A few weeks ago, dozens of photographs of the “We Are Our Mountains” (“Tatik-Papik”) monument in occupied Artsakh disappeared from Wikimedia Commons. A red text box emerged, warning against uploading new images in which the monument features prominently, as it is located in “a country that does not provide Wikimedia Commons-acceptable freedom of panorama.” The monument, composed of volcanic tuff stone and weighing thousands of pounds, had not moved, of course. But its surrounding, invisible borders, and thus applicable copyright laws, had changed.
Late last year, following an illegal blockade lasting over nine months, Azerbaijan launched a military offensive and violently uprooted Artsakh’s indigenous Armenian population — acts broadly recognized as genocide, but thus far undertaken with impunity. Most people fled, leaving behind personal belongings, including photo albums. They rely on Facebook posts or photos found on the internet to revisit the places they remember.
Following its occupation of Artsakh (also known as Nagorno-Karabakh), Azerbaijan continued its long-standing policy of destroying Armenian cultural heritage, starting with the relatively “newer” (18th-to-19th-century) religious and cultural sites, as experts predicted it would. In the city of Stepanakert, the Republic of Artsakh’s former capital, which Azerbaijan has renamed “Khankendi,” Azerbaijan recently razed several 19th-century buildings on the historic Tumanyan Street and whitewashed buildings made out of the tuff, presumably because this pinkish to reddish-hued rock is associated with Armenian architecture. In line with its erasure of not only Artsakh’s physical Armenian presence but any evidence of it, Azerbaijan also renamed most Stepanakert streets, including by dedicating one to Enver Pasha — a failed Ottoman Turkish war minister who also happened to be one of the principal architects of the Armenian Genocide and a proponent of pan-Turkism (he supported the establishment of the Azerbaijan Democratic Republic as an outpost of the crumbling Ottoman Empire, in the Caucasus).
As of now, the “We Are Our Mountains” monument still stands. It was created in 1967 by Sargis Baghdasaryan, modeled after his grandparents, who too were from Artsakh. It became a symbol of the region and of Armenian indigeneity and resistance to occupation, and was later featured on the Republic of Artsakh’s coat of arms after its inhabitants voted by referendum for independence in 1991. The monument depicts an elderly man and woman protruding out of a hilltop, shoulder to shoulder, as if they are one with the land and of the land. The grandmother — or “Babo” in the Artsakh dialect of Armenian (“Tatik” in Eastern Armenian) — wears a traditional mouth covering, which was a symbol of modesty and indicative of the cultural norm of silence imposed on Armenian women upon marriage.
Azerbaijani propagandists on X frequently misuse historical photographs of (Christian) Armenian women from Artsakh with these mouth coverings as purported documentary evidence of the presence of Muslim Caucasian Tatars (predecessors of the “Azeri” people; not to be confused with the Tat) — clearly not understanding that subjugation of women is rooted in patriarchal elements that transcend religion. For its part, Azerbaijan, a petro-dictatorship notorious for its own laws silencing reporting and civic discussion, decided to misappropriate the monument instead of outright destroying it. It is possible that Azerbaijan understands repurposing such symbols can be just as psychologically harmful as destroying them. (It is also possible that destroying it is not a priority.)
But must Wikimedia Commons comply with requests to remove photographs of “We Are Our Mountains”? It depends.
Freedom of Panorama is an exception to copyright law, which otherwise requires permission (a license, with credit and/or payment) from the original artist of a work before someone may copy or reproduce it, for example by photographing it. Different countries have different approaches to Freedom of Panorama; for example, players “catching” Pokémon in front of monuments in Italy or Denmark may be infringing on the artists’ or architects’ copyrights, but the same conduct is likely fine in the United Kingdom and the United States, which generally allow photos in public spaces without restriction. Wikimedia is no stranger to these nuances: It has been sued for posting photographs of works in public spaces, as in the 2016 case of Bildkonst Upphovsrätt i Sverige (BUS) v. Wikimedia Sverige, which it lost.
In response to Hyperallergic‘s request for comment, a Wikimedia Foundation spokesperson noted in a statement that it “does not determine what content is included, or how the content is maintained, on Wikimedia Commons or other Wikimedia projects.” Instead, the spokesperson noted, content is “determined by a global community of volunteer contributors, who also establish and uphold policies and guidelines for the site.”
