Here is a complete statement about the ZKM-Globorama case, posted on behalf of Carsten and Reinhard. __________ In 2007 the Center for Art and Media (Zentrum fuer Kunst und Medientechnologie - ZKM) located in Karlsruhe, Germany, copied over 2,000 panoramas from the World Wide Panorama website without any prior consent from either the WWP organizers or the individual photographers. This came to the knowledge of the WWP participants when the ZKM presented for the second time an installation called Globorama in which the panoramas had been integrated. In Globorama the visitor is surrounded by a circular screen, 10 meters in diameter and 4 meters high. The visitor of Globorama can maneuver through 360 degree satellite images of the earth. At certain points the visitor can open panoramic images. At this level the WWP panoramas had been included. This fact was in depth discussed in the WWP group. A group of WWP participants commissioned Professor Clemens Pustejowsky, who is a known legal expert for German copyright, to set up a legal expertise. This group then tried to come to an agreement with the ZMK - to no avail. Further discussions in the group about a court strategy did not come to a result either. So we (Reinhard Schmolze and Carsten T. Rees) decided to further pursue this case. Professor Clemens Pustejowsky was ready to take legal action on our behalf. He tried to settle the dispute by reaching an agreement with ZKM. But ZKM insisted that any agreement between the parties must remain secret. This was not acceptable for us, and we turned down the offer made by the ZKM. So in late 2009 Pustejowsky took the case to court. Reinhard Schmolze acted as the plaintiff since he had received an email from ZKM listing 8 of his panoramas that had been used by ZKM. The case was then pending in court for several years. During this time, we prepared an introduction into panorama photography for the court. Eventually the court commissioned an expertise about the appropriate market price of the panoramas by a member of a professional photographers association. The expertise fully supported the plaintiffs case in emphasizing the value of professional panoramic photography. In April 2013, the court rendered a judgement and in May 2013, the plaintiff received a copy of the reasoned decision of the court. For each of the 8 panoramas of Reinhard Schmolze that were used for the Globorama, he will receive a compensation of 300 Euros, which is the amount he had demanded. Some of the reasons given by the court may be of interest. The following quotes are taken from the courts decision: According to the explanations of the court-appointed expert, the compensation of Euro 300 per panorama requested by the plaintiff is reasonable. The expert stated that a surcharge of up to 100% compared to simple pictures is customary for pictures that are much more complex to produce. The court follows the experts view that the panoramas in question cannot be regarded as ordinary photographs since both special software and higher quality hardware are needed for their production. The court uses the fact that the defendant has included these panoramas in his project as an indication for the good quality of the panoramas. The court does not follow the defendants argument that the court has to decide only about an infringement by downloading the panoramas. The downloaded panoramas had been included in the project of the defendant and have thus been in use. The fact that it is not certain - with one exception - whether the included panoramas have been viewed by visitors of the Globorama is irrelevant for determining whether they have been in use. For calculating the amount of damages, the court also refers to the concept of license analogy: Nobody who infringed the rights of others shall be in a better position than those who obtained a license from the copyright holder. The calculation of a customary remuneration (section 32 of the German Copyright Act) for a panorama one has to take into consideration both the customary charges of the plaintiff and the customary charges on the market. WWP had stipulated certain conditions of use. If the author or owner of the copyright has published the conditions of use, it is not possible to undermine those conditions by construing an extensive tacit consent to the use at other conditions. When dealing with intellectual property, the standard of diligence applicable to the user is very high. Thus anybody who uses material that is copyrighted, has to make sure that the use occurs with the consent of the copyright owner. The defendant concedes that the panoramas in question were downloaded. Under German law (section 16 of the German Copyright Act), such download is qualified as a duplication. The court disagrees with the defendant that the plaintiff tacitly consented to the use. That fact that the plaintiff had made his panoramas public for viewing on the website of the WWP cannot be regarded as a tacit consent to the use of these panoramas outside of the website of the WWP. In Germany, panorama pictures are qualified as photographs according to section 72 of the German Copyright Act at least. For the case at hand it was not relevant whether panoramas can even be qualified as multimedia art or photographic art. And thus there is no decision on this question by the court. In June 2013 the ZKM has appealed against the sentence of the court. The court of the second instance (Landgericht) rejected the appeal and now the sentence is valid. The proceedings in court took more than 4 years, we are glad the it is over at last and the best thing is: WE HAVE WON !“ Carsten T. Rees Reinhard Schmolze
Posted on: Wed, 16 Jul 2014 19:42:44 +0000
Trending Topics
Recently Viewed Topics
© 2015