Freedom of panorama

A large metallic sculpture of a red rose on a small grassy mound, with bare trees and other similar sculptures in the background
An image of sculptures by Sergej Alexander Dott, Himmelsblumen, 2003, Gleisdreieck, Berlin, published under the freedom of panorama provisions in German copyright law
Video explaining freedom of panorama

Freedom of panorama (FOP) is an exception to the copyright laws of various jurisdictions that permits taking photographs and video footage and creating other images (such as paintings) of buildings and sometimes sculptures and other art works which are permanently located in a public place, without infringing on any copyright that may otherwise subsist in such works, and the publishing of such images.[1] Panorama freedom statutes or case law limit the right of the copyright owner to take action for breach of copyright against the creators and distributors of such images. It is an exception to the normal rule that the copyright owner has the exclusive right to authorize the creation and distribution of derivative works. The phrase is derived from the German term Panoramafreiheit ("panorama freedom").

Laws around the world

Many countries have similar provisions restricting the scope of copyright law in order to explicitly permit photographs involving scenes of public places or scenes photographed from public places. Other countries, though, differ widely in their interpretation of the principle.[1]

Freedom of panorama status around the world for images used for commercial purposes

European Union

Scope of freedom of panorama in the countries of Europe
  OK, including works of art
  OK for buildings only
  OK for non-commercial use only
  Not OK

In the European Union, Directive 2001/29/EC provides for the possibility of member states having a freedom of panorama clause in their copyright laws, but does not require such a rule.[2][3]

Panoramafreiheit is defined in article 59 of the German Urheberrechtsgesetz,[4] in section 62 of the United Kingdom Copyright, Designs and Patents Act 1988,[5] and it exists in several other countries[6] or even "a large majority of Member States".[7]

There are also European countries such as Italy[8] and Iceland,[9] where there is no freedom of panorama at all. In Italy, despite many official protests[10] and a national initiative[11] led by the lawyer Guido Scorza and the journalist Luca Spinelli (who highlighted the issue),[8] the publishing of photographic reproductions of public places is still prohibited, in accordance with the old Italian copyright laws[12][13] made more restrictive by a law called Codice Urbani which states, among other provisions, that to publish pictures of "cultural goods" (meaning in theory every cultural and artistic object and place) for commercial purposes it is mandatory to obtain an authorization from the local branch of the Ministry of Arts and Cultural Heritage, the Soprintendenza.

Some countries, such as France, do not have global permission for making images of an artistic creation, like a piece of architecture or sculpture, in public spaces and allow images of copyrighted works only under "incidental inclusion" clauses. In France the authorisation of the author, but not of the owner, is thus required if the piece is not just used secondarily or as a background on the image but intentionally or as its central and essential motif.[14]

Litigation

An example of litigation due to the heterogeneous EU legislation is the Hundertwasserentscheidung (Hundertwasser decision), a case won by Friedensreich Hundertwasser in Germany against a German company for use of a photo of an Austrian building.[15]

While not related to copyright, but to Codice Urbani, a case which reached a national supreme court (Corte di Cassazione) is Ministero dei Beni e delle Attività Culturali vs. Stoneage S.r.l. (Cass. civ. Sez. VI - 1 Ordinanza, 23-04-2013, n. 9757, rv. 626365).

On 4 April 2016 the Swedish Supreme Court ruled that Wikimedia Sweden infringed on the copyright of artists of public artwork by creating a website and database of public artworks in Sweden, containing images of public artwork uploaded by the public.[16][17][18] Swedish copyright law contains an exception to the copyright holder's exclusive right to make their works available to the public that allows depictions of public artwork.[19]:2-5 The Swedish Supreme Court decided to take a restrictive view of this copyright exception.[19]:6 The Court determined that the database was not of insignificant commercial value, for both the database operator or those accessing the database, and that "this value should be reserved for the authors of the works of art. Whether the operator of the database actually has a commercial purpose is then irrelevant."[19]:6 The case was returned to a lower court to determine damages that Wikimedia Sweden owes to the collective rights management agency Bildkonst Upphovsrätt i Sverige (BUS), which initiated the lawsuit on behalf of artists they represent.[19]:2,7

