It seems that the law has created the unintended consequence that the organization of the depictions in question matter more than the actual depictions themselves. Or in other words, of imputing commercial intent to any such collection of copyrighted works, whether intentional or otherwise.

Do I have this straight?

Publishers are allowed to make guidebooks and sell postcards without permission and also without recompense for the artists.

Historians and critics are allowed to include the photos in books without permission.

For-profit corporations are allowed to use the photos as long as they don't collect them into a single database marked "highly dangerous public database of art photographs".

But nonprofits who create a digital guidebook are copyright criminals - with the implication that they're not allowed to distribute the work for free, because it might affect the profitability of a hypothetical not-yet-existent commercial alternative.

I'd hope a good lawyer could sail a battleship through that line of argument. It's clearly prejudicial, discriminatory, inconsistent, arbitrary, and not in the interests of either the public or the copyright holders.

I suspect if it gets taken to the EU Courts, it will be shot down in flames in short order.

E.g. it might be ok to take a picture of each piece of art with a person standing in front of it, so retake the pictures or just superimpose a picture of a person with a transparent background onto each picture.

Then once you've found that loophole, exploit the heck of it and sell prints on the street with that person superimposed on the art. Just give a big middle finger to the law.

However I'm interested in what the case is with Google Ingress and their effort to make public art etc. more accessible through a smartphone-game using GPS and images.

Furthermore, yes, this is all madness.

As I understand it, actually the sentence that you quote, §24(3), is not relevant in this case. §24 provides three exceptions to the general system of copyright, and this case turns on §24(1), which says "artwork can be depicted if they are permanently placed in a public place outdoors".

So, it would naively seem that photos of public art are not copyright protected. However, the court reasoned that the word "depict" does not cover the act of publicizing the pictures in an open database. They reason based on what kind of use they think the legislators had in mind when passing the law: they think it is intended to allow taking photos of streets, and selling postcards of sculptures, but that a database has more commercial value than a postcard, and therefore the legislators did not intend that to be included in the term...

That's comparing apples and giraffes. A more accurate comparison would be a publisher's collection of postcards, and the business machinery used to make money from them.

They do say that the test is whether someone _could_ sell it for money, so the fact that in this case Wikimedia is a non-profit and does it for free does not affect the outcome.

...but then it would be illegal to tag the photo, right?