Commons talk:Reuse of PD-Art photographs

Hope this is the right place

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

I have a picture hanging on my wall it was a gift from a very good friend , it has a signeture on it the reads W-BOVGVEREVA-1898 , i think it is a copy tho, it is a little girl sitting sewing it is in a beautiful frame as well , she is very beautiful , i tryed to read all about this picture but could not really underdstand it all, is it ok to have this picture and for the sake of insurance would it be worth anything , thank you , my name is Iris Ewart ,i live in new Zealand , Iris Ewart (talk) 23:46, 25 July 2017 (UTC)

Previous debates

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

Italy

I believe that this is the Italian situation:

OK before 2000. 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)

I have removed a paragraph that was subsequently added (without discussion) to Italy's section. The judgement (Corte di Cassazione, Sezione 1 civile; Sentenza 12 marzo 2004, n. 5089) does not say that the photo of a artwork may not be an infringement of the copyright of the artist. In fact, the Court is not discussing whether the photo is an infringement of the artwork, because the plaintiff (the artist) did not complain about that! He only complained that the photo was not protected by copyright, and to that the Court answered by saying that a photo of an artwork can indeed be protected if it is not a simple reproduction. --Jaqen (talk) 15:45, 20 December 2016 (UTC)

It's obvious that the plaintiff did not complain to the Cassazione about the copyright on the specific image, because the Cassazione cannot issue a giudizio di merito.[1] The Cassazione was discussing whether the lower court could assign certain rights to the photographer (simplifying: the right of distributing the photo without permission of the author of the artwork, or even against his will). --Nemo 09:51, 29 September 2017 (UTC)

Canada?

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

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.. [2]

(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).[3].

(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

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

(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

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

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 ...[4]
• 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[5] (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

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)

Australia

https://www.artslaw.com.au/articles/entry/photo-reproduction-of-artworks/ "Under Australian law a photograph is an artistic work protected by copyright subject to the threshold requirement of originality.2" "Originality does not, in Australia, involve an assessment of intellectual effort or creative spark. Thus the verbatim report of a public speech taken down in shorthand then transcribed confers copyright on the reporter.5" —Preceding unsigned comment was added by 167.30.61.12 (talk) 11:05, 30 April 2018 (UTC)

Okay? I support the expansion of the Australian section, but I hardly think that link and quote provides for changing the basic essence of what we're saying; that is, the matter is under dispute. That last footnote mentions a 117 year old British case, which is hardly a resounding argument on the definition of originality in Australian law of the 21st century.--Prosfilaes (talk) 16:56, 30 April 2018 (UTC)

Japan needs a citation

I completely believe the Agency for Cultural Affairs has made a statement that reproductions don't get new rights (which is what the article says now) but I can't find it. Does anyone have a citation? -- Polm23 (talk) 13:00, 9 May 2019 (UTC)

Idea for adding a certain hyperlink

Background

I was reading, just above (and just inside) the section called "Neighbouring rights ("simple photographs")", and ... I noticed that the term (the phrase) "neighbouring rights" there, seems to correspond to ... [and to be explained by] the information and explanations [respectively] that can be found in the article "neighbouring rights" on the English Wikipedia web site.

tangential digression

[/BEGIN "TMI" comment] (Well, it -- the article "neighbouring rights" on the English Wikipedia web site -- "redirects" to "related rights"; but ...) since the eventual target of that "redirection" is one article that is associated with two names, ... it might be better to link [if at all] from here, to the article "neighbouring rights" ... in which case the "redirection" will occur, if and only if there has been no "removal" of the "redirection" from one article to another ... "as of" the time when someone clicks on the hyperlink.) (right?) [/END "TMI" comment]

Would this change be a good idea?

Ordinarily, -- (if I were editing where I usually edit ... that is, in the "article" space on the English Wikipedia web site) -- then ... I would just do an edit, to change [the phrase] "neighbouring rights" there, by adding to it a certain hyperlink ... and wait until later -- ["if" ever!] -- to ask questions.

