Submissions/Wikimedia Foundation and the Bad Apple - How Freedom of Panorama Conflict Was Handled and what can be done

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This is an accepted submission for Wikimania 2013.

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presentation slides
Submission no.
2025
Subject no.
L1
The Eaten Apple by Claes Oldenburg, Israel Museum, Jerusalem
Title of the submission
Wikimedia Foundation and the Bad Apple - How Freedom of Panorama Conflict Was Handled and what can be done
Type of submission
Presentation
Author of the submission
Deror Avi
Country of origin
Israel
Affiliation
Wikimedia IL
E-mail address
deror@wikimedia.org.il
Username
Deror_avi
Personal homepage or blog
Abstract

In 2012 in Wikimania I gave a lecture on the effects of Conflict of Laws on Wikimedia Commons and gave an example possible conflicts which may arise in cased of Freedom of Panorama. Later that year, such conflict has arisen. In November 2012 Wikimedia Foundation (WF) has removed several images under the DMCA as a result of a letter of demand sent to the Foundation. Such images were uploaded as Free images in the country of origin. WF has chosen to remove the images rather then object to the demand. This lecture will explore the option WF had, differentiate between various cases possible, and show how these scenarios differ based on Private International Law. At the end of the lecture I will propose to technical solutions and display the legal aspects thereof:

  • Moving the Commons servers to another country (UK or Germany)
  • Displaying the images outside the US but not in the US

Both these solutions will enable the worldwide audience to use and enjoy the images, while not exposing the WF to legal liability.

Detailed proposal

In 2012 in Wikimania I gave a lecture on the effects of Conflict of Laws on Wikimedia Commons. Wikimedia Commons is a repository of images. It is used as an images and files database for all other wikimedia projects, but also it is a project in itself, aimed at creating available useful files free of copyrights restrictions (or, more accurately "copyleft" files) to be used by the public. The images are taken all over the world by Wikimedians and the general public, and local Wikimedia chapters try to advance this aim by conducting wiki photo gatherings, photo hunts, by provided the photographers with know how (courses) and equipment (cameras and hard disks) etc. Many chapters invest time and money in creating projects to advance this aim - collaborations with local cultural and governmental institutions aimed at enhancing the repository with images of these institution.

However, the international nature of the project, and the fact that one project is used worldwide, while the servers are based in the US causes problems and conflicts.

Such conflicts of Law may include problems such as different attitude to copyright terms, to the Bern convention, and to Freedom of Panorama. A work of art by one artist may be free in one country but unfree in another (for example - a statue in a country where freedom of panorama exists, while the artist lives in a country where it does not, and vice versa).

This problem may become even more complicated when works of art move from one country to another, and become "free" or "limited" again and again.

In November 2012 Wikimedia Foundation (WF) has removed several images under the DMCA as a result of a letter of demand sent to the Foundation (The DMCA takedown notice). Such images were uploaded as Free images in the country of origin. WF has chosen to remove the images rather then object to the demand. One of the said images was a statue of an eaten Apple by Claes Oldenburg. This lecture will make a case study of how the WF has eaten this apple.

(Eventually not all images were deleted).

This lecture will explore the options WF had, differentiate between three cases possible:

  • A case were the work is outside the US, but the artist is American;
  • A case were the work is outside the US and the artist is not American;
  • A case were the work was first displayed outside the US, brought into the US, and the artist is not American.

I will show how these scenarios differ based on Private International Law.

At the end of the lecture I will propose to technical solutions and display the legal aspects thereof:

  • Moving the Commons servers to another country (UK or Germany)
  • Displaying the images outside the US but not in the US

Both these solutions will enable the worldwide audience to use and enjoy the images, while not exposing the WF to legal liability.

Track
Legal or Cultural and Educational Outreach
Length of presentation/talk
25 Minutes
Language of presentation/talk
English
Will you attend Wikimania if your submission is not accepted?
Yes
Slides or further information (optional)
Special requests

Not on Sabbath.

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  1. Waldir (talk) 20:12, 11 April 2013 (UTC)
  2. អមីរ ឯ. អហរោណិ 07:58, 12 April 2013 (UTC)
  3. Hawkeye7 (talk) 23:27, 12 April 2013 (UTC)
  4. MB-one (talk) 22:28, 16 April 2013 (UTC)
  5. Béria Lima msg 17:34, 18 April 2013 (UTC)
  6. SarahStierch (talk) 21:30, 23 April 2013 (UTC)
  7. I did a presentation on the same topic at Wikimania 2011 in Haifa, Israel where I pointed at this problem before it happened. Freedom of panorama remains a key issue on Commons and elsewhere, so I'm glad there will be a presentation on the subject - I look forward to hearing new ideas. CT Cooper · talk 23:06, 28 April 2013 (UTC)
  8. - Very important! Marcus Cyron (talk) 22:31, 30 April 2013 (UTC)
  9. Multichill (talk) 13:11, 4 May 2013 (UTC)
  10. Axel Pettersson (WMSE) (talk) 09:34, 6 May 2013 (UTC)
  11. Schiste (talk) 14:12, 7 May 2013 (UTC)
  12. John Andersson (WMSE) (talk) 08:52, 16 May 2013 (UTC)
  13. André Costa (WMSE) (talk) 13:26, 16 May 2013 (UTC)
  14. Marcio De Assis (talk) 15:16, 6 June 2013 (UTC)
  15. Teemeah (talk) 10:18, 20 July 2013 (UTC)
  16. Nicole Ebber (WMDE) (talk) 23:39, 31 July 2013 (UTC)
  17. Sebastian Wallroth (talk) 16:42, 7 August 2013 (UTC)
  18. As Jean-Fred pointed out on the talk page, the Foundation's legal team - I can't speak for them here, this is just a personal observation - published a statement about this issue earlier this year, concluding that the two solutions in this proposal ("Moving the Commons servers to another country", "Displaying the images outside the US but not in the US") are not legally feasible. I hope the presentation will describe where, in the speaker's opinion, the WMF's legal analysis went wrong. Also, I seem to recall some said that not complying with such a DMCA takedown notice might jeopardize the Foundation's liability status. Here too it would be great if the Foundation could benefit from the speaker's legal expertise, if he has evidence that refusing this DMCA request would not have carried such a risk. Finally, I wasn't aware that "eventually not all images [from the DMCA notice] were deleted", specific examples would be nice (note also that the WMF legal team did, to my knowledge, not call for the deletion of the images in the linked deletion discussion). Regards, Tbayer (WMF) (talk) 05:22, 11 August 2013 (UTC)
  19. Your name here