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Commons:Deletion requests/Template:PD-Sweden-photo

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This deletion debate is now closed. Please do not make any edits to this archive.

Template:PD-Sweden-photo

edit
(see also the related debate Commons:Deletion requests/Template:PD-Finland50 and Deletion requests/Template:PD-Denmark50)

The first part of this tag is invalidated by w:Directive on harmonising the term of copyright protection#Copyright restoration. Concerning the second part: The directive contained a clause for unifying the demarcation for protection as photographic works (photos are "to be considered original if it is the author's own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account"). There are court decisions in Germany[1] and Austria[2][3][4] that have decided this uniform demarcation to be very low, such that basically only mug shots and reproduction photography, where the outcome is more or less determined by the task, would remain as simple photographs. Even if, for some reason, this uniform demarcation has not been received the same way in Sweden (but I cannot find a court decision contradicting it), the directive would still cause the works to be protected in other EU countries that agree with the German/Austrian interpretation, because the the EU-wide anti-discrimination laws. --rtc 17:46, 3 May 2007 (UTC)[reply]

None of those court cases dealt with images tagged with this template. The German government or German courts do not have jurisdiction in Sweden or the following countries: The Netherlands, Belgium, Luxemburg, France, Austria, Denmark, Norway, Poland or Czechoslovakia. But don't take my word for it. You have claimed: "Since I strongly suppose that it is not the case "that the Austrian and German cases are also significant for other EU members", you are of course right that "showing it individually for the other EU member countries" is the only way to find out.". Thuresson 15:43, 5 May 2007 (UTC)[reply]
  • Keep - I recommend a careful study of Henry Olsson's "Svensk och internationell upphovsrätt", 7th edition, 2006, and Kerstin Ahlberg's "Din upphovsrätt och andras", 3rd edition, 2006. Thuresson 18:08, 4 May 2007 (UTC)[reply]
    • Sorry, that's not an argument. What do they say in there? --rtc 18:11, 4 May 2007 (UTC)[reply]
      • To avoid repeating wellknown arguments, may I ask which literature on Swedish copyright you have read? Mr. Olsson is a wellknown doctor of law and vice president of "Svenska föreningen för upphovsrätt". His book on Swedish copyright is required reading for anybody interested in the subject. Mrs Ahlberg is a wellknown trademark attorney who has written an acclaimed book on copyright for journalists. Thuresson 00:16, 5 May 2007 (UTC)[reply]
        • I do not care who these people are, I want to know what they have written that you think applies to the context of this deletion request. I have not read anything by them. If they are still describing old demarcation criteria from times before the EU-Directive came into effect in the book, then you should mail them, point out their error and ask them to fix that. --rtc 00:32, 5 May 2007 (UTC)[reply]
          • Thank you for your quick reply. Which works on Swedish copyright law have you read? Are you familiar with Katarina Renman Claesson? Thuresson 01:10, 5 May 2007 (UTC)[reply]
            • I have actually not read any work at all on Swedish copyright law, and I don't think that there is any need for that as long as we are discussing EU-wide regulations. If there is anything in these books that talks explicitly about effects of EU directives, please tell me the details. If not, then these books are all irrelevant for this discussion. --rtc 04:36, 5 May 2007 (UTC)[reply]

 Comment

A while ago the template PD-Soviet was discussed. There, the United States court interpreted the Russian copyright law in deciding that an image was protected by copyright in Russia, and thereby also in the U.S.

Now, the German copyright law says that it applies to people in all countries of the E.U. (correct me if I'm wrong), so I understand that forum shopping is possible there. Which is what happened to the Italian music/opera that was found to be copyrighted in Germany.

How many countries say that they allow their own copyright law to supersede the copyright law of the country it was created in? For example, the Swedish copyright law would give no reason to do so -- it says in its article 60 that it only apply to works published in Sweden or published by Swedes. [5] And Sweden actually has ratified the EU directive on harmonization of copyright (you can see it being referenced in article 61a). So, I do not think that forum shopping would be possible in Sweden, for example.

So in which countries are forum shopping possible? If it is only possible in Germany then it is better to keep the template with a note that it can't be used on German Wikipedia.

