Copyright law and the freedom of panorama: The right to commercialise photographs of protected works

Abstract

Making an unauthorised copy of a copyright-protected work is a copyright infringement, as is making an adaptation or a derivative work without gaining prior consent from the author or authors of the copyright-protected work. It was once questioned at one of the Berne Convention amendment meetings whether to take photographs of copyright-protected literary works was to make copies of them. The meeting concluded that taking photographs of literary works meant making copies of them, and, therefore, photographs should not be taken without gaining the prior consent of the author or authors. However, there was no discussion about photographs of other type of works, such as buildings and sculptures. Taking photographs of architectural and sculptural works permanently situated in public places is protected under “freedom of panorama”, a provision of copyright laws that permits the taking of photographs of those works, which is applied differently in some countries. This paper discusses copyright protection for those photographs, though there are not many cases available in this issue as the terminology of “freedom of panorama” was only recently coined. The discussion is based on the Berne Convention, and copyright law in the United States, New Zealand, and Indonesia. Freedom of panorama may seem to limit the exclusive rights for architects and sculptors to authorise any acts to be done over their works. However, photographers also have the need to be sure that their photographs are protected, including photographs that are taken under the freedom of panorama. Therefore, this paper argues that the photographers who take photographs under the freedom of panorama should be able to exercise exclusive and moral rights over their photographs. Although the three countries mentioned provide protection for the “freedom of panorama”, it is protected differently and, therefore, there is a need to include the freedom of panorama in an international copyright treaty to avoid a possible conflict of laws.