This article is written by Ranojoy Middya pursuing a Diploma in Business Laws for In-House Counsels from Lawsikho.

Background

The copyrighted works entitle certain exclusive rights to its original copyright owner that ensure protection against any kinds of infringements of his or her work by any third person and generate revenue as compensation in case any such infringement takes place. Now imagine if any Individual takes a photograph of any of your copyright work such as any public structure which is permanently situated in a public place, will it be considered as copyright infringement against your copyrighted work?  

The answer is simply No

Because it would be reckoned as one of the exceptions of the Copyright law, this very exception is known as the doctrine of Freedom of Panorama (‘FOP’) which has been carved out under copyright laws opposing the owner’s exclusive rights.   

This article is an attempt to address the framework around the doctrine of Freedom of Panorama and its relevance in international parlance. It also reflects on how India has dealt with the doctrine through its legal provisions and case laws.

Freedom of Panorama (FOP)

The term, ‘Freedom of Panorama’ actually emanates from the German word Panoramafreiheit. It is a right that permits individuals to create certain derivative works such as photographs, drawings, paintings, etc. from a copyrighted work that has been ‘permanently’ located in a public place without the consent of its original owner. There are two major modular frameworks in the name of the “French-Italian model” as well as the “German-English model” which have literally formed the basis of this doctrine worldwide. 

Hence, it is self-explanatory that the ambit of this doctrine varies according to its diverse cross-border jurisdictions. The French-Italian model does not lay down such restrictions on the copyright law, whereas the German-English model, as compared to its counterpart, truly acknowledges the freedom of panorama as an exception to the copyright law. Coming to India, the Copyright Act, 1957 has incorporated the German-English model with certain modifications to suit the Indian scenario.

Berne Convention & its Provisions related to Principle of Assimilation

The Principle of Assimilation as laid down under Article 5 of the Berne Convention 1886 stands for ensuring the member countries of this Convention enjoy all the rights laid down in the Convention along with the national laws of the state. According to Article 5 (1) of the Convention, the authors, in terms of works for which they are protected under this convention in countries of the Union as well as the country of origin, shall enjoy their rights granted by this Convention in respect of the laws dedicated to their respective nationals.  

Considering the aforementioned provision, the context around the term ‘assimilation’ does not itself define the identity of treatment in all member countries as the scope of protection in one country varies from another. For example, most of the countries have no law relating to the reselling rights of Artists hence such artists being the nationals of countries that recognize such rights do not merely enjoy the same rights in any other country which does not, per se, recognize such rights. 

However, the mere reading of this provision ensures that the Convention has further narrowed down the difference between the national laws through including in the assimilation ‘the rights specially granted by this Convention ’. 

According to this provision, works that have a country of origin belonging to a Union Country benefit the same protection as compared to the other Union countries. Emphasizing it further, if the copyright in a work by a Senegalese author, published for the first time in the Ivory Coast, is infringed in France, this author and his successors in title shall have to be treated in France as if the work were one made by a French author and published on French territory.

Given the said context, Article 17 of the Convention following one of the essential principles of ‘assimilation’ under the International Law permits the states to enact necessary legislation against the infringement of any work. According to this Article, the provisions of this Convention can no way affect the right of the Government of each country of the Union to permit, to control, or to prohibit, by legislation or regulation, circulation, presentation, or exhibition of any work or production in regard to which the competent authority finds it necessary to exercise that right.

This provision emphasizes the right of governments to consider the necessary steps to maintain public order. In the said juncture, the sovereignty of member countries do not seem to be affected by the rights laid down by the Convention. 

Instead, the authors have been given the leeway to exercise their rights only if that exercise does not conflict with public order. The former, in this case, must give way to the latter. The Article, therefore, ensures Union countries certain powers of control.

On the contrary, Article 9 of the Convention even after being the very essence of copyright did not appear in the Convention as one of the major provisions until as late as Stockholm Revision (1967). According to the above article, any sound or visual recording is said to have been considered as valid reproduction for the purposes of this very convention.

The draftsmen of Stockholm Revision (1967) had considered it useful to harmonize the Convention’s provisions and to issue a reminder in respect of all sound and visual recordings to be considered as reproductions within its meaning. Having said that, the making of copies of a recording has, therefore, become a reproduction that is forbidden by this Article.

India’s attempt to embrace Freedom of Panorama

As far as the Indian scenario is concerned, there is no such provision that explicitly defines the freedom of panorama. Though, Section 52 of the Copyright Act, 1957 (hereinafter ‘the Act’) turns out to be a significant one as it incorporates provisions related to such doctrine. 

