Commons:Deletion requests/Template:FoP-Sweden

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This deletion discussion is now closed. Please do not make any edits to this archive. You can read the deletion policy or ask a question at the Village pump. If the circumstances surrounding this file have changed in a notable manner, you may re-nominate this file or ask for it to be undeleted.

Template:FoP-Sweden

[edit]
Mr Humpty Dumpty, Chief Judge of the Supreme Court of Sweden: The legislator's intention was to allow anyone to freely make and redistribute images of public art. Now, when we've given the word a new meaning, the law says that's not so.

See [1]. Today, the Swedish Supreme Court delivered a ruling saying that FOP doesn't apply on the Internet, or at least not in media repositories on the Internet. Unfortunately, this means that this copyright tag isn't compatible with Commons policy. Stefan2 (talk) 10:30, 4 April 2016 (UTC)[reply]

  •  Comment Does the ruling apply to buildings? They appear to be treated separately from works of art in the law, with more liberal provisions applying to them. Sweden may have building only-FOP, which is a lot better than no FOP. The template itself should be  kept, and adjusted to match {{FoP-France}} in the worst case.--Nilfanion (talk) 11:29, 4 April 2016 (UTC)[reply]
    • The ruling applies to the word 'depict' in the copyright law. The law says that artworks and buildings may be depicted in certain situations (FOP being one of those situations), and the court ruling essentially says that the right to depict works doesn't apply on the Internet, or at least not in media depositories on the Internet. --Stefan2 (talk) 11:51, 4 April 2016 (UTC)[reply]
      • "16. In the implementation of § 24 Infosocdirektivet got its present configuration. Regarding the use of works, such as works of architecture or sculpture, made to be located permanently in public places must under Article 5.3.h directive restrictions made in the right to produce copies and the right to make the work available to the public." (page 8) Slowking4♡Richard Arthur Norton's revenge 14:36, 4 April 2016 (UTC)[reply]
        • To be clear, this is not the ruling in the case between Wikimedia Sverige and BUS. What we now have is an interpretation from the Supreme Court around a few questions that were sent to them from the district court (Tingsrätten). Tingsrätten will now look at this material and make their ruling. This will happen in the coming months (we do not know the exact date). Wikimedia Sverige will be consulting with our lawyers and Wikimedia Foundation the coming weeks about what this really means and what our options are. John Andersson (WMSE) (talk) 17:24, 4 April 2016 (UTC)[reply]
          • I am not certain as to current status of FOP in Sweden (that may depend what exactly the lower court says). However my main point is even if the bottom-line is there is no FOP in Sweden at all, this template should be kept and converted into a warning template.--Nilfanion (talk) 10:19, 10 April 2016 (UTC)[reply]
  •  Keep as per Nilfanion. /ℇsquilo 12:13, 4 April 2016 (UTC)[reply]
  • Vd as per nom. There still is a FoP in Sweden, just not on the internet. The ruling is about transfer of copyrighted material to the general public. One may still take a photograph of a work of art and publish it as, for example, a postcard or in other print media, but one may not transfer the work of art to the general public via the internet. I don't think there is any relevant difference here between architecture and other works of art. The rules are more liberal for buildings when it comes to depicting the work. I think the rules are the same for buildings and works of art when it comes to the transfer to the public. Edaen (talk) 12:17, 4 April 2016 (UTC)[reply]
Let's wait until after a final verdict. Edaen (talk) 19:37, 4 April 2016 (UTC)[reply]
  •  Keep As far as I understand, the verdict only applies to the web site offentligkonst.se and the case BUS vs. WMSE. IMHO, It is too early to decide what impact this will have on Commons. So, I suggest that the legal advisors of WMF should have a look at the verdict first. Riggwelter (talk) 15:11, 4 April 2016 (UTC)[reply]
    •  Comment I'd say it doesn't. The Supreme Court seems to have confused both WMSE (Wikimedia Sverige) with Wikimedia Foundation and also Wikimedia Commons with Offentligkonst.se. With this reading the ruling says that WMF may not via its database Wikimedia Commons make art available to the general public. Edaen (talk) 15:30, 4 April 2016 (UTC)[reply]
      • To be precise, the Supreme Court does NOT refer to Wikimedia Foundation in its ruling. Wikimedia Foundation is not a party, only BUS and Wikimedia Sverige (plus Tingsrätten, which jas raised two specific questions to the Supreme Court. "Wikimedia" as mentioned in the ruling refers to "Wikimedia Sverige", and only to Wikimedia Sverige. Please observe, that the form of the ruling is ONLY answers to the two specific questions of interpretation of law raised by the lower court, and only Wikimedia Sverige is mentioned by the Supreme Court, even if I understand that this could be misunderstood. Boberger (talk) 19:11, 4 April 2016 (UTC)[reply]
        • That is of course what the court should have done. But, the court does write about a database with photographs of works of art. WMSE has no such database, as I understand it. Edaen (talk) 19:33, 4 April 2016 (UTC)[reply]
  •  Delete as per Edaen.Obelix (talk) 16:26, 4 April 2016 (UTC)[reply]
If this makes users end up perhaps breaking the law then i say delete all images of art. However, the template should not be deleted since there still is FOP (as i understand it) for buildings and (as i understand it) old art that’s also PD-old. /Hangsna (talk) 16:58, 4 April 2016 (UTC)[reply]
 Comment It doesn't criminalize users or uploaders. This is about making photos of copyrighted art and buildings available to the public. It is a problem for the WMF, not for you. Edaen (talk) 17:35, 4 April 2016 (UTC)[reply]
As should to totally clear, the Supreme Court has NOT mentioned anything about buildings in its ruling. It has not been asked to answer any questions about buildings, and has thus not answered any question about buildings. Boberger (talk) 19:16, 4 April 2016 (UTC)[reply]
The same rules apply to sculptures and buildings in this case. Edaen (talk) 19:33, 4 April 2016 (UTC)[reply]

