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Freedom of Panorama

(Redirected from 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]
  • Cristo Redentor (Brazil), inaugurated in 1931 and authored by sculptor Paul Landowski. Covered under the Brazilian FoP.
    Cristo Redentor (Brazil), inaugurated in 1931 and authored by sculptor Paul Landowski. Covered under the Brazilian FoP.
  • 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.
    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.
  • 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.
    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.
  • Atomium (Belgium), authored by André Waterkeyn and completed in 1958. Covered under the Belgian FoP.
    Atomium (Belgium), authored by André Waterkeyn and completed in 1958. Covered under the Belgian FoP.
  • The Merlion a 1972 sculpture in Singapore by Lim Nang Seng. Covered under the Singaporean FoP.
    The Merlion a 1972 sculpture in Singapore by Lim Nang Seng. Covered under the Singaporean FoP.
  • Bank of China Tower, I.M. Pei's 1990 work in Hong Kong. Covered under the Hongkongese FoP.
    Bank of China Tower, I.M. Pei's 1990 work in Hong Kong. Covered under the Hongkongese FoP.
  • Cones, 1982 sculpture in the Sculpture Garden of the National Gallery of Australia, authored by Bert Flugelman. Covered under the Australian FoP.
    Cones, 1982 sculpture in the Sculpture Garden of the National Gallery of Australia, authored by Bert Flugelman. Covered under the Australian FoP.
  • Petronas Towers, César Pelli's 1996 architectural work and covered under the Malaysian FoP.
    Petronas Towers, César Pelli's 1996 architectural work and covered under the Malaysian FoP.

Importance

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“

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.

 
Freedom of Panorama flyer (2 pages, November 2017)

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

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From 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

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  • 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]

Conclusion of a 2005 article by Andrew Inesi

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Conclusion 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

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On-wiki implications

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  • 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]

More censored images at c:Category:Censored by lack of FOP (and its subcategories).

Off-wiki implications

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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

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Support from architecture community

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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

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  •  
    FoP statuses in Europe
  •  
    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

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Jane 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

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Pilipinas Panorama Community

The following are some pages discussing or referencing FoP

Pilipinas Panorama Community
Wikilegal pages
Other pages in Meta-wiki
 
Extending Freedom of Panorama in Europe - EU Public Interest Clinic
 
Presentation given by Wikimedia South Africa to the Committee on the South African Copyright Act of the South African parliament on August 3, 2017, calling for FoP to be included in the amended/updated copyright law of South Africa
At Wikimedia Commons
On English Wikipedia
On YouTube
 
"Awareness of copyright issue in South Korea" presentation for ESEAP Conference 2024; includes slides for the no-FoP problem in South Korea
At FoP-related pages by affiliates

Discussions on choice of law conflict between U.S. FoP law and FoP laws of other countries

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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

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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

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Note, since the establishment of Wikimedia Commons in 2004

Notable removals or abolitions of FoP

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  Note: 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

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  Note: 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

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Image undeletions

References

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  1. ↑ Dulong de Rosnay, Mélanie; Langlais, Pierre-Carl (2017). "Public artworks and the freedom of panorama controversy: a case of Wikimedia influence". Internet Policy Review. 
  2. ↑ Reyes, Mary Ann LL. (2021-11-28). "Changing landscape of copyright". The Philippine Star. 
  3. ↑ "Debate: should the freedom of panorama be introduced all over the EU?". European Parliament. 2015-07-02. 
  4. ↑ Creative Commons (2022). "Towards Better Sharing of Cultural Heritage: An Agenda for Copyright Reform" (PDF). p. 14. Retrieved 2024-04-29. 
  5. ↑ a b "Copyright Amendments Act of 1990 – Report 101-735" (PDF). U.S. Copyright Office. p. 21–22. 
  6. ↑ See also: Wikilegal/Pictorial Representations Architectural Works#The Berne Convention and the United States Copyright Act.
  7. ↑ 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. 
  8. ↑ Lodewijk (2016-10-18). "Cultural Heritage Laws & Freedom of Panorama". Wiki Loves Monuments. 
  9. ↑ c:COM:Wiki Loves Monuments/DEI research 2022/Interim report#Primary Research
  10. ↑ Locanthi, John (2014-09-09). "So Sue Us: Why the Portlandia Statue Failed to Become an Icon". Willamette Week. 
  11. ↑ Cushing, Tim (2014-09-12). "Sculptor Says 'Capitalism' Drives His Aggressive Enforcement Of Rights To Publicly-Funded 'Portlandia' Statue". Techdirt. 
  12. ↑ Stott, Rory (2016-04-07). "Freedom of Panorama: The Internet Copyright Law that Should Have Architects Up in Arms". Archify. 
  13. ↑ 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. 
  14. ↑ Vacca, Antoinette (2005). "The Architectural Works Copyright Protection Act: Much Ado About Something?". Marquette Intellectual Property Law Review 9 (1): 126. 
  15. ↑ 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. 
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