The spokesperson’s statement continued:
For instance, Wikimedia Commons has a ‘precautionary principle‘ that says: ‘where there is significant doubt about the freedom of a particular file, it should be deleted.’ In the particular case you’re investigating, we can share Wikimedia Commons’ volunteer-written freedom of panorama advice on Azerbaijan and Artsakh/Nagorno-Karabakh, which advised that images of monuments from both places were not allowed. As decisions on Commons are made through discussion and consensus, a practice that is shared across Wikimedia projects, volunteers followed this advice and deleted the images. The Wikimedia Foundation, alongside a number of affiliate organizations, have advocated for the universal adoption of freedom of panorama across Europe for several years, including ahead of the 2019 EU Copyright Directive.”
While Azerbaijan’s Copyright Law does allow reproductions of “works of fine art permanently located in a public space” without a license and without remuneration, pursuant to Article 20, the copyrighted work cannot be “the main feature” of the reproduction, and the reproduction cannot be used for commercial purposes. This means that a person arguably cannot photograph a sculpture and upload the image to Wikimedia Commons if the sculpture features prominently in the photograph.
Less straightforward, however, is the question of whether Baghdasaryan’s sculpture is even protected under Azerbaijan’s copyright regime; one could argue that the work is in the public domain. Under Article 27 of Azerbaijan’s Copyright Law, “a work that has never enjoyed protection within the territory of the Republic of Azerbaijan shall be considered public domain.” The sculpture was created in 1967, in what was then the Nagorno-Karabakh Autonomous Oblast, not in the Republic of Azerbaijan (which did not exist until 1991).
Moreover, until last year, an independent Azerbaijan never had complete de jure or de facto control over the area, including where the monument is situated. In fact, when Azerbaijan seceded from the Soviet Union, it disclaimed its Soviet legal heritage, which would have included the Nagorno-Karabakh Autonomous Oblast — formed and plopped into the borders of the Azerbaijani SSR by Stalin himself — and instead declared itself the successor state of the de facto, self-declared, and unrecognized Azerbaijan Democratic Republic, which existed from 1918 to 2020.
Ironically, if the late Baghdasaryan (or his estate) is the copyright holder, Azerbaijan’s misappropriation of the sculpture could be a violation of the broad moral rights that Azerbaijan affords creators under Article 14 of its Copyright Law, including the right to object to distortion or other modification of the work prejudicial to the reputation of the author. (Similar language about “honor” and “reputation” appears in the US’s Visual Artists Rights Act as well as the Berne Convention.)
While Article 16 of Azerbaijan’s Constitution imposes on the state a duty to protect historical, tangible, and intangible heritage, Azerbaijan is notorious for its selective application of such responsibilities.
For example, Azerbaijan flouts many of its obligations as a party to the Convention on the Elimination of All Forms of Racial Discrimination (CERD), including several provisional measures by the International Court of Justice pertaining to its discrimination against Armenians and Armenian cultural heritage. Azerbaijan maintains a broad ban on anyone with Armenian ethnicity, regardless of nationality, from entering the country, as well as anyone who visited Artsakh before late 2022 (that is, without Azerbaijan’s “permission”). As of now, there is no one in Azerbaijan who could safely defend the rights of an Armenian artist or monument, even if these rights were theoretically recognized by the state itself.
In the lead-up to next week’s COP29, the annual United Nations climate change conference hosted in Azerbaijan this year — even as oil and natural gas accounts for over 90% of its exports — the country has extended the pre-trial detention of over 11 journalists. Azerbaijan continues to illegally imprison dozens of ethnic Armenian prisoners of war, including many officials of the Republic of Artsakh. These “pre-trial detentions” are in addition to the sham trials of Vagif Khachatryan, an elderly Armenian civilian whom Azerbaijan abducted from a Red Cross ambulance in 2023, and other civilians captured and later tried, such as Rashid Beglaryan and Vigen Euljekian, as Azerbaijan’s de facto borders shifted.
It seems that even in the digital age, where information travels beyond borders, countries such as Azerbaijan are permitted to not only physically exclude Armenians from their homeland but also have the privilege of interfering with Armenians’ collective ability to mourn and remember the places from which they have been expelled.
Maria T. Cannon, associate attorney at Ambart LLC, contributed reporting for this story.
Editor’s note 11/8/24 3:54pm EDT: This article has been updated with a statement from a Wikimedia Foundation spokesperson.
