Supreme Court: Wikimedia violates copyright by posting its own photos of public, taxpayer-funded art

A ruling in the Swedish Supreme Court today establishes that Wikimedia, the publisher of Wikipedia, must pay compensation to the creators of original sculptures and monuments when publishing Wikimedia’s own photos of said sculptures and monuments. Note that this isn’t about using photos without permission; the photos are used with permission. It’s the fact that the photos depict public – and taxpayer-funded – art. This is the Freedom of Panorama gone wrong, and shows just one facet of the copyright regime’s utter brokenness.

The verdict (in Swedish, full verdict here) establishes that people have a right to take photos of public art for personal use, and to distribute those in limited scope, but only in a non-digital form (yes, really, I’m not making this up).

The Supreme Court rules that a “public database” such as Wikipedia – or in this case, the specialized Wikimedia site offentligkonst.se (a name meaning “public art”) – is different from personal use, and that a database of public art and monuments has a significant commercial value, and that this value belongs to the original creators. It is of no significance whether the site is actually commercial or not.

The Supreme Court concludes that Wikimedia, according to copyright monopoly law, is not permitted to publish photos of public art – photos where the photographer has explicitly permitted Wikimedia to publish them – without permission of the creators of the original monuments.

This ruling has a very large number of very large problems. Let’s take a few of them.

First, this is about public art. The Supreme Court is essentially ruling that somebody owns the image depicted onto your retina via reflected photons, or onto an electronic equivalent of your retina. There was a huge fight about this in Europe concerning the so-called Reda report last year, which evaluated what works and doesn’t in the European copyright monopoly. Julia Reda, the author of the report, wanted a clear and unambiguous Freedom of Panorama to apply across Europe – you should have a clear right to take and publish any photo. Offline-born dinosaurs fought back, and the freedom was eventually struck from the report. Therefore, this ruling cannot be appealed – there is no European-wide harmonization of Freedom of Panorama.

Second, this goes against every grain of common sense for the net generation.

Third, literally having different laws for analog and digital transmission of art is asinine, especially when digital has less protection for freedoms of speech and expression.

Fourth, even if none of the above points were true, the original art is still taxpayer-funded. The public has already paid for the construction and placement of the art in question when commissioning an artist to create the sculpture, monument, et cetera. To deny the public a right to snap a photo of something the same public has already paid for is revolting bordering on legal corruption.

Expect this ruling to have far-reaching implications for Wikipedia’s operations – and its presence in Sweden and Europe.

CLARIFICATION: This is posted on April 4. It’s not a slightly old April Fool’s joke. It’s too dumb to be a funny April Fool’s joke, anyway.

(Hat tip: Sara Goldberger)