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Webinar: Copyright and legal considerations for your images shared under open source licenses


Connor Dowthwaite, Thanasis Priftis

What is copyright? What is the duration of copyright? How can Wikimedia Commons make it easier to use and redistribute copyrighted content?  The Ynternet.org Foundation held a webinar covering important information on these topics as training for participants in the Nos Jardins project. 

Works in the sense of the law are defined as "creations of the mind, literary or artistic, that have an individual character", and they are all automatically protected by copyright. This copyright expires 70 years after the death of the author, or 50 years after the death of the author for computer programs. However, there are exceptions to this rule which allow the use of the work of others in publications.

The first exception is the “originality threshold”, which is used to distinguish between works that are sufficiently original to warrant copyright protection and those that are not. If the work does not pass the originality threshold, then it is not protected by copyright law. An example is the legal case of Ets-Hokin v Skyy Spirits Inc, in which it was decided the photograph itself was eligible for copyright protection but not the bottle found within the photo.

Ets-Hokin v Skyy Spirits Inc

The second exception is the concept of de minimis. This rule essentially means that when one piece of work uses another piece of work, consent is not required if the use of that work is trivial. De minimis ne curat lex is Latin for “the law does not care about the little things”. The following image is a good example: the images appearing on the screen within the photograph were judged to be de minimis as they are just small and trivial details within the photograph.

David Lytle CC-BY-SA 2.0

The third exception is freedom of panorama, which is only available in some countries and eliminates the need for a licence. This rule applies to the publishing of photographs, video footage and created images (including paintings) of buildings/sculptures/other art works, which are permanently located in public places. In Switzerland, freedom of panorama applies for commercial use, buildings, 3D artwork, 2D artwork and text.

There are also some non-copyright restrictions to be aware of. Swiss trademark law recognises the registration of signs which can be graphically represented and are capable of distinguishing the goods or services of one entity from those of another. For example, the following logo is not protected by copyright restrictions, but rather by trademark rights

Another non-copyright restriction exists in personal rights, which refers to the hosting and use of photographs where the subject is a living person. Everybody has a right to publicity and a right to privacy, and so consent must be obtained for these publications. Care must also be taken not to defame the subject in the publication. In Switzerland, a part of a person’s general personality right is the right to one’s own image. This is regulated under the Civil Code and in the Federal Act on Data Protection, and essentially allows every individual to decide if and in what context images of him/her can be published. 

Creative Commons licences facilitate the use, redistribution and remixing of copyright-protected content. One important limitation when using Wikimedia Commons is the use of watermarks. If the watermark is invisible then it is acceptable, but if it is destructive and promotional, then it is unacceptable. Wikimedia Commons uses the following process for monitoring copyrighted images:

 

Copyright confirmations and permissions can be registered by email on OTRS, which is a system for registering permissions, confirming ownership, or to report a problem of copyright infringement against you. To attribute a photo published under a Creative Commons licence, the correct format is: 1) title 2) author 3) source 4) licence.

All presentation slides can be found here.