 keepTo be precise, the ruling by the Swedish Supreme Court is only an answer to two questions put by Tingsrätten in Stockholm, in effect saying that a specific paragraph does not give Wikimedia Sweden the right to distribute photos of sculptures of a specified type via Internet. As John Andersson notes, in due time there will be a ruling by Tingsrätten in the court case. There will be time to consider what should best be done regarding the template. Boberger (talk) 18:54, 4 April 2016 (UTC)[reply]

migrate images to english wikipedia as "fair use" and write an article on each one. might as well get started now, so the court can be clear what the alternative digital distribution will be. Slowking4♡Richard Arthur Norton's revenge 22:26, 4 April 2016 (UTC)[reply]

 Comment QuestionIMO this deletion request makes no sense. The question is what the court decission really means. Most Wikipedians are not lawyers and even less know the swedish law. So first it's to find out what the ruling means and then making the next steps. ...Sicherlich talk 04:32, 5 April 2016 (UTC)[reply]

  •  Comment the way I'm reading the ruling, it's not about FoP at all, but about the database (Commons). I think it's to early to just delete everything, but the lawyers from both WMSE and WMF needs to look at this ruling, and see if legal action should be taken from WMF. Since Commons is a database in the US, I'm not sure if swedish law about FoP is relevant Laaknor (talk) 07:01, 5 April 2016 (UTC)[reply]
  •  Keep It is not clear enough what are the consequences of this ruling. What exactly is not allowed? It seems to me that the Swedish court tried to ban distribution of images of works of art over the Internet in Sweden but did not challenge the fact that freedom of panorama exists and applies to these works. Still, our servers are in the US, and it is not obvious that these restrictions should apply and will apply to Commons. If it is legal to print a postcard with an image of a monument, release it under a free license in Sweden, send it to the US, scan it and upload to Commons, there is no reason why we should delete these photos from Commons. To me this is a {{Soprintendenza}}-like restriction, but I am not a lawyer, so we might be interested in asking WMF Legal team about this. I am sure they are already aware of this case — NickK (talk) 00:23, 6 April 2016 (UTC)[reply]
  • The Swedish court's ruling is very weak and unlikely to be the last word on the matter. As NickK notes, for now we should probably keep the template and add a big warning that Swedish (re)users must consider themselves at risk. Nemo 13:24, 6 April 2016 (UTC)[reply]
  • The amount of legal BS on this page is amazing. First of all, some people evidently are not familiar with the rule that images on Commons should be legal both in U.S. and the country of origin, so the "servers are in U.S. and screw everyone else" approach is not applicable. Second, take 15 minutes to read the actual law and the decision. The law says sets no conditions on the images of buildings, and none are invoked by the court, so that's it. Buildings are okay. But, third, the law also says explicitly that while it is permissible to reproduce the images of "fine art" made public and make collections out of those images, it is NOT permissible "in digital form". I'm not sure how WMSE managed to read that clause and reach the conclusion that their online database was allowable - did they think it wasn't a collection, not digital, or...? I haven't met any such provisions in other copyright acts across the world (and I've been reading a lot of those in last years) but there it is. Nevertheless, the Supreme Court upheld it, so that's it. One can disagree with the law, one can disagree with the ruling, but disagreement does not make it invalid. If you dislike it, change the law (that's what I'm actually doing, though not in Sweden). Until that, too bad. --Oop (talk) 05:37, 7 April 2016 (UTC)[reply]
    • I believe most parts of this argument has already been adressed above. Had the law been as clear as you assume, there would not have been any legal ground for the district court to ask the Supreme Court for clarification. You make reference to URL 24 first paragraph, third point. The rule under discussion is URL 24 first paragraph, point one. Those are alternatives. If a picture fulfills the criteria for any one point, it is permitted to reproduce it. The point you make reference to seems to be something that could be used for an e contrario conclusion that photos of public art may be redistributed digitally. Edaen (talk) 06:04, 7 April 2016 (UTC)[reply]

