007 (UTC)

Not really. I'm not a lawyer—just an ordinary editor who, some two years ago, somehow got involved in the issue of image copyrights over at en-WP. And since I didn't know exactly how "international copyrights" worked, I started digging up information. But I haven't kept a reading list. I got my information from a wide variety of sources: U.S. Copyright Office, Hirtle's chart, laws, court cases, commentaries on laws, copyright FAQs from several reputable institutions. For individual laws, there are, of course, books and online publications. On U.S. law, there's Copyright Law by the FJC, or Patry's historical overview, or a number of publications by the U.S. Copyright Office. Hirtle's chart got me wondering where that 1996 date came from, and that brought me to the URAA and to Circular 38b. A lot of what I know (or think I know :-) comes from lots of difficult image copyright questions that made me look up many obscure topics. And, of course, some other people also try to figure out difficult cases; observing them and discussing with them also helped a lot. Lupo 08:45, 19 March 2007 (UTC)

Image:Easter bunny.jpg

Can you give your opinion about that issue on COM:AN#Image:Easter bunny.jpg? It was discussed once before at Commons:Deletion_requests/Image:Easter_bunny.jpg. I assume that the bunny is a work of applied art, because it is physically and conceptually separable from the utilitarian aspect, holding the chocolate, which is fulfilled by the basket alone. It is parallel to "The same is true when a statue or carving is used to embellish an industrial product or, as in the Mazer case, is incorporated into a product without losing its ability to exist independently as a work of art."[18] Thus I think that it's copyrighted and the photo is a derivative work. --Rtc 19:27, 26 March 2007 (UTC)

At least you know whom to ask. -- aka 19:30, 26 March 2007 (UTC) PS: I deleted the image now. -- aka 20:01, 26 March 2007 (UTC)

Since the image is already deleted now, I cannot give any opinion on it. I have no idea whatsoever what that image was. Lupo 20:39, 26 March 2007 (UTC)

I have made a speedy restoration :-) / Fred Chess 20:41, 26 March 2007 (UTC)

And here I thought I had gotten off the hook. ;-/ All right, I'll give it a look and some thought. Lupo 20:47, 26 March 2007 (UTC)

Seems to me Rtc is right. That cute bunny indeed can exist separately from the basket and it appears to me that it thus would be eligible for copyright in the U.S. If dolls and toys can be copyrighted (see circular 40 of the U.S. Copyright office), this bunny also can. I have not found any court case about a similar issue (but I don't have Lexis access either).

In general, this "separability test" is a somewhat hazy area in the U.S. copyright law. (Source: Gorman, R.: Copyright Law, 2nd ed. U.S. Federal Judicial Center, June 19, 2006, pp. 42 – 47. Gorman gives some additional explanations and examples.) But I agree with Rtc that here the Bunny is clearly separable from the utilitarian object.

One comment on the previous deletion debate: someone said that the concept of the Easter Bunny was PD. That may well be so, but that doesn't mean that this particular bunny was PD. The concept of a belt buckle is, I suppose, equally PD (and not patented, I presume), yet some particular belt buckle was found to be copyrightable by a U.S. court. (See Gorman, cited above.)

As an additional data point: I am quite positive that it would be eligible for copyright in Switzerland. A Swiss court has held that utilitarian objects can be copyrighted if the design is original enough to pass the threshold of originality.[19] (Apparently, no "separability" is necessary.)

So I would recommend re-deleting this, sad as it is. IANAL, though. If you'd like a further opinion, I'd suggest asking Kelly Martin. Lupo 22:04, 26 March 2007 (UTC)

Thanks for your note. I'm not sure whether this is important, but this image shows one figure, that cannot be seperated. I just write this because you say the bunny can exist seperately from the basket. -- aka 05:36, 27 March 2007 (UTC)

