Commons talk:Reuse of PD-Art photographs

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Hope this is the right place[edit]

Otherwise please delete and repost where appropriate, if at all (and sorry for the confusion/inconvenience). I think that following article develops an interesting analysis at the EU/national level on the protection of photographs: http://ssrn.com/abstract=2573104


Previous debates[edit]

For former discussions regarding this issue, see Commons_talk:When_to_use_the_PD-Art_tag

Italy[edit]

I believe that this is the Italian situation:

✓OK before 1995. Reproduction photography is protected by copyright in Italy, but this right subsists until 20 years have elapsed from the year in which the picture was produced. Article 87, Chapter V, Rights relating to photographs: «[... ] reproductions of works of graphic art [...] shall be considered to be photographs for the purposes of the application of the provisions of this Chapter.» Article 92, Chapter V: «The exclusive right in respect of photographs shall continue for twenty years from the making of the photograph.»--Trixt (talk) 19:11, 7 February 2009 (UTC)

✓ Added--Trixt (talk) 20:53, 11 January 2012 (UTC)

Canada?[edit]

It'd be really useful if I could get the situation for Canada listed here, because I'm in the process of uploading some PD-Art works that I believe were scanned in Canada. Dcoetzee (talk) 23:50, 11 March 2009 (UTC)

Belgium[edit]

Any objections that I would add following paragraph?

===Belgium===

In the Belgian law "Wet betreffende het auteursrecht en de naburige rechten." of 30 June 1994, in chapter 1, part 1, article 2, paragraph 5 one finds:

De beschermingstermijn van foto's die oorspronkelijk zijn, in de zin dat zij een eigen intellectuele schepping van de auteur zijn, wordt (vastgesteld) overeenkomstig de voorgaande paragrafen.. [1]
(my translation): The protection duration of photgraphs that are original, in the sense that they are a proper intellectual creation of the author, becomes like previous paragraphs. (and thus copyrighted till 70 years after the death of the author)

The Belgian federal governement clarifies this on one of its websites:

Worden daarentegen niet beschermd door het auteursrecht: wat uitsluitend door een machine wordt voortgebracht (satellietbeelden).[2].
(my translation): Are not protected by copyright: what is made solely by a machine (e.g. satellite images).

Simple scans or photographs of public domain documents remain hence in the public domain.

Donarreiskoffer (talk) 13:27, 5 May 2011 (UTC)

✓ Added--Trixt (talk) 20:53, 11 January 2012 (UTC)

Reuse of PD-Art photographs[edit]

This page is an essay; it contains the advice and/or opinions of one or more Commons contributors. All messages on this site are legally uncertain. - - H.-P.Haack (talk) 22:07, 18 March 2012 (UTC)

Repro Photography in Germany[edit]

(Sorry for my weak command of the Wiki-techniques, I hope this does help) The statements about the situation in Germany ist incorrect (I practise as a lawyer for intellectual property). The German "Urheberrecht" makes a distinction between "Lichtbildwerk" and "Lichtbild", both represent a "copyright". The cited dedision of the Federal Supreme Court "BGH" is correct but does not cover important parts of the discussion. The opinion of David Seiler does not represent the generally accepted view of things. I suggest changing the situation to "inconclusive". Reproductions are protected by § 72 UrhG if the photo represents a minimum of effort - this can be artistic, intellecutal or even mere technical. See OLG Düsseldorf, "Beuys-Fotografien". [Björn, Berlin] — Preceding unsigned comment added by 88.74.211.41 (talk • contribs) 17. Oktober 2012, 16:25 Uhr (UTC)

Thanks for your comment. The section has been thoroughly revised and expanded a few months ago and now includes an extensive survey of the literature. — Pajz (talk) 20:55, 3 October 2013 (UTC)

Brazil seems wrong[edit]

Brazil cites Article 46, but this article is not about PD-Art, it's about fair use. Here is the relevant clause:

the reproduction in any work of short extracts from existing works, regardless of their nature, or of the whole work in the case of a work of three-dimensional art, on condition that the reproduction is not in itself the main subject matter of the new work and does not jeopardize the normal exploitation of the work reproduced or unjustifiably prejudice the author’s legitimate interests.

