Panorama freedom, an exception to copyright, refers to the legal right to publish images of works of art that are in public space. The name has its roots in the German term Panoramafreiheit meaning ‘panoramic freedom’. These laws generally limit the right of the copyright owner to take action for copyright infringement against the infringer.
Almost all countries have some sort of freedom of panorama. However, some countries have more stringent interpretations than others. This article aims to provide a brief history of the law, to provide the main considerations to be taken into account when shooting in public and, therefore, to compare the law in this area in different jurisdictions.
After the invention and the relative decline in the prices of cameras, concerns grew about the privacy of people on the streets. In France, one of the first laws restricting the freedom of panorama was born, albeit from the point of view of privacy. Likewise, in Italy, similar laws have been promulgated, but for the protection of cultural heritage. However, these were negative laws, predating the existence of “freedom” itself.
Germany was the birthplace of law itself. In 1837, the German Confederation adopted a new common standard on copyright. The independent states within the Confederation raised concerns, and in 1840 the Kingdom of Bavaria enacted one of the world’s first “panorama freedoms”, providing an exception to copyright law. concerning any “work of art and architecture in the outer contours.” Slowly this right spread to the whole of Germany and became more open to the world.
What constitutes public space or public domain may differ from jurisdiction to jurisdiction. 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 in a private place. Therefore, although there is freedom of panorama in Germany, taking photos from the balcony of your home of a copyrighted building would not be allowed.
In some places, a public space may refer only to outdoor spaces, such as parks or streets. While in other jurisdictions it may also cover interior spaces such as public museums, public libraries, etc.
The other major concern that differentiates the law between jurisdictions is whether the reproduction of the work is for commercial use or for non-commercial use. Countries like France, Belgium and Germany generally do not allow freedom of panorama for commercial purposes. Some jurisdictions, such as Iceland, allow reproduction for educational purposes only and may allow cinematographic purposes if such reproduction is incidental.
The last consideration to keep in mind is artistic works such as sculptures, paintings or murals placed in public space. Usually, there are restrictions on the reproduction of such artistic works, as the courts hold that these rights should be reserved for the authors of the work itself.
Comparative analysis between jurisdictions
In India, this is largely covered by Section 52 of the Copyright Act 1957. In summary, the making or publication of paintings, drawings, prints, photographs or the inclusion in motion pictures of any work of architecture or any artistic work located in a public place does not constitute copyright infringement.
The relevant provision, Section 52 (s) – (u) of the Copyright Act, 1957, states –
“52. Certain acts must not constitute an infringement of copyright – (1) The following acts do not constitute an infringement of copyright, namely:
(s) the making or publication of a painting, drawing, engraving or photograph of a work of architecture or the exhibition of a work of architecture;
(u) the inclusion in a cinematographic film of—
(i) any artistic work permanently located in a public place or any place to which the public has access; Where
(ii) any other artistic work, if such inclusion is only as a background or is otherwise incidental to the main subjects depicted in the film; “
Under section 2 (c) of the same law, artistic works include works of architecture. Therefore, there is an exception on taking such images and videos. This exception is also not subject to qualifiers for non-commercial use.
Although there is also a freedom of panorama for artistic works under section 52
In very limited cases, the designed buildings can also be registered trademarks (such as the Taj Mahal Palace Hotel, Mumbai). In such cases, the registration of the mark and the class of the mark would also govern its reproduction.
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The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.