Commons:Freedom of panorama

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Freedom of panorama in European countries
   OK, including public interiors
   OK
   OK for buildings only
   Not OK
   Public interiors are OK, but schools, opera buildings, entrance halls of businesses, and museums are not public places for the purpose of Dutch law, while railway stations are.
   Inconclusive or unknown

In almost all countries, art, architecture, and other works are protected by copyright for a specified period. That means any photograph taken of such a work during the copyright period is a derivative work, provided (under US law) that the photograph displays the quantum of originality required for copyright protection of a derivative work.

A derivative work usually requires a license from the creator of the work. However, in many (but not all) countries there is an exception in copyright law which eliminates the need for a license. We call this exception freedom of panorama (FOP), a phrase derived from the German term Panoramafreiheit.

The works to which the FOP exception applies vary widely from country to country. The exception generally applies only to works on permanent public display. In some countries, this is only in outdoor public places; in others it extends to indoor places where admission is charged. It may cover only architecture, only architecture and sculpture, or all copyrightable works including literary works.

Note that in every country, even one without an FOP exception, once a work goes out of copyright it may be freely photographed. Also, the exception does not eliminate the need for a license from the photographer.

Legal status

Buildings and sculptures as works of art

[pl], the author of the work depicted in the photograph is Grzegorz Sadowski.

Every building and sculpture we can see in our neighbourhood is subject to the copyright law, as far as it incorporates artistic creativity. The Berne convention, art.2-1 explicitly states so: "The expression "literary and artistic works" shall include [...] works of drawing, painting, architecture, sculpture, engraving and lithography".

Usually, the copyright law acts mention such an object explicitly as their subject matter. This is reproduced in national laws (for instance the US Copyright Law in §102-8).

The owners of buildings should not be assumed to hold the copyright of their buildings. For this reason, in countries without freedom of panorama, Wikimedia Commons requires proof of copyright release from the copyright holder when hosting any images of those buildings. If the owner of a building uploads an image to Commons, presume that they do not own the copyright. Ask them to provide either proof of copyright transfer from the architect to them, or otherwise, ask them to direct the architect to apply a Commons-compatible license to the image.

Legal status of pictures

The Berne convention Article 9 explicitly states that:

  1. Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.
  2. It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
  3. Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

This has been reproduced for instance in § 106 of the US Copyright Law, and corresponding national laws.

According to copyright laws, then:

Taking pictures of buildings is a reproduction, which must theoretically be authorized by the architect if the right to reproduction is not in the national copyright law.

This is the situation for any derivative work based on any artistic creation.

Photographs of buildings

A photograph of a building or even any scene in a city or a village inevitably depicts some pieces of architecture or even sculptures. The photograph may or may not have its own creative element, making it a work of its own, but the value of this work clearly depends on the value in the works that are depicted on it. In case of such a dependency the photograph is deemed to be a derivative work.

This restriction on building photographs is often weakened by a separate clause for photographs or pictures of buildings in public places. However, this clause is not always made explicit in national laws.

Choice of law

The question of what country's law applies in a freedom of panorama case is an unsettled issue. There are several potentially conflicting legal principles, any of which might be used to determine the applicable law (see en:Choice of law). The law used is likely to be one of the following: the country in which the object depicted is situated, the country from which the photograph was taken, or the country in which the photo is used (viewed/sold). Because of the international reach of Commons, ensuring compliance with the laws of all countries in which files are or might be reused is not realistic. Since the question of choice of law with regard to freedom of panorama cases is unsettled, current practice on Commons is to retain photos based on the more lenient of the country in which the object is situated and the country in which the photo is taken. For example, North Korea has a suitable freedom of panorama law, while South Korea's law, limited to non-commercial uses, is not sufficient for Commons. As a result of the practice of applying the more lenient law, we would generally retain photos taken from North Korea of buildings in South Korea (e.g., File:Joint Security Area from North Korea.jpg) as well as photos taken from South Korea of buildings in North Korea (e.g., File:070401 Panmunjeom3.jpg).

Uploading images covered under Freedom of Panorama to the Commons

When uploading images subject to Freedom of Panorama provisions to the Commons, please tag them with an FoP template, which contains a legal explanation on the copyright status of the work, and sorts the image into a category of images subject to these provisions. If the country the image is taken in does not have these provisions, or only allows them for non-commercial purposes, they cannot be licensed under a license compatible with our Licensing policy and must be deleted. Please file requests for deletion at Commons:Deletion requests.

