This puzzle is illegal in Italy! Everyone buy a copy!
https://cdon.fi/lelut/ravensburger-15250-palapeli-kuviopalapeli-1000-kpl-taide-p82798980
(Reference: https://www.ilpost.it/2023/02/24/pagare-diritti-puzzle-uomo-vitruviano/ )
@nemobis under Italian law, cultural heritage historic stuff is free for personal or non profit purposes. (the idea is that if you exploit something for business you contribute something to the conservation and restoration costs)
so the image is not illegal.
what is illegal is exploiting it for profit without contributing to its conservation costs.
@quinta Nope. EU law is clear, this puzzle doesn't need any authorisation. Yet it's subject to a court order claiming the contrary.
Have you read https://zenodo.org/record/7655286 and https://zenodo.org/record/7679296?
@nemobis I am not arguing about the inconsistency with EU law.
cultural heritage stuff is protected in Italy under this provision which clearly states that they are free for non commercial uses. (sort of cc-nc licence)
this is a fact (art. 108 codice beni culturali)
if you are correct and this is inconsistent with EU law, it will be easy for this multinational to appeal, win the case and eventually lead Italy to an infraction procedure
@quinta Good luck using that supposed exception.
It will not be easy for the company. The judge has ignored them when they asked to consider EU law.
@nemobis then the multinational can appeal and win
it will be worthwhile for them.
if the European court finds Italy's law is incompatible with EU law, it will unleash a *huge* trove of work of art for them to exploit without having to contribute to their restoration and conservation costs
(which will then be covered by general taxation, i.e. also by me and you (if you are tax resident in Italy))
@quinta It remains to be seen whether and how they can appeal and whether an Italian judge will refer the matter to the CJEU. On what basis do you expect that to be useful? Did you read https://zenodo.org/record/7655286?
As for your prediction, I'd like to see on what evidence it's based. The museum's own numbers hint revenues from this ransom-extracting business barely cover personnel cost https://www.ilpost.it/2023/02/24/pagare-diritti-puzzle-uomo-vitruviano/.
(I'm not a resident but I am a taxpayer contributing to the Republic of Italy's budget.)
@nemobis the basis is, as you say, if there's an incompatibility. not only a judge can refer to the cjeu but also the multinational can directly refer the case to the commission for an infraction procedure.
i concur that requested fees are just a contribution to the conservation and restoration costs. they don't pay for all of them. they would make it absolutely unsustainable for the company.
@quinta A judge *can*, but will they? So far they didn't.
Fees *might* contribute to the costs you mention, but there's no evidence they do.
@nemobis well.. the ministry's monies for conservation and restoration don't come out of thin air...
if judges don't, they can file the case directly with the commission.
multinational spend loads of money on lobby. they surely know the existing procedures
@quinta They come from the state budget. Not from loss-making letter factories.
The Commission may or may not act on such a request. It has shown repeatedly that it's not interested in protecting the public domain.
@nemobis @quinta That's because they are too much influenced by common-law perspective on "public domain" (and by [US propaganda on the topic](https://sci-hub.st/10.1126/science.162.3859.1243) sold as "Science").
Any unprotected good is not in the public domain, but under the rules of the strongest/smartest bully.
@nemobis 🤣
I don't know... I'm not sure.
As you know, I'd be very happy to find a way to keep ALL public domain derivative work... within the commons heritage of humanity.
I even wrote the #HackingLicense to achieve this sort of legal effect (and I know you do not like it).
@Shamar Read the papers I linked and you'll see the ministry is acting as a bully. :) They can afford to do that because the taxpayer covers the personnel and legal costs of these bureaucratic activities and nobody covers the externalities.
As for the #Commons, are we using Ostrom's definitions?
https://doi.org/10.7551/mitpress/6980.001.0001
On the physical maintenance, art. 108 doesn't contribute because it doesn't earn money.
As for the immaterial side, art. 108 makes projects like #WikimediaCommons impossible.
@nemobis @Shamar only to the extent that WM commons allows for commercial exploitation.
one could argue that it should be WM commons the one who ought to change their license by adding Non Commercial.
historic works of art need to be conserved and restored.
someone ought to pay for that.
either all taxpayers, or those who exploit them commercially or a combination of the two.
that's what ITA's law requires.
./..