 Comment As of now, and for the foreseeable future, we will not have any definite ruling about whether uploading images of Swedish public art and keeping them available on Commons is allowed or not, as the court case is about the database. The reasoning by the supreme court is however worrying, as they make a distinction between postcards (say) and the Internet. This means our earlier understanding of the law seems not to be shared by the supreme court. BUS has declared it will not sue individual uploaders, but if uploaders or reusers are sued, it is possible that courts reason along the same lines as in this case. The question at this point in time is whether we want to hope for the best or delete the images to be sure not to risk damages (for any Swedish individual involved). I think that we, realistically, have lots of time to think about how to best react to the situation. --LPfi (talk) 21:29, 8 April 2016 (UTC)[reply]

  •  Delete  Comment (see later comments I have made in this discussion) The available information in English is conflicting, but it seems like the uploaders as well as the organization maintaining the database are liable for copyright infringement.
Wikimedia Blog: "In its lawsuit, BUS claimed the database infringed the copyright of three artists that BUS represents, arguing that Swedish copyright law does not permit displaying those reproductions online without permission from the copyright holders...[B]oth parties agreed to ask the Supreme Court of Sweden to decide the key question that had not yet been addressed in Swedish law: whether an artist of a work permanently placed in a public location has the right to restrict online communications depicting that art. The Supreme Court granted the request to hear the case, and today it decided in favor of BUS."
TheLocal.se: "In its judgement the supreme court affirmed that Swedish copyright law does permit members of the public to take pictures of public artworks. But, the court said, “it is different when it’s a database where artworks are made available to the public to an unlimited extent without copyright-holders receiving any remuneration.”"
BBC News: "But the supreme court said that while individuals were allowed to take photographs of public artwork, providing those images in a database for unlimited use was "an entirely different matter"."
Quartz: "Even as the legal wrangling continues, the irony is that both Wikimedia Sweden and BUS appear to agree that public art should be widely seen. “We agree in principle that public works of art should be shown as broadly as possible,” Lindberg, the BUS boss, says. “But it should be on terms that are accepted by the artists… Everyone who wants a license can have it. It’s rather cheap.”"
At first, I thought that the ruling concerned database rights, which is not considered by Commons because it is a non-copyright restriction (see Commons:Non-copyright restrictions#Database rights). However, database rights are given to the author(s) of the database, not the authors/artists/creators of the content in the database. The EU database directive "created a new exclusive “sui generis” right for database producers" ([2]). Therefore, it seems like the ruling by the Swedish Supreme Court means that the artists have rights over how their works may be used. This is very important. The licensing policy for Commons and all Wikimedia projects (except fair use material on some projects) demands:

All copyrighted material on Commons (not in the public domain) must be licensed under a free license that specifically and irrevocably allows anyone to use the material for any purpose