For images of artwork that are covered by Freedom of Panorama in the country where the photo was taken, the {{Not-free-US-FOP}} template can be included to advise reusers that the US (where Commons is hosted) has no Freedom of Panorama provisions for artwork and that the image might not be freely reusable in the US. This template should not be used for images that only show architectural works, which are covered by US Freedom of Panorama provisions.

Nuances in the panorama freedom

We will discuss here the case of the German legislation. Here is the content of §59 of the German Copyright Law (Urheberrechtsgesetz, UrhG):

  1. It shall be permissible to reproduce, by painting, drawing, photography or cinematography, works which are permanently located on public ways, streets or places and to distribute and publicly communicate such copies. For works of architecture, this provision shall be applicable only to the external appearance.
  2. Reproductions may not be carried out on a work of architecture.

Quoted from an English translation.

Publishing of reproductions

The article above allows one to reproduce and publish photographs taken in public places. It is understood that this includes publishing the pictures in a commercial way.

Public places

German law allows photographers to take pictures that are visible from publicly accessible places. This includes private ways and parks with common access. However, it does not include railway station buildings or platforms. The picture must be taken from a publicly accessible point. It is not permitted to take a picture of such a building from a private house or from a helicopter.

In other countries, these restrictions are sometimes less stringent. For instance, the Australian, Austrian, British, Mexican, Indian, and United States laws allow taking pictures of publicly accessible interiors.

Permanent vs temporary

The exhibited objects must be exhibited in a permanent way. If a work is presented on a public place temporarily, one may be obliged to get the explicit permission to take its picture.

Whether a work is installed at a public place permanently or not is not a question of absolute time, but a question of what the intention was when the work was placed there. If it was put there with the intention of leaving it in the public place indefinitely or at least for the whole natural lifetime of the work, then it is "permanent".

A sculpture is typically placed with the intent of leaving it for an indefinite time. But if it was clear from the beginning that it would be left there only, say, for three years and then be moved to a museum, then the placement was not "permanent". On the other hand, if a sculpture was placed with the intent of leaving it "open end", but is then removed due to new construction plans some time later, its placement remains "permanent" even if the sculpture is eventually removed.

Even quickly decaying works can thus be "permanent" and therefore be subject to freedom of panorama. Street paintings, ice, sand, or snow sculptures rarely last more than a few days or weeks. If they're left in public space for their natural lifetime, they are considered "permanent" all the same. But if, for instance, an ice sculpture is exhibited only for a few hours and then moved to cold storage, it may not be permanently placed. (See also archived discussion of 09/2013).

Architecture vs sculptures

The German law allows photography of both buildings and sculptures. The situation in the United States is different. See below.

Music, literature etc.

Sometimes, a literary work is a part of a building or sculpture or is presented on a publicly accessible plaque. In most jurisdictions, the literary work has a separate copyright which must be considered separately unless it is an integral part of the building or sculpture. A plaque describing the building or sculpture will not qualify unless the work is in one of the eleven jurisdictions which include an exception for literary works.

Acknowledgment of source

The copyright law usually obliges the photographer to credit the authors of works depicted in his photograph. That usually means that the photographer must provide a description of the depicted objects and the authors thereof. However, the photographer can be exempted from the obligation when the authorship is difficult to deduce. For instance, German copyright law says in §62 that the photographer does not need to credit the author if authorship is not clearly present on the object that is depicted.

The right to modify

The panorama freedom is restricted to taking pictures of the actual objects. Generally, the freedom to modify such pictures is restricted. For example, the German law in §62 forbids any modifications except those technically required by the method of replication.

Further derivative works

A derivative work based on a photograph is most often also a derivative work based on the depicted object. The panorama freedom usually does not include the delegation of the right to authorize the derivative works. The author of a photograph has the right to authorize the derivative work based on the photograph only to the extent that results from the creative element of his work. However, he does not have the right to authorize the derivative work in the extent associated with the original object.

Pictures of public domain objects

Public domain objects are not protected by copyright, so objects of this kind can be freely photographed and the pictures can be published both royalty free and commercially, at least so far as copyright law is concerned (there may be contractual or other restrictions on picture-taking, though, especially on private property). Moreover, pictures of public domain objects can be freely modified and derivative works can be freely developed. For example, old buildings and statues where the architect or artist died more than a certain number of years ago (depending on the country), are in the public domain.

Situation in different countries

This section presents more detailed accounts of the legal status of freedom of panorama in different countries and regions. This is not legal advice, but just for educational purposes.

