Freedom of Panorama
Freedom of Panorama (FoP) (English Wikipedia article on FoP/Wikimedia Commons policy page on FoP) refers to a limitation or exception to copyright. It can be defined as:
- "The legal right in some countries to publish pictures of artworks, sculptures, paintings, buildings or monuments that are in public spaces, even when they are still under copyright." (Dulong de Rosnay and Langlais, 2017)[1]
- "An exception under copyright laws, similar to fair use, that dispenses with the need to secure prior permission from a copyright owner for the use of a work." _ Atty. Chuck Valerio of the Philippines' IPOPHL as quoted by Reyes (2021)[2]
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Cristo Redentor (Brazil), inaugurated in 1931 and authored by sculptor Paul Landowski. Covered under the Brazilian FoP.
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30 St Mary Axe or The Gherkin, a 2003 work of Foster + Partners, as pictured in this 2009 photo by Christine Matthews of the free culture photography initiative "Geograph Britain and Ireland". Covered under the United Kingdom FoP.
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Nationaal Monument op de Dam, 1956 cenotaph jointly authored by architect Jacobus Oud and sculptors John Rädecker, Han Rädecker, Jan Willem Rädecker, and Paul Grégoire. Covered under the Dutch FoP.
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Atomium (Belgium), authored by André Waterkeyn and completed in 1958. Covered under the Belgian FoP.
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The Merlion a 1972 sculpture in Singapore by Lim Nang Seng. Covered under the Singaporean FoP.
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Bank of China Tower, I.M. Pei's 1990 work in Hong Kong. Covered under the Hongkongese FoP.
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Cones, 1982 sculpture in the Sculpture Garden of the National Gallery of Australia, authored by Bert Flugelman. Covered under the Australian FoP.
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Petronas Towers, César Pelli's 1996 architectural work and covered under the Malaysian FoP.
Importance
edit“ |
There are only a few forces stronger in the world than the desire of people to express and share their experiences and thoughts, in writing, image or song. We preserve our journeys and curate our impressions for long winter nights and entire generations to come. Our laws are seeking to reward the author, encourage the creation and ensure the exchange of works. When interests overlap, they provide guidance for mediation. Freedom of Panorama is the codified acknowledgment that a public sphere truly exists for everybody's benefit. A building or sculpture deserves and receives the protection of the law, yet the reach of that protection ends where the protection of the public sphere begins. In order for copyright to work and to be accepted, it has to do more than just protect works. It must provide breathing space for those who express, who portray, who sculpt, who quote or who criticise. Freedom of Panorama is part of this breathing space to those who create, to Europe's over 500 million authors. |
” |
— Felix Reda (2015)[3] |
Freedom of Panorama (FoP) is very important for Wikimedia projects, because it allows Wikimedia Commons – the media file repository site of Wikimedia Foundation – to freely host images of more recent/potentially-copyrighted works of architecture and public art situated in public spaces and/or at premises open to the public under permitted free culture licenses. Such images are being used on Wikipedia (various language editions), Wikivoyage, and other projects. On Wikipedia, images are used to illustrate articles on architecture and public art, as well as lists of buildings and monuments/statues.
Wikimedia Commons has a very strict licensing policy anchored on the Principle of Free Cultural Works. Under this principle, the following conditions must be applicable: the freedom to use and perform the work, the freedom to study the work and apply the information, the freedom to redistribute copies, and the freedom to distribute derivative works.
2022 policy paper of Creative Commons
editFrom a 2022 policy paper of Creative Commons titled Towards Better Sharing of Cultural Heritage: An Agenda for Copyright Reform.
