Commons talk:Copyright rules by territory/Sweden

Discussion on other pages

There have been several discussions on how the WMF-SE offentligkonst.se case (2014–2017) has affected the legal situation at Template talk:FoP-Sweden, one at File talk:Freedom of Panorama world_map.svg#Sweden and one at File talk:Freedom of Panorama world_map.png#Sweden?. These are the background of changes to the section on Freedom of Panorama. --LPfi (talk) 16:31, 15 April 2020 (UTC)

@LPfi: I think, the reason why there has conflications, is because of the understanding of that Article 24, you say that "Note that some paragraph breaks are missing, which can be very confusing.", but many online repositories that served this act, do also mentioned nothing about "paragraph breaks", I wonder if you or anyone else can provide the photolithographic image of the original act book or not? By this way, the "paragraph breaks" situations can be judged more easier. --Liuxinyu970226 (talk) 02:49, 31 May 2020 (UTC)

I am in Finland, so I don't have easy access to dead-wood Swedish legal material (or so I think, some universities here might of course have them). Anybody with access to a Swedish legal deposit library should be able to easily take a copy. --LPfi (talk) 15:46, 31 May 2020 (UTC)

@LPfi and Esquilo: Just note some recent cases: all files in Commons:Deletion requests/Files in Category:Universeum, all files in Commons:Deletion requests/Files in Category:Maman (Stockholm) and one file of Commons:Deletion requests/Files in Category:Jango Fett are deleted based on "No FoP in Sweden", are you both willing to appeal for them? --Liuxinyu970226 (talk) 23:21, 16 September 2020 (UTC)

The verdict against offentligkonst.se says is that it is not allowed to publish a structured database of public art in the manner that was done on that site. It does not say that there is no FoP in Swden. If you visit Stockholm you can still buy postcards with photos of public art, so the so called "postcard exception" is still in effect. But I would like to bring up Category:Millesgården to this discussion. Millesgården is not a public place so the artwork there is not covered by FoP. /ℇsquilo 07:31, 17 September 2020 (UTC)

submitted. --Liuxinyu970226 (talk) 00:27, 18 September 2020 (UTC)

Ankry suggests to re-start related discussions at COM:VPC since they can only restore any files following the established rules, @Esquilo: sadly it's indeed too hard to see a way to resolve all things that are about the topic here. --Liuxinyu970226 (talk) 10:07, 18 September 2020 (UTC)

So far @Aymatth2: How to improve that section which looks really messy? --Liuxinyu970226 (talk) 02:35, 24 October 2020 (UTC)

The section could be compressed to focus on the court decision: pictures of copyrighted works of art may not be published in an online repository, even if the works of art are permanently displayed in a public place. But I think this does not extend to buildings, which may be freely depicted (?). Aymatth2 (talk) 12:08, 24 October 2020 (UTC)

@Aymatth2: This seems problemic per File_talk:Freedom_of_Panorama_world_map.png#Sweden (you may search the word "building" to see why Swedish buildings' FOP uses are also problemic). --Liuxinyu970226 (talk) 03:18, 25 October 2020 (UTC)

I read the law and court ruling as saying works of art exhibited permanently in a public place can be depicted for advertising purposes, or within a catalog or collection, but not in digital form. Buildings may be freely depicted. That interpretation seems open to question though. I will leave it to others to decide on the correct wording here. Aymatth2 (talk) 11:58, 25 October 2020 (UTC)

@Mardus: ^^ You may be interested in this. --Liuxinyu970226 (talk) 05:05, 27 October 2020 (UTC)

• The law does say, that buildings may be freely depicted, but the courts overruled this exact statement. -Mardus /talk 23:31, 9 February 2021 (UTC)

Swedish FOP?

From the request I started at Commons:Deletion requests/File:Arne Jones modell Romersk vagn.JPG which is based on the commonly-recognized status for Swedish FOP, the status continues to be a matter of debate, mainly due to the controversial 2016 judgment by their Supreme Court in which the Swedish chapter of Wikimedia lost to BUS artists' society. Relevant external articles: BBC News, Fortune.com, and Artnet. Relevant Wikipedia Signpost articles: w:Wikipedia:Wikipedia Signpost/2016-04-14/In the media (section: "Wikimedia Sweden loses copyright case") and w:Wikipedia:Wikipedia Signpost/2017-08-05/News and notes (section: "Wikimedia Sweden ordered to pay fine in copyright case"). A major discussion at File talk:Freedom of Panorama world map.png#Sweden? seems to have ended in limbo. Perhaps this thread may hopefully determine the finality of the status of Commons-acceptable FOP for Sweden. JWilz12345 (Talk|Contrib's.) 10:43, 1 February 2021 (UTC)

I'd contest that there is a "commonly-recognized status for Swedish FOP". There used to be, but the supreme court decision was confused and confusing to the degree that nothing is clear now. We should not base our interpretation of law on international news coverage. How many of those articles do you think were written by lawyers specialised in Swedish copyright law? And neither are the Signpost articles. Those articles are interesting as a first touch, but we are way beyond that, reading the rulings themselves and statements by actual lawyers.

