Swedish Supreme Court Rules Against Wikimedia for Database of Public Art Photos

The Supreme Court of Sweden ruled yesterday that Wikimedia Sverige (Sweden) violated the country’s copyright laws by gathering and posting photographs of public artworks on a website, the Local Sweden reported.

The site in question, Offentlig Konst (Public art), maps the locations of permanent public artworks around the country. Each work is represented by a virtual pin that, when clicked, offers more information about it. In some cases, the information is accompanied by a photograph, taken by a member of the public and uploaded to Wikimedia. The site is noncommercial.

In June 2014, Bildkonst Upphovsrätt i Sverige (Visual Arts Copyright Society in Sweden; BUS), an economic association that claims to represent the rights and interests of many thousands of artists, filed a lawsuit against Wikimedia Sverige, which publishes Offentlig Konst. BUS alleged that the foundation infringed the copyrights of three of its artists by hosting reproductions of their work online without first securing their permission. In turn, Wikimedia argued that Swedish copyright law allows for people to take pictures of public artworks and post them online, “and that this interpretation is consistent with European law,” according to a Wikimedia Foundation blog post about the ruling.

In the post, Michelle Paulson, legal director of the Wikimedia Foundation, writes:

The case was originally brought in the Stockholm District Court, but both parties agreed to ask the Supreme Court of Sweden to decide the key question that had not yet been addressed in Swedish law: whether an artist of a work permanently placed in a public location has the right to restrict online communications depicting that art.

On April 4, the supreme court ruled in favor of BUS.

According to excerpts quoted in the Local, the decision seems to hinge less on the sole fact of uploading of images online than it does on the placement of them in a publicly available database. “It is different when it’s a database where artworks are made available to the public to an unlimited extent without copyright-holders receiving any remuneration,” the court said. “A database of this kind can be deemed to have a commercial value that is not inconsiderable. The court rules that the copyright-holders are entitled to this value. It is not relevant whether or not Wikimedia has a commercial aim.”

Regardless of the logic underpinning it, Wikimedia sees the ruling as a major blow to freedom of panorama, the right to make and use (including publishing) pictures of public buildings and sculptures without being subject to copyright infringement. Last summer, a proposal to severely limit freedom of panorama was shot down in the European Parliament; however, a simultaneous amendment that would have extended full freedom of panorama to all EU member states also failed. So, each EU country sets its own laws regarding the use of pictures of public artworks and buildings. According to Wikimedia, yesterday’s ruling means that Sweden now does not allow anyone — even people who want to post vacation photos — to put images of public art online without first obtaining permission from the artist.

“We believe that this ruling undermines the fundamental purpose of the freedom of panorama: the right for people to capture and share, online or otherwise, the beauty and art of their public spaces,” Paulson writes, before going on to point out that Swedish law does allow for images of public art to be reproduced on postcards, “even for profit and without the artist’s consent.”

A Stockholm district court will determine the amount of damages to be awarded in the case, while Wikimedia Sverige debates possible next steps. “Our priority now will be to re-shape the debate, because clearly this is an outdated judgement,” Anna Troberg, Wikimedia’s Swedish operations manager, told the Local. “It is in no way in tune with the times that somebody should face legal repercussions for taking photos of public artworks that we have all paid for with our taxes.”