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Freedom of Panorama

December 8, 2021
justice brown

By Rupin Chopra and Nitika Sinha

Freedom of panorama, an exception to copyright law, refers to the legal right to publish pictures of artworks which are in a public space. The name takes its roots from the German term Panoramafreiheit meaning ‘panorama freedom’. These laws generally limit the right of the copyright owner to take action for breach of copyright against the infringer.

Roughly every country has some sort of freedom of panorama. However, some countries have more strict interpretations than others. This article seeks to provide a short history of the right, provide the major considerations to be taken into account when taking a picture in public, and consequently compare the law on the subject across various jurisdictions.

History

Post the invention and relative cheapening prices of cameras, concerns rose regarding the privacy of people on streets. In France, one of the first laws curtailing freedom of panorama arose, albeit from a privacy perspective. Similarly, in Italy, similar laws were enacted, however for the protection of cultural heritage. However, these were negative laws, prior to the existence of a ‘freedom’ itself.

Germany was the birthplace of the right itself.  In 1837, the German Confederation enacted a new common standard on copyright law. Independent states within the Confederation brought forth their concerns, and in 1840, the Kingdom of Bavaria enacted one of the first ‘freedom of panorama’ in the world, providing an exception to the copyright law with respect to any “works of art and architecture in the exterior contours”.[i] Slowly, this right extended to the entirety of Germany, and further lent to the world.

Major Considerations

Public Space

What constitutes a public space or public domain may be different across jurisdictions. This is relevant not only for ‘what’ can be reproduced, but also for ‘where’ something can be reproduced. For example, in Germany, reproductions of a work cannot be taken from a place of privacy. Hence, while there exists a freedom of panorama in Germany, taking pictures from the balcony of your home of a copyrighted building would not be allowed.

In some places, a public space may refer to only outdoor spaces, such as parks or streets. Whereas, in other jurisdictions, it may also cover indoor spaces such as public museums, public libraries, etc.

Purpose

The other major concern that differentiates the law between jurisdictions is whether the reproduction of the work is being done for commercial use or for non-commercial use. Countries including France, Belgium and Germany do not generally allow freedom of panorama for commercial use. Some jurisdictions, such as Iceland allow reproduction only for educational purposes, and may allow for cinematographic purposes if such reproduction is incidental.

Artistic Works

The final consideration to be kept in mind is of artistic works such as sculptures, paintings or murals placed in public space. Usually, there exist restrictions on reproduction of such artistic works, as courts believe that such rights should be reserved with the authors of the work itself.

Comparative Analysis across Jurisdictions

India

In India, this is largely covered under Section 52 to the Copyright Act, 1957. Summarily, making or publishing of paintings, drawings, engravings, photographs or inclusion in cinematographic films of any works of architectures, or any artistic work that is situated in a public place does not constitute an infringement of copyright.

The relevant provision, Section 52(s) – (u) of the Copyright Act, 1957, states –

“52. Certain acts not to be an infringement of copyright — (1) The following acts shall not constitute an infringement of copyright, namely,—

(s) the making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the display of a work of architecture;

(t) the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work falling under sub-clause (iii) of clause (c) of section 2, if such work is permanently situate in a public place or any premises to which the public has access;

(u) the inclusion in a cinematograph film of—

(i) any artistic work permanently situate in a public place or any premises to which the public has access; or

(ii) any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film;”

Under section 2(c) of the same act, artistic works include works of architecture. Hence, there exists an exception on taking such images and videos. This exception is not subject to any qualifiers of non-commercial use either.

While there exists freedom of panorama for artistic works as well under Section 52(t), this does not mean that this exception can be extended to copies of an original work situated in a public place. In the case of The Daily Calendar Supplying vs The United Concern,[ii] the Madras High Court held that where multiple poster copies of an oil painting were sold by an artist and placed in public places, does not imply that these can be reproduced freely.

