FOP in Europe: does this include WWII monuments with art?

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FOP in Europe: does this include WWII monuments with art?

Jane Darnell
Hello,
Apologies for cross-posting, but WMNL was recently approached for
helping start a photo contest for WWII monuments. Based on this
http://commons.wikimedia.org/wiki/File:Freedom_of_Panorama_in_Europe_NC.svg
We assumed that these photographs could be used on Wikipedia, but the
recent discussions about the DMCA takedown notice for this
http://commons.wikimedia.org/wiki/Category:Houseball_(Oldenburg_and_van_Bruggen)
indicate that FOP in Europe is not really FOP.

To be careful, we have decided to cancel the photo contest idea,
though people are of course terribly disappointed about this.

Does anyone know the status of this discussion? Of course, WLM has
brought in several thousand of these "possibly-not-FOP" sculptures, as
they are often WLM monuments themselves, or are situated directly in
front of buildings that are WLM monuments.

Thanks in advance for any info you have - we need a short and sweet
way to inform the WWII monument committee and WMNL volunteers why we
are cancelling.
Jane

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Re: FOP in Europe: does this include WWII monuments with art?

Fae-3
Hi Jane,

I am sorry to hear this has been a concern. My intuition is that this
would be far less of a tangible risk to a team project than the fuss
about this stuff might lead you to believe, so long as we can
demonstrate sensible advice, review and precautions being taken.

In the UK, FOP tends to be very liberal, however memorials have
special issues to consider if the intention is for a free release on
Commons. I would have encouraged some guidelines for
photographers/uploaders to be written up, and then continued with the
event with these in place, possibly with a means of contributors
asking further questions and having their uploads reviewed for
compliance via an on-wiki project page.

A few nuts and bolts of it based on my experiences on Commons (from a
UK perspective, so this will vary somewhat in other parts of Europe)
are:
1. Any memorial must be a permanent feature. Any work of art that
appears temporary is unlikely to be covered by FOP.
2. Text on a memorial may be under its own copyright even though it is
on permanent public display, so the text itself must be demonstrably
out of copyright. This is a separate issue from the general FOP
provisions. If the text is incidental to the photograph, i.e. not a
close up and the text is effectively de minimus, then FOP is likely to
be valid.
3. Text which is embossed and made 3D, such as being part of an
inscribed plaque, may be considered a 3D work and covered by FOP.
4. Any memorial photographed whilst standing on private land may not
be covered by FOP.

The US has free speech, but is a long way from a country that accepts
FOP, however so long as the photo is taken in the EU and is of a fixed
and identified memorial, EU copyright law is the principle one to
consider and FOP applies.

Thanks,
Fae
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Re: FOP in Europe: does this include WWII monuments with art?

Andrew Gray-3
On 2 March 2013 12:04, Fae <[hidden email]> wrote:

> 2. Text on a memorial may be under its own copyright even though it is
> on permanent public display, so the text itself must be demonstrably
> out of copyright. This is a separate issue from the general FOP
> provisions. If the text is incidental to the photograph, i.e. not a
> close up and the text is effectively de minimus, then FOP is likely to
> be valid.

One other thing to remember: most of this text is fairly uncreative -
in many cases, standard phrases or dates, and lists of names. We could
make a reasonably good case that they are unlikely to be copyrightable
texts regardless of age.

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Re: FOP in Europe: does this include WWII monuments with art?

Fae-3
On 2 March 2013 19:28, Andrew Gray <[hidden email]> wrote:

> On 2 March 2013 12:04, Fae <[hidden email]> wrote:
>
>> 2. Text on a memorial may be under its own copyright even though it is
>> on permanent public display, so the text itself must be demonstrably
>> out of copyright. This is a separate issue from the general FOP
>> provisions. If the text is incidental to the photograph, i.e. not a
>> close up and the text is effectively de minimus, then FOP is likely to
>> be valid.
>
> One other thing to remember: most of this text is fairly uncreative -
> in many cases, standard phrases or dates, and lists of names. We could
> make a reasonably good case that they are unlikely to be copyrightable
> texts regardless of age.

That's true, and I have uploaded plenty of my own photos of war
memorials with close up details of names, rank and so forth. However I
have run into problems with memorial statements that contain poetry,
simple drawings and original dedications and some of these have been
deleted despite me being reasonably cautious. I still think this is
solvable with some simple guidelines/principles for those taking part
in an event to take care to avoid any later problems with uploads.

Cheers,
Fae

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Re: FOP in Europe: does this include WWII monuments with art?

