User:Prevert/Liberdade de panorama

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This article does not constitute legal advice. It simply collects some information that the authors were able to obtain on the issue. The authors do not take responsibility for the accuracy of the material. It is presented here for educational purposes only.

Panorama freedom allows for taking pictures in public places. It is usually subject to special regulations in local copyright laws with the goal of granting reasonable freedom for photography in public space. Such laws, generally, allow photography of publicly visible buildings and non-private scenes from public places for the purposes of publishing. The actual extent of possible allowed usage of a picture taken in a public place is usually wider and depends upon the particular formulation of the law or clause that grants the possibility.

Buildings and sculptures as works of arts

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The author of the work depicted on the photograph is Grzegorz Sadowski.

It is hard to believe, but every building and sculpture we can see in our neighbourhood is subject to the copyright law. Each of them has creative element and thus is deemed to be copyrightable. Usually, the copyright law acts mention such an objects explicitely as their subject matter. For instance USA Copyright Law in § 102 says:

... Works of authorship include the following categories:
(1) literary works;
...
(5) pictorial, graphic, and sculptural works;
...
(8) architectural works
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A photograph of a building or even any scene in a city or a village inevitably depicts some pieces of architecture or even sculptures. If the photograph has no creative element (this happens very rarely), it should be regarded as a reproduction of the original work(s). If one can distinguish a creative element in the picture it constitutes a separate work, 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.

A derivative work is any creative work that crucially depends on one or more other creative works that existed earlier. In particular the USA Copyright Law in § 101 defines the derivative work as follows:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

Usually, the authors of the original, preexisting work have the exclusive right to authorize the derivative work and to permit its publication as in § 106 of the USA Copyright Law:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: ...
(2) to prepare derivative works based upon the copyrighted work;

This, however, is often weakened by a separate clause for photographs or pictures of buildings in public places.

Nuances in the panorama freedom

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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

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

Public places

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

In other coutries, these restrictions are sometimes less stringent. For instance, the Austrian or British law allow to take pictures of publicly acessible interiors.

Permanent vs temporal

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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.

Architecture vs sculptures

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The German law allows to take pictures both of buildings and sculptures. This, however, looks differently in Belgium or in The Netherlands. The law there allows to take freely pictures of buildings, but requires to get permission for publication of the photographs with sculptures that are the central motives of pictures.

Music, literature etc.

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Sometimes, a literary work is a part of a sculpture or is presented on a publicly accessible plaque. It is usually understood that the particular presentation of the work falls under the panorama freedom.

Acknowledgement of source

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The copyright law usually obliges the photographer to give credits of his photograph. That usually means that he must provide a description of the depicted objects and its authors. However, he can be exempled from the obligation when the authorship is difficult to deduce. For instance, German copyright law says in § 62 that the photographer needs not provide the credits if they are not clearly present on the object that is depicted.

The right to modify

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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

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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

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The public domain objects are not protected by the copyright law so it is commonly understood that objects of this kind can be freely photographed and the pictures can be published both royalty free and commercially. Moreover, the pictures can be freely modified and the derivative works can be freely developed.

Situation in different countries

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This section presents more detailed accounts of the legal situation of the panorama freedom in different countries or economical unions. Again, this is not a legal advise, but just a presentation for educational purposes.
If you want to contribute, please consider the following guidelines:
  • Try to make the description as comprehensive as possible
  • Don't forget that sometimes small formulation nuances have big impact
  • Add reference to particular articles in the copyright law
  • Provide a link to the copyright law in the original language, if possible
  • Provide a link to the copyright law in English, if possible
  • Provide links to web pages which discuss panorama freedom issues in given country or region

Coalition for Intellectual Property Rights

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This organisation groups states which were parts of the former Soviet Union. The legal information for the member state is available at the CIPR web page.

Belarus

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The copyright law of Belarus knows only a very limited form of panorama freedom. Its article 19 limits the (photographic or audio-visual) reproduction of works of architecture, fine art, or photography that are permanently located in publicly accessible places to noncommercial uses or cases where the work is not the main object of the reproduction.

Russia

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Russian copyright law only allows a limited form of panorama freedom. It allows the reproduction of works of architecture (i.e., buildings), photographs, or works of figurative art (which encompasses paintings, sculptures, graphics, designs, cartoons, and other works, see §7) that are permanently located in "places of public resort", but only for non-commercial purposes or if the work is not the main subject of the reproduction.

Ukraine

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Ukrainian copyright law does not contain any exceptions for reproductions of works in public places.

Commonwealth

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Australia

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The panorama freedom is dealt with in the Australian copyright act in articles 65-68. They allow to make pictures of buildings and also to make pictures of sculptures and works of artistic craftsmanship provided that they are located non-temporarily in the public places or in premises open to the public. It is also allowed to publish such pictures (article 68).

New Zealand

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Copyright legislation in New Zealand follows the one of Great Britain and allows making and distributing or broadcasting images of buildings, sculptures, and works of craftsmanship or models thereof that are permanently situated in a public place or in premises open to the public. This excludes the reproduction of two-dimensional works such as murals.

