Commons:Freedom of panorama/Oceania
This page gives overviews of freedom of panorama rules in different countries or territories of Oceania. It is "transcluded" from individual page sections giving the rules for each territory.
Countries of Oceania
[edit]COM:FOP Australia
Australia
OK for 3D works {{FoP-Australia}}- OK for 2D "works of artistic craftmanship" {{FoP-Australia}}
Not OK for other types of artworks
Freedom of Panorama is dealt with in the Australian Copyright Act, sections 65–68, and is based on the laws of the United Kingdom.
"Artistic work" is defined under section 10 of the Copyright Act 1968 as:
- (a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;
- (b) a building or a model of a building, whether the building or model is of artistic quality or not; or
- (c) a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b);
The main concern stems from what is a work of "artistic craftmanship", which the statutory law does not clearly define, but was defined in case law under Burge v Swarbrick [1] The High Court ruled that whether a work has that quality depends on whether it is a work of craftsmanship the artistic form of expression of which is sufficiently "unconstrained by functional considerations".
In the Australian Federal Law Review, Justine Pila wrote an article in light of of the High Court ruling in Burgess that:
- "I suggest the requirement for artistic quality is simply a requirement for a [work of artistic craftmanship] 'not imaginary, unreal or apparent only' ... As those cases reflect, even conceived in historical terms, WACs are not exceptional works but rather paradigmatic works, contrary to the orthodox view above. The fact that they are functional too does not lessen their need for artistic quality".[2]
Furthermore, she stated that:
- "what constitutes a work of artistic craftsmanship is the same as what constitutes other works — their properties of form and the history of their individual production." [2]
Several users claim that this implies two-dimensional flat arts like paintings and street art are considered as "works of artistic craftsmanship" in Australia, but others doubt about this interpretation and it has not been completely accepted by Wikimedia Commons community. Moreover, according to an information sheet of the Australian Copyright Council concerning street art (dated November 2019), the exception provided by Section 65 "applies only to sculptures and works of artistic craftsmanship, not to other artistic works such as murals and graffiti. Therefore, the copyright in a mural or graffiti may be infringed by taking a photograph of it." It adds that licensing permission from the copyright holder is needed, for uses of Australian street art "to feature on a website; to photograph, particularly for commercial purposes (e.g. to sell as postcards or prints); to use as the location of a film shoot; or to publish in a book or magazine."[3]
In order to ensure compliance, two-dimensional artistic works in Australia should not be uploaded to Commons.
COM:FOP Fiji
Fiji
OK for buildings, sculptures and works of artistic craftsmanship. Under the Copyright Act, 1999,
- This section applies to (a) buildings; and (b) works (being sculptures, models for buildings, or works of artistic craftsmanship) that are permanently situated in a public place or in premises open to the public.[1999 Section 67(1)]
- Copyright in a work to which this section applies is not infringed by (a) copying the work by making a graphic work representing it; (b) copying the work by making a photograph or audiovisual work of it; or (c) broadcasting, or including in a cable programme, a visual image of the work.[1999 Section 67(2)]
- Copyright is not infringed by the issue to the public of copies, or the broadcasting or communication to the public or inclusion in a cable programme, of anything the making of which was, under this section, not an infringement of copyright.[1999 Section 67(3)]
COM:FOP Federated States of Micronesia
Federated States of Micronesia
Not OK for art published with a copyright notice, OK for art published without a copyright notice.
Although the listed exceptions in the 2003 law (from § 107. to § 109) do not include a provision resembling freedom of panorama, a copyright notice is required according to § 115 of the law, which is mostly copied from § 401 of the Copyright Act of 1976. Like the Copyright Act of 1976, the requirement of the date of publication is exempt for pictorial, graphic, and sculptural works.
OK for buildings. Sec. 102 lists "pictorial, graphic, and sculptural works" as objects of copyright, but not architecture. It is defined in Sec. 101 as including "two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, technical drawings, diagrams, and models."
