Hi Ryan,
I don't understand why Wikimedians are having those kind of doubts, and
would like to hear the reasoning behind. There's not even a single doubt,
from my side, about Portuguese law covering public interiors. This is not
even a question of case law or legal interpretation. Any regular citizen in
Portugal knows that a public space as in "local público" is any place that
can be accessed by the public, etc. As I said in my study, "via pública"
("public highway") is the wording we use to refer to streets, squares and
any other public outdoors. You can ask any Portuguese lawyer or judge and
they will all answer you the same - a few minutes ago, I just did that
"silly" question to a judge (to prove you I'm right), and guess what? It
was a silly question, because "of course" a public school and a hospital
are public spaces, he said! I mean, go to a Portuguese dictionary, you'll
find the same answer. Also, in our study, we give an example of an online
art library - run by the well-known Calouste Gulbenkian Foundation - that
contains photos of murals located in the interior walls of schools and
metro stations.
I think you are really missing the point here. I don't know how many of you
are lawyers, so I'll try to simplify the idea that I described in the
introduction to my study, and that's very well explained in this study by
Professors Hugenholtz and Senftleben
<http://www.ivir.nl/publicaties/download/912>. The optional FoP exception
foreseen in the InfoSoc Directive ("use of works, such as works of
architecture or sculpture, made to be located permanently in public
spaces") contains everything that is possible to do, in terms of FoP
legislation, in EU member states, for the time being.
This means that, when the UK says "in a public place or in premises open to
the public" that has to be included in the wording "public place" of the
Directive - otherwise, the UK law would be infringing EU law. The same for
"works": when a member state law specifically mentions literature,
paintings, etc in their FoP exceptions (or when such laws only use the word
"works" without giving any examples) it means that the wording "such as"
used in the InfoSoc is placed there to give a random example of a public
placed work, and not to exclude 2D works - unless you think all those
member states got it wrong and are infringing EU law.
So, my point (the one that I think you are missing) is that the wording
used in InfoSoc exception (that same wording that Portugal replicated) is
good enough, and we should be fighting for it to be mandatory across
Europe. Laws will always use abstract concepts, and a more detailed clause
might inadvertently leave something out that a more open-ended clause
wouldn't.
You can always fight for having it clear in the recitals of the EU law that
"public spaces" include public interiors or that "works of architecture or
sculpture" are a mere exemple of the type of works that can be found in
public spaces, and doesn't mean to exclude graffiti, literature or other 2D
works. Because what we see from the different national implementations is
that all of this is already contained in the wording of the Directive. In
my opinion, fighting for having a different wording will only create noise
and divert attention - the clear message that we should be sending to the
EU Commission is that the optional InfoSoc exception should be made
mandatory across Europe. That's the big fight, which I wouldn't like us to
loose!
Best,
Teresa
2016-06-08 23:22 GMT+01:00 Ryan Kaldari <[email protected]>:
> There has been some contention among Wikimedians about whether Portuguese
> FoP law covers public interiors. Teresa's legal analysis (
> http://www.communia-association.org/wp-content/uploads/2016/06/BCS_Communia_FoP_study.pdf)
> addresses this topic specifically on pages 9 and 10. Basically it argues
> that the phrase "locais públicos" is understood in Portuguese jurisprudence
> to include public interiors, even if it is not specifically defined as
> such. Many other countries use similar phrasing in their FoP laws and it
> seems to be a roll of the dice whether this is interpreted as including
> public interiors in each country. For example, in the Netherlands, it is
> interpreted as including railway stations, but not schools, theaters, and
> museums. In Switzerland, it is interpreted as not including public
> interiors, but possibly railway stations, shopping arcades, and interior
> courtyards (though there is disagreement among scholars).
>
> I would argue that the true "best case scenario" for Freedom of Panorama
> would be a combination of the Portuguese and UK laws. The Portuguese law
> has the best inclusion of works (basically, all works) and the UK has the
> best inclusion of locations: "in a public place or in premises open to the
> public". While it may be true that the Portuguese law is interpreted as
> also including public interiors, I prefer the more explicit wording of the
> UK law in this regard, and I think we should try to promote such wording in
> any potential FoP legislation.
>
> On Wed, Jun 8, 2016 at 2:38 PM, Lisette Kalshoven <[email protected]> wrote:
>
>> Hi Jan, Raul, all,
>>
>> As Freedom of Panorama is something Wikimedia cares very deeply about,
>> I’m very curious on what you think about the Panorama study Teresa did for
>> Portugal. As she wrote, we published it this morning:
>> http://www.communia-association.org/2016/06/07/freedom-panorama-bcs-copyright/
>>
>> Any thoughts?
>>
>> Cheers,
>>
>> Lisette
>>
>> --
>> Kennisland | www.kennisland.nl | t +31205756720 | m +31613943237 |
>> @lnkalshoven | skype: lisette.kalshoven
>>
>> On 08 Jun 2016, at 12:54, Teresa Nobre <[email protected]>
>> wrote:
>>
>> Thanks Jan!
>> We just released the FoP study:
>> http://www.communia-association.org/2016/06/07/freedom-panorama-bcs-copyright/
>>
>> Best,
>> Teresa
>>
>>
>>
>> 2016-06-07 9:41 GMT+01:00 Jan Gerlach <[email protected]>:
>>
>>> Hi Lisette and Teresa
>>>
>>> Congratulations on a great campaign and thanks for sharing it on this
>>> list! I really like the approach and am very curious about the forthcoming
>>> case studies.
>>> I appreciate that you set expectations right ("EU copyright reform won’t
>>> fix it all.") and give best practice examples of norms that are actually in
>>> effect.
