[Wiki Loves Monuments] MIBAC agreement for Wiki Loves Monuments in Italy

Cristian Consonni kikkocristian at gmail.com
Fri Sep 14 15:40:28 UTC 2012

2012/9/14 Platonides <platonides at gmail.com>:
> This will likely appear several times at COM:DR, having to be explained.
> It would be worse if someone tried to do the same with their own photos
> (I place them under CC-BY-SA but I require a fee) but I don't think they
> could since they would only have copyright to battle with.

Won't work.
If a photographer wants to ask a fee for the use of his/her photos the
law which is permitting him to do so is copyright law, i.e. the
monopoly (albeit temporary) granted by the state the exclusive rights
over the use of a work of art to the author of the work itself.
Creative Commons licenses are enforced by the same law, i.e. the
author, since he is the person with the right to do so, grants a
thirds party the possibility to reproduce, re-use, etc his work. So
you can not use the same copyright law to grant a right and negate it
at the same time.

The (Italian) law for which you have to request authorization to
publish photos of Italian cultural heritage come is *a different law*
from copyright law, it has different grounds, namely it is based on
the fact that the Italian States thinks it has the right to decide
whether the picture of a monument can be published or not, with the
aim of protecting the monuments via protecting (the "decency" of)
their images.

To put this differently let me add that in the agreement we made with
the Ministry the Ministry said that the choice of the license to use
for releasing the images is a personal choice of the photographer, the
Codice Urbani is not.[*]

To clarify, my understanding of the situation (but IANAL) the
situation is more similar to the {{Personality rights}} template.
There are laws, which are different from copyright law which prohibit
to do something with a picture unless you obtain an authorization.
This is a non-copyright restriction.

So, this is not the first time we find that photos that may have some
sort restrictions on it which are not deriving from copyright.

> Still, those
> photos are not completely free.

Disagree, they are completely free regarding the subject of copyright,
and that's why the lawyers we contacted (which are people from
Creative Commons Italia) assured us that this agreement (disclaimer
included) is compatible with CC-BY-SA.


[*] It's also worth noting that the Ministry, with this agreement is
not "stretching" the existing law in any way. They also have not
required that the photos must be free (because the Italian law doesn't
impose such a thing), but it is stated that the photo participating in
the contest will be released with CC-BY-SA. The difference is subtle,
but the derives from the previous statement.

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