This [Freedom of Panorama] exception is of major importance for GLAMs [(Galleries, Libraries, Archives, and Museums)], since it targets public spaces where cultural heritage is displayed or present. Were there no exception, visitors and the public would need to take exceedingly cumbersome care in ensuring the art in public spaces is not protected by copyright before publishing pictures of such art, placing an undue burden on the public and contradicting the function of art in the public sphere.[4]
On architectural FoP
edit- U.S. architectural panorama exception rationale, from the U.S. House of Representatives' Committee Report 101-735 on AWCPA (Architectural Works Copyright Protection Act):
Architecture is a public art form and is enjoyed as such. Millions of people visit our cities every year and take back home photographs, posters, and other pictorial representations of prominent works of architecture as a memory of their trip. Additionally, numerous scholarly books on architecture are based on the ability to use photographs of architectural works. These uses do not interfere with the normal exploitation of architectural works. Given the important public purpose served by these uses and the lack of harm to the copyright owner's market, the Committee chose to provide an exemption, rather than rely on the doctrine of fair use, which requires ad hoc determinations.[5][6]
- Architectural FoP is vital for a vibrant and conducive discourse on architecture, according to Rory Stott of Archify. See #Support from architecture community for more.
Conclusion of a 2005 article by Andrew Inesi
editConclusion of a 2005 article by Andrew Inesi, titled Images of Public Places: Extending the Copyright Exemption for Pictorial Representations of Architectural Works to Other Copyrighted Works.
Technological changes are empowering consumers to use photographs in ways once reserved to professionals. However, these same technologies make it more likely that consumers will come into conflict with copyright owners whose works are incorporated in their images. This conflict is especially likely with respect to photographs of public places, many of which inevitably include third-party copyrighted works.
Copyright law is ill-equipped to handle these changed circumstances. In particular, the de minimis and fair use tests, which in the past have served as bulwarks against unreasonable application of copyright, are not well-suited to this task today. In most courts de minimis does not apply to the vast majority of public photography uses. Fair use's greatest weakness – uncertainty – is becoming a more significant liability in an age where image uses are no longer easily classified and image users are less likely to be legally sophisticated.
Photographs of architectural works as a model, Congress should exempt from copyright all uses of photographic representations of copyrighted items ordinarily visible in public places. The benefits of such a change would be great, and the costs minimal. Moreover, this change would create a simple, easily-understood rule that is well-suited to the needs of consumers.[7]
Implications of lack of Freedom of Panorama
editOn-wiki implications
edit- Deletion requests on Wikimedia Commons: see c:Category:FOP-related deletion requests.
- Including images dedicated to public domain but showing copyrighted monuments and public art; see, for example, sample_DR1 (Carol Highsmith images), sample_DR2 (Carol Highsmith image), and sample_DR3 (US Navy image).
- A July–August 2023 analysis conducted by a Wikimedia team showed that FoP-related deletion requests make up the majority factor behind the perennial deletion backlogs the Wikimedia Commons admins regularly face.
- Deletions on English Wikipedia: w:User:JWilz12345/Deleted no FoP (list created by JWilz12345, anyone can freely edit or contribute)
- DMCA takedowns:
- Inadequate Wiki Loves Monuments coverage of a country's built heritage. Both Bulgaria and Greece do not permit commercial form of FoP, forcing Wikimedians in both countries to come up with lists excluding all newer public monuments everytime they participate, thus limiting the coverage of the photo competition in both countries.[8] In several other no-FoP countries as of 2022 (Argentina, Ghana, the Philippines, and South Africa), this legal barrier affects the motivations of Wikimedia chapters and local groups in those countries to undertake their editions of WLM competitions as well as participation rates.[9]
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Denmark (insufficient FoP on non-architectural monuments)
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Denmark (insufficient FoP on non-architectural monuments)
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Japan (insufficient FoP on non-architectural monuments)
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Taiwan (insufficient FoP on non-architectural monuments)
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United States (no FoP on non-architectural monuments)
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United States (no FoP on non-architectural monuments)
More censored images at c:Category:Censored by lack of FOP (and its subcategories).
Off-wiki implications
edit- Case of Portlandia (Portland, Oregon)
- Second-largest copper-hammered statue in the U.S. (after New York's Statue of Liberty)
- No national icon recognition unlike the Lady Liberty: absent in post cards or souvenir photographs, due to copyright enforcement by its author, sculptor Raymond Kaskey.
- Supporting such restrictions is Peggy Kendellen of the Regional Arts & Culture Council: "Many artists have had their works taken advantage of in the past....It's important to protect the rights of the artist."
