Freedom of panorama
Freedom of panorama is a provision in the copyright laws of various jurisdictions that permits taking photographs and video footage and creating other images of buildings and sometimes sculptures and other art works which are permanently located in a public space, without infringing on any copyright that may otherwise subsist in such works, and the publishing of such images. 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.
Background
In the past, photography and other methods of visually representing public space were severely restricted, for reasons other than authors' rights. France prohibited such acts in the 19th century for protection of privacy. Italy began disallowing representations of archaeological sites in engravings in the 18th century, even if such sites were found in public places, as a protection of their cultural heritage.The concept of freedom of panorama originated in Germany in the 19th century. The Kingdom of Bavaria introduced an analogous exception in 1840 for pictorial depictions of "works of arts and architecture in their exterior contours" in public spaces. It was intended to reduce the severity of the new copyright rules of the German Confederation which prohibited reproductions, with exception to "mechanical reproductions." Other component states of the confederation soon emulated the legal right, and in 1876 the legal right, based on Bavarian exception, was finally implemented nationwide by the German parliament.
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. 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, 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.Public space
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.In many Eastern European countries the copyright laws limit this permission to non-commercial uses of the images only.
There are also international differences in the particular definition of a "public place". In most countries, this includes only outdoor spaces, while some other countries also include indoor spaces such as public museums; this is for instance the case in the UK and in Russia.
Controversies and criticism
Freedom of panorama remains a contentious issue in many European countries, with Politico's Spillane et al. remarking that it reveals "national, ideological and even generational divisions" within the continent with respect to the governance of their digital future. During the European Parliament debate in 2015 concerning the regulation of the panorama exception within the region, former French MEP Jean-Marie Cavada denounced former German MEP Felix Reda who had proposed making freedom of panorama a law in the region. Cavada accused Reda of "leading the offensive to allow US monopolies, such as Facebook and Wikipedia, to escape paying copyrights".In the Asia–Pacific region, Jonathan Barrett, a senior lecturer at Victoria University of Wellington's School of Accounting and Commercial Law, criticized the liberal models of freedom of panorama adopted by several countries in the region. These models - influenced by British heritage, US heritage, and Chinese/Malaysian practices - do not restrict the commercial or lucrative use of relevant works. Barrett argued that these liberal models disadvantage indigenous communities in the region and cited the case of the stock image website Alamy, which failed to appropriately credit Ra Vincent as the author of Wai-titi Landing in the images of the New Zealand sculpture hosted on the platform. He suggested the implementation of an "Asian Pacific Copyright Code" to standardize freedom of panorama rules across the region. This regional law would eliminate distinctions between two-dimensional and three-dimensional works and prohibit the commercial use of any works in public spaces without permission from the authors or their guardians. Barrett argued that such a region-wide measure would help prevent what he described as "offensive reproductions". With regard to non-profit organizations such as the Wikimedia Foundation, Barrett argued that they should be permitted to display non-commercially licensed images of such works in public spaces for the purpose of educating and entertaining readers, without compromising the authors' rights, in accordance with the principle outlined in Article 9 of the Berne Convention.
International agreements
There are no explicit regulations concerning freedom of panorama in any of the international copyright treaties, such as Berne Convention, WIPO Copyright Treaty, Universal Copyright Convention, and TRIPS Agreement. Nevertheless, these treaties often provide a three-step test as a general limitation against which national provisions on the freedom of panorama must be measured, such as Article 10 of WIPO Copyright Treaty, Article 13 of TRIPS, and Article 9 of the revised Berne Convention.Then-United States Register of Copyrights Ralph Oman noted a joint undertaking between the World Intellectual Property Organization and UNESCO in the 1980s for a Draft Model Copyright Law, which included a set of draft principles focused on architectural works. A freedom of panorama-like provision was to be regulated under Principle WA7: "The reproduction of the external images of works of architecture by means of photography, cinematography, painting, sculpture, drawing or similar methods should not require the authorization of their authors if it is done for private purposes or, even if it is done for commercial purposes, where the works of architecture are on a public street, road or square or in any other place normally accessible to the public." Mixed reactions were a proposal to extend the principle to images taken from airspace and satellites, questions on whether the images should extend to interior architecture, and criticism due to giving away the rights of the architects to the public too much and not providing the condition of remuneration for commercial uses of external images. These proposals did not attain enough support for inclusion, and according to the Committee of Governmental Experts the principle for the panorama exception was reproduced "without changes".
FoP law 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.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.In 2015, former German MEP Felix Reda proposed applying freedom of panorama to all countries of the European Union. He claimed that through the exception people would be free to share images of public spaces that might contain buildings and public art, in order "to express and share their experiences and thoughts" and to "preserve our journeys and curate our impressions for entire generations to come."
His proposal was criticized by former French MEP Jean-Marie Cavada, who introduced an alternate proposal seeking to restrict freedom of panorama provisions of all the European Union countries to non-commercial uses only. Cavada claimed that commercial freedom of panorama harms the rights of the authors of architectural and artistic works by allowing entities like Wikimedia and Facebook to exploit the works commercially without compensation to the authors; his office added that non-commercial freedom of panorama would not affect Internet freedom, but would guarantee that "platforms like Facebook, Instagram, and Flickr provide fair compensation to artists." Dailymotion and YouTube earlier had agreements with the collective management society, in 2008 for Dailymotion and 2010 for YouTube, for legal use of images of buildings and public art on their platforms. ADAGP argued the panorama exception would lead to "a loss of 3 to 6 million euros, or 10 to 19% of the collections" annually in France alone.
Criticism to Cavada's proposal culminated in an online petition by digital rights activists with hashtag #SaveFOP, garnering more than 460,000 signatures within two weeks after its launch. IT journalist Andrew Orlowski of The Register alleges that Wikipedia's intervention to the debate is "bogus and misleading". The United Kingdom-based fact-checking website Full Fact remarks that only the European Commission has the power to craft new legislation, and that any recommendation approved by the parliament cannot necessarily influence the commission.
On July 9, the plenary of the European Parliament rejected Cavada's restrictive proposal; however, former Dutch MEP Marietje Schaake's proposal to extend the permissive provision to other EU countries did not pass. Freedom of panorama throughout the region remained at status quo.