In very limited instances, buildings’ designed may also be trademarked (such as the Taj Mahal Palace Hotel, Mumbai). In such instances, the trademark registration and the class of trademark would also govern its reproduction.

Tabular Analysis

The following table summarises the laws across various jurisdictions –

Freedom of Panorama
Country Freedom of Panorama For Commercial Purposes Of Artistic Works Special Laws
India[iii]
Australia[iv] Artistic works may not be reproduced if they are placed temporarily
Belgium[v] Reproduction must not affect the normal exploitation of the work or unreasonably prejudice the legitimate interests of the author
Brazil[vi]
Canada[vii]
China[viii] The name and title of the work shall be mentioned
Congo[ix] Reproduction may only be done for educational purposes, or for cinematography, if such reproduction is incidental
Denmark[x]
France[xi] Reproduction is allowed if copyrighted material is incidental or accessory to the reproduction
Germany[xii] Reproduction must take place from a public place
Hong Kong[xiii]
Hungary[xiv]
Iceland[xv] Reproduction may only be done for educational purposes, or for cinematography, if such reproduction is incidental
Indonesia[xvi] No explicit legislation
Israel[xvii]
Italy[xviii]
Japan[xix] Artistic works cannot be reproduced for commercial purposes
Malaysia[xx]
Mexico[xxi] Reproduction must not affect the normal exploitation of the work or unreasonably prejudice the legitimate interests of the author
Morocco[xxii] Reproduction is allowed if copyrighted material is incidental or accessory to the reproduction
New Zealand[xxiii]
Nigeria[xxiv]
Philippines[xxv] While there is no freedom of panorama per se in the Philippines, there exists an exception ‘as part of reports of current events. A bill for freedom of panorama is proposed but pending.
Poland[xxvi]
Romania[xxvii]
Singapore[xxviii]
South Africa[xxix] Reproduction is allowed if copyrighted material is incidental or accessory to the reproduction, only in a cinematographic film, or TV broadcast or similar transmission
South Korea[xxx] Buildings or sculptures must not be reproduced onto other buildings or sculptures; or exhibited permanently at a public place
Slovenia[xxxi]
Spain[xxxii]
Sweden[xxxiii] There is no substantive legislation on this matter, but a Supreme Court decision stated that value from public artwork should be reserved for the authors
Taiwan[xxxiv] Buildings or sculptures must not be reproduced onto other buildings or sculptures; or exhibited permanently at a public place
Thailand[xxxv] Architectural works shall not be ‘constructed’
Turkey[xxxvi]
Uganda[xxxvii]
UAE[xxxviii] Only allowed for broadcasting purposes
UK[xxxix]
USA[xl]
Vietnam[xli] Allowed for the purpose of ‘presenting’ such works

 

[i]               Dulong de Rosnay, M. and Langlais, P.-C ‘Public artworks and the freedom of panorama controversy: a case of Wikimedia influence’ Internet Policy Review (2017) <https://policyreview.info/articles/analysis/public-artworks-and-freedom-panorama-controversy-case-wikimedia-influence> accessed 2 December 2021.

[ii]              The Daily Calendar Supplying vs The United Concern AIR 1967 Mad 381.

[iii]             Section 52, Copyright Act, 1957, Act No. 14 of 1957 (India).

[iv]             Section 65-68, Copyright Act, 1968, Act No. 63 of 1968 (Australia).

[v]              Law of June 27, 2016, Amending the Code of Economic Law for the Introduction of Freedom of Panorama (Belgium).

[vi]             Article 48, Law No. 9.610 of February 19, 1998 (Law on Copyright and Neighbouring Rights) (Brazil).

[vii]            Section 32.2(1), Copyright Act, R.S.C., 1985, c. C-42 (Canada)

[viii]           Article 22(10), Copyright Law Of The People’s Republic Of China (China).

[ix]             Article 29, Protection of copyright and related rights, Ordinance­Law No. 86­033 of April 5, 1986 (Democratic Republic of Congo).