The discussion about the map ended in limbo because the ruling was confused and confusing, mudding the understanding by including reasoning not formerly seen relevant for Swedish law. Nordic law does not have stare decisis, so the supreme ruling is not binding, although it of course will affect future rulings at all levels. I personally believe the supreme court made a mistake, interpreting the law in a way they should not.

So what do you do, when the supreme court makes constitutionally questionable decisions? As they are the supreme court, just ignoring them is impossible, and they are probably reluctant to admit their mistake, so future rulings will probably not conflict with this one – but they, lower courts and the public, including us, should limit the interpretation of the ruling as narrowly as possible.

WMF recommended that we do not delete images out of caution because of this ruling. There is very little legal risk for anybody: WMF isn't affected as long as they obey cease-or-decist orders. Photographers and uploaders are not a prime target, and anybody raising a case against them would have to show evidence of actual damage caused (and where photos are either unavailable or available for free, proving damage would be difficult). Uploading is also the decision of the individual, not ours to do.

The prime audience for which we maintain the precautionary principle are reusers. But they will be using individual images (the ruling was on the database), and the "post card exception" does include prints in books and on T shirts. We should include a warning, but we should not delete the files.

–LPfi (talk) 12:08, 1 February 2021 (UTC)

@LPfi: Don't you think that "WMF recommended that we do not delete images out of caution because of this ruling." can be simply ignored by fanatics of "COM:DW of copyrighted XXX, no FOP in YYY" e.g. @Yuraily Lic: ? Just noted above that my request to restore files that are Yuraily Lic's success deletion requests are failed because lack of COM:VPC discussions. --Liuxinyu970226 (talk) 04:43, 2 February 2021 (UTC)

It's also likely that @Esquilo: 's counsels are ignored by Yuraily Lic, so one day such images are nominated by that user as "no FOP in Sweden", even you all can't believe that, don't expect that they can be restored shortly. --Liuxinyu970226 (talk) 04:49, 2 February 2021 (UTC)

So the status quo looks like:

- OK even for sculptures etc.: N/A

- OK for buildings only: Esquilo, LPfi, maybe NickK(?), LittleGun, A1Cafel

-  Neutral: Liuxinyu970226

-  Not OK (at all): Mardus, maybe Yuraily Lic

(I didn't include the "official position of Swedish Supreme Court", as different peoples have different readings of that.) --Liuxinyu970226 (talk) 05:00, 2 February 2021 (UTC)

• I'd err on the side of caution, which means that it is not ok to post and keep these photos visible, for as long as copyright lasts on the depicted item (1+70 years since the death of author).

The court ruling relates to databases, and since Wikipedia, Wikimedia Commons, and sister project are databases, then the ruling applies to all photos and depictions. Commons:Copyright rules by territory/Sweden#Freedom_of_panorama shows an outtake of the court decision which is very unambiguous, along with the decision of the Patent and Market Court at Stockholm District Court, which upheld the decision. If LPfi's opinion prevailed, then it would put Wikimedia at further risk of lawsuits. -Mardus /talk 06:24, 2 February 2021 (UTC)

Perhaps a slightly off-topic comment: @Mardus: I somehow (50-50) agree that Wikimedia sites (Wikipedia and Wikimedia Commons included) can be considered as "databases". In my school, Wikipedia is among the examples of "databases", and an informal question at Answers.com seems to allude this too. Commons, in turn, may be considered as a database of media files. I emphasized "may" because this matter is subject to multiple interpretation. IMO, had Wikimedia Sweden fought (in other words, appealed) for the retention of Commons-sourced images of Swedish national and cultural sculptures and public arts in their map database instead of conceding to the verdict, then this Swedish FOP issue wouldn't have surfaced. Though hopefully, a Swedish lawyer or scholar may aid in clarifying this matter. JWilz12345 (Talk|Contrib's.) 07:31, 2 February 2021 (UTC)

Perhaps mentioning some who have participated in various FOP-related discussions @Nat, Clindberg, and Aymatth2: . JWilz12345 (Talk|Contrib's.) 07:32, 2 February 2021 (UTC)

Though, if I were to give my opinion, maybe I might be in neutral one or, in another category (in which Sweden will be colored as olive green at the map to the right, and withdraw the three recent DR's to three images of Swedish sculptures; however, some may argue COM:PRP). JWilz12345 (Talk|Contrib's.) 07:36, 2 February 2021 (UTC)

Since the entire Wikimedia infrastructure literally consists of databases — including the sites and Commons themselves being databases of media files — then the court ruling cannot be interpreted differently either, as if Wikipedia and Wikimedia Commons were not databases — just to satisfy the initial wish of many a people wanting to keep those Swedish photos. No matter what the law says, such an interpretation of the ruling would be so irresponsible, that it would risk another lawsuit. Because of course the projects are databases, and so in the full and complete meaning of the word.