Given the said provision under Copyright laws, the copyright legislation of our country has not only permitted the making or publishing of painting, drawing, engraving, or photograph of a work of architecture or the display of a work of architecture [S. 52(1)(s)] but also put across a mandatory condition that entails the creation or publication of such derivative works to be permanently situated in a public place or any premises accessible to the public in order to further make creation or publication of this nature [S. 52 (1)(t) r.w S. 2(c)(iii)]. 

The copyright laws have also incorporated cinematograph films within the ambit of such doctrine by allowing such films to include an artistic work that is ‘permanently’ situated in a public place or any premises accessible to the public at large [S.52(1)(u)].

In the said context of Indian legislation related to its copyright regimes, the term ‘permanently situated’ under S. 52(1)(t) and S. 52(u) possesses a significant understanding of the application of this doctrine. 

Dissecting the term ‘Permanently Situated’

In India, the term ‘Permanently Situated’ has not been taken into consideration or interpretation by the Indian judiciary that much except for a decision of Madras High Court in The Daily Calendar Supplying v. The United Concern. In the given case, the plaintiff obtained copyright over an oil painting designed by an artist. The plaintiff, later on, with a motive to make a profit out of it, got multiple copies of such paintings printed. 

Unfortunately, the defendant, according to the plaintiff’s allegation, had begun selling a slightly modified version of his painting which eventually led to a substantial loss of sales revenue for the plaintiff. The counter-argument put forth by the defendant, in the given scenario, was that since many copies of this painting had already been installed in many temples in the south, such painting had become an artistic work permanently situated in public places, making or publishing of which can not be considered as infringement of the plaintiff’s right, rather it should be permitted under Section 52(1)(t) of the act. 

However, the Madras High Court was of the opinion that mere installation of multiple ‘copies’ of work in a public place should not be considered as installation of the original work in a public place especially when the author still retains the original work in his private custody.

The above jurisprudence of the Indian judiciary with respect to the interpretation of the term ‘permanently situated or located’ is all we have but the jurisprudence of German courts as compared to its Indian counterparts have been highly active in interpreting this very term. Let us consider a few of the German jurisprudence in understanding this term in a detailed manner;

Minimum duration for which the work needs to be placed in public 

German Federal Court of Justice in its decision on Wrapped Reichstag [2004] E.C.C. 25., stressed upon the concept of minimum duration of a particular work to be in public space in order for such work to be further considered as ‘permanently located’ there. The very issue in this case, though arose in a different context, is nevertheless pertinent in deciding what constitutes the permanent placement of an artistic work especially if it involves ephemeral works which may consist of sand work and ice sculpture.

Brief Facts:

In this case, two artists had come up with a project on the Berlin Reichstag Building being wrapped up with certain fabric for weeks. A photographic image of this installation had been taken by a photo agency to make postcards with the image of such installation on them. 

With regards to such commercial exploitation due to the image of their work having been sold to the public at large while causing substantial loss of their sales revenue, the plaintiff initiated a suit against the defendant for copyright infringement. 

Now, the question arose at this juncture if the usage of the image on postcards could be considered as an FOP exception. However, the court while determining the said question, emphasized the fact whether the artistic work in question could be said to have been permanently located in a public space.  

The Verdict:

In the given context, the court enunciated that there is no concept of minimum fixed duration for which work needs to be in a public place in order to be considered permanently located. Rather it has been construed by the court that work needs to be kept in a public place during its natural life for such work to be considered as permanently located. 

The court, however, cautioned that in determining this very issue conclusively, the author’s intention at the time of placing his or her work in public remains decisive which, inter alia, indicates that in case the author intends to place his or her work in public for a period shorter than its ‘natural’ life, the work would only be said to have been ‘temporarily’ installed, even if he or she wishes to destroy the work upon its severance. 

Further, the court was of the opinion that the author’s subjective intention, given the very context, does not merely stand any substantive value because his or her intention as objectively perceived by a viewer or passerby matters the most in concluding whether or not the work has been permanently placed in public. Given the above standpoint, the court had come up to its verdict that the defendant, in this case, cannot use the defense of freedom of panorama as the wrapping of the Reichstag was for an exhibition and the exhibition display should be seen in terms of weeks and months but not in years. 

Therefore, the work, even if the display of which remains for a shorter period of two weeks, shall still be considered as an exhibition the author of which deserves copyright protection. 

Considering this issue in the Indian context;

Since both the statute as well as the courts of India have been silent on this very aspect, the position adopted by German courts of law holds persuasive value in incorporating the same in the Indian legal context even with slight modification, if necessary. Let us consider the two major reasons by which such incorporation would be beneficial for the Indian judiciary. 

Firstly, unlike Germany, India being a common law country, has its common law jurisdiction which introduces the concept of a fair use clause with broader interpretation. 