— Commons:Licensing (emphasis added)
Since the artists maintain a right over how their work and derivatives of it may be reused, the images of public art in Sweden do not meet the open license criteria for content on Commons, except works old enough that the normal copyright duration has expired. One issue mentioned above is that because Commons policy is that the work must be freely available in both the US and the origin country, the images can be moved to the English Wikipedia (which only considers US copyright law). That is only acceptable for architectural works (see w:Freedom of panorama#United States). US copyright not have a freedom of panorama exception for artwork. Under the Berne Convention, parties to the convention i) only have to extend copyright protection to what the work is given in the country of origin and ii) don't have to give copyright protection to foreign works than their own copyright laws. Therefore, the US copyright protection for the Swedish FoP artwork has the same amount of copyright protection as it does in Sweden and thus is not freely licensed, so these images can't be transferred to en-Wiki with the FoP template. But since US copyright protection for architectural works does not extend to pictures of those works, FoP images of architectural works in Sweden only have copyright for the photographer, not the creator of the photographed building. I'm not a lawyer, but I believe this is an accurate assessment of the situation. AHeneen (talk) 23:01, 8 April 2016 (UTC)[reply]
  • You are making lots of errors:
database rights are given to the author(s) of the database - a database has no author as databases are below the threshold of originality. Instead, the right belongs to the producer of the database.
I thought that the ruling concerned database rights, which is not considered by Commons because it is a non-copyright restriction - in Swedish copyright law, there is no difference between databases, sound recordings and photographs; they are all handled in the same section of the copyright law which contains certain kinds of material which never (databases & sound recordings) or rarely (photographs) meet the threshold of originality, but which nevertheless need copyright protection. If the copyright to databases is to be rejected as a 'non-copyright restriction', then so is the copyright to photographs and sound recordings as those are no different under Swedish law, and I haven't seen anyone accepting any Swedish photograph or any Swedish sound recording on Commons.
The EU database directive "created a new exclusive “sui generis” right for database producers - not true. The database right has been part of Swedish copyright law since 1961. The implementation of the database directive 37 years later mainly had the effect that the copyright term for databases was extended by five years. The database directive certainly didn't create any new right to databases.
Under the Berne Convention, parties to the convention i) only have to extend copyright protection to what the work is given in the country of origin - Under the Berne Convention, parties to the convention are prohibited from paying any attention to what protection the work is given in the country of origin and have to provide the same protection as to domestic works, even if that protection isn't given to the work in its source country. See s:Convention for the Protection of Literary and Artistic Works/Articles 1 to 21#Article 5: such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. See for example de:Hundertwasserentscheidung: the use of an Austrian work was subject to an exemption from copyright under Austrian law but not under German law. Consequently, the Austrian supreme court ruled that there was no infringement of copyright, while the German supreme court ruled that there was infringement of copyright. Or this case: the Swedish supreme court ruled that a lamp from the United States was subject to copyright protection in Sweden although lamps are ineligible for copyright in the United States per COM:UA. There's one exception to this rule: if the copyright term has expired in the source country, then no protection needs to be granted in other countries. General exemptions from copyright protection, such as FOP, fair use or the threshold of originality, are not related to the expiration of a copyright term. --Stefan2 (talk) 19:32, 10 April 2016 (UTC)[reply]
[additions to my original comment (preceding)] In the English translation of the ruling provided by the Wikimedia Foundation, the summary of the case states:

The Supreme Court declares that section 24 first paragraph item 1 of the Swedish Copyright Act, under which the restriction of the author’s exclusive right is limited to depictions, does not imply a right for Wikimedia to communicate photographs of works of art permanently placed outdoors from its database to the public via the internet. Whether the disposal has a commercial purpose is irrelevant.

The section of the judgement titled "The Supreme Court’s assessment" (page 6 / paragraphs 17-22) clearly indicates that the artists/creators of the public artwork retain all copyright interests in their work, except that the public can make depictions of the work. However, what matters here is that the authors retain all other rights.

The Swedish Copyright Act grants the author protection for the literary and artistic works, e.g. sculptures, created by him or her (section 1). The protection consists of an exclusive right to dispose of the work by making copies of it and making it available to the public (section 2). These economic rights may in whole or in part be assigned or licensed (section 27). The author’s moral rights are also protected. The protection includes a right to be named in connection to use of the work and to oppose to the work being changed or made available in a manner which is prejudicial (section 3).

