tag:blogger.com,1999:blog-5574479.post1219941591998306580..comments2024-03-29T13:59:42.629+00:00Comments on The IPKat: Freedom of panorama in France: could even a visit to Père Lachaise become a problem?Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-5574479.post-82964298564677643542016-05-02T09:30:04.796+01:002016-05-02T09:30:04.796+01:00I have three comments:
1. Wikimeidia is not a comm...I have three comments:<br />1. Wikimeidia is not a commercial enterprise, and the reason for the Swedish Supreme Court´s ban was that a commercial ditto could make a link to Wikimedia´s site. But, if Wikimedia´s site is legal, there is no commercial interest to make a link. The court´s application of the three-step-test is completely wrong, cf Geiger, Gervais and Senftleben, International Intellectual Property, A Handbook of Contemporary Research, ed Gervais, Edward Elgar, 2015, p. 175.<br /><br />2. The Court wrongly didn´t make a preliminary reference to the ECJ. If so, the ECJ shouldn´t have accepted that narrow construction of that special copyright limit, cf Favale et al, Modern Law Review, 2016, s. 57f.<br /><br />3. Neither the Swedish Court nor the Frence Senate understand that “where a Member State decides to introduce a limitation on copyright, it may no longer avail itself of the scope allowed under the Directive and introduce a narrower national provision. Rather, it has to implement the relevant limitation into national law exactly as is required by the Directive.”, Dreier, JIPLP, No.2, 2016, p. 138f<br /><br />It´s rather absurd that I and thousands of fan to Jim Morrisson, the lead singer of the Doors, must travel to Paris to see his tome at Père Lachaise, as it is that my Swedish relatives in USA no longer can enjoy the statues in Stockholm without crossing the Atlantic!Mats Björkenfeldthttps://www.blogger.com/profile/12385231232058076505noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-56519478139734883172016-04-30T17:20:09.451+01:002016-04-30T17:20:09.451+01:00(continued)
As regards Wikimedia, as I understand...(continued)<br /><br />As regards Wikimedia, as I understand it Wikimedia makes a distinction between the U.S.-based Wikimedia Foundation that operates the servers, and the community of Wikimedia contributors who upload and curate the content. This distinction is designed to place it within the service-provider "safe harbour" provisions of the e-Commerce Directive in Europe and the DMCA in the United States, in exactly the same way as Facebook or Twitter.<br /><br />A difference is that the Wikimedia community sees itself as gathering and developing material for wider re-use (not for Wikipedia as an end-use), including commercial re-use; so that in Wikimedia's case it is the users (rather than the lawyers) who are particularly active in removing content, removing material that could for example prevent any part of Wikipedia being reused, including commercially. So this community action would be the principal barrier for material being uploaded to Wikimedia.<br /><br />It is not entirely clear (at least not yet to me) the exact position of Wikimedia Sweden in the BUS case, and why it did not just similarly invoke the take-down shelter. The exact exposure will presumably be spelt out in detail in the judgment that will be forthcoming from the court of first instance. It may be that Wikimedia Sweden received a take-down, and elected to defend it in court. Or it may be that by actively offering and promoting the map application they were seen to be directly taking ownership and responsibility for the material, or at least to be authorising its use. It's interesting to wonder what the position would have been had it been somebody else offering the map application, combining Wikimedia's images perhaps with public information as to the monuments' locations.<br /><br />The judgment does seem an odd one, with the Court apparently focussing not so much on the images being made available, as much as the images being made readily findable. (Though one might think that findability was an essential part of availability -- or, at any rate, pretty much an inevitability, given today's internet). It also seems rather odd seeing a national court taking upon itself, rather than the CJEU, to essentially strike down a black-letter clause from the directive (that panorama images are suitable to be made available), throwing into doubt the holdings of photo libraries offering images made under this exception, right across the continent.<br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-87627775312056729162016-04-30T17:17:37.753+01:002016-04-30T17:17:37.753+01:00Eleonora,
You might be interested in this communi...Eleonora,<br /><br />You might be interested in <a href="http://www.adagp.fr/en/actuality/exception-panorama-vote-respectant-droit-artistes" rel="nofollow">this communiqué</a> issued by the French visual arts collecting society ADAGP and others after the debate, including the statement:<br /><br /><i>"Cette exception formalise désormais, et sans aucun doute possible, que les particuliers qui postent des œuvres architecturales et de sculptures protégées sur les réseaux sociaux, ne seront pas poursuivis."</i><br /><br />There was also a <a href="http://www.adagp.fr/sites/default/files/nl_exception_de_panorama_-_retablissons_la_verite_-_20042016.pdf" rel="nofollow">lengthy rejoinder</a> that was issued by ADAGP in response to claims made by the French chapter of Wikipedia. Response 2 in particular seems to be a clear statement that under the proposed exception (or the earlier Asemblée Nationale version anyway), an individual posting an image on twitter, or wikipedia, or their own blog dedicated to architecture would, without question, be within the scope of the exception -- but anyone downloading such a photo to make and sell their own derived work would not.