Everyone certainly wants to keep those photos as a matter of retaining and promoting cultural heritage, but the current situation is such, that the winners in this competition will be the countries with green and yellow/amber colours on the map, and the Swedish and Sweden-related artists whose works are already Public Domain.

We can change Sweden's colour to green only after Swedish high courts change their mind, or when a higher court has a different opinion, and would remand the case back to those Swedish courts, who then will have to make a decision favourable to Wikimedia. -Mardus /talk 09:10, 2 February 2021 (UTC)

The ruling was on a database, but the ruling was not on databases in general. The fact that the Commons content is stored in a database is irrelevant, what are relevant are the issues in this database that are shared with other databases. The quote seems unambiguous because the underlying confusion is not seen in it. The most important point is that the "Wikimedia" mentioned is Wikimedia Sweden, not Wikimedia Commons or WMF, and the ruling is about their database, where images were coded to the artworks and their coordinates. By not geocoding Swedish artworks we would break that database property.

We can now interpret the statement of the supreme court (it was not a ruling in the sense of deciding on a case, as the case never went there) as narrowly as possible. Extending it to architecture is exorbitant, as the paragraph on architecture was carefully avoided in the statement, and the dubious reasoning of the supreme court was based on arguments that are not relevant for architecture. The only reason to extrapolate the statement in that way is that we now might think that Swedish law is unreliable.

–LPfi (talk) 10:31, 2 February 2021 (UTC)

Here's the translated text of the ruling:

„23. The provision in § 24, first paragraph, 1 of the Copyright Act, where the restriction on the author's exclusive right is limited to reproductions in pictorial form, does not give Wikimedia the right to transmit the works via the Internet to the public from its database of photographs of works of art, permanently placed in or at a public place outdoors. Whether the disposal is for commercial purposes is irrelevant.“

The ruling applies to absolutely all Wikimedia databases, and all of Wikimedia, including Wikimedia Sweden, and 'storing in a database' is actually very relevant, as databases are mentioned in the ruling as 'its database', which means any Wikimedia database. Were Wikimedia Sweden the sole party, then it would have been specifically mentioned as "Wikimedia Sweden", and not "Wikimedia", as they wrote. According to Swedish law, architecture is also a work of art. -Mardus /talk 13:02, 8 February 2021 (UTC)

@Mardus: how about all Wikipedias? In particular the English, Swedish, and to some extenr, Tagalog Wikipedias? While these local wikis usually follow the laws of the home countries of their main languages (e.g. US for enwiki, and as such the w:Template:FoP-USonly was created), will that ruling override those "house rules" of wikis (i.e. the local policies of local wikis)? I don't know if enwiki is accessible in Sweden, but I assume no one uses Tagalog Wikipedia there. JWilz12345 (Talk|Contrib's.) 13:33, 8 February 2021 (UTC)

Wikimedia is the parent organisation of all Wikipedias, which are all accessible from Sweden, the courts of which made a ruling about all works of art (including architecture) permanently placed outdoors in Sweden. The ruling applies to absolutely all projects under the Wikimedia umbrella, and all other Wikimedias must follow the ruling of the Swedish courts. The Swedish courts did not rule on works of art (including architecture) placed in other countries, as Swedish courts do not have jurisdiction over works of art located in other countries. -Mardus /talk 13:41, 8 February 2021 (UTC)

@Mardus: in the sense of other countries, what I meant is that local Wikipedias (e.g. English Wikipedia) generally follow local copyright laws. For instance enwiki only follows U.S. copyright law, and so it allows images of copyrighted architecture from countries that have no FOP, and as such it has the template I mentioned above. For example, it hosts two images of UAE's Burj Khalifa and a nightly image of France's Louvre Pyramid (in their full and high quality resolutions). Should Swedish FOP fail here, is the attempt of transferring all original-resolution images of copyrighted Swedish architecture from here to all local Wikis like enwiki be fine? JWilz12345 (Talk|Contrib's.) 14:54, 8 February 2021 (UTC)

On Commons, rules apply based on where the photo was made. Wikimedia, Wikimedia Commons, and Wikipedia are all located in the United States. While local-language Wikipedias may follow their respective countries' copyright laws, the rules of Wikimedia Commons are more restrictive.

The English-language Wikipedia uses a provision that is very specific to the United States, and the Burj Khalifa and the Louvre pyramid images are not free in their home countries. This also means, that other Wikipedia projects outside the English-language Wikipedia cannot use this image. Most other-language Wikipedias' target countries do not have that exception, and this U.S. provision does therefore not apply to Wikimedia Commons and other-language Wikipedias.