— Paragraph 6
While Commons does not consider moral rights, the copyright holders have the right to control how the work is used with the only, restrictive exception being that "depictions" can be made of the works. Importantly, the authors still have the right to control how those depictions are released to the public, which means that photos of those artworks cannot be freely used (see Commons:Licensing#Acceptable licenses)!! E.g., the judgement said that: "[t]he right to exploit works through new technology in this way therefore remains with the authors pursuant to the present wording of the act" (paragraph 22). AHeneen (talk) 03:31, 10 April 2016 (UTC)[reply]
 Comment In Swedish "databas" can mean both database and media repository. In the ruling it is not perfectly clear when the word is used in one sense and when in the other. Edaen (talk) 23:20, 8 April 2016 (UTC)[reply]
This does not matter. The ruling clearly indicates that the authors have the right to control how photos of their works can be used, so the photos do not meet the criteria in Commons:Licensing#Acceptable licenses. AHeneen (talk) 03:31, 10 April 2016 (UTC)[reply]
Courts apply the law to individual cases, general principles may be extracted from such cases. The parties "own" the process and the court is bound by their claims. A court can not make a general decision about how the law shall be interpreted. This case is about a database owned by the WMSE, the court seems to have made a decision about a media repository belonging to WMF. None of the parties has made any claims relating to Wikimedia Commons or a media repository. Also see the motivation to my keep-vote. In the "assessment" the court declares what the word "avbilda" shall mean. That is beyond the court's powers. Wikimedia Sverige may loose this case, but this is a one off, it is not the law. Even one of the judges involved said on TV that this ruling was only about this case and refused to say anything about other "databases". Edaen (talk) 04:03, 10 April 2016 (UTC)[reply]
  •  Keep At least until the WMSE lawyers have commented. --Averater (talk) 10:14, 9 April 2016 (UTC)[reply]
  •  Keep This ruling is a joke. A part from believing that everything with "Wikimedia" in its name is one and the same (Wikimedia Sverige, Wikimedia Foundation and Wikimedia Commons) and confusing database with media repository, the court actually gives it all away. In the preparatory works for the Swedish Copyright Act the words "avbilda" and "återge" were used interchangably. During the preparation of the law the word "avbilda" eventually came to mean "återge" in two dimensions. During the past twenty years or so a school of thought has developed among some copyright lawyers who believe that "avbilda" means to reproduce and "återge" to reproduce and redistribute. When the Supreme Court writes in point 14 that:
Bestämmelsen har sin grund i det allmänna intresset att fritt kunna återge stads- eller landskapsbilden utan hinder av rättigheter till konstverk som ingår i den.
The provision is based on the public interest to be able to freely reproduce and redistribute (återge[!]) the urban- or landscape whithout being restricted by any rights to works of art being a part of it.
they really say that WMSE's reading of the law is correct.
In points 17 to 22 they redefine the word "avbilda" to mean only reproduce. This is the Humpty Dumpty theory of law. After the court has redefined the word, the law now says that images of public art may not be redistributed on the Internet. According to the Supreme Court the legislative actually meant the law to allow images of works of art in the open to be freely distributable. Also: I'm not sure WMSE is the right party to this case. Since the WMSE has no media repository of its own but uses Wikimedia Commons, the argument could be made that the WMF is the correct party. Let's wait until there is a final verdict. Edaen (talk) 18:55, 9 April 2016 (UTC)[reply]
WMSE was correct defendant in the case, as BUS took action over http://www.offentligkonst.se/ hosted in Sweden by WMSE. If BUS wanted to address their concerns with WMF directly, they could have issued a DMCA takedown.--Nilfanion (talk) 10:19, 10 April 2016 (UTC)[reply]
In its conclusion the court writes:
Section 24 first paragraph item 1 of the Swedish Copyright Act, where the restriction of the author’s exclusive right is limited to depictions, does not grant [Wikimedia] the right to from its database with photographs of works of art permanently placed on or by public places outside communicate the works via internet to the public.
WMSE has no such database. Edaen (talk) 12:59, 10 April 2016 (UTC)[reply]
The supreme court ruled on a generic question, raised by the district court. The district court case, which prompted that ruling, is about the files available via http://www.offentligkonst.se/ . WMSE is one of the two parties in that court case (and correctly so).--Nilfanion (talk) 13:14, 10 April 2016 (UTC)[reply]
Courts can't give that kind of generic rulings. They are bound by the claims made by the parties. In the question from the district court there must be an implied "in this case".
13 § With the consent of the parties, a district court may refer a certain question in the case to be decided by the Supreme Court [...] (RB 56:13 Code of Judicial Procedure, Chapter 56, Article 13)
[added quote] Edaen (talk) 13:19, 10 April 2016 (UTC)[reply]
And this is all irrelevant. WMSE is a party to the court case, and is likely to have to pay damages as a result of the district court ruling. Whether you or I feel it should be a party, or if it should be the WMF instead, is of no consequence. WMSE is the defendant.--Nilfanion (talk) 13:27, 10 April 2016 (UTC)[reply]
What I've argued above is that this ruling has virtually no weight when it comes to the principle because of the Supreme Court's muddled handling of it. I'm not sure I agree with what you say about it beeing of no consequence. Edaen (talk) 13:40, 10 April 2016 (UTC)[reply]

Again, the court is acting ultra vires. The Supreme court on the application of the three-step rule by courts:

13. The legislative process concerning restrictions of the copyright shall consider the principles of the three-step test (see government bill 2004/05:110 p. 83 f.). This must also be considered as directions on how provisions regarding restrictions of the copyright must be interpreted by a court. (Högsta domstolens beslut Ö 849-15)

