Works depicting private property limited by privacy and trespass rights don’t meet the requirements of free cultural works
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Many countries in the world have laws that limit who or what can be photographed, and how photographs can be used without consent. While some of these rights are already documented in the Commons policy around photographs of identifiable people, this article attempts to address corner cases regarding photographs of private property taken from private property.
In some countries, privacy and trespass rights may be infringed when photographs are taken of private property from private property. Parallel privacy and trespass rights relating to such photographs do not exist in the United States. Accordingly, photographs of private property from private property are sometimes uploaded to Wikimedia projects such as Wikimedia Commons and granted Creative Commons licenses, even when these photographs originate in countries where strict privacy and trespass rights exist. Whether these photographs should, as a matter of policy, remain on Wikimedia projects likely requires clarification.
Works Limited by Privacy and Trespass Rights
Photographs of private property
In Germany, a photograph taken of the external architecture of private property can be limited by privacy and trespass rights. This is because German copyright law (hereafter “UrhG”) has an exception for photographing external architecture which specifically states:
“It shall be permissible to reproduce, by painting, drawing, photography or cinematography, works which are permanently located on public ways, streets and to distribute and publicly communicate such copies. For works of architecture, this provision shall be applicable only to the external appearance.”
The limiting right here is related to the criterion “public”, which is taken to mean that the photographic work must be able to be observed from a public place. For example, an artist who photographs private property from the main walkway of a street is situated in a public place, and their photography may be reproduced. On the other hand, if the artist stood on the balcony of a second privately owned apartment across the street (being not a public place), and then took a photograph of the first private property then their work contravenes German copyright law as it no longer falls under the exception carved out by the UrhG.
While this article cannot go into the laws of every jurisdiction, it is likely that other nations whose laws are based on German law may have similar provisions that give property owners the right to limit photography of their property if not taken from a public location.
Free Cultural Works
In 2006, the free content movement arrived at a definition for free cultural works: “works or expressions which can be freely studied, applied, copied and/or modified, by anyone, for any purpose.” The Wikimedia movement champions everyone’s right to free knowledge online. Thus, photographs and other media uploaded to Wikimedia projects ideally would be works that anyone can freely study, apply, copy and/or modify.
These specific uses of works have been further articulated as necessary to freedom:
“To ensure the graceful functioning of this ecosystem, works of authorship should be free, and by freedom we mean:
- the freedom to use the work and enjoy the benefits of using it
- the freedom to study the work and to apply knowledge acquired from it
- the freedom to make and redistribute copies, in whole or in part, of the information or expression
- the freedom to make changes and improvements, and to distribute derivative works.”
Therefore, photographs that are limited by trespass or privacy rights possessed by the owner of the property depicted in the image cannot be classified as free cultural works. This is because they do not meet the criterion of free - they cannot be shared without permission of the owner of the private or neighboring right, or used, or copied, or amended without their permission.
Exceptions for Non-free Content
This section reviews the Wikimedia movement policy for exceptions to allow non-free culture content on projects. While it does not offer a definite recommendation, it does offer the viewpoint that images typically taken from private property likely do not have as strong a case for exemption as other past examples.
An Exemption Doctrine Policy (EDP) is a policy adopted by the Wikipedia community that permits the uploading of potentially copyrightable or otherwise non-free content, regardless of its licensing status. It is made in accordance with US law and the law of countries where the project content is predominantly accessed. Because the Wikimedia Foundation champions free culture, any exception made to include content that is not free in one of its projects must meet a high standard.
An example of this high standard in action is the EDP on public domain art (PD-Art). According to the EDP on PD-Art, photographs that are merely faithful representations of 2-D work available in the public domain hold no independent copyright status. This follows the ruling in Bridgeman Art Library v. Corel Corp. From this decision, a photograph “which is no more than a copy of a work of another as exact as science permits lacks originality.” Therefore, such work is not copyrightable and is free to use on Wikimedia projects. Applying this ruling to Wikimedia content was not done lightly. In 2008, the Foundation released a statement on public domain art by Erik Möller, Deputy Director of the Wikimedia Foundation from 2007 - 2015. He confirmed that:
“[The Wikimedia Foundation]’s position has always been that faithful reproductions of two-dimensional public domain works of art are public domain, and … claims to the contrary represent an assault on the very concept of a public domain. If museums and galleries not only claim copyright on reproductions, but also control the access to the ability to reproduce pictures (by prohibiting photos, etc.), important historical works that are legally in the public domain can be made inaccessible to the public except through gatekeepers.”
Weight was placed on the fact that such an exception would be for the public good. The works in question were priceless pieces of art that were unique, irreplaceable and, due to the age of the works, in the public domain. Preventing museums and galleries from acting as gatekeepers by exclusively owning the copyright in faithful reproductions of artistic works already in the public domain is in line with the goals of the Wikimedia movement to share free content.
In the case of photographs of private property taken from private property, it is possible that the high standard to make an exception for non-free content has not been met for these images categorically. This is because there is nothing inherently unique, irreplaceable or of service to the public good in photographic works of private property taken from private property, although some individual photographs that limit trespass or privacy rights may meet this standard.
We therefore recommend that photographs of private property not taken from a public location are not made a categorical exception to the non-free content allowed on Wikimedia projects. Rather, they should be exempted based on the individual importance of the photograph and the law of its country of origin.
- Urheberrechtsgesetz [UrhG] [Act on Copyright and Related Rights], § 59, translation available at https://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.html#p0488
- Bundesgerichtshof 27 April 2017, case I ZR 247/15 AIDA Kussmund, (2017) 119 GRUR 798  (Ger).
- For a case discussing this exact scenario, refer to: Bundesgerichtshof 5 June 2003, case I ZR 192/00 Hundertwasser-Haus, (2003) 105 GRUR 1035  -  (Ger).
- FreedomDefined, Definition, https://freedomdefined.org/Definition.
- Wikimedia Foundation, Advocacy, https://wikimediafoundation.org/advocacy/.
- FreedomDefined, supra note 5.
- Wikimedia Foundation, Resolution: Licensing Policy, https://foundation.wikimedia.org/wiki/Resolution:Licensing_policy.
- Wikimedia Meta-Wiki, Non-free content, https://meta.wikimedia.org/wiki/Non-free_content.
- Bridgeman Art Library v. Corel Corp., 25 F.Supp.2d 421 (S.D.N.Y. 1998).
- Id .
- Wikimedia Commons, When to use the PD-Art tag, https://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-Art_tag#Why_do_we_allow_the_PD-Art_tag_to_be_used_for_photographs_from_any_country?