Commons:Photographs of modern buildings

This document proposes a change to Commons:Licensing policy, to the effect that:

Photographs of buildings are accepted on Commons regardless of any copyright status they may have as derivative works in their countries of origin, and that they are tagged with a warning if such copyright situation is believed to exist.

Background:

With one exception, Wikimedia Commons currently accepts only media which are explicitly freely licensed, or which are in the public domain in at least the United States and in the source country of the work.

The one exception is for photographs of old pictures (PD-Art), which are accepted regardless of their status in their country of origin, and tagged with a warning.

By default, if a country provides copyright on architecture, it extends to photographs of that architecture for the full period of the copyright in the building. In some countries that provide copyright on architecture, there are exceptions that deny architects copyright over 2D copies of their buildings.

Note: The use of the word 'modern' in the title is intended to refer to buildings of the modern era, not specifically to buildings in the Modernist style of architecture.

Commons uses the term "Freedom of Panorama", often shortened to FoP, to refer to this concept. Countries where the photographer has sole copyright are called FoP countries. Countries where the architect can claim copyright are called non-FoP countries. If a photograph of a building taken in a non-FoP country is uploaded to Commons and licenced or made public domain by the photographer alone without the consent of the architect, then it is called a FoP violation and must be deleted according to current policy. FoP laws can also apply to sculptures, but this proposal only concerns buildings. In the US, copyright on buildings does not extend to photographs or drawings of them, so deleting pictures of buildings for FoP is not a legal requirement; it is an extension of Common's general policy on international copyright.

In summary, this proposal seeks to change our actions on these so-called FoP-violations from 'delete' to 'tag with a warning' - the same course of action as was agreed for photographs of old paintings.

Why there is a problem:

This project's primary mission is to be an educational resource. That mission is compromised if notable buildings such as the Abraj Al Bait, the Burj Al Arab, the Burj Khalifa, the Lotte World Tower, and the Louvre Pyramid (all situated in non-FoP countries) are missing from Commons.

The Berne Convention.

The Berne Convention requires its signatories to recognize the copyright of works of authors from other signatory countries in the same way as it recognises the copyright of its own nationals. As the images in this case will be hosted on US based servers, US copyright law applies regardless of where the work was originally created.

US Law.

A detailed article on the applicable US law can be found at W:Copyright in architecture in the United States.

In particular, USC 17 § 120 states: (a) Pictorial Representations Permitted. — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

Principles underlying Wikipedia copyright policy.

The long established principle is that we should generally respect non-US copyright law as best we can except where there is something particularly strange about the copyright situation. This is summed up in this comment from Jimbo in responce to a question about content originating from Iran, which is not a signatory to the Berne Convention.

In the PD-Art case arising from the NPG dispute it could be said that, by a very lengthy and round-about process, Commons eventually decided that there was something particularly strange about the copyright situation regarding photographs of old paintings in some countries and decided to amend the licencing policy accordingly.

A Possible example of Copyfraud.

WMF General Counsel Mike Godwin used the phrase 'Assault on the public domain'[1] in relation to the possible pursuit of unjustified international copyright claims in the NPG case.

It may be the case that this take-down notice from the owners of the copyright of the Atomium to the proprietors of a US based website might also fit that category.

The legality of that claim might depend on whether the Atomium, which has a capacity of 800 people according to it's official website, should be considered to be an architectural work under US law or something else such as a sculpture. Wikimedia's legal advisors would need give to rule whether there would be any legal risk in hosting such images.