The government bill cited by the Supreme Court:

The regulation of the restrictions should also in the interest of predictability be the prerogative of the legislator [...] From the basic demands on restrictivity and predictability it follows that provisions concerning restrictions should be as well delimited and clear as possible. The vagueness of the three-step-rule means that it doesn't fulfill these demands. To sum it upp, it is not the opinion of the government that the three-step-rule should be included in the Copyright Act. Instead it should, as has been the case hitherto, be taken into account when the various restrictions to copyright and the neighbouring rights are formulated. (Prop. 2004/05:110 page 84)

By now it's pretty clear what the law says. Edaen (talk) 20:04, 10 April 2016 (UTC)[reply]

The laws of the country are determined by the text as written by its legislature and how they are interpreted by its judicial system. Its your opinion that the court has overstepped its authority, and you are free to believe the court's ruling is invalid, but we (as Commons) cannot ignore it. For that to happen in this case, either the court needs to reverse its own ruling or the legislature needs to amend the law. Mere wishful thinking cannot overturn a court decision - however daft that decision is. I don't like this ruling and am hopeful that at least some elements of Swedish FOP can be retained, but we cannot dismiss the ruling as invalid.--Nilfanion (talk) 20:39, 10 April 2016 (UTC)[reply]
BUS went after a weak player such as WMSE to establish the princple. Their real target is probably Google. Looks like Google is safe. Edaen (talk) 21:08, 10 April 2016 (UTC)[reply]
Has the application of the three-step rule ever been sent to the European Court of Justice? I think that the three-step rule frequently has been used in the Netherlands, and it's possible that the Netherlands or some other country may have sent something related to that rule to the ECJ for clarification. --Stefan2 (talk) 20:43, 10 April 2016 (UTC)[reply]
There is a lot of ECJ case law relating to the InfoSoc Directive. For example this relates to application of Article 5(5), so it has been discussed at the ECJ--Nilfanion (talk) 21:10, 10 April 2016 (UTC)[reply]
Here is a paper by some legal scholars who argue that the three-step test should be applied by courts even it it has not been included in the national legislation. That is a non standard view and goes against the Treaty on European Union and the Treaty on the Functioning of the European Union which says in article 288 that "A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."[3] Edaen (talk) 05:00, 11 April 2016 (UTC)[reply]
In any case, I guess the three-step rule will not be helpful here? It says that a member state may not relax copyright protection if doing so would interfere with the commercial exploitation of the work, so if someone thought the Swedish FoP was too strong they could maybe challenge it under this rule. But we think it's too weak. Vilhelm.s (talk) 18:55, 11 April 2016 (UTC)[reply]
Swedish courts are explicitly forbidden to apply the three-step rule. The government bill cited above actually counts as law. The only thing that could save the validity of the ruling is whether there are some provisions in EU-law giving the directive direct effect or obliging the courts to interpret national law in the light of it.[4] It is slightly problematic that it was WMSE that demanded a directive-conform interpretation of the Swedish Copyright Act. The kind of interpretation of the law the WMSE wanted was exactly what the legislator feared. The three-step test was not to be used to expand the exceptions from copyright by the courts. Edaen (talk) 19:50, 11 April 2016 (UTC)[reply]

Note to admins: Please wait to close this discussion. I sent an email on 11 April to the WMF legal department asking them to clarify the ruling for the benefit of the community.

Extended content

[titled:]Could guidance be given to the community about effect of the Swedish freedom of panorama case? [to:][email protected]

Hello,

First and foremost, I understand that you are only responsible for giving legal advise to the Foundation and, more importantly, that if you are too involved/specific in giving advise to the community it could expose WMF to liability for actions of the community (eg. copyright infringement).

That said, there has been a lot of trouble on Commons about the effect of the recent Swedish Supreme Court decision on freedom of panorama in regards to Wikimedia Sweden and the post on the Wikimedia blog isn't extremely helpful in clarifying things. It would be helpful if you could provide some assistance in helping the community understand the effect of the judgement on Wikimedia Projects (especially Commons).

The main location of discussion is at the deletion request for the Swedish freedom of panorama template on Commons:

https://commons.wikimedia.org/wiki/Commons:Deletion_requests/Template:FoP-Sweden

Although the discussion is technically just for deleting that template, the discussion relates to whether the ruling means that authors of artwork in public spaces have any rights in photographs taken of those works (as derivative works) and therefore whether photographs of copyrighted artwork are freely licensed (if the photographer licenses the photo with a Creative Commons or other free license).

