Freedom of panorama
|Intellectual property law|
|Sui generis rights|
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. 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").
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.
Panoramafreiheit is defined in article 59 of the German Urheberrechtsgesetz, in article 27 of the Swiss Urheberrechtsgesetz, in section 62 of the United Kingdom Copyright, Designs and Patents Act 1988, and it exists in several other countries.
On the other hand, there are also European countries such as Italy and Iceland, where there is still no freedom of panorama at all. In Italy, despite many official protests and a national initiative led by the lawyer Guido Scorza and the journalist Luca Spinelli (who highlighted the issue), the publishing of photographic reproductions of public places is still prohibited, in accordance with the old Italian copyright laws 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 artistical object/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 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.
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).
Under copyright law of the United States, there is no such encompassing rule.[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. This freedom of panorama for buildings does not apply to art, however.
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. In most countries, it applies only to images of three-dimensional works that are permanently installed in a public place, "permanent" typically meaning "for the natural lifetime of the work". 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.
Many laws have subtle differences in regard to public space and private property. Whereas the photographer's location is irrelevant in Austria, 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. 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.
Finally, in many Eastern European countries the copyright laws limit this permission to non-commercial uses of the images only.
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), while some other countries also include indoor spaces such as public museums (this is for instance the case in the UK and in Russia).
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 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 charges 500 pesos just 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 the taking photography of historical places and the group has called legislators to create a law on the matter.
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. While the Act does not prohibit photography, critics have alleged misuse of the powers to prevent lawful public photography. Notable instances have included the investigation of a schoolboy, a Member of Parliament and a BBC photographer.
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- "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.
- 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.
- 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.
- Tanola, Nadezhda (2013-06-12). "Photographers to declare June 12 as ‘Freedom to Shoot Day’ - Remate | Remate". Remate.ph. Retrieved 2014-02-18.
- "Photography and Counter-Terrorism legislation". The Home Office. 18 August 2009. Retrieved 30 November 2009.
- Geoghegan, Tom (17 April 2008). "Innocent photographer or terrorist?". BBC News. Retrieved 30 November 2009.
- "Terrorism Act: Photography fears spark police response". Amateur Photographer Magazine. 30 October 2008. Retrieved 30 November 2009.
- "Tory MP stopped and searched by police for taking photos of cycle path". Daily Telegraph. 6 January 2009. Retrieved 30 November 2009.
- Davenport, Justin (27 November 2009). "BBC man in terror quiz for photographing St Paul's sunset". London: Evening Standard. Retrieved 30 November 2009.
|Wikimedia Commons has media related to Freedom of panorama.|
- Photographing public buildings, from the American Society of Media Photographers.
- Derivative works from Chilling Effects.
- Millennium Park Photography: The Official Scoop, The Chicagoist, February 17, 2005.
- Photographs and other two-dimensional reproductions of buildings & public art from the Australian Copyright Council.
- MacPherson, L.: Photographer's Rights in the UK.
- Newell, Bryce Clayton (2011). "Freedom of Panorama: A Comparative Look at International Restrictions on Public Photography". Creighton Law Review 44: 405–427