Multiple German Courts Rule Photos Of Public Domain Works Are Not In The Public Domain
from the and-no,-you-can't-take-your-own,-either dept
Back in November 2015, we wrote about a bad situation in Germany, where a museum in Mannheim was suing the Wikimedia Foundation over photos of public domain works of art, which were uploaded to Wikimedia Commons. Sadly, since then, things have not gone well for the public domain. No less than three German courts -- in Berlin, Stuttgart and now again in a higher Stuttgart court -- have ruled against the use of the photos. The latest court judgment is available in full (pdf in German), and it contains some pretty worrying statements.
For example, the upper Stuttgart court confirms that the museum's photographs of the public domain works are not in the public domain, because they were produced by a photographer, and not some mechanical process like a photocopier. Under German law, if there is any kind of creativity involved, however minimal, then the photograph produced enjoys protection as a "Lichtbildwerk" -- literally, a "light image work" -- and is not in the public domain.
The court also ruled that not even photos of works in the public domain taken by a Wikipedia supporter to put on Wikipedia could be used freely by Wikipedia. Making a photo in this way "injured" the museum's ownership of the objects in question, the judges said, even though the works were in the public domain, as a report on the iRights site explained (original in German). In addition, the court said that the museum was within its rights to make it a condition of entry that no photos were taken.
These are clearly dreadful rulings for Wikipedians in Germany. The good news is that the Stuttgart court has allowed an appeal to the country's top court, the Bundesgerichtshof. If even those judges fail to see how crazy this situation is, and how harmful to the public domain, there is always the hope that the Court of Justice of the European Union, the highest court in the EU, might consider the case, but there's no guarantee of that.
Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, germany, photographs, public domain
Companies: wikipedia
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
They owe me a lot of money - wooohoooo
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Germany is crazy
They still have a law making it a crime to insult the flag, national anthem or religious feelings.
[ link to this | view in chronology ]
Re: Germany is crazy
[ link to this | view in chronology ]
Re: Re: Germany is crazy
They haven't exactly rejected everything Hitler promoted. Hitler loved copyright.
[ link to this | view in chronology ]
1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?
Common law is so diffuse that it's difficult to state (particularly to corporatists whose sole interest is to gain money from any property they can find unguarded), nonetheless rulings coming out of Europe of late seem well-based.
In contrast to the assertions this minion makes, we're told that the Techdirt site which provides a comment box asking for input from public, is entirely private property and use is by permission, clear case of saying whatever serves purpose of the moment.
[ link to this | view in chronology ]
Re: 1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?
[ link to this | view in chronology ]
Re: 1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?
1) Not Using a camera at all.
or
2) Finding and asking the owners of all the property that is in the viewfinder whether you can photograph their property.
If you use optiion2, how do you get permission for with moving vehicles that you might photograph?
[ link to this | view in chronology ]
Re: 1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?
In most places you DO have the right to take those images. It's commonly known as "Freedom of panorama." The images in the article however were taken in a museum, not visible from a public space.
If you want to protect industrial secrets, keep them hidden from public view.
The page you posted this on has a sidebar link to an article called "The Grand Unified Theory On The Economics Of Free." It's only scary and mysterious if you keep your head buried in the sand.
[ link to this | view in chronology ]
Re: Re: 1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?
If so, it technically is public space.
[ link to this | view in chronology ]
Re:
Perhaps not on your property, but from a public space, YES, absolutely YES, I have the right to photograph anything and everything I can see, at least in the United States. The eyes cannot trespass. This has been established by our courts many times over and is based on English common law. Same goes for your "industrial secrets", if you don't want it photographed, put a building around it.
[ link to this | view in chronology ]
Re: Re:
I think he's trying to say that if our position was right, then using the same logic that if an industrial spy who snuck into a room and took a photo of an industrial secret, then industrial secret laws wouldn't apply to that photo an information gained from it. This ignores the fact that the objects in question are public domain (and hence copyright no longer applies), but industrial secret laws do apply to industrial secrets that are kept, well, secret.
Then again, perhaps he holds to an interpretation of common law copyright where copyrights are perpetual, and hence artwork never falls into the public domain.
[ link to this | view in chronology ]
Re: 1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?
[ link to this | view in chronology ]
Re:
in some mysterious indirect way
So there's no proof, aside from out_of_the_blue having a wild conspiracy theory. But consider that he was a supporter of SOPA, and SOPA was protested against by Wikipedia (long before Google chipped in, it's worth pointing out, but he hates that fact). It's no surprise for out_of_the_blue to hold a grudge.
Common law is so diffuse that it's difficult to state
Apparently common law is supposed to be obvious, hence you feel entitled to swing it around to argue against things like fair use - but suddenly it's so diffuse you can't even define the damn thing.
Why, it's almost like everything you spout is nebulous bullshit meant to cater to a convenient narrative or something...
[ link to this | view in chronology ]
Re: 1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?
So you can't cite which parts of common law back up your assertion, but we're just supposed to believe you, an anonymous figure, because... ?
[ link to this | view in chronology ]
What if famous people used this logic?
Want to show a picture of Abraham Lincoln? Sorry, but even though photographs of him are all in the public domain, your copies of the picture are not. You have to go to a historical society or a museum to see how Lincoln looked like.
Oh, and while we're at it, we really don't like it how these history books are describing Lincoln as a very tall guy. It's injuring the intellectual property of those Lincoln photographs by telling people what Lincoln looked like!
[ link to this | view in chronology ]
Re: What if famous people used this logic?
Under this ruling that would only work in a private museum or residence. If various Trumps for example want to control images in public, I suggest dazzle camouflage.
