Freedom of panorama

Freedom of panorama (FOP) is a provision in 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][2] 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").

An image of sculptures by Sergej Alexander Dott, Himmelsblumen, 2003, Gleisdreieck, Berlin, published under the freedom of panorama provisions in German copyright law
In South Africa, there is no freedom of panorama. Strict interpretation of copyright law means that copyrighted objects, like this statue, should be censored out.
Intellectual property
Related topics
Higher category: Property and Property law

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
See also: Bernstein of Leigh v Skyviews & General Ltd
Status of freedom of panorama in Europe for images used for commercial purposes
  OK, including buildings, works of art and public interiors
  OK, including buildings and works of art, but not public interiors
  OK for buildings only
  Not OK
  OK, including buildings, works of art and some interiors
  Inconclusive or unknown

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.[3][4]

Panoramafreiheit is defined in article 59 of the German Urheberrechtsgesetz,[5] in section 62 of the United Kingdom Copyright, Designs and Patents Act 1988,[6] and it exists in several other countries[7] or even "a large majority of Member States".[8]

There are also European countries such as Italy[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),[9] 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.

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.[14]

On April 4, 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.[15][16][17] 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.[18]:2–5 The Swedish Supreme Court decided to take a restrictive view of this copyright exception.[18]: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."[18]: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.[18]:2,7

In Romania, the heirs of Anca Petrescu, the architect of the colossal Palace of the Parliament, sued the Romanian Parliament for selling photos and other souvenirs with the image of the iconic building. The copyright infringement trial is ongoing.[19]

France
Because of the lack of complete freedom of panorama, this image depicting the Louvre Pyramid was censored out

Since October 7, 2016, article L122-5 of the French Code of Intellectual Property provides for a limited freedom of panorama for works of architecture and sculpture. The code authorizes "reproductions and representations of works of architecture and sculpture, placed permanently in public places (voie publique), and created by natural persons, with the exception of any usage of a commercial character".[20]

The limits to freedom of panorama in France have a drastic effect on Wikipedia articles about French architecture. Wikimedia Commons editors routinely delete any images of recent French architecture, despite the changes in the law, because Commons does not allow images where commercial use is prohibited.

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).[21]

However, "street art" may be protected by copyright.[22][23][24]

Section 66 of the Act provides exceptions to copyright infringement for photos and depictions of buildings and models of buildings.[21]

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
Further information: Copyright in architecture in the 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)[25]

The definition of "architectural work" is a building,[26] which is defined as "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".[27]

Former USSR

Almost all countries from the former Soviet Union lack freedom of panorama. Exceptions are three countries whose copyright laws were amended recently. The first was 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.[5] 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),[5] while some other countries also include indoor spaces such as public museums (this is for instance the case in the UK[6] 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]

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gollark: I haven't tested it, I'm testing CraftOS-PC.
gollark: Ah yes. That would be in potatoBIOS.
gollark: How?
gollark: As planned.