I read this as being essentially about the "extent" part of fair use or de minimis, permitting reuse of copyrighted works where they are not the main subject matter of the new work and only "a short extract" is used. Obviously, in a careful reproduction, the original work is very much the subject of the new work, and moreover, we are only concerned with cases where the original work is in the public domain, which this clause does not address. As such I've removed the section on Brazil. Dcoetzee (talk) 20:29, 3 October 2013 (UTC)

Sweden[edit]

A mere reproduction has no protection under Swedish law. This is true both for reproductions of works of art and photographs. 1) A photograph of a photograph is not a picture and has no protection of it's own. The first quote is from a modern standard book on Swedish copyright. It is used to show that the original statment from 1956 still is in force. The second quote is from SOU 1956:25 and that which is supported by the quote from Henry Olssons "Copyright". The SOU is a central part of the preparatory works for the modern Swedish copyright law. It has normative force. It says that whoever reproduces a photographic picture, by whatever means, has not produced a new picture and has no independent protection for his effort. 2) No copyright for reproductions. The third quote is from the same SOU and says that "a mere paraphrasing or reproduction is not a base for copyright."

  • Bestämmelsen [49 a§] tar sikte på en fotografisk bild. Härmed avses enligt upphovsrättslagens förarbeten (auktorrättskommittén, NJA II 1961 s. 391) fall då en bild har ...[3]
  • Av det anförda följer, att den som mångfaldigar en fotografisk bild
    genom fotografiska metoder icke åtnjuter självständigt skydd för sin insats;
    genom förfarandet har icke framställts någon ny bild. Detta gäller
    oavsett om mångfaldigandet sker genom normala kopierings- eller förstoringsmetoder
    eller om förfarandet är mera invecklat och innefattar exempelvis
    framställning av ett nytt negativ.|SOU 1956:25, p. 471[4]
    (SOU 1956:25 p. 471)
  • Men ett blott refererande eller reproducerande av äldre
    verk grundlägger icke upphovsmannarätt.
    (SOU 1956:25, p. 67)

The part about the Nordic countries should be changed. At least in Sweden it is permitted to upload modern photographs of reproductions if the original work is free, even if the reproduction is modern. Edaen (talk) 10:14, 4 January 2015 (UTC)

Agreed. Also, Sweden does not have the sweat of the brow argument, like the UK. Digisam works after this hypothesis as well, so I support a change.//Hannibal (talk) 10:35, 4 January 2015 (UTC)

France[edit]

There was an interesting French case reported recently on the 1709 Copyright blog:

 http://the1709blog.blogspot.nl/2015/04/tangible-digital-files.html

Here a French court found against a phtographer for showing reproductions of her own photographs on her own website, holding that the digitisations belonged to the photo agency which had made them, even though the photographer still owned the copyright.

The holding for the photograph agency appears not to have been based on the French copyright provisions (which like other European copyright legislation arguaby requires creativity), but instead under a different law, Art 1382 of the French civil code, which forbids "parasitism" of an economic asset, where "parasitism" is defined as

"copying, at no expense, without using one’s own efforts, for a profit and in an unjustified way, someone else’s economic asset securing a competitive advantage that is the result of know-how, intellectual work or investments."

Importantly, this definition does *not* require original creativity, only investment.

Our current guidance and the attached French user page appears only to consider copyright. But, as demonstrated in the case above, it may in fact be the Art 1382 parasitism question which is actually the important one here. Comments and responses please? Jheald (talk) 08:58, 11 April 2015 (UTC)

Hi,
As the comments suggest, it seem that this judgment is not based on copyright law. It is not clear how this would affect us. Also, we should see what an appeal court would say. Regards, Yann (talk) 10:20, 11 April 2015 (UTC)
@Yann: Well, yes. My point was it may not be copyright law that is the important law for reuse of PD-Art in France; so that if we only look specifically at the copyright clauses, we may not be representing the situation accurately. Jheald (talk) 12:46, 11 April 2015 (UTC)