It worked for ships in WWI and WWII. It's used today to camouflage "next year's model" cars during testing. It could work for celebrities.
[ link to this | view in chronology ]
Re: Re: What if famous people used this logic?
[ link to this | view in chronology ]
Re: Re: Re: What if famous people used this logic?
[ link to this | view in chronology ]
Shame on the courts (and on the government, who sponsor the museums and could instruct them to play fair) for supporting these extortion practices.
[ link to this | view in chronology ]
Re:
The museum in this article and the German government both have their heads up their asses. Images of public domain works can be covered by copyright, but the "owners" of those works have no say or investment in that copyright. The copyright, in Music copyright/license parlance, is essentially a composition right, not a materials right. The composition of the image is what is being covered, elements in frame, framing in general, angle, exposure, contrast, filtering, depth of field, etc all come together to present an image that was composed and captured by the photographer. This composition can portray the piece of art in a way vastly different from the original artist's intent. That's why photography is an art and not merely a method of reproduction.
I do hope their high court gets this right and sees the wealth of damage they are about to do to the entire world if this ruling is allowed to stand. Art is meant to be shared, culture is meant to evolve and transform, and art must do that as well.
[ link to this | view in chronology ]
Re: Re:
Yeah, those ignorant amateur photographers don't know squat about photography, but the highly paid professionals do - lol.
"a side-effect of this may be that museums are in a better position to make money from the sale of trinkets,"
This is hardly a "side effect", making money is the primary reason.
[ link to this | view in chronology ]
Re: Re:
http://people.ds.cam.ac.uk/mhe1000/musphoto/flashphoto2.htm
[ link to this | view in chronology ]
Do you know what time it is?
Check and Mate.
P.S. You may not get the greatest pics, but you can damn sure get a few to use for Wikimedia, unless the German courts want to start letting monkeys hold copyrights.
[ link to this | view in chronology ]
Re: Do you know what time it is?
[ link to this | view in chronology ]
Re: Re: Do you know what time it is?
https://irights.info/artikel/gericht-bestaetigt-wikipedia-nutzer-muss-fotos-gemeinfreier-werke-l oeschen/28541
"Durch den Besuch des Museums und Piktogramme im Gebäude habe sich ein wirksamer Vertrag ergeben, der ein Fotoverbot enthalte."
in English:
"By visiting the museum and pictograms in the building, an effective contract had been established, which contained a photo ban."
Try enforcing a contract on a monkey. I dare you.
At best if you sue, all you'll get paid is in bananas, at worst poo will be flung your way. Lots and lots of poo.
[ link to this | view in chronology ]
Re: Re: Re: Do you know what time it is?
[ link to this | view in chronology ]
Re: Re: Re: Re: Do you know what time it is?
Ah yes, the injury...
(The museum can not be said to be alone on the fact that the works are on its property, but on its ownership of the paintings and objects."However, ownership of the (copyrighted) thing is violated when it is photographed," the judges said. The freedom of the community does not allow us to use "the physical work piece, but only the spiritual work embodied in it.")
So, if I take a picture using Spirit Photography, it should be OK. Thanks for the clarification, German Courts!
If their "thing" is so easily injured by just taking a picture of it, then maybe they should lock it up in a vault so just any old free-range monkey wandering through their museum can't take pictures of it.
Soon the German courts will be saying just looking or thinking about the "thing" is an "injury", and after visiting the museum, you will need to pay a yearly synapse transfer media fee for storing and accessing the image in your brain.
The way things are going, it appears that this kind of pseudo-copyright in Germany will last for a thousand years, at the very least.
[ link to this | view in chronology ]
Re: Do you know what time it is?
Ewww.
Wait a sec, would that be copyrightable?
[ link to this | view in chronology ]
Injuring ownership?
[ link to this | view in chronology ]
Re: Injuring ownership?
[ link to this | view in chronology ]
I'm sure everyone there is German, but still!
[ link to this | view in chronology ]
Re:
"Bundesgerichtshof" has five syllables -- hell, that's barely a phoneme in German.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
German law vs US law
[ link to this | view in chronology ]
What pictures?
In cases like this I think the most appropriate response is to give them exactly what they claim to want. No mention of the works, no reference, for all intents and purposes the works simply do not exist.
They want to lock historical works behind a tollbooth then great, society can dismiss them completely and move on to more important works that aren't locked up and can be shared.
[ link to this | view in chronology ]
Re: What pictures?
[ link to this | view in chronology ]
Re: What pictures?
[ link to this | view in chronology ]
Hello eternal copyright
So you can't take pictures, the museum obviously isn't going to provide pictures unless people pay for them(and even then you can be sure they'll slap a 'not to be resold or shared' condition)... seems like the german courts have just made eternal copyright a fact in the country. So long as they own the pictures they will never enter the public domain, as doing so would 'harm' the museums.
Their greed transformed them from curators and preservers of history into just another set of gatekeepers to it.
[ link to this | view in chronology ]
"not some mechanical process like a photocopier"
[ link to this | view in chronology ]
Re: "not some mechanical process like a photocopier"
Now, if you really wanted to, you could try putting the original on the photocopier glass at odd angles and arguing that this choice on your part of how to pose the model constitutes creative input and that you should get a copyright on the resulting photocopies because of that creativity. I'm not sure whether that would hold up in court, but if you happen to get the same courts that issued the decision in this article, you might have a chance.
[ link to this | view in chronology ]
to speak of many things,
like eliminating copyright,
the end.
[ link to this | view in chronology ]
Re:
Abolish copyright.
[ link to this | view in chronology ]
works domain
[ link to this | view in chronology ]