COM:FOP Kiribati
Kiribati
Not OK: Under the Copyright Act 2018, effective 5 November 2018, Division 2 - Exceptions to copyright infringement, there is no exemption for copies of works situated in public places.
Under the former Copyright Act 1956 of England,
- The copyright in a work which is permanently situated 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 the inclusion of the work in a cinematography film or in a television broadcast.[1956 Sec.9(3)]
- The copyright in a work of architecture is not infringed by the making of a painting, drawing, engraving or photograph of the work, or the inclusion of the work in a cinematography film or in a television broadcast.[1956 Sec.9(4)]
COM:FOP Marshall Islands
Marshall Islands
OK on a high level, probably Not OK if reproducted as audiovisual works [citation needed?]. The only "copyright protections" provided by the Unauthorized Copies of Recorded Materials Act, 1991 does not extend to any architectural or artistic works, or other type of permanently placed works, so any photograph reproductions of them are just considered acceptable, just use {{PD-Marshall Islands}} if and when appropriate.
COM:FOP Nauru
Nauru
Not OK: The 2019 Copyright Act repealed the Copyright Act 1956 of England. The repealed 1956 law provided freedom of panorama for works of architecture and artistic works in public spaces.[1956 Sec.9(3 and 4)]
None of the exceptions or limitations to copyright in the current law contain such freedom of panorama provision.[2019 Sec.27–40]
COM:FOP New Zealand
New Zealand
- OK for 3D works {{FoP-New Zealand}}
- OK for 2D "works of artistic craftsmanship" {{FoP-New Zealand}}
- Not OK for 2D "graphic works". For image files such works, please file deletion requests and tag the resulting case pages with
<noinclude>[[Category:New Zealand FOP cases/pending]]</noinclude>.
Under the Copyright Act 1994 as of December 2018, Section 73,
- This section applies to the following works: (a) buildings (b) works (being sculptures, models for buildings, or works of artistic craftsmanship) that are permanently situated in a public place or in premises open to the public.[1994-2018 Sec.73(1)]
- Copyright in a work to which this section applies is not infringed by (a) copying the work by making a graphic work representing it; or (b) copying the work by making a photograph or film of it; or (c) communicating to the public a visual image of the work.[1994-2018 Sec.73(21)]
- Copyright is not infringed by the issue to the public of copies, or the communication to the public, of anything the making of which was, under this section, not an infringement of copyright.[1994-2018 Sec.73(3)]
Copyright legislation in New Zealand also follows that of the United Kingdom. In the absence of any specific case law to the contrary it is reasonable to assume that the rules will be identical. See Commons:Copyright rules by territory/United Kingdom for more details.
Real life New Zealander FOP cases
[edit]- Murals by Xoë Hall
- Artist Xoë Hall outraged over work featured on calendar's cover (by Charlotte Cook of Radio New Zealand, 30 December 2019)
- Yes, street art is on public display - but that doesn’t mean we should share it without credit (by Mike Dickison and Bruce White of Stuff.co.nz, 10 July 2020)
COM:FOP Palau
Palau
Not OK the listed exceptions or limitations on copyright from Sections 7 to 13 do not include a provision that allows commercial exploitations of images of architectural or artistic works situated in public places.