[x]              Article 24, Consolidate Act on Copyright 2014 (Consolidate Act No. 1144 of October 23rd, 2014) (Denmark).

[xi]             Article L122-5, Code de la propriété intellectuelle (French Code of Intellectual Property) (France).

[xii]            Article 59, Urheberrechtsgesetz (Act on Copyright and Related Rights) (Germany).

[xiii]           Section 71, Copyright Ordinance (Chapter 528) (Hong Kong).

[xiv]            Article 68(1), évi LXXVI. törvény a szerzői jogról (Copyright Act) (Hungary).

[xv]             Article 16, 1972 nr. 73 29. maí Höfundalög (Copyright Law, Act No. 73 of 1972 – May 29) (Iceland).

[xvi]            Law of the Republic of Indonesia Number 28 of 2014 on Copyrights (Indonesia).

[xvii]           Section 23, Copyright Act, 2007 (May 25, 2008) (Israel).

[xviii]          Law for the Protection of Copyright and Neighbouring Rights (Law No. 633 of April 22, 1941) (Italy).

[xix]            Article 46-48, Copyright Act (Act No. 48 as at May 6, 1970) (Japan).

[xx]             Section 13, Copyright Act 1987 (Act 332, as at 1 January 2006) (Malaysia).

[xxi]            Article 148, Ley Federal del Derecho de Autor, 1996 (Federal Copyright Law) (Mexico).

[xxii]           Article 20, Law No. 2-00 on Copyright and Related Rights, 2006 (Morocco).

[xxiii]          Section 73, Copyright Act 1994 (Act No. 143 of 1994) (New Zealand).

[xxiv]          Clause (d), Second Schedule, Chapter C28, Copyright Act (Act No. 47 of 1988) (Nigeria).

[xxv]           Section 184(d), Intellectual Property Code of the Philippines (Republic Act No. 8293) (Phillipines).

[xxvi]          Article 33, Act on Copyright and Related Rights (4 February 1994) (Poland).

[xxvii]         Article 35(f), Legea nr. 8 din 14 martie 1996 privind dreptul de autor și drepturile conexe (LAW no. 8 of March 14, 1996 on copyright and related rights) (Romania).

[xxviii]        Section 63-63, Copyright Act (Chapter 63) (Act 2 of 1987) (Singapore).

[xxix]          Copyright Act (Act No. 98 Of 1978) (South Africa).

[xxx]           Article 35, Copyright Act (Act No. 432 of January 28, 1957) (South Korea).

[xxxi]          Article 55, Zakon o avtorski in sorodnih pravicah (Copyright and Related Rights Act) (ZASP-UPB3) (Slovenia).

[xxxii]         Article 35(2), Texto Refundido de la ley de Propiedad Intelectual, 1996 (Consolidated Text Of The Intellectual Property Law) (Spain)

[xxxiii]        Stockholm District Court v. Bildupphovsrätt i Sverige ek. För, Case No. Ö 849-15, Supreme Court of Sweden.

[xxxiv]        Article 58, Copyright Act, (as on 01.05.2019) (Taiwan).

[xxxv]         Section 37-39, Copyright Act B.E. 2537 (1994) (Thailand).

[xxxvi]        Article 40, Law on Intellectual and Artistic Works Law No. 5846 Of 5.12.1951 (Turkey).

[xxxvii]       Section 40, The Copyright and Neighbouring Rights Act, 2006 (Uganda).

[xxxviii]      Article 22, Section 4, Federal Law No. (7) of the Year 2002 Concerning Copyrights and Neighboring Rights (UAE).

[xxxix]        Section 62, Copyright, Designs and Patents Act 1988 (1988 Chapter 48) (UK).

[xl]             Section 120, Title 17 Copyrights, U.S. Code (1947) (USA).

[xli]            Article 25(h), Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property (No. 36/2009/QH12) (Vietnam).

Suyash Bajpai, Intern at S.S. Rana & Co. has assisted in the research of this article.

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