Talk:Freedom of Panorama 2015 EVA GESAC

General comment

It would seem that this has been prepared in haste -- perhaps spooked by the scale of some of the reaction in CZ, the UK, and elsewhere -- apparently from a document prepared for the committee vote, or at least a very different base text.

The typo "46" instead of "16" ("if point 46 of the JURI report were to become law") may be revealing, as the committee amendments all started 4xx.

Correction: Such a large number of amendments were adopted that paragraph 16 became paragraph 46. See consolidated text of Reda report, with Reda's comments now online here. Jheald (talk) 08:52, 26 June 2015 (UTC)

Many of the arguments presented make no sense in the context of the Cavada text adopted. Jheald (talk) 00:21, 26 June 2015 (UTC)

Their tone (and graphic) seems intentionally playful and blunt. This page is contrast is very serious and verbose; I don't know which tactic works best, but any person struck by one approach may not be convinced by the other. --Nemo 07:07, 26 June 2015 (UTC)

Let's make sure we keep everything concise and that we make no claims that we can't clearly back up with sources. Also, remember that the goal at this point is to have the NC amendment voted down. Not to push for harmonization. EVA wants a discussion where Wikimedia is perceived as the party of radical change, while in this case all we want on July 9 is to save existing FoP for commercial use. We should not let this turn into a discussion about long-term agendas, which would confuse and take focus from the real and immediate issue.Ksig77

+1, please trim down any excess fat in the text. :) --Nemo 11:03, 26 June 2015 (UTC)

Nemo, regarding last edit comment: Yes, current national copyright exceptions would be ruled out. A member state cannot have copyright exceptions that go beyond what's specified in the directive, even when a national exception existed before the directive. The directive, in other words, states which exceptions member states are allowed to _have_, not just which exceptions they are allowed to _introduce_.Ksig77

Representative ?

This paper trumpets that it is from GESAC and EVA. But for the most part GESAC is irrelevant here -- why is the view of GESAC's only UK member, the Performing Rights Society (PRS for Music) even relevant here? (Apart from the fact that they also administer a cumbersome and bureaucratic nuisance, shaking people down to make sure they pay extra money if they have radios on in their shops -- something that would be much more efficiently priced in to the contract with the radio station).

As for EVA, is this initiative actually representative of the positions of EVA members, or only the French ADAGP ? I've tried again to get DACS to give me a position statement as to whether they are indeed actually calling to get rid of s62 in the UK, and still haven't had any reply. The same question ought to be put to EVA's members in countries like SE, DE, AT, ES, PT -- are they actually calling for this ? Jheald (talk) 19:39, 25 June 2015 (UTC)

I've covered this but I don't know if ADAGP should be attacked directly. --Nemo 11:05, 26 June 2015 (UTC)

Order

The order that they present their points in is designed to be most flattering to them -- starting with the most "grey area" topic (will Flickr / Facebook / Instagram / Twitter etc be affected, which a lot of MPs will find most hard to believe), before they go on to outrageous untruths ("Will the provision adopted by the JURI Committee rule out the exceptions that are in place in some Member States?")

When we present a final document, are we best to tackle them in the same order (which makes point-counterpoint comparison easier), or should we start with their claims that are most outrageous? Jheald (talk) 17:54, 25 June 2015 (UTC)

If we present this as an answer, it would make sense to preserve that order. It would be easier to follow for the readers, any confusion would look like we're trying to hide something. --194.150.65.82 09:02, 26 June 2015 (UTC)

Questions

Map

They show a map that is as flattering to them as possible -- to show the largest number possible of countries as looking like France, the smallest number like the UK & DE.

Even so, their map doesn't correspond with ours: in particular they show Spain, Portugal and the Netherlands as currently in "their" column, as "countries where commercial usage for works in the public space requires prior authorisation".

Can we check this? Whose map is wrong, ours or theirs? Jheald (talk) 18:04, 25 June 2015 (UTC)

The most important thing to remind people though, is that the colouring of the map does not correspond to the proposal on the table. Jheald (talk) 19:27, 25 June 2015 (UTC)

Authorisation schemes to facilitate use

Their doc claims that "the laws in place in the various EU Member States already provide exceptions or authorisation schemes to facilitate the use of photos/videos. This will not change."

Do we know what they are talking about? And in which countries?

The text implies that Extended collective licensing schemes are in place -- which of course the collecting societies would just love. But how many countries is this true for, for architecture and sculpture?