The proposed change would be a very simple one. The OLD wikitext for the phrase (without the hyperlink) would be [it now is] : "neighbouring rights"; and the NEW wikitext for that phrase (with a hyperlink) would be [after the edit] : "[[w:neighbouring rights|]]". The resulting ("displayed") phrase -- (with the hyperlink) -- [after the edit] -- would be: "neighbouring rights".

I think it would be a good idea to add such a hyperlink here -- [either right before the words 'that apply', OR ... maybe in the   == section title ==   that begins with 'Neighbouring rights', right before the parenthetical phrase ("simple photographs") ...] (right?)

However, I could be wrong.
Maybe it would not be a good idea.

Hence, I ask here for some advice, before making a change like that. My reasoning is ... that I am unfamiliar with editing here on the "commons.wikimedia.org" web site, ... including perhaps, the "customs" [if any] related to editing here; so I would like to check here first, if ... perhaps there is something that I do not "yet" know ... but that I should know, before undertaking to make a change here ... "such as" by inserting a hyperlink here.

Perhaps there are some questions that I should be asking now, before I make a change like that? If so, then ... perhaps those questions are ... questions that I do not yet even know to ask?

Any comments?

Any advice would be appreciated. --Mike Schwartz (talk) 06:20, 20 August 2020 (UTC)

Mike Schwartz, I do not fully understand the suggestion. I'm sure nobody would object to you replacing a so-called "simple photograph" neighbouring right with a so-called "simple photograph" neighbouring right, if that is what you mean. "Neighbouring right" and "related right" are synonymous. — Pajz (talk) 06:21, 26 August 2020 (UTC)

Thank you.

It sounds like my hesitation (because of "cross linking" from one web site to another) was misguided. Based on your comment that "nobody would object...", apparently the new hyperlink would be OK, even if it "pointed to" a web page on the English Wikipedia web site.

Now, ...where should the new hyperlink be inserted?

• right before the words 'that apply'; [where those are two of the last four words of the section *before* the == section title == that begins with 'Neighbouring rights'];

or

• inside the == section title == that begins with the phrase 'Neighbouring rights'. (The first two words of that section title.)

OR ... maybe both places? --Mike Schwartz (talk) 20:05, 31 August 2020 (UTC)

Very important edit request

In 2019 EU adopted "the Article 14 of the Copyright in the Digital Single Market Directive. This provision establishes that works of visual arts in the public domain shall remain in the public domain once digitised, unless the digitisation is original enough that it can attract copyright protection. All 28 member states will have to adopt it and make it national law (by June 2021)." (Europeana)

EU's Article 14 of the Copyright in the Digital Single Market Directive changes it for all member states. This is pertinent now and not in June 2021 as some countries have already adopted complying laws but it's hard to decipher how exactly as it's legalese in the different languages. This notice suffices for now:

Note: if not already, will most likely become {{ok}} by June 2021 (unless the digitisation is original enough).<ref name=EUDirective>In 2019 EU adopted the Article 14 of the Copyright in the Digital Single Market Directive. This provision establishes that works of visual arts in the public domain shall remain in the public domain once digitised, unless the digitisation is original enough that it can attract copyright protection. All 28 member states will have to adopt it and make it national law (by June 2021). See: [https://pro.europeana.eu/post/keeping-digitised-works-in-the-public-domain-how-the-copyright-directive-makes-it-a-reality Keeping digitised works in the public domain: how the copyright directive makes it a reality. (Europeana, 2020)] [https://www.blakemorgan.co.uk/photographing-the-public-domain-eu-to-remove-copyright-protection-from-public-domain-art-images/ Photographing the public domain – EU to remove copyright protection from public domain art images. (Blake Morgan, 2019)] [https://www.arthistorynews.com/articles/5362_The_end_of_museum_image_fees The end of museum image fees? (Art History News, 2019)]</ref>

It should either be added to to the bottom of all the EU member states' paragraphs on this page or they all could be placed underneath an EU paragraph. Move the actual reference to the Notes and then use "ref name=EUDirective/". In late June 2021 or July someone can revamp this article by actually removing all of the individual member states' text and just including a short paragraph for EU like there is for US now.