@nemobis @Shamar if it's not coherent with a superior law, then that violation should be enforced. we have appeal procedures for that.
and they work. I have direct experience; in 2003 I barred a multinational from misbehaving (they had to revert course), filing a complaint to Brussels
one may not like it and prefer that any multinational can exploit them commercially for free, then the law should be changed and we have a process for that as well...
@quinta The law was changed by democratic means in the European Parliament and the Council of the EU. The ministry and the judges of Florence and Venice refuse to comply.
@nemobis then they have an easy path to appeal and, italy wil get an infraction procedure. (AFAIK, there are >50 infraction procedures against Italy; the EU is active in raising infraction procedures)
as I said, I barred a multinational from misbehaving by filing an appeal myself (like many others with an infinitesimal part of this multinational's economic resources!)
if the law is on thier side, they have all the resource to obtain justice.(and Italy will put those costs on general taxation)
@quinta What's the easy path? If it's so easy, how comes it has never happened yet?
@nemobis the fact you don't know it, doesn't imply that it didn't happen.
@quinta Are you suggesting that an appeal to CJEU or an infraction procedure against art. 108 happened without any copyright lawyers being able to find out?
As far as I've recently learnt, you are formally right, as EU regulations are on par with National Constitutions in the hierarchy of laws (according to EUJC and incredibly Corte Costituzionale too).
I still consider this subversive as long we don't fast-forward to a democratic Europe of People, with one Government and one Parliament elected by people.
Yet, I still think the Italian law looks reasonable and in fact wiser.
Unprotected commons thrown away as garbage always ends up be destroyed and privatized.
Public domain should be protected as share-alike by default.
If it's not, managing it as NC seems the best surrogate available.
(but beware.. I still need to read the paper you suggested... )
@Shamar Art. 14 of directive 790/2019, promulgated in accordance to art. 11 of the Italian Constitution, correctly implements art. 9, 21 and 33 of the Italian Constitution.
What's subversive is a decree issued by a minister against the Constitution, the laws and the treaties, and a pèanel of judges issuing orders in defiance of a regularly adopted EU legislation.
@quinta Taxpayers need to pay for the basic maintenance of Italy's culture. It's written right there in art. 9 of the Constitution.
As for #Wikimedia, no, we're not going to abandon https://freedomdefined.org and subject every person in the world to unlimited legal costs for the sin of sharing of knowledge.
@nemobis not persons sharing knowledge!
companies commercially exploiting for free works of art (to be conserved and restored).
wrt. to the company, their normal way of doing business is to licence the images they use
choosing to pay legal fees instead of the licence is a business decision; one that - should they have won - would have opened them a trove of content to use for free
note that I have not expressed any opinion on the type of licence that I'd prefer.
just exposing the rationales
@quinta Art. 108 applies to everyone.
@nemobis yes, it applies to everyone
I was responding to "the sin of sharing their knowledge"
not a sin, in this case a commercial exploitation by a multinational
@quinta You suggested that millions of Wikimedia authors abandon the freedom granted by CC BY-SA in favour of some variant of a nonfree license with a non-commercial restriction (aka commercial monopoly clause). And you do that in the face of two panels of judges having abused a law which speaks of commercial use and profit motive to target a patently legal use of images and even the name and idea of a 15th century work.
@nemobis no, didn't write that, explained the two rationales. One backed by WM principles, the other by principles incoporated in a law by democratic lawmaking
wrt to the argued unlawfulness of Italian law under EU law, I said there are multiple ways to appeal
you could file one based on this multinational's case
I am more than happy to share my knowledge with you: email me (it's on my blog) and I'll send a quote for my consulting services
just kidding...
@quinta Thank you for the offer but we already have expert advice on the matter and one result is https://zenodo.org/record/7655286, have you read it?
Once again, if you know of a way for Wikimedia to trigger a deferral to the CJEU so that art. 108 is struck down and made compatible with #WikiLovesMonuments and Wikimedia Commons' CC BY-SA, I'm all ears. Publish it!
There are entire books written on such subjects across the pond, it might earn you a full professorship. ;)
https://archive.org/details/nolawintellectua0000lang
@nemobis you don't need to go to the EUCJ to trigger infraction procedures.
just a complain here : https://commission.europa.eu/about-european-commission/contact/problems-and-complaints/complaints-about-breaches-eu-law/how-make-complaint-eu-level_en#submitting-a-complaint-online
it works
@quinta I know that. But I also know that the Commission will never do that, so the judicial way is the only real option.
@nemobis it worked for me.
@Shamar Yes. In this case the bully is the ministry.