The "separability test" is about physical or conceptual separability. Surely the little figure of the Bunny can exist separate from the basket (as a little statuette). One could create a separate figure looking just like that bunny and leave away the basket. And furthermore the bunny is not essential for the basket: the basket can fulfill its utilitarian aspect without it. Consider the examples given at [20]: "a carving on the back of a chair or a floral relief design on silver flatware". You can remove neither the carving from the chair nor the floral design from the plate without destroying either. But conceptually, both the carving and the flower design can exist independently (e.g. as a painting or a drawing). The same applies here, I think. Lupo 06:53, 27 March 2007 (UTC)

I should add that I do not know what the situation is in Germany. But I note that apparently Mart Stam obtained a copyright on a cantilever chair design.[21] (I note that the WP article doesn't mention this, but mentions a patent dispute about the design between Stam and Marcel Breuer. I do not know which is right; maybe even both.) It appears as if Germany does not require "separability": Stam's design is an intrinsic element of the utility article (the chair), it cannot exist independently, yet the chair is copyrighted in Germany. If you want to know more about the situation in Germany, maybe ask Hisoriograf. (He knows quite a lot about the German UrhG.) Lupo 06:53, 27 March 2007 (UTC)

Thanks for your answer. -- aka 07:35, 27 March 2007 (UTC)

Laufendes Auge was exactly a case of applied art that was not copyrighted. In Germany, in fact no separability is relevant; it is instead a lex specialis construction of the Geschmacksmustergesetz interacting with the urheberrechtsgesetz. The decision has some very clear words about the distinction between a work of applied art that is copyrighted and mere design. BVerfG, Beschluss vom 26. Januar 2005, Az. 1 BvR 1571/02, GRUR 2005, 410 – „Laufendes Auge“:

Ausgehend von der Definition des urheberrechtlichen Werkes als persönlicher geistiger Schöpfung (§ 2 Abs. 2 UrhG) verlangt der Bundesgerichtshof für das Vorliegen der Werkeigenschaft in ständiger Rechtsprechung ein gewisses Maß an Gestaltungshöhe (vgl. die Darstellungen von Loewenheim in: Schricker, Urheberrecht, 2. Aufl. 1999, § 2 Rn. 32 ff.; Dreyer in: Dreyer/Kotthoff/Meckel, Urheberrecht, 2004, § 2 Rn. 53 ff., der von „Schöpfungshöhe“ spricht). Für fast alle Werkarten setzt er dabei eine relativ niedrige Grenze an, so dass in der Regel schon Werke mit geringer Gestaltungshöhe (die so genannte Kleine Münze) urheberrechtlichen Schutz genießen. Das gilt unter anderem auch für Werke der bildenden Kunst (vgl. BGH, GRUR 1995, S. 581 <582> – „Silberdistel“).

Anderes gilt nach der Judikatur des Bundesgerichtshofs hingegen im Bereich der angewandten Kunst, also bei Gebrauchsgegenständen mit künstlerischer Formgebung (so Nordemann/Vinck in: Fromm/Nordemann, Urheberrecht, 9. Aufl. 1998, § 2 Rn. 21; Loewenheim, aaO Rn. 156) und damit bei Werken, die nicht nur zur Betrachtung bestimmt sind, sondern zugleich einem Gebrauchszweck dienen (vgl. BGH, aaO; so auch Nordemann/Vinck, aaO Rn. 52; Schack, Urheber- und Urhebervertragsrecht, 2. Aufl. 2001 Rn. 202; Loewenheim, aaO Rn. 156). Hier stellt die Rechtsprechung höhere Anforderungen an die Gestaltungshöhe und verlangt für die Werkqualität und damit für den Urheberrechtsschutz ein deutliches Überragen der Durchschnittsgestaltung (vgl. BGH, aaO, sowie BGHZ 138, 143 <147> – „Les-Paul-Gitarren“).