European Union

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There is a European Parliament directive on the harmonisation of the copyright law 2001/29/EG which asserts in the article 5 section 3 letter h that the copyright law of the member states may restrict the copyright rights for sculptures and buildings exposed in public places.

Austria

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The freedom of taking pictures of public places is slightly wider than in the German law. It includes also the publicly accessible interiors of buildings (see § 54 clause 5 of Austrian UrhG).

Belgium

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There is no panorama freedom in Belgium. The modern pieces of art cannot be the central motive of a commercially available photographs without permission of the artwork copyright holder.

Denmark

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The article 24 of the Danish copyright law permits panorama freedom for buildings. This, however, does not extend to the works of art that are located in public places. They cannot be commercially published when they constitute the central element of the picture.

Estonia

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The § 20 of Estonian copyright law permits an interesting kind of panorama freedom. It allows taking pictures and publication of all kinds of creative works (including other photographies) that are permanently displayed in public places. However, the works cannot constitute the central motive of the picture and cannot be used in advertisments. This means that the panorama freedom in this country essentially can be exploited non-commercially only.

Finland

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The article 25 of the Finnish copyright law permits panorama freedom for buildings. This, however, does not extend to the works of art that are located in public places. They cannot be commercially published when they constitute the central element of the picture.

France

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The architect of a notable building owns copyright over the representations of that building, including postcards and photographs. For instance, the architect of the pyramid in the courtyard of the Louvre Museum may claim copyright over images of the pyramid. This, for instance, extends to the designer of lighting systems; for instance, the company operating the Eiffel Tower claims copyright of images of the tower when lighted at night.

However, ruling #567 of March 15, 2005 of the Court of Cassation denied the right of producers of works of arts installed in a public plaza over photographs of the whole plaza:

Because the Court has noticed that, as it was shown in the incriminated images, the works of Mr X... and Z... blended into the architectural ensemble of the Terreaux plaza, of which it was a mere element, the appeals court correctly deduced that this presentation of the litigious work was accessory to the topic depicted, which was the representation of the plaza, so that the image did not constitute a communication of the litigious work to the public

The court draws a distinction between depictions of a work of art, and depictions of whole settings of which the work of art is a mere part, and denies the right of the artist over such images.

While architects have may have rights to works derived from their work of art, this is not the case of the owners of works of art or buildings, in general. The summary of the conclusions of a May 7, 2004 ruling by the Court of Cassation was:

The owner of a thing does not have an exclusive right over the image of this thing; he or she can however oppose the usage of this image by a third party if this usage results in an abnormal disturbance to him or her."

In this decision, the court excluded that the owner of a hotel, who had made extensive repairs and enhancements to the buildings at high costs, could claim exclusive rights to the image of that hotel: merely demonstrating that the costs supported did not demonstrate that the publishing of images was an abnormal disturbance.

The Court already ruled on June 5, 2003, that the right of property comprised absolutely no right to the image of this property. However, they also upheld the right to privacy of the homeowners: in this case, not only a photograph of a house was published, but also its exact location and the name of the owners. Earlier rulings (May 2, 2001) similarly rejected requests based on ownership without a justification of an abnormal disturbance.

Germany

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It is possible by § 59 of the Copyright Law Act to take pictures of publicly visible buildings and sculptures and publish them commercially. Still, the right to modify the works and to produce derivative works requires the permission of the original copyright holder. See also the German article.

Great Britain

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Great Britain law in §62 of the Copyright, Designs and Patents Act, 1988, allows to take pictures of sculptures, buildings, and works of artistic craftsmanship that are permanently located in public places or premises open to the public, and to publish such pictures in any way. This basically applies to three-dimensional works only; it does not apply to two-dimensional works such as e.g. murals.

Hungary

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The Hungarian law has no panorama freedom. It is mentioned in the article 35 point 1 that one can copy a work of art for private purposes. However, the works of architecture are explicitely excluded. Still, this article concerns probably rather real copies than photographs. The article 37 point 2 permits the photographies of publicly presented works of arts to be used in news.

Italy

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The Italian copyright law does not contain any exception for pictures from public places.

Latvia

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The Latvian copyright law in article 25 permits taking pictures of architectural works, photographs, visual arts, design works and the works of applied arts when displayed permanently in public places. The pictures can be used for personal purposes, in news concerning the current events, and can be included in works of non-comercial purpose.

Lithuania

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The panorama freedom in Lithuania is granted in the article 28 of the copyright act. It permits to make and publish pictures of sculptures and works of architecture that are permanently located in public places. However, it explicitely excludes works presented in museums and on exhibitions. The panorama freedom is, however, subject to further restrictions - the works of art cannot be the central element of the picture and the reproduction cannot be used directly or indirectly for commercial purposes.

Luxembourg

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The regulation in Luxembourg is similar to the Belgish one. The regulation is presented in the article 10 point 7. The work of art cannot be the main motive of the picture.

