A censored version of a photograph of the Gugulethu Seven Memorial in Nyanga, Cape Town, celebrating the struggle against apartheid. Picture: WIKIMEDIA COMMONS/NKANSAH REXFORD
A censored version of a photograph of the Gugulethu Seven Memorial in Nyanga, Cape Town, celebrating the struggle against apartheid. Picture: WIKIMEDIA COMMONS/NKANSAH REXFORD

Freedom of Panorama refers to the right take pictures of public works of art, such as the public-facing façades of buildings or monuments located in public spaces, such as parks, and the right to share those pictures with others. In Wikimedia SA’s case, sharing the pictures over the internet, specifically. 

The current bill does not allow for this and 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. So if you or someone you know has taken a photograph of a recently built monument, such as the statue of Nelson Mandela in Sandton, and shared that photograph with people on Twitter or Facebook (for example) 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 in addition to criminalising large numbers of law-abiding citizens for doing something people reasonably believe is both otherwise legal and normal. 

For Wikipedia this is especially problematic. Wikipedia policy takes the strictest possible interpretation of copyright law to guide our use of adding content. This means that although there is a legal grey area to argue that we can contribute such images, in practice we cannot due to a lack of policy.

Another strategy for a Wikipedia editor would be 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 majority of images on Wikipedia are kept on Wikimedia Commons, a Wikipedia sister project that hosts media images under a Creative Commons licence only, that allows pictures to be used on all 300+ language versions of Wikipedia. 

Most people and organisations reply with 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

A similar situation exists in Sweden where their Copyright law is ambiguously worded on this issue and is out of date, even though there are exceptions in the law that could be argued. Two years ago, 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 $89,000 fine. All for sharing the photograph of a monument located in a public space. In other countries, such as Austria, from which country the concept of freedom of panorama comes, the sharing of pictures of public monuments is regarded as a type of free advertising (why else would the monument be public) and, as such, it is in the owner’s interest for people to take and share images of the public work in question.

If an editor were to argue a copyright list exception, they would only be able do so on a language-by-language basis, as the photograph would not be allowed to be uploaded under a Creative Commons licence and, therefore, would not be allowed on Wikimedia Commons. It is also very laborious and requires a sophisticated understanding of SA copyright law that is unreasonable to expect of an average person.

Colonial vs current

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. This is because the right to copyright ownership over colonial era monuments has expired due to the Berne Convention, while the copyright of recently built monuments is still in effect. 

To add to the absurdity of the situation, if you were to ask for written permission from the copyright owner of a recently built public monument to share your photographs or other reproductions of it, you would typically encounter the following problems. 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. If you know who the owner is, you then need to ask for written permission.

Most people and organisations reply with 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-owned, which it usually is, the government does not have a policy on what seems to them 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.

All of this highlights the need for a Freedom of Panorama provision in SA law. Thankfully the SA Copyright Amendment bill, passed by parliament and now waiting to be signed into law by President Cyril Ramaphosa, has a Freedom of Panorama provision. This is why Wikimedia SA feels so strongly about supporting the adoption of the Copyright Amendment bill and calls on the president to sign it into law.

• Scott is president-elect of non-profit organisation Wikimedia ZA.