At best, images of non-Public Domain buildings in Sweden can be moved to the English Wikipedia on that basis, but would still be proscribed from being used on Commons and other-language Wikipedias. -Mardus /talk 15:17, 8 February 2021 (UTC)

@Mardus: I'm confused. You said earlier that all projects under Wikimedia umbrella are affected. By that wording it may also include enwiki despite it being only following the US copyright law. By that wording, locally-uploaded images of copyrighted Swedish buildings on enwiki, despite having "FoP-USonly" templates, might be deleted. And now, you say that images of copyrighted buildings in Sweden may be permitted in their original and very high resolutions on enwiki? Which is true? JWilz12345 (Talk|Contrib's.) 04:20, 9 February 2021 (UTC)

All projects except the English-language Wikipedia are affected, because they cannot publish photos of non-Public Domain works of art (including buildings) temporarily or permanently set in Sweden. The English-language Wikipedia follows U.S. laws due to the Entire Wikimedia project registered in the United States, where there is a loophole for buildings photographed in foreign countries under certain conditions, including Sweden. This permits uploads of photos depicting Swedish buildings to the English-language Wikipedia, but not to Wikimedia Commons. Photos like that are thus tagged as "Do not upload to Commons". Commons and other Wikimedia projects follow stricter rules, because material in Wikimedia Commons must be freely reusable across the world. -Mardus /talk 23:19, 9 February 2021 (UTC)

@Mardus: In the case, It's constantly referred to Wikimedia instead of Wikimedia Sverige, so in your quote, it should be understood as Wikimedia Sverige, not Wikimedia in general. "3. BUS har väckt talan mot Wikimedia vid Stockholms tingsrätt angående upphovsrättsintrång." Otherwise, according to point 3, Wikimedia Sverige wouldn't need to have been in the court at all. Ainali (talk) 18:31, 10 February 2021 (UTC)

On the status of FoP: statues are still OK through the postcard exception, they just aren't OK in certain cases, which might affect us. I'd say "unclear" is the right choice out of the few we have to choose among. –LPfi (talk) 10:36, 2 February 2021 (UTC)

I have just updated Commons:Copyright rules by territory/Sweden#Freedom of panorama with point 21 from the supreme court ruling and used that as a cause to change  Not OK to  Unsure. FoP for buildings is still OK. It has never been contested. FoP for artworks "on public display outdoors" is still  Unsure due to the limitations in the ruling. As pointed out in point 21 of the ruling, the publishing of photos of public art on the internet is not necessarily forbiden, but publishing them in a database of the current type is. (Where "a database of the current type" refers to the one used on the site offentligkonst.se). /ℇsquilo 11:12, 2 February 2021 (UTC)

@Esquilo: But then, which positions the sculptures are fall under? Because those 3 DRs by JWilz are about sculptures rather than just buildings. --Liuxinyu970226 (talk) 01:00, 3 February 2021 (UTC)

Anyway, per archive.org records, offentligkonst.se also include some images that looks like indoor artworks (as opposite to your "artworks on public display outdoors"), are indoor artworks also "Unsure"? --Liuxinyu970226 (talk) 01:13, 3 February 2021 (UTC)

It is only "artwork permanently placed in a public place outdoors" that is unclear. Art on display indoors is not covered by FoP. Neither is artwork om display outdoors in a private place (like most images in Category:Millesgården). /ℇsquilo 09:12, 3 February 2021 (UTC)

I think the JWilz DRs should be closed as keep, according to "unsure", "interpret narrowly", "little legal risk" and the WMF-Legal statement. The template should have a warning and that should be enough, unless there comes a case or authoritative advice that changes the situation. The indoor artwork may be there as PD-old. –LPfi (talk) 12:17, 3 February 2021 (UTC)

@LPfi: I accept the withdrawal of those DRs. However, since those DR's cannot be closed uncontroversially, so I leave the closing admin to do them. For the template, {{FoP-Sweden}} shall be in the same form as the likes of {{FoP-Germany}} or {{FoP-Mexico}}, but with a precautionary paragraph like {{FoP-Brazil}}. Since you assert that post cards and other commercial printed media (calendars, magazines, stamps, T-shirt prints) are still OK in Sweden, but not third party-managed databases (like the database that Wikimedia Sweden ran), it seems FOP still exists there, to some extent ("Brazilian FOP is waving"). The precautionary paragraph might be the overview of the case against WM Sweden, and a warning to Swedish people (I assume that case only affects the people of Sweden) to not use those images in any online database, whether commercial or noncommercial databases. JWilz12345 (Talk|Contrib's.) 14:58, 3 February 2021 (UTC)

@LPfi: So in your opinion, Swedish sculptures are considered as artworks and should de facto be kept? --Liuxinyu970226 (talk) 09:39, 4 February 2021 (UTC)

Of course statues are artwork. I think we should not delete them, according to the WMF-Legal statement. –LPfi (talk) 10:29, 4 February 2021 (UTC)

@Esquilo and LPfi: Mardus has changed all things back to NotOk, mentions that the all Wikimedia Foundation and their projects, databases and local affiliations, not only WMSE are affected. They said that architecture is very definitely a work of art in Sweden, and the Swedish court ruling was about all works of art, public art not OK either, unless it's unattributed graffiti, they removed superfluous dot, removed guesswork, and renamed sections, especially moved architecture up, they also removed 'strongly', as that's not in the "recommendation". Transposed preliminary opinion from WMF-Legal. --117.136.1.99 01:09, 9 February 2021 (UTC)

 Done Reverted for now, this can't be modified again by just one user, instead a consensus should be happened. --Liuxinyu970226 (talk) 04:25, 9 February 2021 (UTC)

There were two key odd phrasings in those edits.

