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Photography forums and websites have been buzzing in the past few days over concerns that “freedom of panorama” may be under threat in the European Union. This post takes a look at what is happening in Europe, and then compares it to the position under Australian law.

What is “freedom of panorama”?

In broad terms, “freedom of panorama” refers to provisions under the copyright laws of various countries that allow a person to take and publish photographs or video footage, or create other artworks (such as drawings or paintings), of copyrighted buildings and other artistic works permanently located in a public place.

For example, depending on a country’s specific law, a photographer may be able to freely take and sell a photograph of a building or publicly accessible sculpture, without first seeking the permission of the architect or artist to do so.

The scope and breadth of “freedom of panorama” exceptions vary from jurisdiction to jurisdiction. For instance, in some countries, the law only covers images of buildings, in others it also covers images of public artworks. In some cases, both public sculptures and two-dimensional artworks (such as murals) are covered, in others only sculptures.

An important matter to bear in mind, and which sometimes gets overlooked in online chatter, is that copyright infringement and “freedom of panorama” exceptions are only relevant where public buildings, sculptures or other artworks are still protected by copyright.

In very general terms – though again this may vary from country to country – copyright expires 70 years after the death of the “author” (or creator). Once copyright in a public building or artwork expires, very often, photographers, videographers and artists will be free to take and create images of those buildings and artworks as they please.

(Note that in some circumstances other legal issues might still arise, such as trade mark, privacy or right of entry laws. Those issues go beyond the scope of the current post, but will be covered in the future.)

What’s happening in the EU to “freedom of panorama”?

By way of background, the copyright reform process commenced in 2014 when the EU’s new digital commissioner, Gunther Oettinger, was charged with modernising the EU’s copyright rules and regulations. In response, the European Parliament set about preparing a report on issues that ought to be considered by the Commission.

Julia Reda (German Pirate Party) released an initial evaluation report in January this year, focussing on the implementation of Directive 2001/29/EC (relating to the harmonisation of certain aspects of copyright and related rights in the information society). The Directive has never been uniformly implemented across all EU states.

This initial report made a large number of recommendations, including that exceptions to copyright infringement – including freedom of panorama – be uniformly adopted by all EU states.

The original proposal contained in Ms Reda’s report was as follows:

“Calls on the EU legislator to ensure that the use of photographs, video footage or other images of works which are permanently located in public places is permitted.”

On 16 June 2015, the Legal Affairs Committee of the European Parliament voted to amend this proposal to the following (emphasis added):

“Considers that the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorisation from the authors or any proxy acting for them;

In practical terms, if adopted into law across the EU, this would mean that photographers would need to obtain permission from all copyright owners before being able to photograph, publish, sell or licence images that contain copyrighted buildings or artworks.

It has also been suggested that, if implemented, the proposal may also capture images uploaded to photo-sharing or social networking sites. Whilst the images may not have been uploaded for commercial use, the site’s terms of use may include a broad licence in favour of the site operator (eg Facebook) allowing it to use any uploaded images commercially.

The report is not binding at this stage, and there is still a long process to go through before it would be implemented into law across EU countries (if at all). The final form of the report is due to be voted on by the full European Parliament on 9 July 2015, where further amendments may be made.

The final report will then be sent to the European Commission, which will have regard to it when preparing its own copyright reform proposal, expected around the end of this year. Whether or not, and in what form, the current proposal might make its way into law across each country in the EU remains up in the air.

To paraphrase Mark Twain: “Reports of the death of freedom of panorama have been greatly exaggerated”.

What about photographing buildings and public art under Australian copyright law?

So how does what is proposed in Europe compare to Australian copyright law? Unfortunately, there is no simple answer, and the law varies according to what is being photographed, and how any resulting photo might be used.

Buildings and models of buildings

Buildings and models of buildings are protected as “artistic works” under Australian copyright law. This is separate to copyright that may also exist in any architectural drawings and plans.

Under section 66 of the Copyright Act, however, it isn’t an infringement of copyright to photograph, paint, draw or make an engraving of a building or building model. It is also permissible to include a building (or building model) in a film or TV broadcast, when that inclusion is only ‘incidental’ to the principal matters represented in the film or TV broadcast. (section 66 and 67).

“Publishing” (as defined in the Act, basically, reproducing) that photograph, painting, drawing, engraving or film is also excluded from copyright infringement (section 68).

Things start to get a lot messier when looking at Australian law around creating images of two- or three-dimensional artistic works in public places, as will be seen below. Again, it is important to bear in mind that this only affects artistic works that are still protected by copyright, and not those where copyright has expired.

Sculptures and ‘works of artistic craftsmanship’

A sculpture or ‘work of artistic craftsmanship’ permanently displayed in a public location can also be photographed, painted, drawn or engraved (section 65). And, as with buildings, publication of the resulting 2D representation will not infringe copyright, and likewise incidental inclusion in a film or TV broadcast (sections 65 and 67), but only when that inclusion is ‘incidental’ to the principal matters represented in the film or TV broadcast.

Unfortunately, the Act does not define a ‘work of artistic craftsmanship’ so it remains a question of fact and degree determining whether the exception to infringement applies. In very general terms, a ‘work of artistic craftsmanship’ covers what might be regarded as “applied” or “useful” arts (as opposed to fine arts). It might include, for instance, ornate cast-iron gates in front of a building.

Other artistic works

It is important to note that the exceptions to infringement set out above do not cover sculptures that are only temporarily displayed. It also does not cover other kinds of artistic work, as discussed below.

In the case of two-dimensional artistic works in public places (such as murals, photographs, or textiles) or literary works (such as advertisements), the only relevant exception to copyright infringement is the ‘incidental’ inclusion in a film or TV broadcast that also applies to sculptures (section 67).

This means that photographing and publishing artistic works (other than permanent sculptures and ‘works of artistic craftsmanship’) in public places, even where they are only an incidental part of a photograph, will still infringe copyright. Practically, this includes photographs that incorporate street art, billboards, murals on a building (even if the building itself is exempt), as well as temporary sculptures.

Communicating images of artistic works to the public (eg displaying images on the Internet)

As Australian law currently stands, perhaps the strangest anomaly of all is that the defences discussed above do not extend to electronically communicating images of artistic works to the public, other than by inclusion in film or TV broadcast.

In other words and by way of example, taking a photograph of a permanent sculpture in public is OK, as is publishing that image in the traditional sense. Making that same image available on the Internet, however, will infringe copyright in the sculpture.

This inconsistency was touched on briefly in the Australian Law Reform Commission’s report “Copyright and the Digital Economy (ALRC Report 122)” released in February 2014. In that report, the ALRC recommended that sections 65 and 67 of the current Act be repealed, but as part of a comprehensive package of reforms which would see the introduction of a broader concept of ‘fair use’. As yet, no steps have been taken to introduce any legislation into Parliament addressing the ALRC’s recommendations.

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This article is provided for general information purposes only. If you require assistance, please contact us to discuss obtaining advice relevant to your specific circumstances.

Image and text © Kerin Forstmanis, 2015


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