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Free Knowledge Advocacy Group EU

Wikimedia Sverige's answers on the Publishers&Panorama Consultation

The European Commission has launched its Public consultation on the role of publishers in the copyright value chain and on the 'panorama exception'. This is the Wikimedia working page to draft answers.

Who should submit answers to the Commission?

Movement entities and individuals are welcome to submit own sets of answers, but are kindly asked to assure non-contradictory replies across the movement.

Organisational details

Idea behind consultation

After the Copyright Consultation, it is apparent that the Commission is focusing on a few major issues, like ancillary-copyright-like proposals and Freedom of Panorama. This consultation means that the announcement of the copyright reform part of the Digital Single Market package was postponed from July to September.

Important deadlines

We have until 15 June to submit our responses.

Previous Relevant EU positioning by Wikimedia

Answers

Please note that there are two answering sets. The first is an answering guide for general public volunteers, the second are Wikimedia's own answers.
Answers submitted by Dimi on behalf of the FKAGEU
Wikimedia chapters, user-groups, thorgs and individual Wikimedians can and should participate, but please don't just copy and paste. Rephrase your answers to give a personal perspective and share own experiences.

1. When uploading your images of works, such as works of architecture or sculpture, made to be located permanently in public places on the internet, have you faced problems related to the fact that such works were protected by copyright?

Yes, often (Wikimedia Sverige)
Yes, occasionally
Hardly ever
Never
No opinion
Not relevant

1.2. If so, please explain what problems and provide examples indicating in particular the Member State and the type of work concerned.

Wikimedia Sverige's answer
When we photograph events outside in public settings in Sweden, we now have to be careful not to include any public works of art in the background. This is because we know first hand that the right holder organizations are ready to sue also non-commercial initiatives. Hence our photographers’ artistic freedoms are limited and our ability to use the public space in a positive way is challenged.

2. When providing online access to images of works, such as works of architecture or sculpture, made to be located permanently in public places, have you faced problems related to the fact that such works were protected by copyright?

Yes, often (Wikimedia Sverige)
Yes, occasionally
Hardly ever
Never
No opinion
Not relevant

2.2. If so, please explain what problems and provide examples indicating in particular the Member State and the type of work concerned.

Wikimedia Sverige's answer
When working with museums and archives it take a lot of time to get their material to Wikipedia as we have to double check the copyright statutes of the images that are provided to us, and sometimes the uploaded images are still under debate from the community and even deleted - preventing complete collections to effectively be disseminated and used online. This is especially true when the collections span over different European countries, with different legislation.

We also work on organizing photo contests in Sweden and in Europe and we have to spend a substantial amount of time and money informing the participants about the different regulations. This complicates things and also reduces the joy in participation. Wikimedia volunteers have had to delete good-will contributions from participants from certain EU countries where there are limited Freedom of Panorama.

Our creation and continuous development of Offentligkonst.se, a service that amongst other things are making the images of public works of arts taken by volunteers available (it is a free educational non-commercial service) got us sued by a right holder organization.

3. Have you been using images of works, such as works of architecture or sculpture, made to be located permanently in public places, in the context of your business/activity, such as publications, audiovisual works or advertising?

Yes, on the basis of a licence
Yes, on the basis of an exception (Wikimedia Sverige)
Never
Not relevant

3.2. If so, please explain, indicating in particular the Member State and what business/activity, and provide examples.

Wikimedia Sverige's answer
Based on our understanding of Freedom of Panorama we included images of public works of arts into our service Offentligkonst.se, a free educational non-commercial service. For our effort to bring knowledge about the public works of art in Sweden (paid for with tax money) to everybody interested we got sued by the right holder organization Bildkonst Upphovsrätt i Sverige BUS. Because of the unclarity of the Swedish copyright legislation the case was presented to the Supreme Court. They gave their interpretation and argued that based on current Swedish legislation our inclusion of the images in a database online potentially created more value and hence we should pay for it. Regardless of the service not being commercial and it being created by an non-profit organization.

This interpretation created an uproar in Swedish media with nearly unilateral support for our efforts and with many artists and politicians contacting us around this issue and showing their support. Worth noting is that the case has not been finalized yet and that we actually do not store any of the images on our servers, but are linking to Wikimedia Commons. If the final verdict goes against our legal interpretation then it is very likely that all images of modern public works of art in Sweden that are used on Wikipedia will be deleted by the community.

4. Do you license/offer licences for the use of works, such as works of architecture or sculpture, made to be located permanently in public places?

Yes
No (Wikimedia Sverige)
Not relevant

4.2. If so, please provide information about your licensing agreements (Member State, licensees, type of uses covered, revenues generated, etc.).

5. What would be the impact on you/your activity of introducing an exception at the EU level covering non-commercial uses of works, such as works of architecture or sculpture, made to be located permanently in public places?

strong positive impact
modest positive impact
no impact (Wikimedia Sverige)
modest negative impact
strong negative impact
no opinion

5.2. Please explain

Wikimedia Sverige's answer
As our experience with Offentligkonst.se shows the impact of such a change would be null. The Supreme Court even argued that the fact that it was in a database (which technically everything online is, just a more or less advanced type of database) was sufficient. They argued that it, theoretically, could create a value over time for someone. Hence we should have to pay to the right holder organization now, despite us not having a commercial product or with a clear commercial value.

All the services that we support, as an independent organization, such as Wikipedia are under free licenses. They are of commercial scale and are working based on the idea that the information in them easily can be re-worked and re-used in new and innovative solutions. We believe that it is important that knowledge can be disseminated in as many ways and forms as possible both by individuals and the public and private sector. As an organization we are actively working on helping specifically SMEs in Sweden to use the information in the projects that are run by Wikimedia Foundation in the US. If only non-commercial uses of works would be allowed, then we could not be able to include them into the Wikimedia projects.

6. What would be the impact on you/your activity introducing an exception at the EU level covering both commercial and non-commercial uses of works, such as works of architecture or sculpture, made to be located permanently in public places?

strong positive impact (Wikimedia Sverige)
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion

6.2. Please explain

Wikimedia Sverige's answer
We work a lot with events improving different parts of Wikipedia’s coverage on specific topics and we could once again organize activities to improve Wikipedia articles about cultural heritage. Furthermore, it would make our work on including digitized images from museums and archives into Wikipedia and hence improve the visibility of their specific collections and of European culture in general online.

We would easier be able to work on different event oriented projects such as photo contests to get the public to interact and enjoy the public space of Sweden and other European countries.

It would also make it possible for us to host events focusing on reuse of the images during hackathons, visualization contests and more and hence help us both bring information to more people but also improve research and development for Swedish companies, universities and other organizations.

7. Is there any other issue that should be considered as regards the 'panorama exception' and the copyright framework applicable to the use of works, such as works of architecture or sculpture, made to be permanently located in public places?

Yes (Wikimedia Sverige)
No

7.2. If so, please explain and whenever possible, please back up your replies with market data and other economic evidence.

Wikimedia Sverige's answer
The panorama exception should be technology neutral. Currently it is perfectly okay to take photos of a sculpture in Sweden, print it on a postcard and sell the postcard without paying the right holders - but not run a non-profit web that show photos and information about the public works of art to educate the public. For us this limitation is not sensible as most people nowadays are using Internet services in all parts of their everyday life and the freedoms to enjoy the public space should not be limited for short term gains for rights holder organizations.