The Netherlands

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The article 18 of the Dutch copyright act says that: "it is not an infringement of copyright to reproduce and publish pictures of a work, as meant in article 10, first paragraph, under 6°[1] or of an architectural work as meant in article 10, first paragraph, under 8°[2], which are made to be permanently located in a public place, as long as the work is depicted as it is located in the public space. Where incorporation of a work in a compilation is concerned, not more than a few of the works of the same author may be included."

  • [1] drawings, paintings, works of architecture and sculpture, lithographs, engravings and the likes
  • [2] drafts, sketches and three-dimensional works relating to architecture, geography, topography or other sciences

Original (Dutch) text:

Als inbreuk op het auteursrecht op een werk als bedoeld in artikel 10, eerste lid, onder 6°, of op een werk, betrekkelijk tot de bouwkunde als bedoeld in artikel 10, eerste lid, onder 8°, dat is gemaakt om permanent in openbare plaatsen te worden geplaatst, wordt niet beschouwd de verveelvoudiging of openbaarmaking van afbeeldingen van het werk zoals het zich aldaar bevindt. Waar het betreft het overnemen in een compilatiewerk, mag van dezelfde maker niet meer worden overgenomen dan enkele van zijn werken.

Poland

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The copyright act from July 4th, 1994 in article 33 point 1 allows to propagate works that are permanently exhibited on the publicly accessible roads, streets, squares or gardens provided that the propagation is not for the same use. The name of the creator and source should be provided if it is possible by article 34. This use is royalty free, provided that it does not harm the legitimate interests of the creator by article 34.

Spain

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Article 35 of the Royal Legislative Decree 1/1996 of April 12, 1996, and amended by Law 5/1998 of March 6, 1998, states:

  1. Any work liable to be seen or heard in the reporting of current events may be reproduced, distributed and communicated to the public, but only to the extent justified by the informatory purpose.
  2. Works permanently located in parks or on streets, squares or other public thoroughfares may be freely reproduced, distributed and communicated by painting, drawing, photography and audiovisual processes.

The original Spanish text:

  1. Cualquier obra susceptible de ser vista u oída con ocasión de informaciones sobre acontecimientos de la actualidad puede ser reproducida, distribuida y comunicada públicamente, si bien sólo en la medida que lo justifique dicha finalidad informativa.
  2. Las obras situadas permanentemente en parques, calles, plazas u otras vías públicas pueden ser reproducidas, distribuidas y comunicadas libremente por medio de pinturas, dibujos, fotografías y procedimientos audiovisuales.


Article 40bis further states the above law "may not be so interpreted that they could be applied in a manner capable of unreasonably prejudicing the legitimate interests of the author or adversely affecting the normal exploitation of the works to which they refer."

Sweden

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The Swedish copyright law allows in the article 24 to take pictures of works of art that are located permanently at public places outdoors. It is assumed that one can also publish the photograph for commercial purposes.

Other

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Canada

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Canadian copyright law grants panorama freedom on works of architecture or artistic craftsmanship and on sculptures. Photographs (and also drawings, paintings, engravings, or movies) of such works or models thereof do not infringe upon the copyright of the depicted works if those are permanently installed in public places or buildings. As in Great Britain, the reproduction of paintings or other two-dimensional works is not covered by this permission.

Japan

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Japanese copyright law allows the reproduction of artistic and architectural works located permanently in open places accessible to the public, such as streets and parks, or at places easily seen by the public, such as the outer walls of buildings, only for non-commercial purposes.

Norway

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The Norwegian Copyright in Literary, Scientific and Artistic Works Act, in section 24, 2 says that works of art and photographic works may be depicted when they are permanently located in or near a public place or a publicly accessible passage through some place. However, this does not apply when the work is clearly the main motive and the reproduction is exploited commercially.

Switzerland

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In Switzerland, works permanently installed at or on publicly accessible places or ground may be pictured, and such pictures may be offered for sale, sold, transmitted, or otherwise published. It must not be possible to use the picture for the same purpose as the original.

USA

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Buildings are works subject to copyright in the U.S. according to 17 USC 102(a)(8) since the Architectural Works Copyright Protection Act was passed in 1990. It applies to all buildings that were completed (not begun) after December 1, 1990, or where the plans were published after that date.

However, the U.S. federal copyright law explicitly exempts photographs of such copyrighted buildings from the copyright of the building in 17 USC 120(a). Anyone may take photographs of buildings from public places. The photographer holds the exclusive copyright to such an image (the architect or owner of the building has no say whatsoever), and may publish the image in any way. 17 USC 120 applies only to architectural works, not to other works of visual art, such as statues or sculptures. For artworks, even if permanently installed in public places, the U.S. copyright law has no similar exception, and any publication of an image of a copyrighted artwork thus is subject to the approval of the copyright holder of the artwork.

See also

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Bibliography

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  • 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
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This article is based on the German Wikipedia article Panoramafreiheit

[[Category:Commons maintenance|Freedom]]

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