Australia

In Australia, freedom of panorama is dealt with in the federal Copyright Act 1968, sections 65 to 68. Section 65 provides: "The copyright in a work ... that is situated, otherwise than temporarily, in a public place, or in premises open to the public, is not infringed by the making of a painting, drawing, engraving or photograph of the work or by the inclusion of the work in a cinematograph film or in a television broadcast." This applies to any "artistic work" as defined in paragraph (c) of section 10: a "work of artistic craftsmanship" (but not a circuit layout).[20]

However, "street art" may be protected by copyright.[21][22][23]

Section 66 of the Act provides exceptions to copyright infringement for photos and depictions of buildings and models of buildings.[20]

Canada

Section 32.2(1) of the Copyright Act (Canada) states the following:

It is not an infringement of copyright
(b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work
(i) an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or
(ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building;

The Copyright Act also provides specific protection for the incidental inclusion of another work seen in the background of a photo. Photos that "incidentally and not deliberately" include another work do not infringe copyright.

United States

United States copyright law contains the following provision:

The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.
— 17 U.S. Code § 120(a)[24]

The definition of "architectural work" is a building,[25] which is defined "humanly habitable structures that are intended to be both permanent and stationary, such as houses and office buildings, and other permanent and stationary structures designed for human occupancy, including but not limited to churches, museums, gazebos, and garden pavilions."[26] This freedom of panorama for buildings does not apply to art, however.[27]

Former USSR

Almost all countries from the former Soviet Union lack freedom of panorama. Exceptions are three countries, copyright laws of which were amended recently. First was Republic of Moldova in July 2010, when the law in question was approximated to EU standards.[28] Armenia followed in April 2013 with an updated Armenian law on copyright.[29] Freedom of panorama was partially adopted in Russia on October 1, 2014; from this day, one is allowed to take photos of buildings and gardens visible from public places, but that does not include sculptures and other 3-dimensional works.[30]

Two-dimensional works

The precise extent of this permission to make pictures in public places without having to worry about copyrighted works being in the image differs amongst countries.[1] In most countries, it applies only to images of three-dimensional works[31] that are permanently installed in a public place, "permanent" typically meaning "for the natural lifetime of the work".[32][33] In Switzerland, even taking and publishing images of two-dimensional works such as murals or graffiti is permitted, but such images cannot be used for the same purpose as the originals.[32]

Public space

Many laws have subtle differences in regard to public space and private property. Whereas the photographer's location is irrelevant in Austria,[1] in Germany the permission applies only if the image was taken from public ground, and without any further utilities such as ladders, lifting platforms, airplanes etc.[4] Under certain circumstances, the scope of the permission is also extended to actually private grounds, e.g. to publicly accessible private parks and castles without entrance control, however with the restriction that the owner may then demand a fee for commercial use of the images.[34]

In many Eastern European countries the copyright laws limit this permission to non-commercial uses of the images only.[35]

There are also international differences in the particular definition of a "public place". In most countries, this includes only outdoor spaces (for instance, in Germany),[4] while some other countries also include indoor spaces such as public museums (this is for instance the case in the UK[5] and in Russia).[36]

There has been a controversy among Filipino photographers and establishment managements. On June 12, 2013, Philippine Independence Day, pro-photography group, Bawal Mag-Shoot dito, launched at the Freedom to Shoot Day protest at Luneta Park. The group is protesting for their right to take photos on historical and public places, especially in Luneta and Intramuros. The park management imposes a fee for D-SLR photographers to shoot images for commercial purposes but it was also reported that security guards also charge 500 pesos to shoot photos even for non-commercial purposes, an act which the advocacy group branded as "extortion". The group also claimed that there is discrimination against Filipino photographers and claimed that the management is lenient on foreign photographers. There is no official policy on taking photographs of historical places and the group has called legislators to create a law on the matter.[37]

