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").
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]
European Union
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][5]
France
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".[6]
Germany
Panoramafreiheit is defined in article 59 of the German Urheberrechtsgesetz.[7]
An example of litigation due to the 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.[8]
Italy
In Italy[9] freedom of panorama does not exist. 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.
Sweden
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.[14][15][16] 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.[17]:2–5 The Swedish Supreme Court decided to take a restrictive view of this copyright exception.[17]: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."[17]: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.[17]:2,7
Romania
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.[18]
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).[19]
However, "street art" may be protected by copyright.
Section 66 of the Act provides exceptions to copyright infringement for photos and depictions of buildings and models of buildings.[19]
Canada
Section 32.2(1) of the Copyright Act (Canada) states the following:
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.
Philippines
The Intellectual property Code of the Philippines (Republic Act No. 8923) makes no specific provision for freedom of panorama; §180.3 does make provision regarding "[t]he reproduction and communication to the public of literary, scientific or artistic works as part of reports of current events by means of photography, cinematography or broadcasting to the extent necessary for the purpose."[23] As of November 2020, Wikimedia Commons did not consider these exceptions sufficient for inclusion of such photographic images there but did note some specific provisions in other Philippine laws regarding copyrights related to buildings completed prior to particular dates.[24]
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 protested for their right to take photos of historical and public places, especially in Luneta and Intramuros. The park management imposed 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.[25]
United Kingdom
Under UK law, freedom of panorama covers all buildings as well as most three-dimensional works such as sculptures that are permanently situated in a public place. The freedom does not generally extend to two-dimensional copyright works such as murals or posters. A photograph which makes use of the freedom may be published in any way without breaching copyright.
Section 62 of the Copyright, Designs and Patents Act 1988 is broader than the corresponding provisions in many other countries, and allows photographers to take pictures of buildings, defined in section 4(2) as "any fixed structure, and a part of a building or fixed structure". There is no requirement that the building be in located a public place, nor does the freedom extend only to external views of the building.
Also allowed are photographs of certain artworks that are permanently situated in a public place or in premises open to the public, specifically sculptures, models for buildings, and "works of artistic craftsmanship". According to the standard reference work on copyright, Copinger and Skone James, the expression "open to the public" presumably includes premises to which the public are admitted only on licence or on payment.[26] Again, this is broader than 'public place', which is the wording in many countries, and there is no restriction to works that are located outdoors.
Under the local approach to copyright, "works of artistic craftsmanship" are defined separately from "graphic works", and the freedom of section 62 does not apply to the latter. "Graphic works" are defined in section 4 as any painting, drawing, diagram, map, chart or plan, any engraving, etching, lithograph, woodcut or similar work. Accordingly, photographs may not freely be taken of artworks such as murals or posters even if they are permanently located in a public place.
The courts have not established a consistent test for what is meant by a "work of artistic craftsmanship", but Copinger suggests that the creator must be both a craftsman and an artist.[27] Evidence of the intentions of the maker are relevant, and according to the House of Lords case of Hensher v Restawile [1976] AC 64, it is "relevant and important, although not a paramount or leading consideration" if the creator had the conscious purpose of creating a work of art. It is not necessary for the work to be describable as "fine art". In that case, some examples were given of typical articles that might be considered works of artistic craftsmanship, including hand-painted tiles, stained glass, wrought iron gates, and the products of high-class printing, bookbinding, cutlery, needlework and cabinet-making.
Other artworks cited by Copinger that have been held to fall under this definition include hand-knitted woollen sweaters, fabric with a highly textured surface including 3D elements, a range of pottery and items of dinnerware. The cases are, respectively, Bonz v Cooke [1994] 3 NZLR 216 (New Zealand), Coogi Australia v Hyrdrosport (1988) 157 ALR 247 (Australia), Walter Enterprises v Kearns (Zimbabwe) noted at [1990] 4 EntLR E-61, and Commissioner of Taxation v Murray (1990) 92 ALR 671 (Australia).
The Design and Artists Copyright Society and Artquest provide further information on UK freedom of panorama.[28][29]
United States
United States copyright law contains the following provision:
The definition of "architectural work" is a building,[31] 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".[32]
Former USSR countries
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.[33] Armenia followed in April 2013 with an updated Armenian law on copyright.[34] 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.[35]
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[36] that are permanently installed in a public place, "permanent" typically meaning "for the natural lifetime of the work".[37][38] 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.[37]
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.[7] 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.[39]
In many Eastern European countries the copyright laws limit this permission to non-commercial uses of the images only.[40]
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),[7] while some other countries also include indoor spaces such as public museums (this is for instance the case in the UK[41] and in Russia).[42]
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[citation needed] 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.[43] While the Act does not prohibit photography, critics have alleged that these powers have been misused to prevent lawful public photography. Notable instances have included the investigation of a schoolboy,[45] a Member of Parliament[46] and a BBC photographer. 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.
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