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Freedom of panorama

Intellectual property law
Primary rights
Sui generis rights
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Freedom of panorama, often abbreviated as FOP, is a provision in the copyright laws of various jurisdictions that permits taking photographs or video footage, or creating other images (such as paintings), of buildings and sometimes sculptures and other art which are permanently located in a public place, without infringing any copyright that may otherwise subsist in such works, and to publish such images.[1] Panorama freedom statutes and/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").

Contents

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]

Europe

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
  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.[2]

Panoramafreiheit is defined in article 59 of the German Urheberrechtsgesetz,[3] in article 27 of the Swiss Urheberrechtsgesetz,[4] in section 62 of the United Kingdom Copyright, Designs and Patents Act 1988,[5] and it exists in several other countries.[6]

On the other hand, there are also European countries such as Italy,[7] where there is still no freedom of panorama at all. In Italy, despite many official protests[8] and a national initiative[9] led by the lawyer Guido Scorza and the journalist Luca Spinelli (who highlighted the issue),[7] the publishing of photographic reproductions of public places is still prohibited, in accordance with the old Italian copyright laws.[10][11]

Some countries, such as France or Belgium, 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.[12]

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", which is defined in section 10 as including a painting, sculpture, drawing, engraving or photograph, or a building or a model of a building - in each case, "whether ... of artistic quality or not" - and any other "work of artistic craftsmanship" (but not a circuit layout).[13]

United States

Under copyright law of the United States, there is no such encompassing rule.[14][not in citation given] The only similar article is 17 USC 120(a), which exempts the creation of pictorial representations of buildings from the architect's copyright.[15][16] This freedom of panorama for buildings does not apply to art, however.[17]

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[18] that are permanently installed in a public place, "permanent" typically meaning "for the natural lifetime of the work".[4][19] In Switzerland, even taking and publishing images of two-dimensional works such as murals or graffiti is permitted, provided such images cannot be used for the same purpose as the originals.[4]

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.[3] 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.[20]

Finally, in many Eastern European countries the copyright laws limit this permission to non-commercial uses of the images only.[21]

As shown in the map above, 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,[3] 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).[22]

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.[23] While the Act does not prohibit photography, critics have alleged misuse of the powers to prevent lawful public photography.[24] Notable instances have included the investigation of a schoolboy,[25] a Member of Parliament[26] and a BBC photographer.[27]

References

  1. ^ a b c d 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. ^ a b c Seiler, D.: Fotografieren von und in Gebäuden, in visuell 5/2001, p. 50. See also §59 UrhG (Germany). URLs last accessed 2007-09-20.
  4. ^ a b c 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.
  5. ^ a b 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. ^ a b Spinelli, L. Wikipedia cede al diritto d'autore, Punto Informatico. URL last accessed 2008-08-21
  8. ^ Grillini, F. "Diritto di panorama". Archived from the original on 2008-10-25. Retrieved 2008-08-21.  Parliamentary interrogation.
  9. ^ Scorza, G., Spinelli, L., Dare un senso al degrado. URL last accessed 2008-08-21
  10. ^ Legge 22 aprile 1941 n. 633. URL last accessed 2008-08-21
  11. ^ Decreto Legislativo 22 gennaio 2004, n. 42. URL last accessed 2008-08-21
  12. ^ "Article L.112-2 du Code de la propriété intellectuelle" (in (French)). Legifrance.gouv.fr. 1992-07-01. Retrieved 2012-07-20. 
  13. ^ Copyright Act 1968 (Cth). URL last accessed 2011-04-18.
  14. ^ Lydiate, H.: "Public Sculpture", Art Monthly 11/2006. URL last accessed 2009-11-26.
  15. ^ Gorman, R.A.: Copyright law, 2nd ed., U.S. Federal Judicial Center, June 19, 2006, pp. 48, 166. URL last accessed 2007-09-20.
  16. ^ Brinson, D.: The Law for Photographers: Do I Need Permission?. URL last accessed 2007-09-20.
  17. ^ Brinson, Diane. "Do I Need Permission?". Retrieved 3 March 2013. 
  18. ^ See e.g. Lydiate.
  19. ^ Dix, B.: Christo und der verhüllte Reichstag, February 21, 2002. URL last accessed 2007-09-20.
  20. ^ "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. 
  21. ^ 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.
  22. ^ 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.
  23. ^ "Photography and Counter-Terrorism legislation". The Home Office. 18 August 2009. Retrieved 30 November 2009. 
  24. ^ Geoghegan, Tom (17 April 2008). "Innocent photographer or terrorist?". BBC News. Retrieved 30 November 2009. 
  25. ^ "Terrorism Act: Photography fears spark police response". Amateur Photographer Magazine. 30 October 2008. Retrieved 30 November 2009. 
  26. ^ "Tory MP stopped and searched by police for taking photos of cycle path". Daily Telegraph. 6 January 2009. Retrieved 30 November 2009. 
  27. ^ Davenport, Justin (27 November 2009). "BBC man in terror quiz for photographing St Paul's sunset". London: Evening Standard. Retrieved 30 November 2009. 

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