Anti-terrorism laws

Tension has arisen in countries where freedom to take pictures in public places conflicts with more recent anti-terrorism legislation. In the United Kingdom, the powers granted to police under section 44 of the Terrorism Act 2000 have been used on numerous occasions to stop amateur and professional photographers from taking photographs of public areas. Under such circumstances, police are required to have "reasonable suspicion" that a person is a terrorist.[38] While the Act does not prohibit photography, critics have alleged that these powers have been misused to prevent lawful public photography.[39] Notable instances have included the investigation of a schoolboy,[40] a Member of Parliament[41] and a BBC photographer.[42][43] The scope of these powers has since been reduced, and guidance around them issued to discourage their use in relation to photography, following litigation in the European Court of Human Rights.[44]

See also

References

  1. 1 2 3 4 Seiler, D.: Gebäudefotografie in der EU – Neues vom Hundertwasserhaus, in Photopresse 1/2 (2006), p. 16. URL last accessed 2007-09-20.
  2. ↑ N.N.: Panoramafreiheit. URl last accessed 2007-09-20. See also Article 5(3)(h) of 2001/29/EC.
  3. ↑ "The IPKat". ipkitten.blogspot.co.uk.
  4. 1 2 3 Seiler, D.: Fotografieren von und in Gebäuden, in visuell 5/2001, p. 50. See also §59 UrhG (Germany). URLs last accessed 2007-09-20.
  5. 1 2 Lydiate, H.: Advertising and marketing art: Copyright confusion. See also section 62 of the Copyright, Designs and Patents Act 1988. URLs last accessed 2007-09-20.
  6. ↑ Koetz, D.: Erlaubnis zum Ablichten von Sehenswürdigkeiten, in Photographie 10/2002. URL last accessed 2007-09-20.
  7. ↑ "Euromyths and Letters to the Editor: Europe is not banning tourist photos of the London Eye". European Commission in the UK.
  8. 1 2 Spinelli, L. Wikipedia cede al diritto d'autore, Punto Informatico. URL last accessed 2008-08-21
  9. ↑ Salvör Gissurardóttir Bannað að birta mynd af Hallgrímskirkju, blog entry. URL last accessed 2014-03-20
  10. ↑ Grillini, F. "Diritto di panorama". Archived from the original on 2008-10-25. Retrieved 2008-08-21. Parliamentary interrogation.
  11. ↑ Scorza, G., Spinelli, L., Dare un senso al degrado. URL last accessed 2008-08-21
  12. ↑ Legge 22 aprile 1941 n. 633. URL last accessed 2014-07-07
  13. ↑ Decreto Legislativo 22 gennaio 2004, n. 42. URL last accessed 2008-08-21
  14. ↑ "Article L.112-2 du Code de la propriété intellectuelle" (in French). Legifrance.gouv.fr. 1992-07-01. Retrieved 2012-07-20.
  15. ↑ https://dejure.org/dienste/vernetzung/rechtsprechung?Text=I%20ZR%20192/00
  16. ↑ Falkvinge, Rick (4 April 2016). "Supreme Court: Wikimedia violates copyright by posting its own photos of public, taxpayer-funded art". Privacy Online News. Los Angeles, CA, USA. Retrieved 2016-09-08.
  17. ↑ "Wikimedia Sweden art map 'violated copyright'". BBC News. 5 April 2016. Retrieved 9 September 2016.
  18. ↑ Paulson, Michelle (4 April 2016). "A strike against freedom of panorama: Swedish court rules against Wikimedia Sverige". Wikimedia Foundation blog. Retrieved 9 September 2016.
  19. 1 2 3 4 Bildupphovsrätt i Sverige ek. för. v. Wikimedia Svierge (Supreme Court of Sweden 04-04-2016). Text
  20. 1 2 Copyright Act 1968 (Cth)
  21. ↑ "Street Art & Copyright". Information Sheet G124v01. Australian Copyright Council. September 2014. Retrieved 8 May 2016.
