For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Monday, 12 November 2012

What's your view of the panorama right?

Wikimedia's Freedom of Panorama graphic:
green for go, red for stop, yellow for, er, well,
just the outsides of buildings
It has been a little while since the IPKat last offered the followers of his weblog a chance to assist a bewildered reader -- but one such opportunity has propitiously arisen.  The reader in question, who prefers to remain nameless for the unusual reason that the revelation of his name will not assist readers in answering his question, asks about the "right of panorama", a term with which many copyright enthusiasts are not hugely familiar since not everyone uses it.  The query below gives sufficient indication, however, as to what it means and the question runs like this:
The United Kingdom is comparatively generous [to users of other people's copyright-protected works] in that the Copyright, Designs and Patents Act, section 62, allows the photography and publication of "certain artistic works on public display" (sculptures, buildings, models for buildings and works of artistic craftsmanship) without this being a copyright infringement. This defence applies to, among others, works on permanent public display in museums, galleries and exhibitions.  
But in an internet age, can people rely on that provision if the photographs are going to be seen or republished outside the United Kingdom?  It seems perhaps not.
The Cat House, Riga
Wikipedia has recently received a DMCA take-down notice from the Oldenburg Studio in New York, representing the interests of the artist Claes Oldenburg and his late wife Coosje van Bruggen, requiring it to take down 59 images of large-scale Oldenburg sculptures in public places, including a number of images of sculptures in Germany, the Netherlands and Spain, which all have freedom of panorama for outdoor works. Apparently, the Oldenburg Studio maintained that, although the various European national laws under which they were taken declared the images to be non-infringing, that did not establish any such non-infringement in the United States, where normally Mr Oldenburg's public works are protected by copyright.
Having thought about it for three weeks, the Wikimedia Foundation appears disinclined to argue the point, and has removed all 59 images. While leaving the door open to anyone who wishes to file a counter-notice, the Foundation cautions that "WMF will not be a party to any legal action that arises from you sending a counter-notice, and that WMF is unable to provide you with legal advice".
 So is s.62 really worth so little outside the United Kingdom?  And, given the patchwork of different laws across the EU, if it is, does this constitute a potential barrier to the free movement (or digital transmission) of goods across the EU's internal market?  Given the number of museums and galleries who rely on s. 62 to stock their postcard shops and online catalogues, the question might be of wider interest than just to creators of free internet encyclopedias.
This Kat is not the world's greatest expert on the bits and pieces of copyright law that stray from one country to another, but he has always naively assumed that, since copyright is granted nationally and applies on a territorial basis, s 62 of the CDPA and the other European freedoms of panorama apply as defences to what otherwise might be infringing acts under the law of the country which has enacted them and that, therefore, while s.62 applies in the United Kingdom, the United States courts, when asked to enforce a United States copyright against a local infringer, wouldn't give tuppence for any number of s.62s.  He is however happy to be corrected.

Adds Merpel: so far as the internet is concerned, she gets the feeling that, though it was a database right decision and not a copyright one, the Court of Justice of the European Union's ruling in Case C-173/11 Football Dataco v Sportradar can be read to support the proposition that a broadcast or communication to the public of a publicly displayed work will enjoy the benefit of s. 62 if it is transmitted from outside the United Kingdom to a target audience inside it. She too welcomes clarification from readers on this point. 

4 comments:

Eric said...

That's the price to pay for wanting to protet every single aspect of anything anyone has ever said or done - how much longer before we need to stop talking to each other in public because somebody has written down before something we wanted to say?
I'm not against protecting the worthwhile, but when that protection starts interfering with the daily life of the ordinary citizen, then in my view we are better off without it.

Trevor Cook said...

I cannot comment on the position outside the UK, but s 62 CDPA 1988 is not necessarily as generous in practice, at least as to buildings and other structures preceded by drawings, as your post suggests. Laddie Prescott and Vitoria (4th Edition) at para 21.95 suggest that this provision relates only to copyright in such structure itself, and does not provide an exception to infringement as to any underlying architect's design drawings.

Howard Knopf said...

Dear Jeremy:

As I read Bill Patry’s treatise (§3:18), it would seem that Wikipedia has got this very wrong. A photograph of a sculpture is not a “derivative work”.

It’s very puzzling that Wikipedia would cave so easily and arguably so incorrectly on such a fundamental issue, when authority such as Bill Patry clearly points in the other direction.

BTW, Canada clearly has a “panorama right” in its Copyright Act for sculpture permanently situated in a public place or building and an “incidental inclusion” exception as well.

Best regards,

Howard

Tom Ang said...

Notwithstanding the generosity of s.62 bodies in UK such as National Trust use contract and trespass to restrict the photography of buildings and other works on public view. Well, you think it's public view but by the good grace of the NT you've been allowed to view the stately pile, possibly having paid an entrance fee and a condition of entry is that photography for commercial purposes requires written permission.
You might think Trafalgar Square is a public space but of course it's owned by some London Body or other which has decreed that commercial photography is not allowed. I was stopped from filming in Trafalgar Square once. 'Whay?' I asked. 'You need a licence, Sah' replied the big faceless man, looking at my Panasonic HD camera. I continued filming from the steps of the National Gallery and he glared but did not try to stop me.

As for the US, works such as sculptures enjoy a Right of Public Display which would be infringed if they were shown on film or TV which has been deemed to be 'public display'. See Frederick E. Hart v. Warner Bros regarding a sculpture claimed to be the basis of a scene in the film 'The Devil's Advaocate'.

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