Wikimedia Ghana User Group / Freedom of Panorama

Preamble

This preamble situates Freedom of Panorama in the context of Ghana’s Copyright Act of 2003, Act 690.

Defining Freedom Of Panorama

According to Wikipedia, Freedom of Panorama (FoP) is a provision in the copyright laws of various jurisdictions. It allows people to take photographs and video footage and create other images, such as paintings of buildings, sculptures, and other artworks permanently located in a public place, without infringing on any copyright that may otherwise subsist in such works and the publishing of such images. It limits the right of the copyright owner to take action for breach of copyright when someone creates and distributes such images of publicly placed works.

GHANA’S COPYRIGHT ACT OF 2003, ACT 690

Ghana's copyright regime is regulated by the Copyright Act of 2003, Act 690. Copyright protection enables the creators, technically known as Authors, to benefit from their works and exercise specific controls over them. That same law also recognises that society can and should benefit from those works. So, copyright laws try to balance the need to motivate and incentivise Authors by giving them certain exclusive rights on the one hand with the needs of society to benefit from those works on the other hand.

Categories of protected works under copyright laws and the rights they come with

Two out of the eight categories of works protected under Ghana's Copyright Act are of importance to this discussion of Freedom of Panorama. These are Literary Works and Artistic Works.

Literary Works	Artistic Works
These include writings that provide some information, instruction or literary pleasure. E.g., Wise sayings, poems, stories, and even those seen on walls of buildings.	These include drawings, paintings, photography, sculptures, handicrafts for sale, buildings, works of applied arts, and so on.

Now, whoever owns the copyright in these works mentioned has certain exclusive rights to them, and doing anything contrary to those rights would amount to infringement. The rights are Moral Rights and economic rights.

Under Moral Rights, there are two rights: Right of Attribution and Right to Integrity of Work.

Right of Attribution	Right To Integrity Of The Work
With the Right of Attribution, the Author of a work has the right to be named as the Author of a work and may sue to enforce that right.	With the Right To Integrity Of The Work, the Author may sue where his/her work has been distorted, mutilated, or otherwise modified in such a way that it affects the author's reputation or discredits the work. Hence, an expression like graffiti can be an infringement.

Under economic rights, there are five types of rights, which entitle the owner to benefit financially from their works. Two of these rights are most relevant for FoP. These are the Right of Reproduction and the Transformation Right.

Right of Reproduction

Transformation Right

With the Right of Reproduction, reproduction in the context of copyright law means making copies. The owner of the copyright is the only one entitled in law to make or authorise the making of copies of their work. That is where the name copyright comes from—"copy," "right." The economic aspect of this right arises where the rights to the work in question are licensed or sold to another person. Making a photocopy of printed material or taking a photograph of an item are all reproductions. Without the owner's consent, they are an infringement.

Now, the Transformation Right. Under the law, the owner of economic rights has the sole and exclusive right to make translations, adaptations, arrangements, or any other type of transformation of his/her work. One common way we of the digital community transform work is the use of filters on Facebook, Instagram, Snapchat and more. We also edit photos with Snapseed, Picsart and more. The result of a transformation is what is known as a derivative work, which is the right of only the owner to do.

Categories of protected works under copyright laws

Some of these rights, for example moral rights,  continue to exist even after the death of the Author of the work. Economic Rights, unlike Moral Rights, have a definite period of existence. Economic Rights for individuals last for the lifetime of that individual, and would only expire after 70 years from the death of that individual. For corporate bodies, economic rights expire after 70 years from when the work was done or first published, whichever comes first. This means that if a company commissions a statue, that company has the economic rights of that statue for 70 years, starting from the date it was made.

Exceptions and permitted uses

Under the following conditions, one can reproduce and transform an Author’s work.

• If the Author consents, there would be no infringement.

• The Author can also waive rights by using a Creative Commons license for the work.

• Works in the Public Domain, meaning those with expired economic rights, works by authors who have renounced their economic rights, and foreign works that do not enjoy protection in Ghana, are said to belong to the public domain. Therefore, one is not required to seek the consent of the owner before using such works.

• Also, copyright is territorial. Works made by non-Ghanaians will only be protected if they are subsequently published in Ghana after 60 days or if the non-Ghanaian is ordinarily resident in Ghana.

• One can reproduce or transform for exclusive personal use—perhaps as wallpaper for one's phone. Although buildings are considered artistic works, this exception does not apply to them.

• Using art that has been made public would not constitute an infringement where it is used for teaching and learning (Academic purpose exception). Still, you must acknowledge the source of the work and its Author and the use of the art should accord with fair practice/use.
• Art captured as part of news reportage by a media house would not constitute infringement (News reporting exception). However, the use must not extend beyond what is justified for the reportage.
• For cinematography and broadcast television, capturing images of artistic works generally, and buildings, in particular, would not constitute infringement under the following circumstances (Exception for television and cinema).

• The work is permanently located in a place where the public can view it, where the work is captured by way of background, or where the presence of the work is merely incidental. This exception is perhaps the one exception closest to FoP.  However, it is limited only to situations of cinema or broadcasting. In other words, if a building that can be viewed by the public is captured in a movie, it would not constitute infringement; however, if that same building is captured while making a video selfie for a commercial blog or social media post, it might constitute infringement.

In summary

Freedom of use typically only exists within the context of movies, broadcast television, news reporting, and academia. People in digital communities are not sufficiently covered. Photographers, tourism promoters with photos of the national monuments, art curators who put up exhibitions, and people making replica handicrafts – trying to share a piece of our culture with the world can be slapped with infringement and denial of opportunities by the lack of FoP. Besides, where one intends to attribute or seek permission, calculating the 70-year rule is complicated. Reaching an Author may be impractical. Access to information that determines that an Author has waived rights is another hurdle. We must seek simplicity in the laws surrounding works located permanently in public spaces. Granting FoP is the solution.