India: Freedom Of Panorama

Last Updated: 1 December 2017
Article by Trishala Sanyal

Freedom of panorama is a derived from German word Panoramafreiheit. It is the right of individual to publish photographs of the public buildings and the public structures which are attached to the public places permanently and is one of the exception of the Copyright law. "French-Italian model" and the "German-English model" are the two modular frameworks on which the freedom of panorama is based. On one hand, where the French-Italian model does not lay down the restrictions on the copyright law, the German-English model, on the other hand, states freedom of panorama as an exception to the copyright law. Indian Copyright Act has incorporated the German-English model with certain modifications to suit the Indian scenario.

Article 5 of the Berne Convention,1886 has laid down the "principle of assimilation" which means that countries who are the members of the convention enjoy the rights as laid down in the convention along with the national law of the State. Article 17 of the Convention has permitted the States to enact necessary legislation to prevent the infringement of any work thereby following one of the essential principles of the International Law. Article 9 of the Berne Convention mentions that audio and visual reproduction of copyrighted work amounts to the copyright infringement. Article 9 of the Berne Convention is contradictory to the Section 52 of the Copyright Act, 1957 as it follows the principle of assimilation and the basic principles of the International Law.Italian Copyright law follows the French-Italian model by recognizing the freedom of panorama and states that the photographs and video recording of sculptures, artistic work and architectural structures having public access, will not amount to copyright infringement if such a reproduction is used only for personal purpose but, if it such photographs or video recordings are used commercially, it will amount to the copyright infringement.

For example: – Photography of the Eiffel Tower at night amounts to copyright violation. However, photography during the daytime is rights-free and does not amount to infringement. The interesting explanation to such a law in France is that the in 1923 the creator and the owner of the copyright of the Eiffel Tower died and the Eiffel Tower entered public domain in the year 1993. Thus, in 1999 Las Vegas had its own Eiffel Tower. Although, the copyright expired in 1993 the lights in the Tower were installed in the year 1985, adding to the aesthetic beauty of the pre-existing structure and classifying the tower's light display as an "art work" within the purview of Copyright Laws. Hence, the night-time photography of Eiffel Tower will amount to the copyright infringement, as it does not fall within the public domain till date.1

Looking into the Indian scenario, even though there is no provision explicitly defining the Freedom of Panorama, the Copyright Act, 1957 under Section 52 sub-clause (t) and sub-clause (u) has provided for the provision related to the Freedom of Panorama. Section 52(t) states that the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or any other work of artistic craftsmanship, permanently situated in a public place or any premises to which the public has access, will not amount to copyright infringement. Section 52(u) has included the cinematographic films within the ambit of the freedom of panorama.According to sub-clause (u)the following inclusions in the cinematographic films does not amount to the copyright infringement:-

  • Any artistic work which is situated permanently in a place which can be accessed by the public.
  • 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.
  • Use of the author's artistic work where the author is not the copyright owner or it was the author's commissioned
  • Reconstruction of any structure or building in accordance with the architectural plans by which the building was constructed.

All in all, Section 52 of the Copyright Act, 1957 has resolved a potential conflict which could have arisen, if any architectural structure or any sculpture displayed in the public is photographed or used in a cinematographic film without the prior permission of the artist.In practice, Section 52 does conflict with certain aspects of the copyright law yet, it has been seen that Section 52 prevails over the other provisions.

Neelkant Darshan was a short feature film shot in the Akshardham Temple where photography and videography is prohibited. Section 14(c)(i)(A) of the Copyright Act, 1957 provides the architects and the author of an architectural work have the right to protect their work from being stored in any medium by electronic means. A tourist if photographs the Akshardham Temple by virtue of Section 14(c)(i)(A) will be deemed to infringe the copyright. However, by virtue of Section 52 of the Copyright Act, 1957, such photography and videography will not amount to infringement of copyright as the temple is situated permanently in an area easily assessable to the public.Therefore, it is quite evident that Copyright law is clear about the concept of Freedom of Panorama; however, conflict may arise if a building is trademarked and recorded in a video!

Footnotes

1 https://petapixel.com/2017/10/14/photos-eiffel-tower-night-illegal/

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