The main issue is: Whether the ruling relates to copyright (which Commons and all WMF projects consider and, of course, using freely licensed content underlies all WMF projects) or database rights (a non-copyright restriction that Commons policy does not consider)? In other words, whether 1) the photographs and users uploading them violate the copyright of the authors (so the photos are not permissible free content) or 2) its just Wikimedia Sweden compiling the database that is the problem (and database rights are not considered on Commons)?

Some users also don't seem to understand how justice systems work and are trying to argue that the decision only affects Wikimedia Sweden in this case, that the decision doesn't mean anything until the case against Wikimedia is final (ie. after the proceedings in the Stockholm court are finished), and that the ruling won't matter in how the law in question is read in other circumstances. Unless I'm mistaken on how judicial systems work, the Supreme Court's judgement is final on how the law in question (section 24 first paragraph item 1 of the Swedish Copyright Act) is supposed to be interpreted and stare decisis means that the judgement needs to be respected as how that law is to be read.

If my understanding of the judgement is correct, the artists of works in public maintain a right (under copyright) over how their work and derivatives of it may be reused, therefore the images of public art in Sweden do not meet the open license criteria for content on Commons (and all WMF projects) and the community will need to go through and remove such images as copyright violations.

Hopefully, they will offer to respond to help us determine how the ruling affects photographs on Commons. It would not be very productive to close this discussion, then, if they choose to respond, start an entirely new discussion on the same topic. Also, if they respond, we'd need a few days to discuss the issue. So, please wait to close this discussion. AHeneen (talk) 15:13, 12 April 2016 (UTC)[reply]

Formally there is no stare decisis in Swedish law. The role of precedences is disputed. Some legal scholars maintain the view that rulings by the Supreme court are only examples, others consider principles established by the Supreme Court to be binding for the future. In criminal law the principle nullum crimen, nulla poena sine lege, is enshrined in the first article of the Swedish penal code. There are remedies for errors in judgment even by the Supreme Court. The hierarchy of sources of law is, very generally, as follows: "There are four main sources of law in Sweden: legislation, preparatory legislative material, case law and academic literature."[5] In principle, even statements in a committee report trump court rulings. This is not allways so. Edaen (talk) 15:57, 12 April 2016 (UTC)[reply]
Here is their reply:

Thanks for your message. In case you haven't see it, we're actually planning to host an IRC chat on the topic of freedom of panorama so we can go over some of the recent developments including the Swedish case. See https://meta.wikimedia.org/wiki/Legal_Team_IRC_Office_Hours#Upcoming_office_hours

If you or others from Commons are able to join the discussion, we'd love to have you there, and you can submit these questions for the discussion as well.

Could closing of this deletion discussion wait until after the IRC chat? AHeneen (talk) 21:46, 14 April 2016 (UTC)[reply]

Well, the IRC chat wasn't very productive, the only clarification put forth by the WMF is that "I'm not sure I can answer that with any kind of expertise. The database law definitely factored into the decision, and our belief is that Swedish law does allow individuals to take pictures under FoP. I think I have to defer that one to Wikimedia Sweden, who I believe are consulting with Swedish lawyers on the ramifications of the decision."

Here is the exemption in the Swedish Copyright Act, using an Engish translation from the WIPO (about WIPO):

Article 24. Works of fine art may be reproduced [note: the English translation of the case from WMF uses "depict"] in pictorial form

1. if they are permanently located outdoors on, or at, a public place

2. if the purpose is to advertise an exhibition or a sale of the works of fine art but only to the extent necessary for the promotion of the exhibition or the sale, or

3. if they form part of a collection, in catalogues, however not in digital form.

Buildings may be freely reproduced in pictorial form. (Act 2005:359)

Note the adjective "freely" appears before buildings. I think it would be appropriate to just change this template to include buildings only and wait for a later case to determine the limits of photographing buildings.

Here is a building-only FoP template, which would resemble Template:FoP-US/en:

The architectural work depicted in this photograph may be exempted from copyright protection under §24 of the Swedish Copyright Act, which states that "buildings may be freely depicted in pictorial form". In 2016, the Swedish Supreme Court decided that a similar exemption stating that "works of fine art may be depicted" (not "freely depicted", like the building exception) only allowed the depiction of the work, but the authors of the depicted work retained the right to control how that depiction could be shared with the public. For more information, see [link to this discussion].
This law only applies to architectural works (such as buildings or other structures) and not other forms of 3D or 2D artwork such as sculptures, paintings, or posters. Images of these artworks taken in Sweden must be deleted unless they are in the public domain, or their presence is incidental.