In the UK, as far as I am aware there is no such scheme for sculpture -- and the collecting society DACS only directly licenses content for 1000 artists, which includes both 2d and 3d works (though it distributes money from an ECL on the photocopying of books to 17,000 such artists). (more TK) Jheald (talk) 18:14, 25 June 2015 (UTC)

• s77 of the Enterprise and Regulatory Reform Act 2013 (adding new clauses 116A et seq to the CDPA) [1] empowers the UK Government to create such schemes. Corresponding SI [2]. But I don't believe there is any such scheme in place for sculptures.

• A number of Nordic countries have such ECLs to allow film-makers to depict artworks. (But do those licences still hold good when the films are distributed in other countries?) Jheald (talk) 19:26, 25 June 2015 (UTC) -- there seems to be some debate with "country of origin" only available now, not "country of destination".

FR, BE, IT, DK etc

• We need to know a lot more about how the current state of affairs operates for commercial users in countries that don't currently have full FoP. Does ECL exist? Are the kind of claims in the paper true? How do things work in practice? How much does stuff cost? We need this to be much more at our fingertips. Jheald (talk) 20:10, 25 June 2015 (UTC)
  • Most such information is a well kept secret. I added what we know about IT and FR, which are how much of the non-FOP world in EU? 80 %? --Nemo 08:17, 26 June 2015 (UTC)

An example, highlighting what is "non-commercial" ?

In the North-East of the UK the Labour Party are currently holding a photo competition, with the prize for the best photo being to come to the European Parliament in Brussels.

If somebody takes a spectacular sunset picture of the Angel of the North and sends that in, can it win? Would the Labour party have the commercial use fees, being a commercial-sized organisation? Would they be allowed to put it on their web site?

DACS don't seem to have a section for use on web-sites in their price list, but for use on electronic articles, they would charge £65 for 1001 hits, rising to £226 for 50,000 hits.[3] Is that going to have to be paid whenever anyone wants to use an image of a modern landmark? Jheald (talk) 18:27, 25 June 2015 (UTC)

Okay, I didn't get that quite right. It's actually an EU competition, for the best pic of something funded by the EU. [4] But the point still stands. Jheald (talk) 18:31, 25 June 2015 (UTC)

For showing a single work on a non-profit-making site, which does not realise revenue through the website, ADAGP would seek EUR 15/month = EUR 180/yr. (But does the site contain a membership sign-up page?)

So consider the political example as a thought experiment, inspired by the actual EU competition.

As another twist, suppose the winning photo now gets showcased on the group site -- eg the Progressives, or the EPP -- so now multi-territorial licensing is required. Does that mean having to look up licensing terms for 28 different collecting societies ? Jheald (talk) 22:32, 25 June 2015 (UTC)

Who benefits? (thoughts)

"... Wikimedia’s combat is to deprive authors of their rights in order to allow large companies to make easy money off their works ..."

It is not Google that gains the most from commercial use, it is the public.

It is the public that gains from having more works presenting and discussing the public space, more comprehensively and more completely, adding to the dialogue that is the soul of public art.

It is the public that gains from the projects that can be freely undertaken, that would not otherwise have happened, because they would have been too cumbersome or too expensive or too protracted to research and acquire all the rights and permissions and clearances.

It is not Google, but the public that gains most from having Google Street View vs Google Cavada view

It is not the book publisher operating on a shoestring, but the public that gains from being able to buy a book that can afford to illustrate every statue it discusses.

I suggest to avoid replying to insults. It's better to just dismiss them. --Nemo 07:09, 26 June 2015 (UTC)

@Nemo: Nevertheless, we should consider what our response is, and how we counter such points. But we should also stress our positives, and not let GESAC dictate the agenda. Jheald (talk) 08:56, 26 June 2015 (UTC)

@Nemo: I agree with this. On a more general note, we should stay away from aspects of the issue where we are not a major authority and instead stress the impact on Wikimedia projects.

Some comments

I have some comments on the points in GESAC paper. Most of them are not considered in the current answers, so whoever writes it might also consider including these.

