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Freedom of panorama, often abbreviated as FOP, is a provision in the copyright laws of various jurisdictions that permits taking photographs or video footage, or creating other images (such as paintings), of buildings and sometimes sculptures and other art which are permanently located in a public place, without infringing any copyright that may otherwise subsist in such works, and to publish such images.[1] Panorama freedom statutes and/or case law limit the right of the copyright owner to take action for breach of copyright against the creators and distributors of such images. It is an exception to the normal rule that the copyright owner has the exclusive right to authorize the creation and distribution of derivative works. The phrase is derived from the German term Panoramafreiheit ("panorama freedom").
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Many countries have similar provisions restricting the scope of copyright law in order to explicitly permit photographs involving scenes of public places or scenes photographed from public places. Other countries, though, differ widely in their interpretation of the principle.[1]
In the European Union, Directive 2001/29/EC provides for the possibility of member states having a freedom of panorama clause in their copyright laws, but does not require such a rule.[2]
Panoramafreiheit is defined in article 59 of the German Urheberrechtsgesetz,[3] in article 27 of the Swiss Urheberrechtsgesetz,[4] in section 62 of the United Kingdom Copyright, Designs and Patents Act 1988,[5] and it exists in several other countries.
On the other hand, there are also European countries such as Italy[6], where there is still no freedom of panorama at all. In Italy, despite many official protests[7] and a national initiative[8] led by the lawyer Guido Scorza and the journalist Luca Spinelli (who highlighted the issue[6]), the publishing of photographic reproductions of public places is still prohibited, in accordance with the old Italian copyright laws.[9][10]
Some countries, such as France or Belgium, do not have this global permission for making images at public places at all and allow images of copyrighted works only under "incidental inclusion" clauses.[11]
In Australia, freedom of panorama is dealt with in the federal Copyright Act 1968, sections 65 to 68. Section 65 provides: "The copyright in a work ... that is situated, otherwise than temporarily, in a public place, or in premises open to the public, is not infringed by the making of a painting, drawing, engraving or photograph of the work or by the inclusion of the work in a cinematograph film or in a television broadcast." This applies to any "artistic work", which is defined in section 10 as including a painting, sculpture, drawing, engraving or photograph, or a building or a model of a building - in each case, "whether ... of artistic quality or not" - and any other "work of artistic craftsmanship" (but not a circuit layout).[12]
Under copyright law of the United States, there is no such encompassing rule.[13] The only similar article is 17 USC 120(a), which exempts the creation of pictorial representations of buildings from the architect's copyright.[14][15] This freedom of panorama for buildings does not apply to art,[16] however, which even restricts photography of the artistic components of a building design[17]. Fair use may permit uses such as criticism, comment, news reporting, teaching, scholarship or research. One famous example of panoramic restriction is found in the Hollywood Sign, whose custodians claim trademark rights that are licensed for a fee for its inclusion in television and film.[18]
The precise extent of this permission to make pictures in public places without having to worry about copyrighted works being in the image differs amongst countries.[1] In most countries, it applies only to images of three-dimensional works[19] that are permanently installed in a public place, "permanent" typically meaning "for the natural lifetime of the work".[4][20] In Switzerland, even taking and publishing images of two-dimensional works such as murals or graffiti is permitted, provided such images cannot be used for the same purpose as the originals.[4]
Many laws have subtle differences in regard to public space and private property. Whereas the photographer's location is irrelevant in Austria[1], in Germany the permission applies only if the image was taken from public ground, and without any further utilities such as ladders, lifting platforms, airplanes etc.[3] Under certain circumstances, the scope of the permission is also extended to actually private grounds, e.g. to publicly accessible private parks and castles without entrance control, however with the restriction that the owner may then demand a fee for commercial use of the images.[21]
Finally, in many Eastern European countries the copyright laws limit this permission to non-commercial uses of the images only.[22]
As shown in the map above, there are also international differences in the particular definition of a "public place". In most countries, this includes only outdoor spaces (for instance, in Germany[3]) while some other countries also include indoor spaces such as public museums (this is for instance the case in the UK[5] and in Russia[23]).
Tension has arisen in countries where freedom to take pictures in public places conflicts with more recent anti-terrorism legislation. In the United Kingdom, the powers granted to police under section 44 of the Terrorism Act 2000 have been used on numerous occasions to stop amateur and professional photographers from taking photographs of public areas. Under such circumstances, police are required to have "reasonable suspicion" that a person is a terrorist.[24] While the Act does not prohibit photography, critics have alleged misuse of the powers to prevent lawful public photography.[25] Notable instances have included the investigation of a schoolboy,[26] a Member of Parliament[27] and a BBC photographer.[28]