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

Posted on Apr 4, 2016 by Rick Falkvinge

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 (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)

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  1. b_c

    If that isn’t a clear proof how utterly broken the system is, what do citizens need to get these idiots FIRED? How can you trust your own supreme court after such an example of GROSS STUPIDITY??? What next, the Thought Police and the Ministry of Truth?!

    5 years ago
  2. ddpalmer

    Couldn’t architecture be considered art? And if so wouldn’t this ruling mean that ANY digital picture that has ANY building anywhere in the image can’t be used without the architects permission?

    5 years ago
    1. Mver

      That is actually the case in countries where there is no freedom of panorama (freedom to make and use images of public artworks for commercial or non-commercial purpose), because architecture is also considered to be under copyright. So basically most countries are stuck with an idiotic and unenforcable copyright law where most people constantly break it – if you read the terms of service on Instagram or Facebook, you’ll find that both of these sites reserve the right to use the images posted on it for any purpose, while the poster is obligated to guarantee that they have the permission to post any photos of any given public object. Essentially the second a person posts a vacation photo of themselves with any type of building in the background to Facebook and the photo is taken in a country where there is no freedom of panorama and they haven’t asked the architect’s permission, they are breaking copyright laws. It’s imbecilic and I hope wikimedians continue the good fight to fix this.

      5 years ago
  3. tkteun

    Maybe wikimedia should start a case against the state for putting copyrighted material in public space, therefore limiting the freedom of speech.

    5 years ago