This photo of the Mandela statue at the Union Buildings in Pretoria has been reduxed for copyright reasons so it can be used on Wikipedia. Photo: Paul Saad via Wikimedia, CC-BY-SA 4.0
25 April 2019
Wikimedia ZA, the South African chapter for Wikipedia editors, wants President Cyril Ramaphosa to sign the South African Copyright Amendment bill into law as it has both Fair Use and Freedom of Panorama in it. Much has been written about the importance of Fair Use in discussions about the bill but very little has been mentioned about Freedom of Panorama and why it is so important. It is an issue that is especially important for average South Africans as well as free knowledge creators such as Wikipedia editors.
Freedom of Panorama is the right to take photos of public works of art and share them with others, for example placing the photos on the Internet. Examples of this are the public facing façades of buildings, monuments such as statues, or arguably even election posters that are tied to street poles advocating for political parties in the upcoming election. All of which are located in public spaces such as on the street or in parks and walkways.
The current statute does not explicitly allow for this. Worse than that, it is written in such a way that makes it possible for the owners of public works to sue people photographing them and sharing them over the Internet.
This effectively means that if you have taken a photograph of a recently erected statue of an anti-apartheid hero (for example), such as the statue of Nelson Mandela in Sandton, and shared that photograph with people on Twitter, Facebook, Wikimedia Commons, your blog or another Internet platform then, according to a strict interpretation of current copyright law, the owner of that statue could sue you.
This opens up possibilities for private censorship and unintentionally exposing large numbers of law abiding citizens to litigation for doing something people reasonably believe is otherwise lawful and normal.
For Wikipedia and the sister project Wikimedia Commons where the pictures are hosted this a problem. Wikipedia policy, as a default position, tends to take the strictest possible interpretation of copyright law to guide our use of adding content to Wikipedia and Commons. This means that although there is a legal grey area to argue that we can contribute such images, in practice this is very difficult due to poorly written laws and the Wikipedia community’s strict policies.
One strategy a Wikipedia editor could use is to argue that a particular photograph adheres to one of the exceptions in section 12 of the current Copyright Act. However, this approach brings up a different problem. The overwhelming majority of images on Wikipedia are kept on Wikimedia Commons, a Wikipedia sister project that hosts media images under a Creative Commons licence only. Hosting images on Wikimedia Commons allows those images to be used on all 300+ language versions of Wikipedia automatically. So if the editor were to use that exception argument they would need to make it for each photograph on each of the 300+ language versions of Wikipedia instead of being able to upload it once and it works everywhere automatically. This puts a great and very frustrating burden on the Wikipedia editor who is an unpaid volunteer. Additionally the editor would need to know the law to an unusual level of detail.
This effectively means that the image or photograph is not used. This deprives the Internet of relevant content on South African related topics, which are already not adequately covered. This means that it is even harder for people to get free and educational information about South Africa.
A similar situation exists in Sweden where the copyright law relating to the sharing of photographs of public works of art is also out of date and ambiguously worded. In 2017 Wikimedia Sweden tested this law by defending a Wikipedia editor who had been taken to court for uploading a picture of a fountain located in a public space but belonging to a nearby museum. Wikimedia Sweden lost the case and had to pay the equivalent of a US$89,000 (R1.2 million) fine — just for sharing the photograph of a monument located in a public space. In countries such as Austria, which has freedom of panorama, the sharing of photos of public monuments is regarded as a type of free advertising and therefore it is in the owner’s interest for people to take and share images of the public work in question.
In South Africa the current ambiguous wording in the act also creates a perverse outcome whereby pictures of recently built public works of art, such as monuments celebrating the struggle against apartheid, are not allowed to be shared and celebrated over the Internet, while pictures of older colonial era monuments can be shared. Colonial era monuments are allowed because the right to copyright ownership over them has expired due to the Berne Convention, while the copyright of recently built monuments is still in effect.
To make the situation even worse, if you wanted to get written permission from the copyright owner of a recently built public monument so as to share your photographs or other reproductions of the monument, you would typically encounter the following problems in South Africa. First, you have to work out who owns the monument. Typically the work is owned by the local municipality but this might not always be the case. Finding out is usually very difficult as is finding out who to contact in the municipality and navigating all its bureaucracy. Second, once you know who the owner is, you then need to ask for written permission. Most people and organisations reply with justified confusion as they reasonably assume that you should not need to ask for permission to share a photograph of a public work of art. It is public after all. If it is government, which it usually is, there is no policy on what seems to officials to be an absurd issue and so they take the safe option of either not replying or denying the request. This is a type of unintentional censorship through bureaucracy.
This highlights the need for a Freedom of Panorama provision in South African law. Thankfully, after many years of work and a rigorous inclusive process run by the Department of Trade and Industry, the South African Copyright Amendment bill, which contains a Freedom of Panorama provision, has been passed by Parliament. It is now waiting to be signed into law by the president. We hope the president will do so without delay.
Views expressed are not necessarily GroundUp’s.
