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Comment by belorn | Hacker News Reader

Reading the article from the Swedish national radio, the court decision found that wikimedia database of photo has a "commercial value" that can compete with commercial enterprises of the copyright authors who created the public statues or paintings on buildings.

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.

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This court decision is a result of the change of law that in part was motivated to happened to get piracy back in 2005. When it was amended there were many, many more restrictions placed on digital distribution than before. The law in question explicitly say "Artwork can be depicted if contained in a collection or catalogue, but not in digital form". So a book detailing famous art is allowed, but a website doing the same is not.

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.)

Right, but wouldn't the Facebook sum total of photos be considered such a database? Or indeed Google Image search?

If you however create a group on facebook and collect photos of statues there along with comments about them on each photo, FB would presumably be liable since I don't think its the sort of thing they prohibit in the ToS.

Under this interpretation, wouldn't (say) a collection of Facebook photos with statues, in aggregate, constitute a database and therefore become illegal? At what point does the size and structure of a collection become sufficient to cross the legal line? Would an individual Facebook user therefore be liable? Would Facebook as whole? etc.

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.

Maybe I'm misinterpreting it, but it sounds like there's no problem since Facebook is a commercial enterprise. The problem is when a nonprofit does it. (Which seems... wrongheaded, to basically ban nonprofit websites from competing with for-profit ones.)

Wrongheaded is a polite way to put it.

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.

Court is fine, but in the meantime, I'd just find a loophole.

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.

You might be surprised. In the end, Google got fined in France because Google Maps was competing with paid maps, and if you think about it, google maps is just a depiction of land, it's all publicly available information. But they got fined because their free product was making commercial ones impossible or very hard to sell.

As I understood it, the way they formulated the ruling says that it only becomes a problem when it reaches "commercial proportion", or "commercial value". According to the ruling it would be illegal for Facebook to do a similar database, the difference here being that Facebook is not creating such a database, and afaik no single Facebook user has attempted it either.

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.

Facebook already is one fricking giant database because it's searchable. Go ahead, try searching for "Branting Monument" on Facebook, it's a statue in Sweden.

The decision from the supreme court is available online: http://www.hogstadomstolen.se/Domstolar/hogstadomstolen/Avgo...

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...

How do you determine what commercial value something has? Apparently not by whether it costs money or not. The map is offered for free, without ads. Postcards are usually for pay.

They don't say anything about how to determine the value. In general, it seems to me that this decision will create a lot of uncertainty about what is copyrighted and what is free.

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.

>a database has more commercial value than a postcard

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.

> it is not illegal to post Facebook photos with a statue. Since clearly that is not a database

...but then it would be illegal to tag the photo, right?

Wouldn't this mean a Google Map of public statues would be considered of Commercial value and should be removed?

> 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.

That may be the reasoning, but it's nonsense.

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.

That reasoning make some sense for objects in a museum, but for public art in the street?

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.

> Something that it's not clear to me is if this "public art" has been paid with public money

Much of it has.

Is it legal to tweet the picture?!

Yes. The illegal nature is due to the fact the pictures were held in a catalog. Use by members of the public (such as through the medium of social media) is legal.

Outside of Sweden, I come to understand, it isn't illegal to catalog the images either, this is exclusively a Swedish law.

How can it have commercial value if released with a "libre" license?

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