An English translation of the Swedish court decision is now available on
wikimediafoundation.org.[1]

As I understand the judgment, Offentligkonst.se, as a large-scale open
database, was found to unduly restrict the authors' opportunities for
commercial exploitation of their own works. And indeed, in this context it
doesn't matter whether the database itself is run for profit or not.

BUS's Erik Forslund explained[2] for example that municipalities pay BUS a
modest fee (again, in the range of a few hundred euros) to show images of
outdoor art online. A publicly available, open database removes that
market, all the more so if the images are also licensed for unlimited
commercial re-use – because commercial re-users are a key group that the
artists could otherwise derive income from.

Forslund expressed the hope[2] that BUS might be able to sign contracts
with Swedish search engine Hitta, Google and Facebook (as well as
Wikimedia). He also explicitly clarified that BUS had no interest
whatsoever in going after individuals posting selfies etc., and would
indeed consider it inappropriate. His organisation's interest is in getting
some compensation from the big internet players.

This frankly makes economic sense – quite apart from the morality of the
matter (someone posting online a selfie taken in a public place is clearly
not doing anything morally wrong), trying to get money from individual
posters online would cost far more money than the whole effort was worth.
It would be completely impracticable.

The postcard exemption exists for a similar reason, according to the court
judgment (section 15): negligible commercial value, and the sheer
impracticality of operating a payment scheme. Google, Facebook and
Wikimedia however are a different matter. The payments BUS hopes for are
roughly analogous to the payments Google makes to musicians whose music is
hosted on YouTube.

[1]
https://wikimediafoundation.org/w/index.php?title=File%3ATheSwedishSupremeCourtsDecisionBUSvWikimediaFINAL-English_Translation.pdf&page=1
[2]
http://www.nyteknik.se/digitalisering/hd-ger-konstnarer-ratt-mot-wikimedia-6537800

On Wed, Apr 6, 2016 at 7:00 PM, Johan Jönsson <brevlis...@gmail.com> wrote:

> 2016-04-06 18:05 GMT+02:00 Castelo Branco <michelcastelobra...@gmail.com>:
> >> The decision specifically and repeatedly states that the commercial
> >> aspect is irrelevant, as such a database "typically has a not
> >> insignificant commercial value" – whether the images in this
> >> particular case are or can be used commercially or not. See paragraphs
> >> 21 and 23.
> >>
> >> //Johan Jönsson
> >> --
> >>
> >
> > Note that "not insignificant" = significant. The decision points exactly
> > that the commercial aspect is relevant, and the artists should have
> > participation on it.
> > "The court finds that the artists are entitled to that value"[1], this is
> > what the decision says, at least according to The Guardian. I couldn't
> > understand the original decision, even if i have had access to it.
> > What is found in these paragraphs you've mentioned?
>
> In these paragraphs (and I think I meant 20 and 23, though 21 is also
> relevant – sorry) you find the courts argument that the commercial or
> lack of commercial aspect is irrelevant and that the scale is what
> matters. The decision is rather explicit on this point (e.g. "Huruvida
> förfogandet sker i kommersiellt syfte saknar betydelse"). The quote
> you refer to is regarding the fact that we're talking about a
> commercial scale: It's not about the specific ability to reuse content
> from this database, but the court argues that at a certain size,
> there's an inherent potential commercial value that the artists are
> entitled to. This argument is not made in the context of free licenses
> or others being able to reuse the content, but refers to the scope of
> offentligkonst.se.
>
> Now, I'm not a lawyer, so there's always a chance I could be mistaken,
> but I have read both the article you refer to and the decision and
> while there's nothing wrong with the former, as a newspaper article,
> it's still a shorter article about ten pages of legal text regarding a
> fairly intricate piece of copyright law. I would strongly advise
> against doing legal interpretation without having access to the
> decision in question, or a good translation thereof, because there are
> definitely aspects the newspaper article doesn't touch.
>
> //Johan Jönsson
> --
>
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