Wikimedia Foundation, Wikimedia Deutschland urge Reiss Engelhorn Museum to reconsider suit over public domain works of art

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Photo by jelm6, freely licensed under CC BY 2.0.
On October 28, the Reiss Engelhorn Museum in Mannheim, Germany, served a lawsuit against the Wikimedia Foundation and later against Wikimedia Deutschland, the local German chapter of the global Wikimedia movement. The suit concerns copyright claims related to 17 images of the museum’s public domain works of art, which have been uploaded to Wikimedia Commons. The Wikimedia Foundation and Wikimedia Deutschland are reviewing the suit, and will coordinate a reply by the current deadline in December.
The Wikimedia Foundation and Wikimedia Deutschland stand firmly in our commitment to making public works freely and openly available. Public institutions such as galleries and museums serve a similar mission, and have historically been our allies in making the world’s knowledge accessible to all. With this lawsuit, the Reiss Engelhorn Museum is limiting public access to culturally important works that most of the world would otherwise not be able to access.
The paintings, portraits, and other works of art at issue in this case are housed in the Reiss Engelhorn Museum, but exist freely in the public domain. However, German copyright law may apply to photographs of works in the public domain, depending on a number of different factors, including the artist who created the work, the amount of skill and effort that went into the photograph, creativity and originality in the photograph, and the actual art itself. The Reiss Engelhorn Museum asserts that copyright applies to these particular images because the museum hired the photographer who took some of them and it took him time, skill, and effort to take the photos. The Reiss Engelhorn Museum further asserts that because of their copyrights, the images of the artwork cannot be shared with the world through Wikimedia Commons.
The Wikimedia Foundation and Wikimedia Deutschland believe that the Reiss Engelhorn Museum’s views are mistaken. Copyright law should not be misused to attempt to control the dissemination of works of art that have long been in the public domain, such as the paintings housed in the Reiss Engelhorn Museum. The intent of copyright is to reward creativity and originality, not to create new rights limiting the online sharing of images of public domain works. Moreover, even if German copyright law is found to provide some rights over these images, we believe that using those rights to prevent sharing of public domain works runs counter to the mission of the Reiss Engelhorn Museum and the City of Mannheim and impoverishes the cultural heritage of people worldwide.
Many cultural institutions have made it their mission to make their collections more accessible to people around the world. In October, the Museum für Kunst und Gewerbe in Hamburg, Germany made its collection available for free online. Amsterdam’s Rijksmuseum has provided free online access to all of its paintings, including the ability to download and use the reproductions under the CC0 Public Domain Dedication license. In Denmark, SMK (Statens Museum for Kunst, The National Gallery of Denmark) has released its digital images and videos under the CC BY license. The British Library and the Japan Center for Asian Historical Records jointly released more than 200 Japanese and Chinese prints into the public domain.
These cultural institutions are upholding the values of the public domain and protecting the right to take part in our cultural heritage. The Reiss Engelhorn Museum’s attempt to create new copyright in public domain works goes against European principles on the public domain.
In a Communication on August 11, 2008, the European Commission wrote: “it is important to stress the importance of keeping public domain works accessible after a format shift. In other words, works in the public domain should stay there once digitised and be made accessible through the internet.” This was reinforced by the Europeana Charta of 2010 that reads: “No other intellectual property right must be used to reconstitute exclusivity over Public Domain material. The Public Domain is an integral element of the internal balance of the copyright system. This internal balance must not be manipulated by attempts to reconstitute or obtain exclusive control via regulations that are external to copyright”.
Over the years, the Wikimedia movement has enjoyed rich partnerships with museums and galleries around the world through the GLAM-Wiki initiative, which helps cultural institutions share their resources with the world through collaborative projects with experienced Wikipedia editors. The relationships have allowed millions of people from around the globe to access and enjoy institutional collections in places they may never have the chance to visit. Wikimedia Deutschland alone has worked with more than 30 museums in Germany to make their collections freely available to anyone, anywhere through the Wikimedia projects. These partnerships are part of a vital effort to allow cultural institutions and Wikimedia to serve their missions of free knowledge and shared culture.
People around the world use Wikipedia to discover and understand the world around them. Thanks to the Internet, many traditional barriers to knowledge and learning have disappeared. Denying online access to images in the public domain prevents people from exploring our shared global cultural heritage. We urge the Reiss Engelhorn Museum to reconsider its position and work with the Wikimedia community to make their public domain works more broadly available.
Michelle Paulson, Legal Director
Geoff Brigham, General Counsel
Wikimedia Foundation

A German-language statement from Wikimedia Deutschland is available on their blog. A full list of the images affected is on the Wikimedia Commons.

Archive notice: This is an archived post from blog.wikimedia.org, and as such was written under a different editorial standard than Diff.

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Just wondering: would the outcome of this lawsuit (either positive or negative) be able to influence similar situations in other European countries? More precisely – if WMF and WMDE win this particular case in Germany, would that then be at least a bit influential for similar cases in, say, France or Belgium?

How depressing. How small-minded of them.
Which images?

With regard to similar cases in other countries, it can be hard to say. Most European countries are civil law jurisdictions, meaning that they’re not required to follow other court decisions if they don’t want to. But of course if a court writes a decision with a good explanation and logical reasoning, that can be very persuasive in many different places that have similar laws.

@Spinster: And vice versa: What if the court declares there is nothing like Bridgeman vs. Corel in European copyright law, and any photographer reproducing a public-domain 2D painting owns the copyright to the photograph?

OK, if the Museum is saying that those images actually represent the photographer’s artworks, those images are not representing the original artworks that the readers were fraudulently induced to think they were watching. They just cannot be both at the same time: either they are the photographer’s artwork, or they are the original PD artwork. If the photographer really spent his own art in taking these shots, we should exclude that he spent it with the explicit agreement of the original authors, that – given the habits on Commons – should currently be silently hiding into the ground, buried since… Read more »

Spinster, it depends what path the judgement goes. A sentence making large reference to common EU/international norms and jurisprudence is commonly used by judges in other countries as well, for matters with no precedents. Only if the case was brought after the European Court of Justice, however, we could hope for a decision binding in whole EU.

I am not a lawyer, so can’t say about this Wikipedia case. But if the use is educational and no money is being made, it seems to fall under ‘fair use.’ The problem with Wikipedia Commons is they only want material that can be used commercially. I had 250 of my photos deleted from Wikipedia Commons because I only would allow educational and editorial use. Many of the photos were the best in their respective category and not easily obtainable anywhere. So, it shows what direction the Wikipedia Commons is pointed in…$$ and not education. The Internet Archive / Wayback… Read more »

I found this article that seems to argue that mere photographs, especially of 2D works can hardly be considered copyrightable also under German/EU law (including the protection of non original photographs). Of possible interest.
http://ssrn.com/abstract=2573104

My opinion: Its time for worldwide coordinated investigations against the Wikimedia Foundation, their “daughters”, friends, associates etc. and against the whole” wikipedia”! It cant be, that they systematical and plenteous violate rights wordwide under their anonymous, legal impalpable status in all continents and countries and cant be punished for that! At first, wie should found a companie against Wikipedia, found a war chest and collect money from wikipedia-victims worldwide for operatives and attorneys and prepare an worldwide coordinated complaint against wikipedia and the brains behind! – violation o human rights (against equality, against the right of spoken and written freedom,… Read more »

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