Fred Chess 20:56, 4 May 2007 (UTC)[reply]

Forum shopping is possible in all countries (except those which signed no copyright treaty at all, but that can change at any moment, and the Foundation has stated that we do as if there were such treaties, anyway). Swedish copyright law applies to works of all countries with which Sweden has signed treaties. That is, swedish copyright law protects all EU works without consideration of rule of the shorter terms, and it protects external works with rule of the shorter term. The copyright law of the country it was created in is basically completely irrelevant except in rule oft the shorter term calculations. And it is really only this calcuation. Whether the work passes threshold of originality, whether it is a simple photograph, whether panorama freedom applies etc. is always determined by the law of the country in which the restriction is sued for, not by the law of the country in which the work has been created. --rtc 22:15, 4 May 2007 (UTC)[reply]

The clause in the directive which to unifies the demarcation for a "work" is the same that has been in use in Sweden for decades before the directive. What Rtc fails to understand time after time, is that the one simple line in directive can be interpreted in many ways—and is interpreted in many ways. Samulili 09:14, 5 May 2007 (UTC)[reply]

The EU directive is very clear that photos are "to be considered original if it is the author's own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account", and the German court has said that this means it's original as soon as the photographer chooses the position freely and presses the button by his own choice. This is so broad that hardly any picture remains that is not a photographic work. --rtc 16:25, 5 May 2007 (UTC)[reply]
Do you understand the difference between European Union directive and European Union regulation? --Pudeo 20:28, 5 May 2007 (UTC)[reply]
The directive dictates the result, and the result is very clearly described in the directive. We know the result that had to be achieved. Unfortunately, w:Directive_on_the_coordination_of_certain_rules_concerning_copyright_and_rights_related_to_copyright_applicable_to_satellite_broadcasting_and_cable_retransmission#Implementation lists the implementation in Sweden as unknown. --rtc 21:13, 5 May 2007 (UTC)[reply]
Don't you mean en:Directive harmonizing the term of copyright protection#Implementation? Sweden implemented 93/98/EEC in 1995, when they joined the EU. Lupo 10:52, 7 May 2007 (UTC)[reply]
Yes, of course. Sorry. --rtc 17:13, 7 May 2007 (UTC)[reply]
The EU directive is very clear that photos are "to be considered original if it is the author's own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account". And you know what? This is what the Swedish law says about photos, too. Samulili 12:47, 7 May 2007 (UTC)[reply]
Good, then we agree that Sweden implemented the directive in exactly the same way as Germany. --rtc 17:41, 7 May 2007 (UTC)[reply]
  • Delete Quite outside of the EU regulations, the threshold of originality varies amongst countries, and such "simple photographs" from Sweden are eligible for copyright as "photographic works" in other countries where the threshold of originality is low (such as the U.S.). Therefore, I do not consider such "simple photograph" exceptions useful here at the commons; such photos may be protected only for a short term in Sweden, but may well be works with a long copyright term outside of Sweden. Such images are better hosted at the Swedish WP. Lupo 10:52, 7 May 2007 (UTC)[reply]

Keep The copyright harmonization directive rtc brings out does not apply to the photos considered here. This template considers photos which are not "author's own intellectual creations reflecting his personality", so they are covered by a related right, not copyright. The German courts demarcate the level of intellectual creation differently from Finland or Sweden and there is no Union-level jurisprudence. The views of German or Austrian courts do not bind Swedish courts or the courts of European Union. The final say on whether Swedish Copyright law provides photos with the protection required by the Copyright directive rests with the Court of European Communities. Before that court issues judgement, nobody knows. However, we should not be overcautious. So, you can get into trouble with these pictures if you use them in Germany or Austria, but outside them, there is no use to restrict the use of these images. --MPorciusCato 13:02, 4 May 2007 (UTC)