See the linked articles for more information. -82.203.143.86 10:24, 24 August 2020 (UTC)

Given that the purpose of the page is to inform users of whether or not they may use such photographs, I do not readily see why it is important (certainly not "very important") to inform them that at some unspecified time in the next 12 months some previously unusable pictures may become usable. I suppose the main interest of a reader of this page is in the status quo. (It is, by the way, by no means certain whether all member states will transpose the directive in time. The InfoSoc Directive, for instance, was transposed in time by only two member states. I grant you that it looks a bit more promising in this case, but only time will tell. See also the "DSM Directive Implementation Tracker" by the special interest group COMMUNIA.) As to the other proposal, I would caution against removing the country-specific sections for EU member states. The DSM Directive's article 14 does not govern all "faithful photographic reproductions of a two-dimensional, public domain work of art" (Template:PD-Art) and therefore users will still need to be informed of the surrounding legal context. For example, art 14 is concerned with "work[s] of visual art" whose "copyright [...] has expired". This wording strongly suggests that works that have never been protected, either because they are too old or because they are not eligible for protection are outside the purview of art 14 (see eg L Specht-Riemenschneider and J Paschwitz, "Gemeinfreiheit als Prinzip?: Reichweite und Umsetzungsbedarf des Art. 14 DSM-Richtlinie" (2020) 1 RuZ 95, 100; somewhat controversial). Furthermore, art 14 is limited in scope to "works of visual art", a term that is defined nowhere in either DSM Directive or other parts of EU copyright legislation. In the absence of CJEU jurisprudence, it is unclear for now what exactly this means, which is why, for the time being, users will have to turn to the individual member states' implementations for guidance. It is quite possible, for instance, that "visual art" does not extend to "applied art" (see eg G Schulze, "Fotos von gemeinfreien Werken der bildenden Kunst: Umsetzungsbedarf bei Art. 14 der Richtlinie zum Urheberrecht im digitalen Binnenmarkt" (2019) 121 GRUR 779, 782; cf 17 USC § 101), which could mean that quite a few files would not be covered. It rather clearly does not extend to scientific materials, on which the {PD-Art} template is frequently used as well. In view of this uncertainty, if the country-specific sections were abandoned, users would be discouraged from using the material, even though such use would oftentimes be perfectly in accordance with laws governing the use of "2D reproductions". In other words, there will be vast amounts of cases where it is doubtful if they fall under art 14 of the DSM Directive, but where in fact it really doesn't matter because using a given reproduction would be permissible either way. This is another reason why it will continue to be important to discuss the general legal regime for such photographic reproductions even after the DSM Directive is transposed. — Pajz (talk) 06:08, 26 August 2020 (UTC)

My most important concern, written in bold letters, was passed over. Some countries have already changed their laws. This page is already outdated. It's not a thing-in-12-months. It's a thing now. The status quo you're referring to is dead already, only surviving in the minds of uninformed people and outdated rulebooks.

The breadth their terminology covers is more vast and looser than PD-Art's. The definition of Commons PD-Art seems like a subgroup inside their definition, covering less. Let's go through some of the concerns you bring up. Also, could you please not use obscure German-language sources? No one can read those, let alone even possibly access them.

Member states not complying with the directive in time

By July 2021, if someone sues over the use of their photograph of visual art in the public domain, and the national court ends up deciding in their favor, then the person who lost can simply advance to the overruling EU court that will decide in their favor. In the end the result will always be the same, no matter what the nation has done in regards to their national law by that point.

Applied art

What do you mean by applied art? Applied art is defined by The Oxford Dictionary of Art as "Term describing the design or decoration of functional objects so as to make them aesthetically pleasing. It is used in distinction to fine art, although there is often no clear dividing line between the two areas." I have no idea why this wouldn't be covered. Do you mean applying art to another copyrighted object, that wouldn't be enough to nullify the copyright of that object? Then that's not a work in the public domain, is it? So, it's not related.

Works that never had copyright

In addition to referring to works whose copyright has expired, in the title they simply refer to works in the public domain, which covers those that have never had copyright. They could have worded it clearer but if anyone ever actually brought up such an incredibly unpragmatic argument of "Gotcha! This never ever even had copyright so I can charge for photographs of it!" then this can simply be referred to.