- Opposing such restrictions are Chris Haberman, an artist himself (a muralist) and co-owner of the Peoples Art of Portland gallery, and Kohel Haver, a local copyright lawyer representing artists:
- "Public art should be in the public domain." _ muralist Chris Haberman
- "It is unfair to have a situation where artists are afraid to make a painting of a statue or include public art in the background, or members of the public are afraid to take photos with the statue and post them on Instagram. The [city] didn't realize it was giving away the rights to an icon." _ lawyer Kohel Haver
Some critics of Freedom of Panorama
edit- ADAGP (Société des Auteurs Dans Les Arts Graphiques et Plastiques): based in France, a vocal critic of Wikipedia community and other online platforms in terms of using works permanently found in public, as shown in their opposition to the attempt by FoP advocates of making FoP mandatory throughout the European Union in 2015. In their presentation, ADAGP questioned why Wikimedians didn't choose to use what they call as more respected CC-BY-NC-ND (non-commercial license) instead of the CC-BY-SA license that for them is "inacceptable for the authors"; they also claimed Facebook, Twitter (now X), Instagram, Flickr, and Pinterest must pay to the authors of public space works. ADAGP appears to be critical on Wikipedia's continued hosting of French architecture, giving five examples of French buildings that Wikipedia users must seek authorization from the works' architects: European Parliament building, La Grande Motte, Stade de France, Bibliothèque nationale de France, and L'Institut du Monde arabe. (presentation of ADAGP to the EU Parliament / their article criticizing the Wikimedia community for FoP movement).
- Arts Law Center of Australia: criticizes Australian FoP for public art (sculptures and artistic craftsmanship works). (2006 article, 2013 article)
- South African Institute of Intellectual Property Law: opposes the introduction of FoP in South Africa, claiming it allows "unlimited use of re-uses of artistic works in public places." For this statement as well as Wikipedia's response, see page 30 of the Department of Trade, Industry and Competition's Responses to public submissions to the Select Committee on Trade and Industry Economic Development, Small Business Development, Tourism, Employment and Labour: On the Remitted Bills, dated April 18, 2023.
Support from architecture community
edit- From Rory Stott of Archify
- "But most importantly for architects, we live in a world where images of our built environment - shared freely between people via the internet - are increasingly important in constructing a discourse around that built environment. We live in a world that requires freedom of panorama in order for architects to make the world a better place. And architects should be pretty upset about how many restrictions have been placed, and continue to be placed, on that freedom."[12]
- 2017 survey made by Wikimedia Italy
In a 2017 survey by Wikimedia Italy chapter, the Italian architects were asked if they favored a panorama exception. Surprisingly, majority are in favor of or affirmative to FoP: 68.6%. Around 20% more are OK to FoP, as long as the attribution to the architect is made a requirement. Only 11.5% do not agree to unrestricted Freedom of Panorama. See Research:Freedom of panorama survey among architects of Italy.
- Supporters of U.S. architectural FoP
- Richard Carney (Frank Lloyd Wright Foundation): conditional support. Generally supports the panorama exception, provided it does not extend to reproductions of blueprints and floorplans.[13]
- Assistant Prof. Brian Schermer (University of Wisconsin–Milwaukee, Dept. of Architecture) and Architect Patricia Frost (Pace Architects): in two separate interviews in November 2003, "appreciated the opportunity to photograph other architects' work without fear of infringement."[14]
Situation around the world
edit
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FoP statuses in Europe
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FoP statuses in Southeast Asia
The long-term solution: introduction of suitable FoP legal right in countries that still do not provide such.
A close call: 1986 WIPO-UNESCO proposal for global architectural FoP
editJane Ginsburg, in her 1990 journal, mentioned of some meetings between WIPO and UNESCO in 1986, which aimed to "seek elaborate general principles of copyright law for works of architecture." A finalized proposal – Principle WA. 7, 22 COPYRIGHT 401, 411 (Dec. 1986) – read:
The reproduction of the external image of a work of architecture by means of photography, cinematography, painting, sculpture, drawing or similar methods should not require the authorization of the author if it is done for private purposes or, even if it is done for commercial purposes, where the work of architecture stands in a public street, road, square or other place normally accessible to the public.[15]
For some reason, this "principle" is not existing in the current text of the treaty.