  22. ↑ "Street photographer's rights". Arts Law Information Sheet. Arts Law Centre of Australia. Archived from the original on June 30, 2014. Retrieved 8 May 2016.
  23. ↑ "Photographers & Copyright" (PDF) (17 ed.). Australian Copyright Council. January 2014. p. 7. Archived (PDF) from the original on July 2, 2014. Retrieved 28 October 2014. You will generally need permission to photograph other public art, such as murals.
  24. ↑ "17 U.S. Code § 120 - Scope of exclusive rights in architectural works". Retrieved 4 April 2016.
  25. ↑ "17 U.S. Code § 101". Retrieved 8 April 2016.
  26. ↑ "37 CFR 202.11(b)". Retrieved 8 April 2016.
  27. ↑ Brinson, Diane. "Do I Need Permission?". Retrieved 3 March 2013.
  28. ↑ Eugene Stuart, Eduardo Fano, Linda Scales, Gerda Leonaviciene, Anna Lazareva (July 2010). "Intellectual Property Law and Policy. Law approximation to EU standards in the Republic of Moldova" (PDF). IBF International Consulting, DMI, IRZ, Nomisma, INCOM, Institute of Public Policy. Retrieved 2015-06-29.
  29. ↑ "Legislation: National Assembly of RA" (in Armenian). parliament.am. Retrieved 2015-06-28.
  30. ↑ "О внесении изменений в части первую, вторую и четвертую Гражданского кодекса Российской Федерации и отдельные законодательные акты Российской Федерации. Статья 3, cтраница 2". State Duma (in Russian). 2014-03-05. Retrieved 2015-06-29.
  31. ↑ See e.g. Lydiate.
  32. 1 2 Rehbinder, M.: Schweizerisches Urheberrecht 3rd ed., p. 158, Stämpfli Verlag, Berne, 2000. ISBN 3-7272-0923-2. See also §27 URG (Switzerland). URL last accessed 2007-09-20.
  33. ↑ Dix, B.: Christo und der verhüllte Reichstag, February 21, 2002. URL last accessed 2007-09-20. Archived July 22, 2002, at the Wayback Machine.
  34. ↑ "Decision of the German Federal Court in favour of the Stiftung Preußische Schlösser und Gärten, December 17, 2010". Juris.bundesgerichtshof.de. 2010-12-17. Retrieved 2012-07-20.
  35. ↑ See e.g. for Russia: Elst, M.: Copyright, Freedom of Speech, and Cultural Policy in the Russian Federation, p. 432f; Martinus Nijhoff, Leiden/Boston, 2005; ISBN 90-04-14087-5.
  36. ↑ Elst p. 432, footnote 268. Also see article 1276 of part IV of the Civil Code (in force as of January 1, 2008), clarifying this.
  37. ↑ Tanola, Nadezhda (2013-06-12). "Photographers to declare June 12 as 'Freedom to Shoot Day' - Remate | Remate". Remate.ph. Retrieved 2014-02-18.
  38. ↑ "Photography and Counter-Terrorism legislation". The Home Office. 18 August 2009. Retrieved 30 November 2009.
  39. ↑ Geoghegan, Tom (17 April 2008). "Innocent photographer or terrorist?". BBC News. Retrieved 30 November 2009.
  40. ↑ "Terrorism Act: Photography fears spark police response". Amateur Photographer Magazine. 30 October 2008. Retrieved 2 July 2015.
  41. ↑ "Tory MP stopped and searched by police for taking photos of cycle path". Daily Telegraph. 6 January 2009. Retrieved 30 November 2009.
  42. ↑ Davenport, Justin (27 November 2009). "BBC man in terror quiz for photographing St Paul's sunset". London: Evening Standard. Retrieved 30 November 2009.
  43. ↑ https://web.archive.org/web/20121023085953/http://www.standard.co.uk/news/bbc-man-in-terror-quiz-for-photographing-st-pauls-sunset-6714008.html
  44. ↑ "Section 44 Terrorism Act". Liberty. Retrieved 23 June 2014.
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