COM:FOP Papua New Guinea
Papua New Guinea
Not OK. According to the Copyright and Neighbouring Rights Act 2000, freedom of panorama only covers uses for personal, educational (teaching), archival, and news reporting purposes.[2000 Sec.8–13]
COM:FOP Samoa
Samoa
Not OK. Only incidental copying is allowed. According to the Copyright Act 1998 (as consolidated in 2011),
- The copyright in a work is not infringed by its incidental inclusion in an artistic work, a sound recording, an audio-visual work or a broadcast or by the publication, playing, performance or other use of the work.[1998–2011 Sec.8c]
COM:FOP Solomon Islands
Solomon Islands
OK for buildings, sculptures, and works of artistic craftsmanship; Not OK for other types of artistic works (like paintings or photographs). {{FoP-Solomon Islands}}. Under the Copyright Act [Cap 138]:
- The copyright in– (a) any sculpture; or (b) any work of artistic craftsmanship of the kind described in the definition of "artistic work" in subsection (1) of section 2, which is permanently situated 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 the inclusion of the work in a cinematograph film or in a television broadcast.[138/1987–1996 Section 7]
- The copyright in a work of architecture is not infringed by the making of a painting, drawing, engraving or photograph of the work, or the inclusion of the work in a cinematograph film or in a television broadcast.[138/1987–1996 Section 8]
- De minimis inclusion of other types of artistic works only on audio-visual media
- Without prejudice to the provisions of subsections (7) and (8), the copyright in an artistic work is not infringed by the inclusion of the work in a cinematograph film or in a television broadcast, if that inclusion is only by way of background or is otherwise only incidental to the principal matters represented in the film or broadcast.[138/1987–1996 Section 9]
- Publication of images resulting from the aforementioned actions
- The copyright in an artistic work is not infringed by the publication of a painting, drawing, engraving, photograph or cinematograph film, if by virtue of subsections (7) or (8) or (9) the making of that painting, drawing, engraving, photograph or film did not constitute an infringement of the copyright.[138/1987–1996 Section 10]
COM:FOP Tonga
Tonga
Not OK for private, personal use of reproductions only. The Copyright Act (Act No. 12 of 2002) does not provide a freedom of panorama provision for images of architecture and public art.
- Notwithstanding the provisions of section 6(1)(a), and subject to the provisions of subsection (2), the private reproduction of a published work in a single copy shall be permitted without the authorisation of the author or owner of copyright, where the reproduction is made by a person exclusively for his own personal purposes.[2002 Sec.8(1)]
For works of architecture, this permission does not extend to the reproduction "of a work of architecture in the form of building or other construction."[2002 Sec.8(2)] There is no specific provision in the copyright law allowing the free uses of images of such works.
COM:FOP Tuvalu
Tuvalu
OK, similar to U.K. freedom of panorama rules: Tuvaluan freedom of panorama covers works of architecture, and works of sculptures and artistic craftsmanship found "permanently situated in a public place, or in premises open to the public," as per Sections 9(3) and 9(4) of the Copyright Act 1956 of England. Not OK for two-dimensional graphic works.
COM:FOP Vanuatu
Vanuatu
Not OK "Part 3 - Acts Not Constituting Infringment of Copyright" (sections 10 to 18) does not include a provision that allows commercial uses of images of architectural or artistic works situated in public places.
See also: Category:Vanuatuan FOP cases. Other areas
[edit]COM:FOP American Samoa
American Samoa
May be similar to COM:FOP US.
The absence of copyright law applying to the territory means that photos that would be affected by freedom of panorama could be uploaded. However, as the copyright of any American Samoan architect living in the United States would be protected according to US federal law, realistically such photos would be protected similarly to American FOP.
COM:FOP Clipperton Island
Clipperton Island
Further information: Commons:Copyright rules by territory/France#FOP
COM:FOP Cocos (Keeling) Islands
Cocos (Keeling) Islands
Further information: Commons:Copyright rules by territory/Australia#FOP
COM:FOP Cook Islands
Cook Islands
Not OK There is no provision in the 2013 law for freedom of panorama.
The 1962 law broadly followed the Copyright Act 1956 (UK), which did allow Freedom of Panorama. The 2013 law applies to any works whose copyright had not expired when it came into effect.[8/2013 Sec.53]
COM:FOP French Polynesia
French Polynesia
Further information: Commons:Copyright rules by territory/France#FOP
COM:FOP Guam
Guam
Further information: Commons:Copyright rules by territory/United States#FOP
COM:FOP Hawaii
Hawaii
Further information: Commons:Copyright rules by territory/United States#FOP
COM:FOP New Caledonia
New Caledonia
Further information: Commons:Copyright rules by territory/France#FOP
COM:FOP Niue
Niue
OK For a work of architecture and for a work of sculpture, artistic craftsmanship or mural if permanently located in (or visible from) a public place.