<br /><br />It seems to me that, such is the worldwide respect that you (or at least Merpel) command, you could do the world a great service, and take a lot of confusion out of this debate, if you could contact the press contact that ADAGP are offering at the end of their communiqué, and try to clarify beyond all doubt what ADAGP is saying about Twitter, Facebook, Instagram, Flickr, Dailymotion, and other online platforms.<br /><br />Is this a commitment by ADAGP that it will not be seeking to negotiate a use-license from the above platforms as commercial entities for images uploaded by individual users ?<br /><br />It seems to me that ADAGP has not actually made such a renunciation; but that however, under the service-provider safe harbours of the e-Commerce directive, if platforms such as Facebook, Twitter, Flickr etc refused to enter into any blanket licence, ADAGP's only recourse would be to start issuing take-down notices against individually uploaded content (that could be held to have a commercial significance to the platform). <br /><br />By its statements, is ADAGP irrevocably committing itself against any such a scenario, permanently renouncing any such an action as an option ?<br /><br />Secondly, it would be useful to have ADAGP's on-the-record statement of how it reads "uses having direct or indirect commercial character" in the context of blogs (and other social media)<br /><br />For example, does the IPKat blog possess a "direct or indirect commercial character" ? Or <a href="https://twitter.com/Jude_KD/status/720517958678790144" rel="nofollow">an image</a> in the twitter stream of an MEP ? Or images in a personal blog dedicated to architecture, if the blogger also happens to be an expert available for engagement as a consultant on planning issues ? Are these promotional, or legitimate expressions of individual personal interests ?<br /><br />According to a <a href="http://www.evartists.org/en/French-senate-ensures-fair-panorama-exception.html" rel="nofollow">press release</a> from European Visual Artists (EVA), whose president is the director general of ADAGP, the Senate text "ensures legal certainty for users". <br /><br />I think it would be very useful if you or Merpel could get ADAGP to clarify its understanding of all this certainty.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-60782808502219317832016-04-30T08:14:40.483+01:002016-04-30T08:14:40.483+01:00Thanks for your comment Andy. You are right re the...Thanks for your comment Andy. You are right re the Tour Eiffel, but I read the "personnes physiques" differently: I think that publication on and re-use by Wikipedia would fall outside the scope of the exception. According to Numerama, subjects like Wikipedia would be indeed unable to rely on this new defence if adopted in its current form.Eleonora Rosatihttps://www.blogger.com/profile/05629420303968805446noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-89418550992421547352016-04-29T20:08:13.060+01:002016-04-29T20:08:13.060+01:00"If adopted in its current form, the French p..."If adopted in its current form, the French panorama exception would likely allow individuals to take photographs of/selfies with the Tour Eiffel at night without significant risks". <br />Eleonora, I don't think that is correct. The proposed exception would apply to "<i>reproductions et représentations d’œuvres architecturales et de sculptures</i>" but what is protected about the Tour Eiffel at night is the light show, which the French courts have declared to be a performance, and so would not fall within the works (architectural works and sculptures) referred to in the exception.<br /><br />And I'm also not sure that you are right about the exception not applying to Wikimedia. The wording "<i>réalisées par des personnes physiques</i>" refers to how the picture is made, not by whom it is ultimately published. Therefore an image taken by a human and released under a creative commons licence for use by Wikimedia, might well fall within the exception. On the other hand I agree that given the automated nature of the Streetview technology, Google's use might well fall outside the exception. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-48066444736171141022016-04-29T14:44:26.497+01:002016-04-29T14:44:26.497+01:00@Anonymous: thanks for your comment.
Personally ...@Anonymous: thanks for your comment. <br /><br />Personally I don't really think that freedom of panorama (or lack thereof) deserves all the attention it is attracting. Even in Member States that do not have it, eg France and Italy, the number of cases litigated is very low (lack of enforcement may be why Google Maps/Street View is available in these countries without any particular restrictions.<br /><br />However, if we accept that freedom of panorama should be acknowledged (this appears to be what has prompted French legislator to intervene) then the scope of the resulting exception should be sensible and workable. It seems to me that the French text fails to do so at the moment. Eleonora Rosatihttps://www.blogger.com/profile/05629420303968805446noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-11666169879756349022016-04-29T14:23:46.420+01:002016-04-29T14:23:46.420+01:00Wikimedia Sweden
The key part of the Swedish Wikim...Wikimedia Sweden<br />The key part of the Swedish Wikimedia case was that Wikimedia Sweden's open database of artworks has a commercial value, despite Wikimedia being 'not-for-profit': their intended activities were commercial. The ruling didn't mention the individual users uploading pictures of buildings and monuments etc. <br /><br />French Panorama<br />The UK has the s.62 exception for buildings and sculptures. But does anyone know if an individual in the UK has ever been sued or been 'in trouble' when posting pictures of these works on the internet? <br /><br />To Eleonora: you appear to be able to see the tomb at present in Google Street View and then you say 'it would be likely regarded as unlawful under the new exception', yet technically the situation would be no different to right now where there is no exception, surely? And presently you can see the tomb in Street View... so what seems to be the issue?<br />Anonymousnoreply@blogger.com