See also

References
  1. Seiler, David (2006). "Gebäudefotografie in der EU – Neues vom Hundertwasserhaus". Photopresse. p. 16. Archived from the original on September 30, 2007. Retrieved May 18, 2020.
  2. Rosnay, Mélanie Dulong de; Langlais, Pierre-Carl (February 16, 2017). "Public artworks and the freedom of panorama controversy: a case of Wikimedia influence". Internet Policy Review. 6 (1). doi:10.14763/2017.1.447. ISSN 2197-6775. Archived from the original on January 18, 2018.
  3. N.N. "Panoramafreiheit". Archived from the original on April 18, 2015. Retrieved May 18, 2020. See also Article 5(3)(h) of 2001/29/EC.
  4. "The IPKat". ipkitten.blogspot.co.uk. Archived from the original on June 26, 2015.
  5. Seiler, David (June 24, 2001). "Fotografieren von und in Gebäuden". visuell. p. 50. Archived from the original on September 30, 2007. Retrieved May 18, 2020. See also: "§59 UrhG (Germany)" (in German). Archived from the original on February 23, 2011. Retrieved September 20, 2007.
  6. Lydiate, Henry. "Advertising and marketing art: Copyright confusion". Artquest. Archived from the original on October 27, 2011. Retrieved May 18, 2020. See also: "Section 62 of the Copyright, Designs and Patents Act 1988". Office of Public Sector Information. Archived from the original on December 10, 2009. Retrieved May 18, 2020.
  7. Koetz, Daniel. "Erlaubnis zum Ablichten von Sehenswürdigkeiten". Photographie (in German). Archived from the original on May 27, 2006. Retrieved May 18, 2020.
  8. "Euromyths and Letters to the Editor: Europe is not banning tourist photos of the London Eye". European Commission in the UK. Archived from the original on June 27, 2015.
  9. Spinelli, Luca. "Wikipedia cede al diritto d'autore". Punto Informatico. Archived from the original on September 29, 2008. Retrieved May 18, 2020.
  10. Grillini, Franco. "Interrogazione - Diritto di panorama" [Interrogation - panorama right]. Grillini.it (in Italian). Archived from the original on October 25, 2008. Retrieved May 18, 2020.
  11. Scorza, Guido; Spinelli, Luca (March 3, 2007). "Dare un senso al degrado" (PDF). Rome. Archived (PDF) from the original on July 8, 2009. Retrieved May 18, 2020.
  12. "Legge 22 aprile 1941 n. 633" (in Italian). Archived from the original on December 23, 2014. Retrieved May 18, 2020.
  13. "Decreto Legislativo 22 gennaio 2004, n. 42" (in Italian). Archived from the original on October 24, 2008. Retrieved May 18, 2020.
  14. "Rechtsprechung – BGH, 05.06.2003 - I ZR 192/00". dejure.org. Archived from the original on August 20, 2016. Retrieved May 18, 2020.
  15. Falkvinge, Rick (April 4, 2016). "Supreme Court: Wikimedia violates copyright by posting its own photos of public, taxpayer-funded art". Privacy Online News. Los Angeles, CA, USA. Retrieved September 8, 2016.
  16. "Wikimedia Sweden art map 'violated copyright'". BBC News. April 5, 2016. Archived from the original on September 23, 2016. Retrieved September 9, 2016.
  17. Paulson, Michelle (April 4, 2016). "A strike against freedom of panorama: Swedish court rules against Wikimedia Sverige". Wikimedia Foundation blog. Archived from the original on September 21, 2016. Retrieved September 9, 2016.
  18. Bildupphovsrätt i Sverige ek. för. v. Wikimedia Svierge (Supreme Court of Sweden 04-04-2016). Text
  19. "Why taking photos of the Palace of the Parliament can be considered illegal". dpvue. Retrieved October 12, 2018.
  20. "Article 5, section 11 of Code on Intellectual Property". Archived from the original on January 27, 2017. Retrieved December 26, 2016.
  21. Copyright Act 1968 (Cth)
  22. "Street Art & Copyright". Information Sheet G124v01. Australian Copyright Council. September 2014. Archived from the original on March 22, 2016. Retrieved May 8, 2016.
  23. "Street photographer's rights". Arts Law Information Sheet. Arts Law Centre of Australia. Archived from the original on June 30, 2014. Retrieved May 8, 2016.
  24. "Photographers & Copyright" (PDF) (17 ed.). Australian Copyright Council. January 2014. p. 7. Archived (PDF) from the original on July 2, 2014. Retrieved October 28, 2014. You will generally need permission to photograph other public art, such as murals.
  25. "17 U.S. Code § 120 - Scope of exclusive rights in architectural works". Archived from the original on April 19, 2016. Retrieved April 4, 2016.
  26. "17 U.S. Code § 101". Archived from the original on April 30, 2016. Retrieved April 8, 2016.
  27. "37 CFR 202.11(b)". Archived from the original on March 7, 2016. Retrieved April 8, 2016.
  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. Archived from the original (PDF) on June 30, 2015. Retrieved June 29, 2015.
  29. "Legislation: National Assembly of RA" (in Armenian). parliament.am. Archived from the original on July 1, 2015. Retrieved June 28, 2015.
  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). March 5, 2014. Archived from the original on June 30, 2015. Retrieved June 29, 2015.
  31. See e.g. Lydiate.
  32. Rehbinder, Manfred (2000). Schweizerisches Urheberrecht (3rd ed.). Berne: Stämpfli Verlag. p. 158. ISBN 3-7272-0923-2. See also: "§27 URG (Switzerland)". Retrieved May 18, 2020.
  33. Dix, Bruno (February 21, 2002). "Christo und der verhüllte Reichstag". Archived from the original on July 22, 2002. Retrieved May 18, 2020.
  34. "Decision of the German Federal Court in favour of the Stiftung Preußische Schlösser und Gärten, December 17, 2010". Juris.bundesgerichtshof.de. December 17, 2010. Archived from the original on October 14, 2013. Retrieved July 20, 2012.
  35. See e.g. for Russia: Elst, Michiel (2005). Copyright, Freedom of Speech, and Cultural Policy in the Russian Federation. Leiden/Boston: Martinus Nijhoff. p. 432f. ISBN 90-04-14087-5.
  36. Elst p. 432, footnote 268. Also see article 1276 of part IV of the Civil Code Archived 2012-06-07 at the Wayback Machine (in force as of January 1, 2008), clarifying this.
  37. Tanola, Nadezhda (June 12, 2013). "Photographers to declare June 12 as 'Freedom to Shoot Day'". Remate. Archived from the original on February 2, 2014. Retrieved February 18, 2014.
  38. "Photography and Counter-Terrorism legislation". The Home Office. August 18, 2009. Archived from the original on January 25, 2013. Retrieved November 30, 2009.
  39. Geoghegan, Tom (April 17, 2008). "Innocent photographer or terrorist?". BBC News. Retrieved November 30, 2009.
  40. "Terrorism Act: Photography fears spark police response". Amateur Photographer Magazine. October 30, 2008. Archived from the original on July 13, 2015. Retrieved July 2, 2015.
  41. "Tory MP stopped and searched by police for taking photos of cycle path". Daily Telegraph. January 6, 2009. Archived from the original on February 23, 2009. Retrieved November 30, 2009.
  42. Davenport, Justin (November 27, 2009). "BBC man in terror quiz for photographing St Paul's sunset". London: Evening Standard. Archived from the original on November 30, 2009. Retrieved November 30, 2009.
  43. "BBC man in terror quiz for photographing St Paul's sunset - News - London Evening Standard". October 23, 2012. Archived from the original on October 23, 2012.
  44. "Section 44 Terrorism Act". Liberty. Archived from the original on July 7, 2014. Retrieved June 23, 2014.
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