User:rtc agrees with you. In September rtc wrote: "Since I strongly suppose that it is not the case "that the Austrian and German cases are also significant for other EU members", you are of course right that "showing it individually for the other EU member countries" is the only way to find out.". Thuresson 16:48, 7 May 2007 (UTC)[reply]
If this template considers photos which are not the "author's own intellectual creation[s] reflecting his personality", then it is simply misapplied completely. Only reproduction photography, mugshots etc., where the technical goal determines the outcome, cannot be considered "author's own intellectual creation[s] reflecting his personality". As soon as the photographer can in principle choose the position freely and press the button arbitrarily, it is the "author's own intellectual creation reflecting his personality" The German court case is well significant for the other EU members insofar as they give a well founded opinion on how the directive's "author's own intellectual creation reflecting his personality" is to be interpreted. The Austrian court cases shows that this German court case is cited even by non-German courts, as a uniform demarcation to be applied EU-wide. If you publish a allegedly, but not really simple photograph in Sweden, and I sue you there, do you think the court there would ignore it if I pointed them to the German decision? --rtc 17:19, 7 May 2007 (UTC)[reply]
That you say that principle is completely misapplied is an opinion, not an argument. I think that the misapplication has taken place in Germany/Austrian. This, too, is an opinion, ie. just another stinking asshole...
And sure, someone in Finland(/Sweden/Denmark) could bring up the case in Germany/Austria. But it is immensely more likely that they will ask the opionion of the Finnish copyright council which will bare immensely more weight and whose opinion we also know. Furthermore, it doesn't really reflect well on the German/Austrian attitude, if the opinions of these two countries are set up as the model for the whole Europe when, in fact, the opinion of the Court of European Communities is the only one which has any significans accross borders. Samulili 18:31, 7 May 2007 (UTC)[reply]
What I say is not "an opinion", it is a fact. There has been no misapplication in Germany/Austria. The judgement was well based and the judge was well aware of the former law of Germany which was the same as the old law in Sweden, and which set high requirements for photographic works. But this was the old law, and it has changed since the implementation of the directive. According to your standards, I'd say that whatever you say or whatever the copyright council says is "just an opinion". A wrong opinion is not any better just because it is held by some alleged authority. There is still the pre-directive interpretation of the law floating around, and courts, copyright offices and so on are all not yet completely aware of the change and judge according to the old standards. However, this is the past. --rtc 19:19, 7 May 2007 (UTC)[reply]
What did the old law of Germany say and what do you think that the Swedish law says? The Swedish law: "Anyone who has created a literary or artistic work shall have copyright in that work, regardless of whether it is -- -- a photographic work -- --." ("Den som har skapat ett litterärt eller konstnärligt verk har upphovsrätt till verket oavsett om det är -- -- fotografiskt verk -- --.") Samulili 19:30, 7 May 2007 (UTC)[reply]
The old German law was interpreted as artistic merit or purpose being necessary for a photo to be protected as a photographic work. Since the EU directive has been implemented, this has changed, since it explicitly rejects that criterion ("no other criteria such as merit or purpose being taken into account" -- there can be no misunderstanding about that, and it's simply quite ridiculous that people are simply ignoring it) What does the cited part of the swedish law have to do with our discussion? --rtc 19:37, 7 May 2007 (UTC)[reply]
You claimed something about old and new Swedish law, so it's relevant to know just what stands in the law. Mind you, there is no old or new Swedish in this respect. What I quoted has stayed the same for 47 years. You also write: "The judgement was well based and the judge was well aware of the former law of Germany which was the same as the old law in Sweden." Then you write: "The old German law was interpreted as artistic merit or purpose being necessary for a photo to be protected as a photographic work." Swedish law does not require that a photo has artistic merit or purpose for a photo to be protected as a work. It never has required. Samulili 19:43, 7 May 2007 (UTC)[reply]
Then we agree that the criterion is not artistic merit or purpose, but choosing position and pressing the button? (in contrast to mugshots, satellite photos etc. where it is predetermined by the task and no personality reflected). We also agree that the template is certainly valid, but all pictures uploaded under it are actually photographic works? --rtc 19:50, 7 May 2007 (UTC)[reply]
You want to know my asshole? It is that photos that reflect personality are to be considered works. My asshole also says that choosing position and the moment of pressing the button reflect personality only when choosing the position and the moment of pressing the button reflect personality. The template is certainly valid and, no, the pictures that are using it, are not works. Samulili 19:57, 7 May 2007 (UTC)[reply]
The pictures that are using it are all works, since they were shot by choosing the position and the moment of pressing the button. You can recycle this template for reproduction photography. It covers the same range of photos as Template:PD-art, just for sweden. --rtc 20:06, 7 May 2007 (UTC)[reply]
Blah, blah, blah. Repeating something won't make it more true. Samulili 21:03, 7 May 2007 (UTC)[reply]
That's correct. It was already as true as it can get from the very beginning. --rtc 21:04, 7 May 2007 (UTC)[reply]
Quote: "I have actually not read any work at all on Swedish copyright law" and "I strongly suppose that it is not the case "that the Austrian and German cases are also significant for other EU members". Thuresson 13:06, 8 May 2007 (UTC)[reply]
Nothing of this contradicts my arguments for deleting this tag. --rtc 19:45, 8 May 2007 (UTC)[reply]
