Exploring the Kenneth Kaunda Statue and the Importance of Recognising the Freedom of Panorama as an Exception to Copyright Protection in Zambia

Abstract

Freedom of panorama is a copyright exception that allows the public use of copyrighted works in a way that does not infringe the rights of the copyright owner. It is particularly relevant in the context of public spaces, where individuals may take photographs or make videos of public buildings, and statues like the one of Kenneth Kaunda located at the Longacres mall in Lusaka Zambia for non-commercial or even for commercial usages. However, this, is not attainable in Zambia because the panorama exception is not recognised under the Zambian copyright act. As a result, there is a great deal of copyright infringement that goes on as the public take videos and pictures of the iconic Kaunda statue. It is argued in this article that recognising the freedom of panorama under the Zambian copyright act would allow people to freely take and share photos of public buildings and statues like the one for Kenneth Kaunda without a threat of a potential lawsuit of copyright infringement. It is further contended that taking photos of historical monuments is a great way to share, appreciate art, preserve our cultural heritage, boost tourism and promote the freedom of expression. ?

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Keywords: Freedom of Panorama, Copyright, Free Use, Freedom of Expression.

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1.0???Introduction

It helps to start by highlighting that images of works that are permanently positioned in public places like the Kenneth Kaunda statue can be used without their author's permission under the freedom of panorama which is an exception to copyright law. This however, is not possible in Zambia because this exception is not recognised under the Zambian copyright act. It is in light of the foregoing that this article aims at exploring the Kenneth Kaunda Statue and the importance of recognising the freedom of panorama as an exception to Copyright protection in Zambia. To realise this goal, the first part of the article will give a brief background of this copyright exception while the second will scrutinize the effect of not recognising this exception in the Zambian copyright act. In the third and the final part, the article will conclude by discuss the benefits of recognising the freedom of panorama as an exception to copyright protection in Zambia.

1.1 Background

The term, ‘Freedom of Panorama’ emanates from the German word Panoramafreiheit.[1]?Freedom of panorama is the legal right to publish pictures of artworks, sculptures, paintings, buildings or monuments that are in public spaces, even when they are still under copyright protection.?This can be with regards to publication for commercial and non- commercial use.[2] This right is an exception under the infringements of copyright. The reason of this rule is to ensure that the diverse interests of society are accommodated.[3] Furthermore, ?the rationale for this exception is aptly given by Barron Oda who is of the view that “if a work is put forth to the public for the public's aesthetic enjoyment, education, or enrichment, then the public should?be able to?make reasonable reproductions of such work in furtherance of that purpose.”[4]

Zambia however, does not recognise this exception under the copyright act chapter 406 of the Laws of Zambia (hereinafter referred to as the copyright act). Section 17 of the Copyright act gives authors exclusive rights to authorise or not to authorise another individual to use their work (which right the author of the Kaunda statue enjoys). A careful review of the copyright act indicates that there is no exception of the freedom of panorama. Resembling the freedom of panorama is the exception provided for in section 21(h) of the copyright act which provides for “incidental inclusion of a work in an artistic work, audio-visual work, broadcast or cable program." This has been used to control the use of public artworks outside of the narrow scope of the exception of panorama. This however is not and cannot be substituted for the legal right that the freedom of panorama gives to its users to publish pictures of artworks which are in the public space, without asking for the permission of right holders or paying royalties.[5]

Different countries have used different methods to regulate public artwork. For example, Italy enforces a charging policy for the reproduction of antique public domain works, Egypt had a similar bill for the pyramids, while Sydney Opera House is relying on trademark law to reach a similar effect.[6] All such mechanism which try to balance the interests of copyright holders and society where public works are concerned are not present in Zambia.

1.2 The Effect of Non-Recognition of the Freedom of Panorama as an Exception to Copyright Protection in Zambia

Andrew Inesi argues that public photographs have a copyright issue because they are both unavoidable for photographers depicting public places and facial violations of copyright.[7]?Measures such as the freedom of panorama exception in copyright law if not implemented create a burden for members of the public. This is because to properly enjoy the right to take photographs of artistic works in public spaces members of the public will have to carry out inquiries and carry out searches of the Copyright authors of these artistic works to seek consent to use the photographs of their artistic works. Alternatively, members of the public should wait until the work goes into the public domain that is: until the copyright in such works extinguish. In Zambia, copyright protection starts as soon as a work is created and it is protected for the life of the author plus 50 years after death. Once the period of 50 years after the demise of the author, the work falls into public domain and anyone can use it without requirement for remuneration to or authorisation from the author.[8]