Secondly, Delhi High Court in India while determining the landmark DU Photocopy verdict, had clarified that section 52 of the Act is not to be considered as an exception to copyright but a right in itself, and therefore the rule of narrow interpretation can no way be applicable in relation to this provision.

Application of the term ‘Permanently Situated’ vis-a-vis non-stationary works 

This section hereby emphasizes the fact that whether or not non-stationary items can be considered to be permanently situated under Section 52(t) and (u) of the act. In order to further unravel this very aspect, the decision of the German Supreme Court in the AIDA Kussmund Case in 2017 seems to be of utmost value and significance.  

Brief Facts:

In the given case, the Plaintiff company possessed a cruise ship where they created an image of kissing lips which was later on depicted by the defendant on the defendant’s website. The plaintiff acknowledging the same sued the defendant for copyright infringement as a defense to which the defendant took the shelter under the FOP exception. The plaintiff countered the defense by stating the fact that the cruise ship being a non-stationary object was not permanently located in a public place. 

The Verdict:

The court while rejecting this contention of the plaintiff held that the ship was considered to be ‘permanently’ located in a public place despite it being a non-stationary object. The court further clarified that for a work to be considered as permanently located in a public place requires the work to remain in some public place or the other for a longer period of its life even if it halts in a public place for a shorter period.   

The aftermath of this judgment in Indian Context

This judgment not only expanded the scope of the FOP doctrine but also widened the definition of public places. Therefore, in consideration of the given decision, the Indian court can embrace this kind of interpretation, in case, any similar issue comes up before them. This further indicates that the non-stationary artistic works such as moving carts of street vendors, modes of public transportation, tableau, rides in amusement parks including toy train rides, etc. which usually seem to be excluded from the scope of FOP doctrine, may now be included within its ambit in India.

The ambiguities that may arise owing to this verdict:

This very verdict, even if expanded the scope of the FOP exception, does give birth to certain ambiguities that may arise during the natural course of this FOP doctrine. That being said, let us consider some of these ambiguities herein below;

Does this principle propounded in this verdict apply to both stationary as well as non-stationary works?

Owing to this verdict of the German Supreme Court, it now remains highly unclear as to whether the principle as propounded in this verdict remains applicable to only non-stationary works or it similarly widens the scope for both stationary and non-stationary works. 

Say, for example, if it applies to stationary works as well, then the artworks displayed in temporary public places or any exhibitions shall fall under the subject matter of FOP exception provided such works are seen to have displayed in one public place or the other for a ‘longer’ period of their entire life. 

With that being said and established, the very interpretation laid down in Wrapped Reichstag with regards to the work displayed in temporary exhibitions shall stand overruled.

Quite similar to the above context, this verdict can further be interpreted that for any stationary work to be considered as permanently located in a public place, it requires the work to remain in such a place for a ‘longer’ period of time calculated as a fraction of its lifetime. 

That being said, if an artistic work is permanently affixed to a place, it may not be enough for merely the work to be ‘permanently’ installed in a place that remains open to the public for a shorter period to fall under this exception. The illustration of such works can be seen in Pragati Maidan and Mughal Garden in New Delhi which remain open to the public only for short durations in the entire year. 

In this given context, it should further be required for the place in which the work has been permanently installed, to remain open to the public for a longer period of time. The reason being the place during the time period for which it does not remain open to the public cannot be called public space. 

Hence, the work of art located permanently in such a place can not be considered to be located in a public space for a longer period of its own life. Say for example, if the life of a statue permanently affixed in Delhi’s Mughal Garden was 60 years and if it remains open to the public for only a fortnight every year, then for a ‘longer’ part of its life, such work would remain out of public view. 

This could be considered as one way of interpreting this verdict as it seems to be an unintended consequence of the court’s verdict in the AIDA Kussmund case. Having said that, Indian courts should have been ready to guard themselves against the possibility of this kind of interpretation if in the future similar issues like this arise before them.   

What is the quantitative threshold of the term ‘longer’ for a work to be permanently located in a public space?

There is another uncertainty with regards to the quantitative threshold of the term ‘longer’ for any work to be permanently located in a public space. The above uncertainty usually revolves around the fact of whether it could be considered sufficient if the work remains in some public space for slightly more than 50% of its natural life or the above threshold demands more.  

EndNote

The above jurisprudence associated with the term ‘permanently situated/located’ under the FOP doctrine seems to be in its nascent stage of development in several jurisdictions including India. The German courts have so far adopted some substantive insights which the Indian courts could draw from at times when the case for interpretation arises in our country. However, it is pertinent to mention that this import of interpretation must require cautious consideration owing to the differences that exist in the legal systems as well as the social, cultural, and economic circumstances of both the countries as well as jurisdictions.

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