The provision at the heart of this case, Article 24 paragraph 1 of the Swedish , 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 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  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? 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 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 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. 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 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 ). 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 , 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 .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, 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.

The post Wikimedia vs BUS: How to Regulate Copyright on Public Art in the Digital Age appeared first on IPOsgoode.

Under , protection is granted to “” This definition should include both commissioned and non-commissioned art. However, an important question arises concerning the latter: should an illegally-scrawled piece of art (graffiti for example) receive any protection at all? The doctrine of unclean hands states that “” Of course, such a principle could easily be interpreted restrictively to deny non-commissioned street art copyright protection. But nuance, as always, is a recommended approach.

The doctrine of unclean hands only applies when the wrongdoing is relevant to the copyrightability of the work. Although lawsuits involving street art often end in settlements, the few existing analogous cases demonstrate that, as long as ",” protection should be granted.

Moreover, copyright law marks a clear distinction between the intangible work it protects and the physical embodiment of that work. Thus, the ownership of the surface on which street art is composed is irrelevant to its creator’s rights, as the United States'  only grant protection over the intangible work.

When it comes to establishing infringement, must be proven: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” The first criterion involves, , the very copyrightability of the work in question. As explained previously, the first criteria is met provided the original work is fixed in a tangible medium and original.

However, because part of an infringement analysis relies on demonstrating "probative similarities between the works," establishing the copying of constituent elements of the work can be a little more complicated. tend to look for mistakes that are common to both the plaintiff's and the defendant's works, as those can rarely be the result of coincidence. However, those do not always exist and art being inherently subjective, the fundamental issues in copyright cases involving visual art can stretch beyond mere legal interpretations into artistic ones. In a domain where many their work has been influenced by someone else and where every “new” creation seems to somehow stem from another, where can we draw the line and establish that an artist’s work is completely his? Certain artists do have trademark aesthetics, but are those enough to say that a very similar looking piece of art is necessarily infringing?

The sudden rise in street art infringement lawsuits theses past few years is unsurprising. This particular form of artistic expression has become a favoured object of , , and even as . Highly competitive industries like the fashion industry are exploiting street art’s undeniable marketability. As expressed in the against American Eagle, “'street credibility’ is highly sought after by retail brands for the cultural cachet and access to the profitable youth demographic it offers.” Unfortunately, street artists must fend with more than the copyright issues underlying such realizations, as “.” Pursuing these companies to protect their intellectual property is becoming a necessity. “Street credibility” goes beyond aesthetics, with stakes in an artist’s reputation and integrity. As a matter of fact, the complaints against and  each make reference to the artists being considered “sell outs” as one of the main damages caused by their association with such corporations.

Of course, these issues have always existed. But street artists have been reluctant to go after infringers. Putting aside monetary issues, for many of them “.” Their desire to paint on the street often stems from an indifference towards the formal art world and everything it entails, but mainstream brands’ sudden interest in street art has left artists with no other option but to fight for their rights. Deterrence from doing so — in the form of vandalism charges — remains for creators of non-commissioned work as fighting for ownership rights over their art also means revealing their identity. But, for the most part, times have changed and counter culture now seems to stop where infringement begins.

Aicha Tohry is an IPilogue Editor and a JD Candidate at Université de Montréal.

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