Initiatives and areas of Discussion
editThe following are some pages discussing or referencing FoP
- Pilipinas Panorama Community
- Pilipinas Panorama Community – Philippine initiative
- Pilipinas Panorama Community – Discussion
- Wikilegal pages
- Wikilegal/Copyright of Images of Memorials in the US
- Wikilegal/FOP statues
- Wikilegal/Pictorial Representations Architectural Works
- Other pages in Meta-wiki
- Wikimedia South Africa/Copyright Amendment Bill#Freedom of Panorama – South African initiative
- Wikimedia Community Zambia/Freedom of Panorama – Zambian initiative
- At Wikimedia Commons
- c:Commons:Freedom of panorama campaign (now considered defunct)
- c:Commons:Village pump/Copyright/Archive/2021/07#How does ALAMY work? – included a suggestion by another user to create a Commons-namespace page dedicated to advocacy and lobbying in various copyright-related issues, from combating copyfraud to call for freedom of panorama worldwide
- On English Wikipedia
- w:en:Wikipedia:Wikipedia Signpost/2008-08-11/Dispatches#Freedom of panorama – 2008 discourse on FoP, beginning with several Chicago sculptures
- w:en:Wikipedia:Wikipedia Signpost/2015-06-17/In focus – 2015 discourse on FoP in the EU Parliament
- w:en:Wikipedia:Wikipedia Signpost/2015-07-01/In the media – 2015 discourse on FoP in the EU Parliament
- w:en:Wikipedia:Wikipedia Signpost/2017-08-05/News and notes#Wikimedia Sweden ordered to pay fine in copyright case – 2017 discussion on the implication of the Swedish Supreme Court ruling vs. Wikimedia Sweden
- On YouTube
- Katherine Maher: The Monkey Selfie, Public Domain, Freedom of Panorama, The EU Copyright Directive – Walled Culture – at 11:30 ("Katherine explains the issue of freedom of panorama, with the Eiffel Tower's light show and the Brussels Atomium as examples, and observes that the EU copyright Directive didn't turn out as hoped.")
- At FoP-related pages by affiliates
- Filming and taking photos in public places: an explainer – Wikimedia Australia (regarding Australian FoP)
Discussions on choice of law conflict between U.S. FoP law and FoP laws of other countries
edit- c:Commons:Requests for comment/Non-US Freedom of Panorama under US copyright law (November 2012–April 2013)
- w:en:Wikipedia:Featured picture candidates/Graffiti in Olinda, Pernambuco, Brazil (February 2014 – March 2014)
- c:Commons talk:Freedom of panorama#Ideas wanted to tackle Freedom of Panorama issue (January 2024)
- c:Commons:Village pump/Archive/2024/04#Pros and cons of mandating U.S. copyright law sitewide (April 2024)
- Wikilegal insights
- Wikilegal/A changing legal world for free knowledge: while does not directly mention FoP, does mention that several jurisdictions in recent years tend to apply their local laws to cases concerning their content and works, and not the laws of the countries where websites are physically hosted. Quoting an example: "France generally accepts jurisdiction over legal disputes involving any material written in French as targeted at France, despite the fact that French is spoken officially in twenty-eight different countries (presuming the Wikipedia article on the topic is up to date as of this writing). Many judges have begun using the fact that a plaintiff indicates they were harmed as the basis of jurisdiction: thus the fact that a website like Wikipedia has an article about someone can be enough in many countries for their courts to decide they have jurisdiction if the article subject resides there."
In progress FoP introduction moves
edit- South Africa
The Copyright Amendment Bill was passed by the National Council of Provinces (NCOP); 7 out of 9 provinces in favor. As of 2023-02-29, sent to the office of the president (the second time) for signature and enactment.
See also: Wikimedia South Africa/Copyright Amendment Bill/Timeline
- Philippines
Seven bills in the lower House of Representatives (HoR) and six bills in the upper Senate seeking to amend/modernize Republic Act 8293 (Intellectual Property Code of the Philippines).