I have made an argument on Commons:Deletion requests/Template:PD-Finland50 [6] why I believe that many photos tagged with this or the related Finland and Denmark templates are actually OK in the US. If my reason is correct then vote Keep for this template, for the time being. If other wikipedians than German and English would like to have this and related templates deleted, they should come forth and say so. I do not approve of a user who claims to have no juridical background speaking on behalf of them, pretending to be able to interpret various laws based on "common sense", as though such a thing existed in the juridical world. / Fred Chess 16:11, 10 May 2007 (UTC)[reply]
Just because X says Y, and X has property Z, does not have as a necessary consequence that Y is false (for example if Z="no juridical background") or that Y is true (for example if Z="Professor in law"). Critical examination is necessary, and I gave some hints on how to do that (writing an email to the FCC about the issue, pointing to the court decisions and asking them about what they think about it). --rtc 21:47, 10 May 2007 (UTC)[reply]
  • Keep - German and Austrian law does not apply directly to Sweden. If this was more broadly accepted by EU nations, then it might hold more water. --PhantomS 12:29, 18 May 2007 (UTC)[reply]
This is not about EU regulations. Do you comprehend the difference between European Union directives and European Union regulations? Thuresson 12:24, 3 June 2007 (UTC)[reply]
I briefly read your links, it seems that because of legal precedent, EU directives are indeed binding and enforceable for member states, this marginalizes your claims that is acceptable to ignore the EU directive. Also I am not from Europe, but since you like to operate based on international law here on commons, the quote from lupo about the Berne convention seems relevant 'Also see §5(2) of the Berne Convention: copyright in a country "shall be independent of the existence of protection in the country of origin of the work." ' Swedish law has no business on here, not to mention these servers are not hosted in Sweden. Madmax32 08:36, 4 June 2007 (UTC)[reply]
"Notwithstanding the fact that directives were not originally thought to be binding before they were implemented by member states, the European Court of Justice developed the doctrine of direct effect where unimplemented directives can actually have direct legal force and in Francovich v. Italy the court found Italy liable for their failure to implement a directive."[7] and 'Direct Effect' [8] 'In Comet v. Produktschap (Case 45/76) [1976] ECR 2043, the European Court of Justice established that the procedural rules of each member state generally apply to cases of EC law.' That seems plausible that the Swedish copyright law in question could be challenged easily in a court, it's on shaky grounds at best. Madmax32 09:03, 4 June 2007 (UTC)[reply]
That's all very well, but the question here is not whether EU directives or regulations take precedent over national legislation or not. Samulili 09:58, 4 June 2007 (UTC)[reply]
Your claim that Swedish copyright law could easily be challenged in court seem to be a misunderstanding. The directive was implemented into Swedish law in 1996. Thuresson 18:24, 4 June 2007 (UTC)[reply]
Specifically the PD-Sweden, potentially a creator of a work could challenge the swedish law using the case law example set in Germany, this template is really just a liability and should go Madmax32 21:02, 4 June 2007 (UTC)[reply]
Please specify. Just like in Germany, most works are protected by Swedish copyright law for life + 70 years. Thuresson 21:28, 4 June 2007 (UTC)[reply]
As rtc pointed out, the German interpretation sets a case law example, a Swedish citizen could challenge the 50 year law used for tagging certain images here in a court, since it offers them less intellectual copyright protection than those in other EU member states, this tag has the same problems as the deleted Italy PD template Madmax32 21:34, 4 June 2007 (UTC)[reply]
First of all, a Swedish citizen could not challenge the 50 year regulation, but they could challenge the interpretation on what is a "fotografisk verk" and what is a simple "fotograf". Secondly, he could do that even if there never was any case in Germany. And thirdly: We can all be sued whether we are guilty or not – but at least we're innocent until proven guilty, not vice versa. Oh, and a fourth thing: equal treatment in EAA regardless of nationality means that every citizen of a EAA state has the same rights in Sweden. They also have equal rights in Germany. That, however, does not mean that they will have the same rights in Sweden as they have in Germany (unless required by a directive or regulation). Samulili 22:14, 4 June 2007 (UTC)[reply]
first of all US law makes no distinction between "fotografisk verk" a simple "fotograf" as you say, so those Swedish images are problematic since they may still be copyrighted in the US (70 years after death of author), this is the same reason the Italy-PD tag was deleted, but you are ignoring this point Madmax32 01:23, 6 June 2007 (UTC)[reply]
I'm not ignoring it. I've said before that we have a lot of PD-licenses (and other free licenses) used for images which are not PD in the US. But that is a different discussion and is discussed elsewhere. Samulili 12:11, 6 June 2007 (UTC)[reply]
  • This deletion request is based on EU Council Directive 93/98/EEC. However, that directive was repealed in 2006 and replaced with Directive 2006/116/EC which states about photographs that are not works: "The protection of other photographs should be left to national law." National law in this case states that photographs that are not works are protected for 50 years if published after 1968. Photographic works and simple photographs that had become public domain in 1994 when the copyright act was changed did not have their copyright revived (Law 1994:190). Thuresson 19:16, 22 June 2007 (UTC)[reply]
  • Keep

the whole discussion about PD-Finland-50, PD-Dennmark, and PD-Sweden is useless for obvious reason, that we all have to respect the regulations of Finnish, Swedish or Dannish law, and the only valid interpretation is F, S. or D. court interpretation of common law, not private German opinions is (or even verdicts of German Courts - there are suitable only on the territory of FRG, not abroad.

Is anyone (brave Viking) in whole Scandinavia to conclude and close these discusssions or there will be disputed without conclusion to the end of the world ;)

Freedom First - every limitation has to be justify in detail.

Andros64 10:54, 24 July 2007 (UTC)[reply]

Kept as laws of Germany does not apply for Sweden. Copyright law has not been changed. Make a new discussion when the law gets changed. --|EPO| da: 00:19, 27 July 2007 (UTC)[reply]

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