Wiki has to ask Wiki Loves Monuments participants not to submit pictures of recently built monuments due a very obscure clause in the Copy Right Act of 1978 that deals with something called “Freedom of Panorama“.
This means that recently built monuments (such as monuments that celebrate the fight against Aparthied) can not be accepted.
To summarise: “you are safe in as far as we are dealing with older monuments for which copyright protection has expired. For all the other photos there are arguments that also support that you are OK but I cannot give you a guarantee, as the SA Copyright Act does not provide clear and express FOP provisions.”
The situation is pretty clear in as far as monuments are concerned for which copyright protection has already expired. That is why it is worthwhile looking at all the images collected.
The Paul Kruger statue, for instance, was made by Anton van Wouw who died in 1945 and the statue is therefore in the public domain (“public domain” in copyright lingo means ‘not copyright protected’).
Similarly the Union Buildings were designed by Herbert Baker who died in 1946 and the buildings are in the public domain.
Now, if the term for copyright protection for the monument shown in a photograph has NOT expired, the photograph would strictly speaking infringe copyright law – UNLESS a so-called copyright exception/limitation applies. And here it gets complicated. The most obvious one is s. 15(3), which states: “The copyright in an artistic work [and monuments are artistic works] shall not be infringed by its reproduction or inclusion in a cinematograph film or a television broadcast or transmission in a diffusion service, if such work is permanently situated in a street, square or a similar public place.” For no good reasons photographs are not mentioned. So you can show the monuments in a movie or on TV but not in a photograph. I would argue, however, that the Internet is a “diffusion service” but whether or not this is really the case I don’t know. Courts have not dealt with this yet and the definition of “diffusion service” is vague (“a telecommunication service of transmissions consisting of sounds, images, signs or signals, which takes place over wires or other paths provided by material substance and intended for reception by specific members of the public….”).
The Copyright Act also allows for copying if the purpose of the copying is “criticism and review”. Again, I believe there is good reason to believe that Wikimedia’s use here could qualified as “criticism and review” but this requires a rather broad interpretation of these terms and I cannot promise that courts would agree with me.
Just to entertain you a bit more: If these photos were taken as still images from a movie clip they would not qualify as photographs and you could arguably use them according to a quotation exception that is also contained in the law. Truly absurd.
So, in summary, you are safe in as far as we are dealing with older monuments for which copyright protection has expired. For all the other photos there are arguments that also support that you are OK, but I cannot give you a guarantee as the SA Copyright Act does not provide clear and express FOP provisions. This, among many other reasons, is why I, Andrew and others have stressed the need for reforming the Copyright Act countless times.
Info supplied by Douglas Scott of Wikimedia
PHOTO CREDIT: Bruce Suherland l CoCT