>>>
>>> Best,
>>> Jan
>>>
>>> ==
>>>
>>>
>>> Jan Gerlach
>>> Public Policy Manager
>>> Wikimedia Foundation
>>> 149 New Montgomery Street, 6th Floor
>>> San Francisco, CA 94105
>>> [email protected]
>>>
>>> On Mon, Jun 6, 2016 at 7:20 AM, Teresa Nobre <
>>> [email protected]> wrote:
>>>
>>>> Hi Raul,
>>>>
>>>> If you wait 2 more days, you can read the 10-page report that I
>>>> prepared on the Portuguese study.
>>>> As you will see, public interiors is not an issue in Portugal, because
>>>> we have a broad definition of public space elsewhere in the Portuguese
>>>> Copyright Code. The fact that this is a relatively abstract norm (with a
>>>> wording very similar to the InfoSoc), only raises interpretation issues
>>>> with regards to the purposes. But the fact that the norm doesn't exclude a
>>>> priory commercial purposes can only be seen as a positive thing. The rest
>>>> of the concepts (e.g. "use", "works") are defined in other norms, so they
>>>> are not vague at all.
>>>>
>>>> Thanks,
>>>> Teresa
>>>>
>>>>
>>>> 2016-06-06 15:01 GMT+01:00 Raul Veede <[email protected]>:
>>>>
>>>>> Well, Estonian FoP was today discussed in the Parliamentary Committee
>>>>> of Culture, and we're hoping to present the case in the Committee of
>>>>> European Affairs in close days.
>>>>>
>>>>> The Portuguese scenario has at least three weaknesses I can identify
>>>>> (I've written about it in short in a comment on your blog post, and in
>>>>> length to Teresa Nobre personally; to count quickly, it leaves unclear the
>>>>> situations with public interiors and several types of works, and
>>>>> prescribes
>>>>> provisions so vague that every politician would be proud to include such
>>>>> language in their election program) and if it were adopted in Estonia, we
>>>>> would actually lose some territory that is currently covered by NC FoP and
>>>>> by the draft bill I wrote would become also free commercially.
>>>>>
>>>>> So please excuse me but we're in a bit of a hurry here yet would still
>>>>> be greatly interested in reasons for going backwards.
>>>>>
>>>>> Also, my experience shows it is hard to get Communia to respond to
>>>>> anything. You don't exactly try to communicate with people who comment on
>>>>> your blog or FB, and your posts have a constant lack of references and
>>>>> analysis. If you're saying you are recommending the best scenarios without
>>>>> having any analysis to back up your recommendations yet, it sounds,
>>>>> unfortunately, believable. Care to disprove my cynicism?
>>>>>
>>>>> All the best,
>>>>>
>>>>> Raul
>>>>>
>>>>> On Mon, Jun 6, 2016 at 4:49 PM, Lisette Kalshoven <[email protected]> wrote:
>>>>>
>>>>>>
>>>>>> Hi Raul,
>>>>>>
>>>>>> The supporting documents (with full legal analysis) will be published
>>>>>> when we share the individual scenario’s over the next 3-4 weeks. This is
>>>>>> just us announcing the series. So stay tuned :)
>>>>>>
>>>>>> With kind regards
>>>>>>
>>>>>> Lisette
>>>>>>
>>>>>> --
>>>>>> Kennisland | www.kennisland.nl | t +31205756720 | m +31613943237 |
>>>>>> @lnkalshoven | skype: lisette.kalshoven
>>>>>>
>>>>>> On 06 Jun 2016, at 15:46, Raul Veede <[email protected]> wrote:
>>>>>>
>>>>>> Your proposal of the Portuguese scenario as a good example for
>>>>>> adopting across Europe made me wondering what might be the reasoning
>>>>>> behind that. In the piece published today you only count the examples but
>>>>>> do not offer any analysis, proof, or legal reasons. Would you be so nice
>>>>>> and expand it beyond pure rhetorics?
>>>>>>
>>>>>> All the best
>>>>>>
>>>>>> Raul
>>>>>>
>>>>>> On Mon, Jun 6, 2016 at 4:43 PM, Lisette Kalshoven <[email protected]> wrote:
>>>>>>
>>>>>>> Dear Wikimedians,
>>>>>>>
>>>>>>> Today at Communia we’re launching the Best Case Scenarios for
>>>>>>> Copyright <http://www.communia-association.org/bcs-copyright/> series,
>>>>>>> to promote great solutions such as user-friendly copyright limitations.
>>>>>>> They work in some EU countries and we want to talk about making them
>>>>>>> (and
>>>>>>> other good ones) mandatory for the whole EU. It would be great if you
>>>>>>> could
>>>>>>> promote the message via social media and any other communication with
>>>>>>> your
>>>>>>> partners.
>>>>>>>
>>>>>>> Today we introduce the idea for the campaign and on Wednesday we
>>>>>>> will publish the first case. Today’s post may be found here
>>>>>>> <http://www.communia-association.org/2016/06/06/bcs-copyright/> and
>>>>>>> Communia TT is here
>>>>>>> <https://twitter.com/communia_eu/status/739782579952443392>.
>>>>>>>
>>>>>>> Best wishes,
>>>>>>>
>>>>>>> Lisette Kalshoven
>>>>>>>
>>>>>>> --
>>>>>>> Kennisland | www.kennisland.nl | t +31205756720 | m +31613943237 |
>>>>>>> @lnkalshoven | skype: lisette.kalshoven
>>>>>>>
>>>>>>>
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>>>>>>>
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