Scientific material

The concern about scientific material that uses PD-Art I don't understand. Can you show an example, please? If it is art, why wouldn't it be covered? If it is not art, why is it under PD-Art?

At least add an "EU" part after Denmark and before France, with a short notice about this, so that this page wouldn't be currently enforcing already outdated laws in some countries. -82.203.184.66 09:09, 26 August 2020 (UTC)

I may not be entirely au fait with all the latest developments, but I am not aware of a member state that has already transposed art 14 of the DSM Directive (and neither is COMMUNIA's implementation tracker, linked above). If you can identify a country that has transposed it, I think the best way forward would be for you to suggest a change to the respective section, quoting the new language in the corresponding domestic law. As to the other points, just briefly, to avoid repetitions: The category of applied art is an established term of art [sic] in copyright law (see Berne Convention art 2(1); S Ricketson and JC Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and beyond, vol 1 (Oxford University Press 2005) paras 8.59ff). Your comments regarding members not transposing a directive ("[...] the person who lost can simply advance to the overruling EU court [...]") are not correct (that is just not how it works, as I'm sure you can verify on the CJEU's website or in an introductory text on EU law in a language of your choosing). As to the applicability of art 14 to subject matter that has never enjoyed protection under copyright law, I understand that you seem to be extremely confident about your interpretation, and of course you are entitled to your opinion, but in reality there is not all that much reason to be so confident. Proponents of your interpretation will need to explain why the provision specifically refers to a situation "when the term of protection of a work of visual art has expired" (German version: "nach Ablauf der Dauer des Schutzes", Italian version: "alla scadenza della durata di protezione"), whereas according to them it is really not necessary at all that the term of protection has expired. I'm not denying the possibility that the CJEU may eventually adapt a teleological interpretation under which such a result is reached, but it is certainly not obvious. The heading of the provision does not clarify the issue as it is a frequent feature of (not only) legal texts that the heading is broader than the provision that follows. By way of example, art 3 of the Term Directive is titled "Duration of related rights", but it is only concerned with specific related rights; likewise, the fact that the heading of art 14 is "Works of visual art in the public domain" does not imply that art 14 extends to all works of visual art in the public domain. Besides, the definition of "public domain" is controversial anyway, in particular in continental Europe (see, inter alia, the careful study by S Choisy, Le domaine public en droit d’auteur (Litec 2002) paras 308ff (distinguishing la domaine public from le fonds commun, the latter of which comprises material that has never been protected); see also the additional references given by Choisy id.). That being said, I'm afraid I do not have the time to engage further in this type of abstract - and not very fruitful - discussion on the contents of the DSM Directive. I am not responsible for this page, have offered my opinion, and that should be it.
Again, to summarise, it seems unhelpful to me to do away with the country-specific sections because a) some countries do not even have a related right for simple photographs - and consequently will never transpose art 14 -, so a general reference to art 14 DSM Directive would be inappropriate, and b) art 14 DSM Directive might not be applicable to all files that this page is currently concerned with. Needless to say, as soon as a country has transposed the directive and the legal situation concerning art photography changes, we should add this to the respective section. — Pajz (talk) 20:20, 26 August 2020 (UTC) (By the way: As always, I take issue with the condescending attitude of some individuals that seem to have a habit of disregarding material in languages other than their own ("could you please not use obscure German-language sources? No one can read those, let alone even possibly access them"). Aside from coming off as arrogant, it appears a bit uninformed given that GRUR may well be the highest circulating IP journal from the European Union, so the claim that it is "obscure" seems a bit odd. And, of course, while I appreciate the admonishment, since I do comparative legal research day in and day out, you will certainly not manage to dissuade me from citing to material in languages other than English ...)

Ah, yes, I'm sorry, they adopted different articles. It seems at some point I mistook them having adopted the entire directive instead of just specific articles. It is entirely my mistake. You are also probably more right on that the case couldn't proceed to EU courts, I was again applying only superficial knowledge of the system. In the light of this information I now realize it's best to wait until any actual developments regarding the 14th after all. And I'm sorry for acting condescending. -82.203.156.41 20:44, 26 August 2020 (UTC)