Freedom of panorama, an exception to copyright law, refers to the legal right to publish pictures of artworks which are in a public space. The name takes its roots from the German term Panoramafreiheit meaning 'panorama freedom'. These laws generally limit the right of the copyright owner to take action for breach of copyright against the infringer.
Roughly every country has some sort of freedom of panorama. However, some countries have more strict interpretations than others. This article seeks to provide a short history of the right, provide the major considerations to be taken into account when taking a picture in public, and consequently compare the law on the subject across various jurisdictions.
History
Post the invention and relative cheapening prices of cameras, concerns rose regarding the privacy of people on streets. In France, one of the first laws curtailing freedom of panorama arose, albeit from a privacy perspective. Similarly, in Italy, similar laws were enacted, however for the protection of cultural heritage. However, these were negative laws, prior to the existence of a 'freedom' itself.
Germany was the birthplace of the right itself. In 1837, the German Confederation enacted a new common standard on copyright law. Independent states within the Confederation brought forth their concerns, and in 1840, the Kingdom of Bavaria enacted one of the first 'freedom of panorama' in the world, providing an exception to the copyright law with respect to any "works of art and architecture in the exterior contours". Slowly, this right extended to the entirety of Germany, and further lent to the world.
Major Considerations
Public Space
What constitutes a public space or public domain may be different across jurisdictions. This is relevant not only for 'what' can be reproduced, but also for 'where' something can be reproduced. For example, in Germany, reproductions of a work cannot be taken from a place of privacy. Hence, while there exists a freedom of panorama in Germany, taking pictures from the balcony of your home of a copyrighted building would not be allowed.
In some places, a public space may refer to only outdoor spaces, such as parks or streets. Whereas, in other jurisdictions, it may also cover indoor spaces such as public museums, public libraries, etc.
Purpose
The other major concern that differentiates the law between jurisdictions is whether the reproduction of the work is being done for a commercial use or for a non-commercial use. Countries including France, Belgium and Germany do not generally allow freedom of panorama for commercial use. Some jurisdictions, such as Iceland allow reproduction only for educational purposes, and may allow for cinematographic purposes if such reproduction is incidental.
Artistic Works
The final consideration to be kept in mind is of artistic works such as sculptures, paintings or murals placed in public space. Usually, there exist restrictions on reproduction of such artistic works, as courts believe that such rights should be reserved with the authors of the work itself.
Comparative Analysis across Jurisdictions
India
In India, this is largely covered under Section 52 to the Copyright Act, 1957. Summarily, making or publishing of paintings, drawings, engravings, photographs or inclusion in cinematographic films of any works of architectures, or any artistic work that is situated in a public place does not constitute infringement of copyright.
The relevant provision, Section 52(s) – (u) of the Copyright Act, 1957, states –
"52. Certain acts not to be infringement of copyright — (1) The following acts shall not constitute an infringement of copyright, namely,—
(s) the making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the display of a work of architecture;
(t) the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work falling under sub-clause (iii) of clause (c) of section 2, if such work is permanently situate in a public place or any premises to which the public has access;
(u) the inclusion in a cinematograph film of—
(i) any artistic work permanently situate in a public place or any premises to which the public has access; or
(ii) 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;"
Under section 2(c) of the same act, artistic works include works of architecture. Hence, there exists an exception on taking such images and videos. This exception is not subject to any qualifiers of non-commercial use either.
While there exists freedom of panorama for artistic works as well under Section 52(t), this does not mean that this exception can be extended to copies of an original work situated in a public place. In the case of The Daily Calendar Supplying vs The United Concern, the Madras High Court held that where multiple poster copies of an oil painting were sold by an artist and placed in public places, does not imply that these can be reproduced freely.
In very limited instances, buildings' designed may also be trademarked (such as the Taj Mahal Palace Hotel, Mumbai). In such instances, the trademark registration and the class of trademark would also govern its reproduction.
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