Not OK for a painting, drawing, engraving or photograph
Under the 1962 Act, Section 20. General exceptions from protection of artistic works:
- (4) The copyright in a work of architecture is not infringed by the making of a painting, drawing, engraving, or photograph of the work or any part thereof, or the inclusion of the work or any part thereof in a cinematograph film or television broadcast.
- (5) The copyright in a sculpture, or in a work of artistic craftsmanship (not being a work of architecture and not being a painting, drawing, engraving, or photograph), or in a mural, is not infringed by the making of a painting, drawing, engraving, or photograph of the work or the inclusion of the work in a cinematograph film or television broadcast if the work is permanently situated in or in view of a public place within the meaning of the Police Offences Act 1927 or in any premises open to the public.
- (6) The copyright in an artistic work is not infringed by the publication of a painting, drawing, engraving, photograph, or cinematograph film, if by virtue of subsection (3), subsection (4) or subsection (5) of this section, the making of that painting, drawing, engraving, photograph, or film did not constitute an infringement of the copyright.
COM:FOP Norfolk Island
Norfolk Island
Further information: Commons:Copyright rules by territory/Australia#FOP
COM:FOP Northern Mariana Islands
Northern Mariana Islands
Further information: Commons:Copyright rules by territory/United States#FOP
COM:FOP Pitcairn Islands
Pitcairn Islands
Further information: Commons:Copyright rules by territory/United Kingdom#FOP
COM:FOP Tokelau
Tokelau
Further information: Commons:Copyright rules by territory/New Zealand#FOP
COM:FOP Wallis and Futuna
Wallis and Futuna
Further information: Commons:Copyright rules by territory/France#FOP
Partly
[edit]COM:FOP British Overseas Territories
British overseas territories
No information available
COM:FOP Overseas France
Overseas France
Further information: Commons:Copyright rules by territory/France#FOP
COM:FOP Indonesia
Indonesia
Not OK ({{NoFoP-Indonesia}}), with exception on educational purpose and non-commercial use. There is no usable provision under the Chapter VI ("Copyright Limitations", Articles 43–51) in the 2014 Copyright Law allowing unrestricted uses of images of copyrighted artistic works in public spaces for commercial purposes. Fair use-like provisions exist, such as use for educational and research purposes (Article 44.1), personal use (Article 46), and reporting of current events or short excerpts of the works by the broadcast media (Article 48.b).
This position was upheld by Creative Commons Indonesia in their November 2018 statement on freedom of panorama status in Indonesia.[4]
Several users and contributors have claimed that freedom of panorama exists by virtue of Article 43(d). However, the 2018 statement of Creative Commons Indonesia asserts that this is a restrictive provision, in which every image showing copyrighted architecture and public art must bear a statement claiming that the use is not for profit. Otherwise, direct permission from the creator or copyright holder is totally required when the use involves commercial interest, to avoid acts of copyright infringement.[4] The provision in question:
- The production and distribution of the copyrighted content through information technology and communication media that are not commercial and/or lucrative for the Author or related parties, or the Author expresses no objection to the manufacture and dissemination in question.[28/2014 Article 43(d)]
It should be noted that Commons:Licensing forbids fair use and non-commercial licensing, as these types of licenses prevent files from "being used by anyone, anytime, for any purpose."
Throughout 2020-21, an extensive discussion, which does not reach any form of meaningful consensus, about the status of FoP in Indonesia can be found here and here.
COM:FOP French Southern and Antarctic Lands
French Southern and Antarctic Lands
Further information: Commons:Copyright rules by territory/France#FOP
COM:FOP United States Minor Outlying Islands
United States Minor Outlying Islands
Further information: Commons:Copyright rules by territory/United States#FOP
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