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Publishing images of public art online is copyright violation, says Swedish Supreme Court

It is a breach of copyright to publish images of public art on the Web without the artist's permission, Sweden's Supreme Court ruled Monday.

It's the latest step in a protracted legal dispute between Wikimedia Sweden and the Visual Copyright Society in Sweden (BUS). The row affects the site offentligkonst.se (Public Art Sweden) on which Wikimedia collects images of public art works throughout the country. The Swedish state innovation agency, Vinnova, has supported the project since 2012, and several Swedish municipalities are involved too.

Wikimedia believes it has the right to publish pictures of the artworks because the Swedish Copyright Act states that works of art may be depicted if they are permanently located outdoors or in public places.

BUS, on the other hand, contends that such photography infringes on artists' copyright. It sued Wikimedia in a district court, which sent the matter to the Supreme Court.

The dispute is essentially about whether "depiction" can be equated to taking a photograph and publishing it online. The Supreme Court ruled that while taking pictures of public art and distributing non-digital copies to a limited extent is legal, the same is not true for online publication.

The Supreme Court said Wikimedia doesn't have the right to transfer photographs of such works of art from its database via the Internet to the public. It makes no difference that this is not a commercial activity for Wikimedia, the court said.

"The whole point of public art is that it should be public and accessible," said Anna Troberg, operations manager for Wikimedia Sweden. "Wikimedia Sweden has taken up that basic idea and Offentligkonst.se is a way to realize it digitally today. It is very sad that the Supreme Court chose to follow BUS and shrink the public space."

BUS, on the other hand, is pleased with the decision, and hopes it can now conclude agreements with Wikimedia and similar parties who want to use images of public art.

"The court's ruling is very important for the Swedish artists who need compensation for their work. For artists, each payment from Image Copyright makes a significant economic contribution. It's about who's in charge of the artists' works; the artists themselves or the big players on the Internet," said BUS Chairman Åsa Berndtsson.

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