The Illegal Map of Swedish Art
googlemapsmania.blogspot.com
googlemapsmania.blogspot.com
The journalist asked a lawyer if this mean that its illegal now to take a photo of public statues, and the lawyer said that it legal since the law explicitly says so, but it might not be legal to publish it" on the Internet" as that action might be considered to have a commercial value.
In my view, its a bit weird.
I think it's a matter of opportunity cost. By giving away an art-finder like this for free, using the pictures of the sculptures, you take away the incentive for commercial provider to do the same thing.
Commercial providers would have to pay money for the pictures and thus, a free app is costing the copyright owner (or the manager of the copyrights) money indirectly.
And even failing that: By publishing this on the internet, even if you are offering it for free and without ads, you still create value for third-parties with this content (carriers, platform owners, whoever is injecting ads into your content, etc), so as monetary value is created with this content, the management agency wants to be paid and if they can't be, then they want the content off the net, so other content might appear where they are getting paid.
At least that's what I believe to be the reasoning.
Anything done for free - picking up litter, sharing photographs online, giving someone directions - could be done commercially. Anything done commercially could be done commercially for more money.
This may be the law, but it violates my basic understanding of fairness.
Something that it's not clear to me is if this "public art" has been paid with public money. That would make all this even more crazy.
Much of it has.
This also means it is not illegal to post Facebook photos with a statue. Since clearly that is not a database, just a random photo.
The paragraph in question: https://lagen.nu/1960:729#P24S1]
And the full law: http://rinfo.stage.lagrummet.se//publ/sfs/2005:359/pdf,sv
(This law - 2005:359 - is also the law that added the "data tax" in Sweden of 0,4 kronor per MB.)
It seems that the law has created the unintended consequence that the organization of the depictions in question matter more than the actual depictions themselves. Or in other words, of imputing commercial intent to any such collection of copyrighted works, whether intentional or otherwise.
Do I have this straight?
Publishers are allowed to make guidebooks and sell postcards without permission and also without recompense for the artists.
Historians and critics are allowed to include the photos in books without permission.
For-profit corporations are allowed to use the photos as long as they don't collect them into a single database marked "highly dangerous public database of art photographs".
But nonprofits who create a digital guidebook are copyright criminals - with the implication that they're not allowed to distribute the work for free, because it might affect the profitability of a hypothetical not-yet-existent commercial alternative.
I'd hope a good lawyer could sail a battleship through that line of argument. It's clearly prejudicial, discriminatory, inconsistent, arbitrary, and not in the interests of either the public or the copyright holders.
I suspect if it gets taken to the EU Courts, it will be shot down in flames in short order.
E.g. it might be ok to take a picture of each piece of art with a person standing in front of it, so retake the pictures or just superimpose a picture of a person with a transparent background onto each picture.
Then once you've found that loophole, exploit the heck of it and sell prints on the street with that person superimposed on the art. Just give a big middle finger to the law.
However I'm interested in what the case is with Google Ingress and their effort to make public art etc. more accessible through a smartphone-game using GPS and images.
Furthermore, yes, this is all madness.
As I understand it, actually the sentence that you quote, §24(3), is not relevant in this case. §24 provides three exceptions to the general system of copyright, and this case turns on §24(1), which says "artwork can be depicted if they are permanently placed in a public place outdoors".
So, it would naively seem that photos of public art are not copyright protected. However, the court reasoned that the word "depict" does not cover the act of publicizing the pictures in an open database. They reason based on what kind of use they think the legislators had in mind when passing the law: they think it is intended to allow taking photos of streets, and selling postcards of sculptures, but that a database has more commercial value than a postcard, and therefore the legislators did not intend that to be included in the term...
They do say that the test is whether someone _could_ sell it for money, so the fact that in this case Wikimedia is a non-profit and does it for free does not affect the outcome.
That's comparing apples and giraffes. A more accurate comparison would be a publisher's collection of postcards, and the business machinery used to make money from them.
...but then it would be illegal to tag the photo, right?
Outside of Sweden, I come to understand, it isn't illegal to catalog the images either, this is exclusively a Swedish law.
https://en.wikipedia.org/wiki/The_Devil's_Advocate_%281997_f...
Comparison of the edits:
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to take their pictures while climbing on friendly statues from New York Philadelphia to Indiana.
