Commons talk:Copyright rules by territory/Switzerland

From Wikimedia Commons, the free media repository
Jump to navigation Jump to search

2019 law[edit]

Do we have a translation of the 2019 law yet? Nemo 12:37, 10 November 2019 (UTC)[reply]

I don't think so. It's worth noting that the 2019 law is not in force yet, and the term for a referendum ends on 16 January, 2020. Although it seems that collection of signatures for a referendum has started, it's not widely discussed and therefore it seems unlikely that there will be enough signatures to start a referendum. So it will probably become applicable law next year. Gestumblindi (talk) 22:14, 10 November 2019 (UTC)[reply]

Deprecating Template:PD-Switzerland-photo[edit]

As pointed out by Omnilaika02 on the template talk page, since 1 April 2020 the exception in Swiss copyright law that this template refers has been legislated out and to no longer applies. Art. 3bis of the Copyright Act now provides:

"3bis Photographic depictions and depictions of three-dimensional objects produced by a process similar to that of photography are considered works, even if they do not have individual character."

The explanatory message by the government reads (BBl 2018 591, p. 620, edited machine translation):

"Photographs can be significant regardless of whether they have an individual character or not. Today, however, they are protected by copyright only if they are individual and thus have the character of a work. Accordingly, a photograph without individual character is not protected by copyright, however significant it may be. For example, the Federal Court denied protection to a photograph showing the former guard Meili with two folios because it did not have the required individual character. All non-individual photographs may be used without having to ask the photographers for permission. Swiss photographers are disturbed by this. For some time now, they have been calling for protection of non-individual photographs in Switzerland as well, as is the case for example in Germany and Austria under the term "photographic image protection". (...) The proposed addition to Article 2 takes this requirement into account. It expands the concept of work to include photographs and illustrations produced similarly to photographs without an individual character. As a result, all photographs will be protected by copyright in the future, regardless of whether they have an individual character or not. (...) In conjunction with Article 80(1) URG, the extension of the scope of protection to photographs without individual character means that copyright protection will cover such photographs even if they were created before this partial revision came into force."

This means that the files at issue are now (retroactively) copyrighted under Swiss law and will need to be removed if they cannot otherwise be shown to be properly licenced or in the public domain. I'm marking the template accordingly and opening this discussion, listed at COM:CENT, to gather consensus for how to go about that. If nobody else has a better idea, I propose that the templated files should be made eligible for speedy deletion if they are not otherwise license-tagged within a month of this discussion being closed, and the template should afterwards be deleted. Sandstein (talk) 16:29, 18 April 2021 (UTC)[reply]

Discussion[edit]

Hi, not so familiar with Commons procedures but imo we should manually control if each file is really concerned with the legislative change. By going through some files where the model is transcluded, I've noticed that a lot of them are just a scan of something flat (2D), which is still public domain. Some others could definitely fall under {{PD-Switzerland-old-unknown}} or {{PD-art-70-2-3d-CH}}. But that's 600+ files to manually check… --Omnilaika02 (talk) 17:31, 18 April 2021 (UTC)[reply]

