Wikimedia vs BUS: How to Regulate Copyright on Public Art in the Digital Age

If you’re thinking about posting on Instagram one more selfie from your recent trip to Sweden, think again. OffeSntlig Konst, an open database where visitors can see descriptions, maps and images of public works, was recently found guilty of copyright infringement by the Supreme Court of Sweden. According to the court ruling, the platform, owned by Wikimedia Sweden, violated copyright law by giving away free access to those images without compensating the artists. Prior to the lawsuit, Wikimedia reportedly refused to negotiate a licence with Bildkonst Upphovsrät i Sverige (BUS), the lobby group that initiated this lawsuit and that normally represents artists in copyright matters.

The provision at the heart of this case, Article 24 paragraph 1 of the Swedish Act on Copyright in Literary and Artistic Works, allows the depiction in pictorial form of a work of art if permanently placed outdoors on or by a public place. When determining what restrictions of the authors’ exclusive rights lay within the concept “depict,” the court made a very clear distinction between reproductions of little economic value, such as the creation of postcards, and other uses. The court decided that in its restrictive interpretation of Article 24, it had to strike a balance between the application of the law and the purpose of the database at hand. Although Wikimedia’s platform had the public’s interest in mind, the court determined that “a database of the present kind [provides] for great use of copyright protected works without any compensation being paid to the authors. [It is thus] a considerably greater restriction of their exclusive rights than the provision aims at.” It then added that whether or not Offentlig Konst has a commercial purpose is irrelevant in this case.

This decision raises many concerns that go beyond the realm of databases. First and foremost, what are the potential implications regarding public space and its interaction with technology on a daily basis? As governments around the world have been trying to modernize their respective copyright legislations, it is interesting that the Swedish Supreme Court in this case seemed to believe that the main problem with Wikimedia’s platform was the fact that the available pictures were used in a digital environment as opposed to analog depictions, which allow for a much more limited scope of reproduction and distribution. By making the pictures available for unlimited use, the open database took away a significant opportunity for artists to monetize their creations. But isn’t that the case with every picture posted online? Wikimedia believes that following the logic used in this decision would make sharing on social media a selfie in front of a Swedish monument or public artwork an act in violation of Swedish copyright laws. Moreover, the compensation of authors being an important part of this ruling, the fact that social media platforms such as Instagram ask for a non-exclusive worldwide license on published content could make it harder to argue that, like postcards, such use would be of little economic value.

Aside from the potential implications for social media users, this decision raises a question that is often asked when talking about works in public spaces: should public art automatically be in the public domain? Wikimedia surely seems to think so, as it sees this entire case as a “battle over the erosion of public space and the rights of the public in that space.” As a matter of fact, when asked about their refusal to negotiate a license fee with BUS, Wikimedia reiterated their belief that public art should be accessible to the public without restrictions. Others have endorsed this declaration by adding that taxpayers should be able to access art that has been financed with their money and that they should not have to pay for it over and over again. Proponents of this vision should be mindful, however, of the fact that copyright protection gives artists an incentive to create. By not granting protection to those works, an obvious hierarchy between public and non-public art would most likely be created. There already seems to be an implicit divide between the two, as the rising number of copyright law cases involving street art shows (see IPilogue coverage here). Public art’s intellectual property rights being more and more infringed upon in the digital age might only accentuate this hierarchy.

Whether or not a similar decision could be rendered in Canada is hard to determine. So far, Canadian courts have not had to rule on this issue. Section 32.2 (1) of the Canadian Copyright Act, which allows the reproduction in a painting, drawing, engraving, photograph or cinematographic work of architectural works and public art, does bear some similarities with Article 24 of the Swedish Act.When the time to interpret similar provisions comes, courts will have to keep in mind that, as Magdalen Malm, director of Public Art Agency Sweden puts it, “it is vitally important that people can take pictures in the public realm, but also that artists get paid fairly for their work.” Surely, as public space, authors’ rights and the act of freely sharing digital content become more and more intertwined, this case will not be the last time we see copyright laws conflict with the digital world.

Aicha Tohry is an IPilogue Editor and an Université de Montréal LLB holder.

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