(where do i learn how to format html for these submissions? i need linebreaks and italics.)
Another question - is there some threshold which triggers the switch to public domain? Eg, if the public pays for 10% of the cost, through taxes, and private donators pay for the rest, then is it still placed in the public domain?
I agree - I think the Portlandia case should not have let the artist keep that restriction on use. But I think it should be done as part of the contract, rather than a blanket rule that any public funds => public domain.
The OP claims 'even when its in a public place and owned by the public'. That part seems odd. It would be good to (be able to) read the decision.
That being said, I wonder if an architect could claim an unusual/interesting building as a work of art, and then have it removed from google street view?
In 2004 the architect of a bridge in Rotterdam, the Netherlands, tried to claim that photographs and reproductions of 'his' bridge were unlawful, and that a fee would have to paid for any sold reproduction of that bridge (such as a postcard). Luckily this was prevented by an EU directive that states clearly that any art or architecture located in a public area may be photographed, provided that it is reproduced as-is.
I wonder if this EU directive is applicable to this situation in Sweden?
http://artlawjournal.com/night-photos-eiffel-tower-violate-c...
https://en.wikipedia.org/wiki/Copyright_Directive
So whereas the Netherlands sensibly chose to enact this exception, other countries selectively allowed certain situations, such as the lights of the Eiffel Tower and possibly Belgium's Atomium landmark.
This blog post (in Dutch) contains a good summary of the Dutch bridge case:
edit: I found more details here: https://blog.wikimedia.org/2016/04/04/strike-against-freedom...
This seems to fit the description of a 'database' given elsewhere in this thread, but it may be that some detail in the law allows things like this. Perhaps because it is a database that contains other things than art as well.
Certainly the database that google has backing its mapping service has commercial value in a much more obvious way compared to the wikimedia public artwork database.
I guess that the licensing agency either didn't know of this function, or else started with the easier target.
My baseless guess for the outcome if they sue google is that google would win on jurisdictional grounds after five years of battle.
§ 24 Works of art may be reproduced
1. if they are permanently located on or at a public place outdoors,
2. if the purpose is to advertise an exhibition and sale of works of art, but only to the extent necessary to promote the exhibition or sales, or
3. if they are part of a collection, in catalogs, but not in digital form.
As you may realise. There is a huge room for interpretation in the specificity, which is why we have courts & judges that settle these matters.
Sometimes I don't envy those engineers :p
I love these kinds of cases because everyone can sue everyone. In general, the panopticon creates more and more cases where everyone has some blame (and can be arbitrarily hassled by the po).
It is however from the ruling not clear exactly how the photos and metadata create value; for instance it seems clear like just hosting all the offending images on a separate service and naming them with guid:s will be perfectly fine so long as the user has to navigate and find the image themselves.
Ruling: http://www.hogstadomstolen.se/Domstolar/hogstadomstolen/Avgo...
I was curious "who is the plaintiff here" because I didn't see that in the discussion anyplace, so I ran vilhelm_s's helpful link to the decision http://www.hogstadomstolen.se/Domstolar/hogstadomstolen/Avgo...
through translate.google.com and learned to my horror that the defendant in this case was Wikimedia, not some map/app designer.
I could not tell who the plaintiff was, it translates as "Plaintiffs in the district court Image Copyright in Sweden oak. for., 769610-3121 Hornsgatan 103 117 28 Stockholm" I looked at that address on google maps and discovered that it is hard to find the front door of a building in Stockholm.
https://en.wikipedia.org/wiki/Tabloid_journalism#Red_tops
example; http://www.dailymail.co.uk/sciencetech/article-1296282/I-dos...
It has not been tried in the European court yet so it may not be illegal in EU if the EU court over rules the swedish court.
Does the same courtesy apply to human beings?
Why is this something artists in Europe sue about? Do they want their work hidden?
I think it could be argued that the nature of Ingress and the main purpose of it is NOT to exploit pictures to the public without paying the artist/sculptor in question. However this could obviously be up for debate, and I guess part of it depends on whether anyone sues Google over it.
Another important point to make is that the suing party in this case states in their press release, that Wikimedia could just have paid the organization a few 1000 SEK per year (~a few 100 USD) in a license fee and it would all be deemed legal.