Map

Freedom of Panorama world map.png

Summary table

Freedom of panorama laws (by country)
Country Commercial use Buildings 3D artwork 2D artwork Text Public interiors
Albania Yes Yes Yes Yes ? No
Algeria Yes Yes Yes Yes No Yes[1]
Angola Yes Yes Yes Yes Yes Yes[2]
Argentina Yes Yes No No No ?
Armenia Yes Yes Yes Yes Yes ?
Australia Yes Yes Yes Some[3] No Yes
Austria Yes Yes Yes Yes No Yes
Belgium Yes Yes Yes Yes No ?
Brazil Yes Yes Yes Yes No ?
Brunei Yes Yes Yes Some[3] No ?
Bulgaria No No No No No No
Canada Yes Yes Yes Some[3] No Yes
China Yes Yes Yes Yes No No
Czech Republic Yes Yes Yes Yes Yes ?[4]
Denmark Yes Yes No No No Yes
Finland Yes Yes No No No Yes
France No No No No No No
Georgia No No No No No No
Germany Yes Yes Yes Yes Yes No
Hungary Yes Yes Yes Yes No No
India Yes Yes Yes Some[3] No Yes
Israel Yes Yes Yes Yes No ?
Italy No No No No No No
Japan Yes Yes No No No ?
Malaysia Yes Yes Yes Yes No Yes
Mexico ?[5] Yes Yes Yes ?[6] Yes[7]
New Zealand Yes Yes Yes Some[3] No Yes
Norway Yes Yes No No No Yes
Poland Yes Yes Yes Yes Yes ?
Portugal Yes Yes Yes Yes Yes Yes[2]
Singapore Yes Yes Yes Some[3] No Yes
Spain Yes Yes Yes Yes Yes ?
Sweden Yes Yes Yes Yes No Yes[8]
Switzerland Yes Yes Yes Yes Yes ?
Russia Yes Yes No No No ?
United Kingdom Yes Yes Yes Some[3] No Yes
United States Yes Yes No No No Yes
Notes
  1. With the exception of museums and art galleries.
  2. a b Limited to locais/lugares públicos (public locations)
  3. a b c d e f g "Works of artistic craftsmanship" are OK, "graphic works" are not – see United Kingdom section for commentary.
  4. Limited to veřejná prostranství (public spaces), the listed examples do not include interiors but they are not excluded explicitly.
  5. The Mexican law only mentions that artists don't receive payment and doesn't explain if use for commercial purposes is possible. It is supposed that it's possible.
  6. The Mexican law doesn't have a position on this use.
  7. Due to the Mexican law not mentioning what public means, it's supposed that it's also possible.
  8. Does not include artworks.


The following countries have no freedom of panorama (or freedom of panorama limited to non-commercial uses only):
Afghanistan, Andorra, Azerbaijan, Bahrain, Belarus, Bosnia and Herzegovina, Bulgaria, Burkina Faso, Cambodia, Cameroon, DR Congo, Costa Rica, Estonia, Ethiopia, France, Gambia, Georgia, Greece, Iceland, Indonesia, Iran, Iraq, Italy, Ivory Coast, Jordan, Kazakhstan, Kosovo, Kyrgyzstan, Latvia, Laos, Lebanon, Libya, Lithuania, Luxembourg, Madagascar, Mali, Mongolia, Montenegro, Morocco, Mozambique, Namibia, Nepal, Oman, Philippines, Qatar, Romania, Saudi Arabia, Senegal, Slovenia, South Africa, South Korea, Sri Lanka, Sudan, Tajikistan, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan, Vatican City, Zambia

Consolidated rules

Consolidated freedom of panorama rules for all countries for which rules have been defined:

Consolidated freedom of panorama rules for all countries, organized by continent. Includes countries for which rules have yet to be defined.

Click on a link in the table below to see the copyright rules for a given country or territory.

VTE Copyright rules by territory
By topic
Africa
Americas
Asia
Europe
Oceania

See also

Notes

Bibliography

  • Vogel. In: Gerhard Schricker (Hrsg.): Urheberrecht. Kommentar. 2. Auflage. Beck, München 1999, ISBN 3-406-37004-7
  • Dreier. In: Thomas Dreier/Gernot Schulze: Urheberrechtsgesetz. 2. Auflage. München: Beck 2006 ISBN 340654195X
  • Cornelie von Gierke: Die Freiheit des Straßenbildes (§59 UrhG). In: Hans-Jürgen Ahrens (Hrsg.): Festschrift für Willi Erdmann. Zum 65. Geburtstag. Heymann, Köln u.a. 2002, S. 103-115, ISBN 3-452-25191-8

External links


This page is based on the German Wikipedia article Panoramafreiheit