The ones with FoP provision, House Bills 799, 2672, and 3838, as well as Senate Bill 2326, remain pending as of this writing (2024-01-28). Passed in HoR and awaiting Senate approval is House Bill 7600, which does not have FoP and is more focused on giving increased powers to the country's copyright office and combating piracy, in real world and online.
See also: Pilipinas Panorama Community/Freedom of Panorama/Progress
- Ghana
According to Wikimedia Ghana User Group, "we have created a Freedom of Panorama explainer document that we can turn into a video or graphic document. This was an important step in making significant progress towards our goal."
Next steps: "petition the Majority leader of parliament about our work on Freedom of panorama, seeking a date to make a formal presentation to him"; "draft legislative proposals or amendments to existing laws", and "provide clear and actionable recommendations."
See also: Road Map for Freedom of Panorama (FoP) Copyright Advocacy by the Wikimedia Ghana User Group 2024.
Successful FoP introductions
editNote, since the establishment of Wikimedia Commons in 2004
- Moldova: 2010, complete outdoor FoP aligned to EU standards (source: English Wikipedia article "Freedom of panorama")
- Armenia: April 2013, complete FoP except interiors. See c:Commons talk:Freedom of panorama/Archive 12#FoP in Armenia
- Russia: October 2014, partial only for architectural and landscape art works only, see Free licenses and freedom of panorama now recognized in Russian law! by Diff blog
- Albania: in 2016, complete FoP except interiors. See c:Commons talk:Freedom of panorama/Archive 16#Updated Albanian FOP according to the new Copyright Law and Others Right relatad.
- Belgium: July 2016, complete FoP (except public interiors), see this information page and this press release by Wikimedia Belgium. See also these two Commons discussion areas: at Village Pump proper and at copyright tab of the Village Pump.
- Mongolia: May 2021, coinciding with the new, modernized Law of Mongolia on Copyrights; see also c:Commons:Village pump/Copyright/Archive/2024/05#Updated FoP in Mongolia.
- Timor-Leste: May 2023, coinciding with the effectivity of the country's first-ever copyright law, the Code of Copyright and Related Rights, and appears to lean towards the Portuguese model; see also c:Commons talk:Copyright rules by territory/East Timor#New copyright terms.
- Kosovo: October 2023, coinciding with the enactment of their newest copyright law (Law No. 08/L-205 on Copyright and Related Rights), which is heavily patterned after the European standards; see also c:Commons:Village pump/Copyright/Archive/2024/05#2023 Kosovar Law on Copyright and Related Rights.
Notable removals or abolitions of FoP
editNote: From yes-FoP to no-FoP since the birth of Wikimedia Commons (2004)
- Costa Rica – in 2006, changed to non-commercial use only, part of amendments to comply with the Central America–Dominican Republic Free Trade Agreement (CAFTA-DR), see this*
- Guatemala – in 2006, changed to personal use only, CAFTA-DR reason* (same discussion)
- Honduras – in 2006, changed to personal use only, CAFTA-DR reason* (same discussion, see also this discussion)
- Seychelles – in August 2014, see this
- Ecuador – in 2016, restricted FoP to "scientific or educational purposes" only (commercial use disallowed); see this discussion
- Eswatini – in 2018, see this
- Kiribati – in November 2018, see this
- Myanmar – in 2019, see this
- Vietnam – in January 2023, changed to non-commercial only, refer to this discussion.
- Nigeria – March 2023, changed to use in audio-visual and broadcast media only, see this discussion
- Bangladesh – abolished since September 18, 2023: discussion1 and discussion2
Countries to watch out
editNote: Countries that Wikimedians need to be vigilant.