Begründet wird das mit der Möglichkeit des hier gegebenen Geschmacksmusterschutzes nach dem Geschmacksmustergesetz. Zwischen Urheber- und Geschmacksmusterrecht sieht der Bundesgerichtshof keinen Wesens-, sondern nur einen graduellen Unterschied (vgl. BGH, GRUR 1995, S. 581 <582> – „Silberdistel“; so auch Loewenheim, aaO Rn. 157; Eichmann/v. Falckenstein, Geschmacksmustergesetz, 2. Aufl. 1997, Allgemeines Rn. 19; Nirk/Kurtze, Geschmacksmustergesetz, 2. Aufl. 1997, Einführung Rn. 44 ff.). Da sich aber bereits eine geschmacksmusterfähige Gestaltung von der nicht geschützten Durchschnittsgestaltung, dem rein Handwerksmäßigen und Alltäglichen, abheben müsse, sei für die Urheberrechtsschutzfähigkeit ein noch weiterer Abstand zu fordern. Der Urheberrechtsschutz setze danach einen höheren schöpferischen Eigentümlichkeitsgrad voraus als nur geschmacksmusterfähige Gegenstände, wobei die Grenze nicht zu niedrig angesetzt werden dürfe (vgl. BGH, aaO).

Die Literatur stützt diese Auffassung mit der Überlegung, dass der an sich einheitliche Werkbegriff des § 2 UrhG bei der angewandten Kunst durch den Geschmacksmusterschutz nach Maßgabe des Geschmacksmustergesetzes als lex specialis durchbrochen werde (Nordemann/Vinck, aaO Rn. 21, 52) und die formellen Anforderungen des Geschmacksmustergesetzes – Anmeldung zur Eintragung und Zahlung der Anmeldegebühren – unterlaufen werden könnten, wenn Urheberrechtsschutz auch für die „Kleine Münze“ gewährt würde (vgl. Dreyer, aaO Rn. 59). Im Übrigen gehe es bei Werken der angewandten Kunst darum, zu verhindern, dass nahe liegende Gestaltungselemente monopolisiert würden (vgl. Schack, aaO Rn. 207).

The criterion for copyright protection of design is thus "ein deutliches Überragen der Durchschnittsgestaltung". Of course this special case here is "ein deutliches Überragen der Durchschnittsgestaltung" of a chocolate holder. HTH. --Rtc 08:36, 27 March 2007 (UTC)

Thank you! Interesting. I agree that this would apply to Image:Easter bunny.jpg. But do you really think that on Image:OsterhaseNikolaus.JPG, the design was so above the average that it might be copyrighted? I doubt it... to me, these look like fairly common designs. And as far as the U.S. is concerned, it appears to me that if you take away the printed design, you're left with a blank piece aluminium foil, so it doesn't really seem separable. Since arguably a blank wrapping is not usable (part of its utilitarian function would be to make the bunny/santa look attractive to make people buy them), methinks this would be fine under U.S. law, too. Lupo 08:53, 27 March 2007 (UTC)

This is certainly a sustainable position. --Rtc 09:17, 27 March 2007 (UTC)

Ok, some more digging for the U.S.: Annalee v. Townsend: copyright / "trade dress" infringement claims by plaintiff dismissed on Santa Claus dolls. Also mentions Kurt S. Adler, Inc. v. World Bazaars, Inc., 897 F. Supp. 92 (SDNY 1995), "finding that the stereotypical elements of Santa Claus such as a “jolly, rotund, elder gentleman, wearing a red suit and floppy cap with white trim, and a black belt and boots,” may not be protected." I do not know how that Annalee case ended (the link given is only about a preliminary injunction, which was denied on the copyright part), and I haven't found the Adler case (which is about a figure of a Santa blowing bubbles). Lupo 10:14, 27 March 2007 (UTC)

I've redeleted the image. / Fred Chess 20:02, 27 March 2007 (UTC)

AK

You can save a lot of work if you look at Commons:Deletion requests/The images of User:André Koehne, "Obviously derived from" --Rtc 08:28, 27 March 2007 (UTC)

I know. People didn't like the wholesale nomination the first time 'round, and the issue got diluted, so I'm trying to take it bit by bit now. Those with clear originals first. Others will go as part of Commons:Deletion requests/Harry Potter Fan art, I hope. Lupo 08:32, 27 March 2007 (UTC)

See also Commons:Deletion requests/Image:Middle earth map showing prominent locations.PNG --Rtc 09:45, 27 March 2007 (UTC)