• Will I still be able to share my photos... - Under this provision, every copyright holder has a right to demand the takedown of pictures on social media that can be used for advertising by the company owning the network. Most likely, they wouldn't start outright by suing the private users, but basically they would have the right.
• Will dcoumentary photographers...be able to use photos...easily? - This "ease of use" depends on the ease of finding the copyright owner of every building and piece of public art. In European legal tradition, authors' rights do not depend on registration, hence there are no central registries of authors. Everyone has to find the original authors, their inheritors the contact information on their own - and this goes for every single building or sculpture or graffito. Also, the copyright owners would have a right to plainly refuse, withoput any reason, argument, or comment.
• Will the provision...rule out the exceptions...? - Don't fool yourself: this report is not a private blog post or an opinion piece in a magazine. It is a legal initiative with the sole purpose of influencing the legal framework in which the laws of EU member states are operating. If it worms its way into laws, there will be no room for further exceptions outside this provision.
• Is there a need to further harmonise...? - "...there is no evidence of cross-border problems..." is a lie, it's as simple as that. E.g., there is a current court case in Germany because the German definition of FoP differs from the Austrian definition, so the images that are legal in Austria can be questioned in Germany (whether or not this is justified, is left for the courts to decide, but there is clearly room for making trouble). Here, we need concrete references. Such cases are even easier to raise in a country that has no FoP, effectively preventing its citizens from accessing images that are perfectly legal in other countries.
• So, who is ...asking for ...exception...? - This is a weak point in our campaign, as I have stressed many times elsewhere. We need to engage other players to show there is a wide support: creative enterprises, media, Internet companies (search engines, network, image databases), third sector organizations like Internet Society, Creative Commons, etc. - If a practice is deemed illegal, it is not an argument whether this is actually going to be "questioned". Furthermore, implementing laws that are expected to be ignored is a truly bad legal practice.
• More - practical mechanisms and solutions... - Most countries do not have a central mechanism, and it is not always easy to identify who would be the copyright owner or how one should contact them. These are no restrictions on the possible demands of the owners, there are no rules to guarantee effective answers or, indeed, no duty to answer anyone asking for a permission at all. As an example, try to find the architects and current copyright owners of this bridge that was built in Estonia under Soviet occupation in 1952-57 - good luck with that! (I'm a city official and haven't been able to identify the rights yet.)
• More - the remuneration for commercial use of photos/images... [i]n France...would entail a loss of 3 to 6 million euros - First of all, any concrete evidence? What's the factual basis of these calculations? Second, does this include all kinds of images or only those that depicture public art and buildings? There is a significant difference between photos of buildings on a street and of paintings in private collection. In cases where there are any agreements between the media organizations and authors' representatives, e.g., all the images are discussed in bulk, so excepting just those showing public art would not annul the agreements; whether this might influence the amount of remuneration or not depends on the stances of the participants of the agreement. The loss of income is a serious argument, but we should consider if we are talking about an actual income that people really have, or a fictitious income like those presented by Hollywood companies that claim every teenager downloading a copy of a movie has caused them a loss of the entire budget of the movie, not a single ticket for the cinema (that the teenager probably wouldn't visit anyway for a C-class film of dubious artistic value). --Oop (talk) 09:36, 26 June 2015 (UTC)
  • Is this an actual loss or simply projected income that won't arise? Compare music industry claims of money lost to illicit downloading, when the music industry is still making healthy profits — OwenBlacker (Talk) 10:00, 26 June 2015 (UTC)
    • I think these points are currently covered by the text, though it may need to be trimmed/made more striking. I agree that on question 4 an answer "Yes. People are getting sued over cross-border issues [insert case reference]." may be enough. --Nemo 11:16, 26 June 2015 (UTC)

Citing DMCA?

I think that it might be interesting to cite DMCA notices with artists asking to remove images of their works. wmf:DMCA Oldenburg is a good example, as w:Claes Oldenburg is a prominent sculptor and only his works in Germany (country with a FOP) were preserved. I do not know if there are any other examples, but this one should be cited as an answer to Wikimedia knows perfectly well that the use of works in Wikipedia pages is not questioned by authors — NickK (talk) 12:25, 26 June 2015 (UTC)

User:NickK: Note that the WMF took down pictures of Oldenburg's artworks located in many different countries, including FOP countries such as Germany. --Stefan2 (talk) 18:42, 30 June 2015 (UTC)

Re: Collecting societies

Re [5], I suspect that collecting societies are best referenced by omission, i.e. by mentioning the true representatives of authors instead of them. Some amendments which attacked "intermediaries" and asked a better contractual position for authors were rejected (e.g. 190, it had to be voted multiple times for slim majority), most MEPs still like the collecting societies bureaucracy. --Nemo 08:03, 29 June 2015 (UTC)

Re: Graphic art is unaffected

Which law is being talked about here? --Nemo 12:50, 29 June 2015 (UTC)