- Australia - criticism to Australian FoP, especially the provision related to sculptures and works of artistic craftsmanship (Section 65): article1, article2
- Chile - a proposal in early 2024 seeks to limit FoP; sharing and distribution – with lucrative or profit-making intent – of any images of copyrighted artistic works permanently found in public spaces require remunerations to the artists who made those works; this will gravely affect Spanish Wikipedia's ability to illustrate articles of Chilean monuments and buildings. (source1, source2, from the website of Wikimedia Chile)
- Sweden - public consultation on major reforms of the Swedish copyright law in the midst of Internet age was held in early 2024. Per the relevant summary (regarding FoP) of the discussions (pages 27–28), FoP is going to be expanded to also include monumental works inside tunnels, but will be "narrowed in relation to what currently applies in that use of a reproduction where the work constitutes a central theme is not included if it takes place for commercial purposes." The restriction on commercial uses or financial gain is proposed to be implemented on the part of FoP concerning public monuments and art; commercial uses of works of architecture remain unaffected. (document of the public consultation; discussion on Wikimedia Commons)
- United States - minority criticism of architectural FoP of the U.S., mainly from a minority group of architects and scholars that scrutinized the AWCPA of 1990. Varied proposals from abolition of the panorama right to restricting it to non-commercial uses only (study1, study2, study3). It can be noted that the American Institute of Architects, during the Congressional debate on AWCPA, once proposed a restrictive version of panorama exception (prohibiting images "made in order to further the unauthorized design and construction of a substantially similar architectural work") which was eventually turned down, due to opposition from photographers' groups like the American Society of Magazine Photographers.[5] A second option AIA suggested was a de minimis-only use ("when the architectural work is not the primary subject"), which was also turned down.[13]
See also
edit- Reform of copyright and copyright-related protections
- Copyright Repository
- User:JWilz12345/FoP global statuses (User:JWilz12345's summary table of FoP statuses globally)
- Image undeletions
References
edit- ↑ Dulong de Rosnay, Mélanie; Langlais, Pierre-Carl (2017). "Public artworks and the freedom of panorama controversy: a case of Wikimedia influence". Internet Policy Review.
- ↑ Reyes, Mary Ann LL. (2021-11-28). "Changing landscape of copyright". The Philippine Star.
- ↑ "Debate: should the freedom of panorama be introduced all over the EU?". European Parliament. 2015-07-02.
- ↑ Creative Commons (2022). "Towards Better Sharing of Cultural Heritage: An Agenda for Copyright Reform" (PDF). p. 14. Retrieved 2024-04-29.
- ↑ a b "Copyright Amendments Act of 1990 – Report 101-735" (PDF). U.S. Copyright Office. p. 21–22.
- ↑ See also: Wikilegal/Pictorial Representations Architectural Works#The Berne Convention and the United States Copyright Act.
- ↑ Inesi, Andrew (2005). "Images of Public Places: Extending the Copyright Exemption for Pictorial Representations of Architectural Works to Other Copyrighted Works". Journal of Intellectual Property Law (University of Georgia School of Law) 13 (1): 101. Retrieved 2024-02-16.
- ↑ Lodewijk (2016-10-18). "Cultural Heritage Laws & Freedom of Panorama". Wiki Loves Monuments.
- ↑ c:COM:Wiki Loves Monuments/DEI research 2022/Interim report#Primary Research
- ↑ Locanthi, John (2014-09-09). "So Sue Us: Why the Portlandia Statue Failed to Become an Icon". Willamette Week.
- ↑ Cushing, Tim (2014-09-12). "Sculptor Says 'Capitalism' Drives His Aggressive Enforcement Of Rights To Publicly-Funded 'Portlandia' Statue". Techdirt.
- ↑ Stott, Rory (2016-04-07). "Freedom of Panorama: The Internet Copyright Law that Should Have Architects Up in Arms". Archify.
- ↑ a b Zimand, Margalit (2024). "Deconstructing the Blueprint for Infringement: Remedying Flawed Interpretations of the § 120(a) Exception to Architecture Copyrights". The Columbia Journal of Law & the Arts 47 (1): 151–152. doi:10.52214/jla.v47i1.12495.
- ↑ Vacca, Antoinette (2005). "The Architectural Works Copyright Protection Act: Much Ado About Something?". Marquette Intellectual Property Law Review 9 (1): 126.
- ↑ Ginsberg, Jane C. (1990). "Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990". Scholarship Archive (Columbia Law School) 14: 496. Retrieved 2024-02-16.