Here my findings
Summary
  • speed deletion is definitely wrong
  • there is still a difference between individual and non-individual character of photographs
  • text of the old template to be adapted and a new template required for pics with non-individual character created more than 50 years ago
Details
please take the following into consideration Source in German:
  • The new copyright law applies only to human made pictures of 3d-objects.
  • Automatically created pictures from webcams, speed traps or wild live cameras are not copyright protected.
  • Photocopies and other forms of reproduction of two-dimensional originals, such as photographing other photographs, are not eligible for protection
  • The term of protection of photographs with non-idividual character is 50 years after their creation (Art. 29 Abs. 2 lit. abis URG)
  • The term of protection of photographs with an individual character is 70 years after the death of the author.(Art. 29 Abs. 1 lit. b URG).
  • The law is also applicable for photographs created before the revised law came into force, provided they are not already in the public domain.
  • Existing uses may be completed, i.e. photographs without individual character that have been published in books or on websites, for example, may continue to be used (Art. 80 para. 2 URG). New uses, on the other hand, are not permitted unless the right holder consents or a copyright restriction applies.
Conclusion:
  • Existing template {{PD-Switzerland-photo}} shall not be used any more for new pics
  • Now reason for speed deletion is given. The currently under {{PD-Switzerland-photo}} published images on Commons as well as their use on Wikipedia pages is completely legal. The only thing, what is required, is a text telling that images that are only provided with the template {{PD-Switzerland-photo}} may no longer be included in new pages.
  • New template required {{PD-Switzerland-photo-non-idividual-50-years}}. This template shall say, that pic is legally usable, because it is created more then 50 years ago and has no individual character
--Pechristener (talk) 18:32, 29 May 2021 (UTC)[reply]
I agree with Pechristener's assessment (and I assume that "Now reason" should read "No reason"), as it is based on lawyer Martin Steiger's explanation of the impact of the law changes (the source linked by him), which I think is a good base. Also, each file must be checked individually (some authors even used that template for their own work), and there is no hurry and no need to set any time limits, as existing uses stay legal. We just need to point out in the template that it's not allowed to use these files for any new purpose (such as another Wikipedia article, or externally) unless some other reason for PD or a free license applies. Gestumblindi (talk) 21:32, 29 May 2021 (UTC)[reply]
As the discussion was dormant for a while, also a ping to Sandstein ;-) Gestumblindi (talk) 21:34, 29 May 2021 (UTC)[reply]
Totally agree. As of CopA art. 80, existing pics uploaded on Commons are still covered by the non-individual exception (imo this also covers the use of images in new Wikipedia articles). So what do you think of editing {{PD-Switzerland-photo}} to reflect what we discussed, saying that pics uploaded before April 1, 2020 are public domain if they lack this individual character AND that the template may not be used for newer pictures? I will create {{PD-Switzerland-photo-non-idividual-50-years}} soon :) --Omnilaika02 (talk) 17:40, 21 June 2021 (UTC)[reply]
If the template said that "pics uploaded before April 1, 2020 are public domain if they lack this individual character", it would mischaracterise the legal situation. The fact that they are now protected is precisely the challenge arising from the amendment. See Bundesrat, "Botschaft zur Änderung des Urheberrechtsgesetzes sowie zur Genehmigung zweier Abkommen der Weltorganisation für geistiges Eigentum und zu deren Umsetzung", BBl 2018 591, 620 (stating that "In Verbindung mit Artikel 80 Absatz 1 URG führt die Erweiterung des Schutzumfangs auf Fotografien ohne individuellen Charakter dazu, dass der Urheberrechtsschutz solche Fotografien auch dann erfassen wird, wenn sie vor seinem Inkrafttreten dieser Teilrevision geschaffen wurden."). — Pajz (talk) 22:04, 23 June 2021 (UTC)[reply]
@Pajz: No, you missed the subsequent paragraph : « C’est pourquoi, en vertu de l’art. 80, al. 2, l’application du nouveau droit se limite aux utilisations entreprises après son entrée en vigueur / Deshalb beugt Artikel 80 Absatz 2 einer Rückwirkung des neuen Rechts vor, indem er die Anwendung des neuen Rechts auf Verwendungs- tatbestände beschränkt, die nach seinem Inkrafttreten erfolgen ». The pics uploaded before April 1, 2020 are a case of « utilisations entreprises avant son entrée en vigueur » : it's precisely the point of CopA art. 80. It just means you can't upload now (i.e. after April 1, 2020) pictures that lack individual character and state that there is no copyright. --Omnilaika02 (talk) 09:37, 14 July 2021 (UTC)[reply]