Under §2 of the Swedish Copyright Act, copyright "include[s] the exclusive right to exploit the work by making copies of it and by making it available to the public, be it in the original or an altered manner, in translation or adaptation, in another literary or artistic form, or in another technical manner." (mentioned in part 6 / page 3 of decision). Basically, what the court said is that the exemption only allows photographs of public artwork (the "copies" part of the rights in the previous sentence), but that the authors of the artwork still have a right to how their artwork is used (in the previous sentence, the right to make it available to the public). The court cited reasons (part 5 / page 3) that the exemption needs to be restrictive (ie. that it does not infringe on the author's exclusive rights quoted above).

Since the artists maintain some right over how their work and derivatives of it may be reused, the images of public art in Sweden do not meet the open license criteria for content on Commons (Commons:Licensing, based on the licensing policy of the Wikimedia Foundation). The template should be limited to just buildings. AHeneen (talk) 23:11, 19 April 2016 (UTC)[reply]

The key word is pictorial. The translator has made an interpretation of the law. The court says that the word "avbilda" (reproduce in pictorial form) only means 'to reproduce' and not 'to reproduce and communicate'. We don't really know what the court meant by 'databas'. In the pressrelease the court wrote "The court establishes that Wikimedia does not – in the way that it is done by photographing – has a right to communicate pictures of works of art located at public places without permission from the creators."[6] I can't see that there is any difference between buildings and works of art. I'd say "database" means Wikimedia Commons. Let's wait until there is a final ruling from the district court. Edaen (talk) 01:02, 20 April 2016 (UTC)[reply]
  •  Keep the template (which is the strict question being asked) and, as may be agreed in future, modify it and maybe delete the corresponding images. It would be completely silly to delete the template at this stage. Already WMF in a few circumstances allows Commons to host images that are copyright-protected in a source country outside the US (for example skilful UK photographs of PD two-dimensional works of art), Commons:Reuse of PD-Art photographs. And Commons routinely hosts images that are copyright in "third-party" countries. We are only required to delete the images if WMF requires it or if Commons consensus decides it. Thincat (talk) 07:46, 20 April 2016 (UTC)[reply]
See Commons:Licensing#Interaction of US and non-US copyright law. Work must be free in both US and country of origin. "Faithful reproductions of two-dimensional works of art, such as paintings, which are in the public domain are an exception to this rule." AHeneen (talk) 10:15, 20 April 2016 (UTC)[reply]
Yes, there are exceptions to the rule and WMF may think this Swedish situation is one of them. Commons usually allows images that are FoP in the source country but would not be if the photo was taken in the US. We don't know which law the US courts would apply if a foreign FoP was brought before them. So that seems to be another exception. Thincat (talk) 12:09, 20 April 2016 (UTC)[reply]
One more thing to add to this discussion is the policy Commons:Project scope/Precautionary principle, which says in part "The precautionary principle is that where there is significant doubt about the freedom of a particular file, it should be deleted." Since there is significant doubt about the freedom of FoP images of artwork in Sweden, they should be considered not free and deleted. This template should reflect that. AHeneen (talk) 23:08, 25 April 2016 (UTC)[reply]
But the template won't reflect that if, as you recommend, it is deleted.[7] Thincat (talk) 09:08, 26 April 2016 (UTC)[reply]
I've changed that to reflect what I wrote later. AHeneen (talk) 21:01, 27 April 2016 (UTC)[reply]

 Delete You can take such photos, you just cannot host them on Wikimedia Commons. McGrath Clan Kirk (talk) 21:03, 12 May 2016 (UTC)[reply]

  • Delete or amend the template. In addition, I propose the following:
  • Delete photos/images of all Swedish architecture that is not yet in the public domain.
  • Create large banners in the Swedish and other Nordic Wikipedias, that this is going on. These actions should send a message to the Swedish public. Send relevant press releases to the Swedish media, and e-mails/letters to all Swedish lawmakers.
  • Create lists of architects whose works were erected in Sweden. Have one table of architects, whose works are in the Public Domain; another for those architects, who are dead, but whose works are not in the Public Domain. All should be sorted by year of death. A third table for living architects, sorted by year (date) of birth. And a fourth table for architects, about whom there is little information. — Like this userpage about Estonian architects. -Mardus /talk 21:23, 17 May 2016 (UTC)[reply]

Kept: for now, it's still unknown whether something will change. --Jcb (talk) 22:31, 30 May 2016 (UTC)[reply]

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