Freedom of panorama is governed by art. 27 CopA, according to which the reproduction of a work permanently located in a place accessible to the public can be used, offered, transferred, transmitted or distributed.
In Art. 27 CopA the terminology “accessible to the public” has a more restrictive meaning than one can evince from the text: it means visible from or placed in a public street. This thus excludes images accessible for free on the Internet, which are not considered as “accessible to the public” pursuant to the meaning of art. 27 CopA.
According to the law, a work that is on the public domain or accessible from the public street can be depicted or reproduced only in two dimensions. Such reproduction can be re-used freely in any way, which means that also commercial purposes are not excluded. Only a work that has been already published for the first time (Art. 9 para. 3 CopA) with the consent and in the manner desired by the author is considered within the scope of the exception.
Constraints to the “freedom of panorama”
The law foresees two constraints to this freedom (art. 27 para. 2 CopA), which is also called “freedom of panorama”:
- the work should not be reproduced in 3D: only graphical representations or animations in two dimensions are admitted;
- the work shall not be reused for the same original purposes;
For example, you cannot reproduce an image painted on the front of a building by copying it on the wall of another house. On the other hand, a photograph of the same painting can be used to create a postcard to be sold to the public.
Works subject to art. 27 CopA
The classic examples of works subject to art. 27 CopA are sculptures or buildings. However it also includes all works of figurative arts, in particular paintings, sculptures and graphics (Art. 2 para. 2(c) CopA) and architectural works (article Art. 2 para. 2(e) CopA ).
According to the doctrine (ex art. 27 CopA), also those works that are visible from the public domain can be reproduced. By contrast, works that are found inside buildings are not considered accessible to the public and are not covered by this copyright exception.
According to the law, the work must be permanently located in a place accessible to the public. Therefore, works that are randomly visible without the will of the copyright holder are excluded from exception of 27 CopA: for example during the transport or transfer of works from one exhibition to another.
Some authors in doctrine believe that the work has to be fixed on the ground in a stable and permanent manner. Other authors believe that it is the will of the copyright holder, which is binding. For this part of the doctrine, for example, temporary exposure or execution of ephemeral works according to the will of the author on public land, may be considered as works subject to the exception of art. 27 CpA.
FAQ
Yes you can do that according to art. 27 CopA. The building is protected by copyright, however, as it is placed on public ground and accessible to the public, the exception of art. 27 CopA applies. Under this exception it is also allowed to use the reproduction of the work for commercial purposes.
No, you cannot do that. According to art. 27 CoPA works should not be reproduced in 3D. Only graphical representations or animations in two dimensions are permitted.
No, it is not admitted to do so. Art. 27 CopA applies only if the work of art is accessible to the public because of the will of the author. In this case the sculpture is on public ground temporarily because it is transported from a place to another, and not because of the will of the author. If the same sculpture was exposed on a public square in Lugano, visible to everybody, in accordance with the author, then the exception of art. 27 CopA would apply.