Andre Engels
In reply to this post by Jane Darnell
On Sat, Mar 2, 2013 at 11:59 AM, Jane Darnell <[hidden email]> wrote:

> Hello,
> Apologies for cross-posting, but WMNL was recently approached for
> helping start a photo contest for WWII monuments. Based on this
> http://commons.wikimedia.org/wiki/File:Freedom_of_Panorama_in_Europe_NC.svg
> We assumed that these photographs could be used on Wikipedia, but the
> recent discussions about the DMCA takedown notice for this
> http://commons.wikimedia.org/wiki/Category:Houseball_(Oldenburg_and_van_Bruggen)
> indicate that FOP in Europe is not really FOP.
>
> To be careful, we have decided to cancel the photo contest idea,
> though people are of course terribly disappointed about this.
>
> Does anyone know the status of this discussion? Of course, WLM has
> brought in several thousand of these "possibly-not-FOP" sculptures, as
> they are often WLM monuments themselves, or are situated directly in
> front of buildings that are WLM monuments.

Freedom of Panorama is one part of copyright law where the various
European countries vastly differ in their rules, so I don't think it's
possible to give a general answer.



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Re: [Wikimedia-l] Fwd: FOP in Europe: does this include WWII monuments with art?

Fae-3
In reply to this post by Jane Darnell
On 3 March 2013 12:10, Jane Darnell <[hidden email]> wrote:
...

> In that discussion, the whole category for the Washington, DC Vietnam
> memorial was nominated for deletion, see here:
> http://commons.wikimedia.org/wiki/Special:WhatLinksHere/Category:Vietnam_Veterans_Memorial
> The last word on that discussion was "I called the Smithsonian and the
> Park Service about this. Aside from laughing, they were confused why
> anyone would assume that the copyright was owned by anyone except the
> USGov, or that it wan't in the PD. I can't get anyone on the record
> about this."
>
> I would go so far as to assume that the same is true for Dutch WWII
> memorials, and if we cannot come up with a good way of preserving
> Dutch WWII memorial images for the Dutch Wikimedia community to use in
> any Wikipedia project (so not just the NL wiki), then I propose a
> Dutch Wikipedia blackout on May 4th out of protest, since obviously
> the only hindrance is the fear of Wikimedia Commons users that they
> will be legally pursued, and I assume that this fear is real enough
> that we can go public with it.
>
> On a personal level, as a Dutch citizen, I would be willing to be the
> first to be tried legally on such an issue, and after my discussion
> this morning, I believe I could crowd source my legal fees with
> support from the Dutch Wikipedia community.

Hi Jane,

I know it's all rather frustrating. I suggest a common sense approach
to the Commons community. There are a few rather good copyright
wikilawyers that dominate the discussion on Commons, the primary way
of handling them (us?) is to make sure that there is (i) clear policy
or agreed guidelines and (ii) legal clarification and external advice
where this would be helpful. Our critical wikilawyers do not make the
law, but they do help highlight how daft it can be at times. :-)

Now, in the *real world*, there is unlikely to be any issue were the
GLAM project you envisage to upload 1,000 or 100,000 images. A tiny
percentage will be deleted for various reasons, as a matter of course,
no matter how hard you try to run detailed guidelines. The idea that
such a project either must not proceed, or would be judged a failure
by the Wikimedia community, were a single image to be a potential
copyright problem, is not feasible, and we do not want such great
projects to be paralysed for fear of criticism because we have not got
full answers to every possible risk. The key Commons policy to
consider is the Precautionary Principle, so long as there are no
*significant* doubts with regard to copyright, then this indicates it
is perfectly okay to upload images where one has taken simple and
obvious precautions.[1]

Commons benefits from another great community approach, that of
staying mellow, you may want to take the Smithsonian's approach and
laugh most of this away. I suggest rather than brinkmanship and
calling for black-outs and legal cases, you consider different avenues
of community consultation, such as relevant questions on the village
pump, the copyright noticeboard and set up a GLAM Commons WikiProject
page for long term guidelines for your project members to discuss and
improve. With such consultation banked, it would be hard for anyone to
come along later and criticise you for not trying to address the issue
and reach a practical conclusion.[2][3][4][5]

My viewpoint is as a well known Wikimedia Commons contributor with
40,000+ image uploads, 600,000+ edits and over 1.2 million further
edits by bot. Oh, and I do other more important stuff too. :-D

Links
1. http://commons.wikimedia.org/wiki/Commons:Project_scope/Precautionary_principle
2. http://commons.wikimedia.org/wiki/Commons:Staying_mellow
3. http://commons.wikimedia.org/wiki/Commons:GLAM
4. http://commons.wikimedia.org/wiki/Commons:Village_pump/Copyright
5. http://commons.wikimedia.org/wiki/Commons:Village_pump

Cheers,
Fae
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