Omnilaika02, no, you are missing that there is a difference between Wikimedia Commons being allowed to use these images and the images being in the public domain. These are two different things. A non-original photograph from 2018 that was uploaded to Wikimedia Commons in 2019 was, at the time, in the public domain in Switzerland. Effective 1 April, 2020, it left the public domain and became a protected work in Switzerland. Owing to a transitional provision, Wikimedia Commons may continue to host a copy of the photograph. But, again, it is not in the public domain: If somebody finds the image on Wikimedia Commons, they cannot use it in their new book without the author's permission. Therefore, readers must not be told, incorrectly, that the photograph is in the public domain. It is not, by no means, free to use (which is also, by the way, why the suggested course of action seems to conflict with Commons:Licensing). That was my point. Best, — Pajz (talk) 10:17, 14 July 2021 (UTC)[reply]
My total bad, I didn't get your point. So yeah effectively: is it ok to host stuff that we (Wikimedia users) are able to use (in Wikimedia project) but not everyone else? Imo no, as it's not free content and we only are able to use it, Commons:Licensing is not respected. Should we then. as I suggested in my first message, manually check each file ? —Omnilaika02 (talk) 19:05, 14 July 2021 (UTC)[reply]
It's a bit more complicated than that: After all, in theory, there might be existing uses of such photos sourced from Commons starting before April 1, 2020, by external users, and for those it could still be valuable to retain the Commons source. But I agree with you that it's not really compatible with Commons' licensing policy if we (though perfectly legally) host files where there is no future, new free re-use allowed. So, yes, manually checking each file is probably a good course of action. Some might be free for other reasons, for some the creator and uploader themselves have used this template (which we could interpret as intending to release the file as PD?), and unused ones we probably should just delete for lack of a future use (though this would disregard existing external use). Gestumblindi (talk) 19:14, 14 July 2021 (UTC)[reply]
(edit conflict) I agree with Pajz and think that Omnilaika02 has slightly misunderstood my proposal. We should not tell users that "pics uploaded before April 1, 2020 are public domain if they lack this individual character", because they are really not, but my proposal was, to repeat, "to point out in the template that it's not allowed to use these files for any new purpose (such as another Wikipedia article, or externally) unless some other reason for PD or a free license applies." A phrasing could be: This photograph was considered to be in the public domain in Switzerland before April 1, 2020 due to a lack of individual character. Due to a change in law, it is now most likely protected by copyright, but existing uses stay legal. Other suggestions welcome. The intention is to state that the existing use on Commons and for Wikimedia project that began before April 1, 2020, is still legal, but that re-users can't use the photos now without permission by the rights holder. Gestumblindi (talk) 19:09, 14 July 2021 (UTC)[reply]
I have:
There are still 195 files licensed with {{PD-Switzerland-photo}}. -- Plutowiki (talk) 17:14, 26 July 2021 (UTC)[reply]
Per the discussion we had, I still thing {{PD-Switzerland-photo}} is now depreciated because it's not compatible with the Commons:Licensing. As Pajz explained, those images are only free for us Wikimedia users. I will try to see if any other template is better for those 195 images, but I think the template should clearly tell that it's temporary. --Omnilaika02 (talk) 12:44, 20 August 2021 (UTC)[reply]

Unexplained removal of section on photographs[edit]

Regarding the most recent edit to this page, it is respectfully noted that you, Sandstein, have not, in fact, "updated" anything, but simply tossed out my updates and additions from last year, removing criticial information in the process (such as on the different terms of protection), without providing any new information. I fail to understand why you have made that edit. — Pajz (talk) 20:01, 18 April 2021 (UTC)[reply]

You're right, sorry. I've reverted myself. I overlooked that the existing text already addressed the change in legislation. Sandstein (talk) 20:04, 18 April 2021 (UTC)[reply]
Thank you, I understand. — Pajz (talk) 20:16, 18 April 2021 (UTC)[reply]
Retrieved from "https://commons.wikimedia.org/w/index.php?title=Commons_talk:Copyright_rules_by_territory/Switzerland&oldid=583345227"