• OK for all; I don't need this... Thanks (I don't speak english, sorry):
  • Estas imagens todas feitas por mim foram apenas para ilustrar a Wikipedia, e para tanto fiz os desenhos. Se as regras colocam-nas como "trabalho derivado" e, portanto, passíveis de apagamento, apenas tenho que concordar, sem com isto opor-me em nenhum momento. Agradeço a todos que se dedicaram à exaustiva análise dos meus posts, inclusive pela apreciação das caricaturas e desenhos feitos com base em fotografias - não se pode "inventar" um rosto, ao que me parece - e limitarei minha participação aqui apenas às imagens que forem antigas (domínio público) ou feitas por mim, com minha velha e pobre câmera. Espero, finalmente, que tenhas um tradutor que lhe possa verter estas minhas palavras... Cordialmente, André Koehne ^{TALK TO ME} 15:11, 28 March 2007 (UTC)

No problem, I can read Portuguese well enough to understand more or less what you have written. I can't write the language, though, so I hope you can find someone who translates my reply for you.

I disagree that your drawings were "caricatures", they are rather obvious tracings of the photos I've indicated. Caricature would place the subjects in witty contexts, or emphasize graphically some aspects of the subjects. That's not what you've been doing. It would also have made the drawings rather unencyclopedic, so if they were caricatures, I think they'd be out of this project's scope. Unless Wikinews would have some use for caricatures...

As clear re-tracings of existing photographs, your drawings are derivative works and can thus be published only with the consent of the copyright holders of the underlying photographs. (Unless in cases where the photos would be freely licensed or even in the public domain—but then the Wikimedia projects would be better off using these photos directly.)

Please understand that my nominating your drawings is not intended as an attack on you or your work. In fact, I think these drawings are done pretty well. But they are too close to the original photos, and thus we have a copyright problem.

And yes, I have noticed that lately you do upload mostly old images or photos that you took yourself. I think that's very good. As I've written on another occasion, every free image of a subject of which there were only "all rights reserved" illustrations available enlarges the "free domain" (which I define ad-hoc as public domain + freely licensed works) and thus helps counteract the annoying worldwide trend to ever more restrictive copyright regulations. Thank you for uploading free images.

Best regards, Lupo 20:59, 28 March 2007 (UTC)

Question about a fair use template at TfD at en.wiki

Lupo, could you take a look at en:Wikipedia:Templates for deletion/Log/2007 March 29#Template:China-fairuse-with-attribution? The creator of the image copyright tag in question conducted quite a bit of research, but I don't know what to think now. Thanks, Iamunknown 00:57, 30 March 2007 (UTC)

I've left a comment over there. "Fair use" at the en-WP is always and exclusively U.S. fair use. Lupo 06:49, 30 March 2007 (UTC)

Definitely makes sense. Thanks for heading over there. --Iamunknown 20:39, 30 March 2007 (UTC)

Droits etc.

J'en pense qu'il faudrait que Wikimédia France budgette une étude du sujet par un avocat spécialiste de propriété intellectuelle. David.Monniaux 16:43, 14 April 2007 (UTC)

Je veux bien être payé pour étudier la question (LOL)! Non, sérieux (enfin, si, si on veut me payer je veux bien, mais là n'est pas la question ;o) un "bon" avocat standard ne fera que récolter des textes de loi et de la jurisprudence, et faire un point sur la question. Les textes de loi sont connus, ainsi que la jurisprudence (voir l'étude déjà citée): on a ça gratuitement, inutile de payer pour un aprofondissement, du moins dans un premier temps. Le problème est que c'est une zone de droit mal explorée. Il y a clairement (AMHA) un "risque" juridique, mais aucun juriste ne pourra dire si c'est un risque important ou non, parce que le cas n'est pas couvert par une jurisprudence suffisante.

Où se trouvent les liens sur ce qu'ont fait les allemands? Michelet-密是力 17:47, 15 April 2007 (UTC)

Nazi germany and copyright

Could you join the discussion? [22] --Rtc 19:28, 15 April 2007 (UTC)