• What the court meant with "Wikimedia" was changed. An explanation on what the supreme court meant with "Wikimedia" should at least be accompanied by an analysis of the court statement here at the talk page. The analysis is difficult because the supreme court does not define the word "Wikimedia" and is confused about the relation between Wikimedia Sweden, Wikimedia Foundation and Wikimedia Commons (if memory serves). The change was to a completely different interpretation.
• About buildings. There are four "fair use" exceptions in the article, three in the first paragraph (concerning arts, whatever the definition), one in the second, concerning buildings. The exceptions are independent, so failing to be free by one exception does not say anything about whether another exception can apply.

Also the wording on having Swedish speakers involved was changed, to that Swedish speakers may participate in the discussion. Anything else would be absurd!

–LPfi (talk) 13:07, 9 February 2021 (UTC)

The current revert exposes Wikimedia to legal risk. -Mardus /talk 23:07, 9 February 2021 (UTC)

@Mardus: I would per LPfi and Liuxinyu970226 that the Wikimedia is a confusing concept by itself, as that Wkimedia is an uncompleted words that pointed to what? Wikimedia Foundation? Wikimedia Sverige? Wkimedia Commons? Or Wikimedia Movements? --117.136.54.63 23:21, 9 February 2021 (UTC)

But @LPfi: as far as I know that the Fair Use is not allowed here, so if that paragraph is also fair use like then why there's also FOP OK? Both are different concepts in many Asian countries, especially in Singapore. --117.136.54.63 23:29, 9 February 2021 (UTC)

The relevant point about "fair use" is that legality of such use is context dependent. One use can be fair while another use of the same image isn't. Keeping images available for the public is never "fair use". FoP on the other hand means you are free to take photos and do more or less whatever you want with them (a bit of exaggeration, some restrictions are common). –LPfi (talk) 12:32, 10 February 2021 (UTC)

• By 'Wikimedia', the courts meant Wikimedia Foundation and all its projects. It's rather unambiguous. The courts ruled, that FoP is not ok, if published in a database (Wikimedia projects all being databases), but a number of users are reinterpreting the Swedish courts' rulings, with [the users] attempting to narrow them rulings down enough to allow photos, so they are also keeping "FoP ok", thus exposing Wikimedia to legal risk. -Mardus /talk 23:43, 9 February 2021 (UTC)

I am not able to read and understand all that is being dicussed here. But I notice that the interpretation of the court ruling is incorrect. The court ruling was only for a special use of pictures in a WMSE database and WMSE application. It did not rule of FoP, on the contrary the law says FoP is valid. And as commons and wikimedia is not presenting the picures as in the WMSE application, no legal risk exist. The ruling IS bewildering if you look at from a rational view and not from the judges perspective. It can be interpreted as that postcardphotos are free, but if you put a set of postcards together and make the set look like a coffetable picture book, the bookset is a matter of copyright.Yger (talk) 04:47, 10 February 2021 (UTC)

I personally also interpret the ruling that a photo of a pience of art is free when see as part of FoP, but if you take such a set that it is possible to create from them a 3D image of the object it is not OK. but here I speculate.Yger (talk) 05:47, 10 February 2021 (UTC)

@Mardus If you are not prepared to take any risks, you should put your hands in your pockets and not be here at all. Sextvåetc (talk) 08:53, 10 February 2021 (UTC)

The high court ruling has failed logics and strange wording ("Wikimedia Swedens Database" for instance). Hence, it is not possible to unwind the rulings logically. So any speculation we can think up is not valid until tested by court.

But, we have a court ruling. WMSE was challenged to present pictures from Commons on a map in "www.offentligkonst.se" (it still exests but with pictures only of artwork made by artists dead for over 70 years, hence in public domain.)

WMSE lost. It was deemed it is not possible to publish such pictures without paying a fee to BUS (the artist association).

WMSE, in discussions with WMF, did not appeal.

So we know that the pictures are not free enough to publish as part of a map on the internet.

To me it is obvious. That means they are not free enough for Commons.--LittleGun (talk) 07:38, 10 February 2021 (UTC)

And we have discussed this at length at svwp, and I and other do not agree with your conclusion (as you know)

It was not possible to publish such picture on such a map, it is the context that is key. The typographic letter "a" is free to use but when it presented with orhers it can be seen as a part of a work, a "litteray work", that is not free. It is clear by law that an indivual taking a photo of a building or artwork, FOP is valid and the person taking that photo is not breakning the law. It is less clear legally but it is not seen as breaking the law to upload it on a repository, like Commons. But if someone compile it into a new entity that is seen to have commercial value bigger then the sum of value of the separate photos it can be trouble. And a LittleGun states he use of Wikimedia is related to the WMSE database nothing else.Yger (talk) 09:02, 10 February 2021 (UTC)

Yes, I know we do not agree. And you have not convinced me on you interpretation of the ruling. But, again, I am just looking on Commons:

WMSE could not use pictures from Commons, with its licensing, by presenting them on a map published on internet without paying a fee to BUS. What is the rationale for still making them free enough for Commons? That need to be clarified.--LittleGun (talk) 09:24, 10 February 2021 (UTC)

That the map was on internet was irrelvant in the ruling, and the technical relation betwen the map and commons neither. Postcard inluding display of artworks and buildnings are by rule of swedish law free to use, but the ruling make it less clear if/when used as a base for a photobook.Yger (talk) 09:32, 10 February 2021 (UTC)

Off topic, I want to restrict this to uploading own pictures of sculpture to Commons, but: Postcards depicting sculptures are not free to use. It is an excemption that it is possible to take pictures on public art, publish them as post cards and sell them as postcards without paying a fee to BUS. That is an excemption that was set in court in the 70's. But the postcard itself have its own license and it does not make a post card free to use.--LittleGun (talk) 10:11, 10 February 2021 (UTC)

We must be able to agree upon this: WMSE presented pictures from Commons, with its free license, on a map on internet (www.offentligkonst.se). They were ruled not to do that, without paying a fee to BUS, by a Swedish court. And they paid the fee for the time they were published, removed them to avoid future fees and did not appeal.--LittleGun (talk) 10:01, 10 February 2021 (UTC)

Yes they lost the case, agreed, but the ramification is not clear outside that case. It is other then the court that extrapolated this into the internet world. The ruling was based the discussion in ("förarbetena") the creaton of the law in the 40ties or 60ies long beforea the intenet existed, so it is not a ruling that an be directly applied to the internet world.Yger (talk) 10:29, 10 February 2021 (UTC)

The ruling is from 2010's, and WMSE was forced to pay for the time the pictures were displayed on a website on internet until they were removed from internet. Of course it applies directly to internet world. Never mind internet world. Commons licensing applies outside internet too. If they are not free to use in a book, then theyare not free enough to be in commons.

Regarding Commons: What is the rationale for having these pictures under free license on Commons, when it is not possible to show them on a map as www.offentligkonst.se did without paying a fee to BUS?--LittleGun (talk) 10:58, 10 February 2021 (UTC)

They can be used in a book, in an article, ... Most uses are allowed. Or does somebody (in addition to Mardus) contest such use? So having the images here is useful. There is little legal risk according to WMF. The main reason to delete them is the principle ("not free enough"). As long as they are free enough for most purposes, I don't want them deleted, at least unless a mass deletion could have a positive effect on the legislation. On sv-wp it was deemed that such effect would be very uncertain at the moment. –LPfi (talk) 12:16, 10 February 2021 (UTC)

True, sorry. I got carried away. It is an internet thing. I disagree that we can keep them on Commons or per definition anyone can publish on internet without paying a fee at all. Sorry. BUS agree with that, too. I am really sorry, Yger, I confused things.

And its true, it is partly for "principal reasons". And that it is not free enough if it is not possible to use the pictures as offentligkonst.se did. But that is just my opinion.--LittleGun (talk) 13:28, 10 February 2021 (UTC)

(Not a lawyer. But since we're all happily speculating here ...)

I think there's a significant risk of reading too much into the court decision. I have read the decision ("beslut", not "dom") by the Supreme Court, and I find it difficult to apply it even to Commons. It's very specific regarding the exact case of offentligkonst.se, not databases in general. It talks about the "commercial scale" of the project of specifically showing illustrations, which in size is smaller than Commons but our strucutred collections are not aimed at public consumption, which offentligkonst.se was. I don't perceive it as being able to give us any guidance at all beyond what Wikimedia Sweden was doing. Then again, what do I know, I'm not legal scholar. /Julle (talk) 15:37, 10 February 2021 (UTC)

Swedish courts don't have law-making powers. This is a decision in a single case. WMSE lost to BUS, and that's it. Whether this becomes "case law" (prejudikat) remains to be seen. My view is that the wording of the courts decision made it clear that Swedish FOP is what we thougt it was. We should be careful not to give any support in action to this, from a constitutional point of view and for other reasons, very questionable ruling. Edaen (talk) 17:13, 10 February 2021 (UTC)

I hope you are right. I do not think you are. Commons is a public database. If WMSE had to pay a fee for offentligkonst.se, etc.--LittleGun (talk) 17:47, 10 February 2021 (UTC)

After reading this thread and a foloow-up discussion on swwp, I find myself to be in full agreement with LPfi, and support his standpoint. Yger (talk) 14:08, 12 February 2021 (UTC)

To expand on why it is problematic from a consitutional point of view to consider this decision as a general law: According to the Consitution (Regeringeformen/Instrument of Government) RF 2:16, the scope of copyright can only be changed through an Act of Parliament:

Art. 16. Authors, artists and photographers shall own the rights to their works in accordance with rules laid down in law.[1]

The Supreme Court first stated that there was reason to "clarify" the term "depict", which it then proceeded to do. In its decision the Court wrote that:

18. The copyright law has been reviewed at a number of occasions, i.a. in connection with the implementation of the Infosoc Directive. The latest review was made in the report SOU 2011:32, A new copyright law, in it it is emphasised that the content of the term "depict" had been subject of discussion and that there was reason to clarify the term (see p. 172). The report has however not yet lead to any legislation in this matter.[2]

Lawmakers may have had the intention to make these changes to the Copyright Act, but there is no way the Supreme Court can do it. It may be a different thing if the matter is only seen as a one-off. The Decision is also problematic because of the intersection of copyright law and criminal law.

I think Swedish FOP is what we believed it to be. It should be OK to upload pictures of sculptures placed in the open, but there should also be a clear warning that doing so may lead to legal action. Edaen (talk) 09:50, 13 February 2021 (UTC)

@Edaen: The question seems still not resolved due to another set of fanatics of FOP-DRs e.g. @Yuraily Lic: , which their user talk page has User_talk:Yuraily_Lic#Please_no_more_"No_FOP_in_Sweden", and their answer looks like really so strong: "Hello, 117.136.54.108. Are you talking about Commons:Deletion requests/File:Ahlgrens bilar in a flurry (2724657673).jpg? If that's the thing, it has already been processed." --Liuxinyu970226 (talk) 01:13, 16 February 2021 (UTC)

What might be interesting to add to this discussion is the information that the Swedish national publicly funded radio broadcaster Sveriges Radio publishes on their web page:

Question: The law says that you can depict works of art that is permanently published outdoors? ("Det står i lagen att man får avbilda konstverk stadigvarande publicerade utomhus?")

Answer: Yes, but after a trial in the Supreme Court, it came to the conclusion that "depict" does not include publication on the web. Obtain permission from the artist. ("Ja, men efter prövning i Högsta domstolen kom den fram till att ”avbilda” inte inkluderar publicering på webben. Inhämta tillstånd från konstnären.") Source

The text is written together with two corporate lawyers and addresses journalists working at Sveriges Radio. //Vätte (talk) 00:35, 17 February 2021 (UTC)

I think it is a possible interpretation. For a lawyer who wishes to keep his back free it is a natural interpretation. It is still a constitutionally doubtful one, as discussed above, and an interpretation that infringes on the commons, which we want to protect. –LPfi (talk) 11:55, 17 February 2021 (UTC)

Yes, we want to protect the commons, but we also want the content to be safe to reuse and the licensing to be correct, and now this is unsure whether you actually can put CC-license on an image of a work of art placed outdoors in Sweden where the creator has not been dead for more than 70 years or not. And we should not have images on Commons that are not free (or safe) to reuse in accordance with the license. //Vätte (talk) 18:46, 19 February 2021 (UTC)

@Vätte: Therefore, I'd love to re-investigate Category:Swedish FOP cases/deleted, there must likely to have some cases which are unfairly closed as delete. --Liuxinyu970226 (talk) 04:48, 14 March 2021 (UTC)

A new case Commons:Deletion requests/Files in Category:Émile Gilioli. --Liuxinyu970226 (talk) 12:52, 19 July 2021 (UTC)

I think a subpage of Meta-Wiki Wikilegal is needed for this topic?

@Jrogers (WMF): It seems that purely linking to your year-old statement on VPC is weaker and weaker, there are still successful deletion requests citing "no FOP in Sweden" which isn't always true per this discussion, and more and more Meta-Wiki users are pointing different targets on this topic. --Liuxinyu970226 (talk) 14:44, 24 April 2021 (UTC)

Anybody?

I noticed a surprising wording in our text:

[The patent and market court ruled that] "Article 24 does not give anyone the right to publish photographs of copyrighted public art on the Internet without the consent of the depicted work's author,"

From where is that? The ref is to the ruling in its entirety, 31 pages of legalese. The ruling itself (on the first page) only talks about Wikimedia Sweden. I am not in the mood of decrypting all the ruling once more. –LPfi (talk) 13:29, 9 February 2021 (UTC)

OK. In the discussion about the WMF statement, LX gave the page number. The relevant passage (on page 21) is:

"Regleringen kan därmed, enligt domstolen, inte anses ge en rätt för någon att, utan upphovsmannens samtycke, på – som Wikimedia Sverige uttryckt det – internet publicera fotografier som de tagit av konstverk."

So the "anybody" part seems true, but the court is very cautious; I'd translate the "enligt domstolen" as "the court thinks". It gives the impression it does not tell the Gospel truth but that it hesitatingly decided this way. It is also important to note that this was not part of the supreme court decision.

–LPfi (talk) 14:02, 9 February 2021 (UTC)

I think it also has to be read in the context of the rest of the text, which makes clear that the purpose and scale are relevant. /Julle (talk) 15:39, 10 February 2021 (UTC)

@LPfi: Feel free to do so, that said, I won't do any further comments on court's rulings, as different people are having different decodes. --Liuxinyu970226 (talk) 23:32, 10 February 2021 (UTC)

@LPfi: I've posted something I found the other day regarding this in the bottom of the thread above this one. //Vätte (talk) 11:34, 17 February 2021 (UTC)

New data regarding logos and threshold of originality

Hello!

I emailed Swedish Intellectual Property Office and asked if they had examples of logos that are above and below the TOO of Sweden since there are zero such examples that I can find, both here and when googling. They supplied me with a few rulings from different courts so now the this page can be updated.

• File:IXXI logo.jpg was ruled below the TOO by the Swedish Intellectual Property Office (Invändningsärende nr 2017/00120/01, Registrering nr 540495)
• File:A6 Café och Restaurang logo.png was ruled below the TOO, at first by the Swedish Intellectual Property Office (Invändningsärende nr 2005/0006/0001, Registrering nr 369154), and this ruling was appealed to Patentbesvärsrätten (Patent court of appeals) which settled the original ruling (Mål nr 06-304, vm.reg. 369.154), albeit with one member of the court with a dissenting opinion
• https://a.1stdibscdn.com/mid-century-modern-white-vintage-plastic-bibendum-michelin-man-lamp-1960s-france-for-sale/1121189/f_149696721559958587148/14969672_master.jpg was ruled above the TOO by the Swedish Intellectual Property Office (Varumärkesansökan nr 2015/03538)
• https://shop.textalk.se/shop/4541/files/entombed/ENT_logo_web.png was ruled below the TOO, at first by the Swedish Intellectual Property Office (Invändningsärende nr 2013/0133/0001, Registrering nr 514059), and this ruling was appealed to Patent- och marknadsdomstolen (Patent and Market Court) which overruled the original ruling (Mål nr PMÄ 10796-16) and that ruling was appealed to Patent- och marknadsöverdomstolen (Patent and Market Court of Appeals) which settled Patent- och marknadsdomstolens ruling. (Mål nr PMÖÄ 5441-17).
• A black-and-white version of fr:File:Dunderklumpen Logo.png was ruled above the TOO by the Swedish Intellectual Property Office (Varumärkesansökan nr 2014/00870), another part of the same ruling was appealed to the Patent- och marknadsdomstolen (Patent and Market Court) which settled the original ruling (Mål nr PMÄ 10748-16)

If anyone can help updating the TOO section of Commons_talk:Copyright_rules_by_territory/Sweden that would be appreciated!Jonteemil (talk) 16:31, 12 May 2021 (UTC)

I have begun at User:Jonteemil/sandbox.Jonteemil (talk) 21:19, 12 May 2021 (UTC)

I am now done however I am unsure how to implement it to the main page. I am not familliar with all the mark-up regarding translations. If someone would help me, that would be appreciated.Jonteemil (talk) 22:04, 12 May 2021 (UTC)

@Aymatth2, Mardus, LPfi, Liuxinyu970226, and Esquilo: You're the top contributors to this page. Maybe one of you can help me getting what's at User:Jonteemil/sandbox into COM:TOO Sweden?Jonteemil (talk) 15:12, 17 May 2021 (UTC)

I am making a try. –LPfi (talk) 06:58, 18 May 2021 (UTC)

Done. I am not sure how to treat the "(Mål xxx)" parenthesis, and some similar references: on one hand these should not be translated, on the other hand, splitting up the sentence or paragraph in different translation units would make it more difficult to have a natural flow in the text in some languages. –LPfi (talk) 08:18, 18 May 2021 (UTC)

@LPfi: Thank you so much. Would you also add something like From the court cases below it can be concluded that the threshold of originality in Sweden is significantly higher then the ditto in the United Kingdom eventhough it might be considered low compared to the one in the United States.?Jonteemil (talk) 15:54, 21 May 2021 (UTC)

 Done Thanks for your work. –LPfi (talk) 11:47, 22 May 2021 (UTC)

RAÄ

I understand the " Information boards and maps are considered works of literature and are not covered by Article 24", however some (if not most on commons) of these boards are set by RAÄ and as such have no copyright restrictions. Why is the template {{FoP-Sweden}} is placed on clearly such images??? Example File:Telge hus karta.jpg Macuser (talk) 16:59, 8 June 2021 (UTC)

Maps are explicitly excepted from the article 9 of the copyright law, together with works of art, music and poems. So why would RAÄ being the publisher be relevant for the copyright? –LPfi (talk) 14:54, 19 July 2021 (UTC)