The above is burdensome to members of the public as the authorship details of such a work as a building or an outdoor monument like the Kenneth Kaunda is not documented next to it. This makes the likelihood of copyright infringement very high and this is retrogressive as public photography has become such an omnipresent aspect of our digital society. Therefore, it is essential that more expansive and specific view of freedom of panorama is given by the Zambian copyright act. Statutory exception must be given for both non- commercial and commercial usages of public artwork.[9] Certain provisions of the Zambian copyright act require reviewing and updating, as it is necessary to bring the legal rules in line with the needs of society, to take into account the legislative challenges related to the development of digital technologies and react to problems which are already identified.[10]

As a result of the non-recognition of the freedom of panorama exception and generally a lack of knowledge by members of the public there is a great deal of copyright infringement that goes on in Zambia of copyrighted public works such as the Kenneth Kaunda statue. Many members of the public have little to no knowledge of copyright and copyright infringement. However, ignorance of the law is no defence and despite one not knowing that they are infringing copyright they will still be found liable of copyright infringement. The Zambian case of Performing Rights Society ltd v Francis Anthony Hickey[11] illustrates this fact. In this case three musical albums were played in public by the defendant without a plaintiff-issued permission. On the other hand, the defendant said that he had no intention of continuing to violate the copyright. Prior to it, he claimed, he had gotten multiple letters from the plaintiffs' attorneys urging him to cease performing songs protected by copyright, but he had no idea why they were doing so. He continued by saying that he had never before in his life heard of music copyright. The defendant violated copyright, according to the court, and the plaintiff was only entitled to a portion of the profits made as a result of the violation rather than damages because the defendant was not aware and had no grounds to suspect that copyright existed in the work. This case shows that despite the leniency of the learned trial judge the defendant was still held liable for copyright infringement despite having no idea that he was infringing copyright.

On the strength of the case above, it is strongly recommended the freedom of panorama exception should be recognised and more knowledge should be given out to the public with regards to copyright and copyright infringement because the likelihood of such cases occurring is quite high. As already alluded to, the recent installation of the Kenneth Kaunda statue at the Longacres shopping mall for example is one that might attract copyright infringement to be on the rise. The shopping mall has various numbers of locals and tourists visiting it weekly to take photographs. While others may only be taking photographs of the statute for memories and personal use, others are taking these photographs for commercial purposes without knowing that permission is required from the author of the statute. Others that may want to take photographs of the statue for memories and personal use may also be of the view that they are prohibited completely of taking photographs of the artistic work. Recognition of the freedom of panorama for both non-commercial and commercial purposes in the copyright legislation would erase the ambiguity surrounding this and individuals can avoid being sued for copyright infringement with a clear guideline on how to conduct oneself with regards to artistic works in public spaces.

1.3 The Benefits of Recognising the Freedom of Panorama as an Exception to Copyright Protection in Zambia

The benefits of recognising the freedom of panorama as an exception to copyright protection are numerous save to highlight the following. Firstly, this exception would allow people to take and share photos of public buildings and statues like the one of Kenneth Kaunda without a threat of a potential lawsuit for copyright infringement. Taking photos of historical monuments is a great way to share and appreciate art and thereby preserving our cultural heritage. To that effect, Bertoni & Montagnani argue that “public art works may express the identity of a community, a state, a nation; they can embody cultural, economic, social, environmental interests, and have civic, commercial, and touristic value. As such, they are more than just simple works under copyright.”[12]

Secondly, this exception to copyright would promote tourism and encourage people to visit public spaces and heritage sites. This can be seen from the numbers that are flocking to Longacres mall to see the iconic Kenneth Kaunda statue. The third benefit of recognising the freedom of panorama as an exception to copyright law in Zambia is that it will encourage creativity and artistic expression among artists in Zambia as they can take photos of public spaces and use them in their own creative projects, such as making collages or creating digital artwork.[13]

?The fourth benefit is that this exception would allow for the preservation of our cultural heritage. Cultural heritage encompasses “tangible and intangible, natural and cultural, movable and immovable and documentary assets inherited from the past and transmitted to future generations by virtue of their irreplaceable value.”[14]??People can take photos and videos of the Kenneth Kaunda statue that may not be around forever, and share them with future generations so that even them may appreciate and learn from this iconic statue about one of the great leaders Zambia has ever had.

Lastly, another benefit of recognising this copyright exception is that it promotes freedom of expression. The right to freedom of expression is an essential human right that allows us to express our opinions, ideas, and beliefs without fear of government or other people's censorship this provided by article 20 of the constitution.[15]This right plays a vital role in a democratic society by helping to ensure that the government remains accountable and that the public can engage in meaningful dialogue and debates. Freedom of expression is also linked to other fundamental rights such as the right to access information and to access the media. Freedom of panorama is an extension of the right to freedom of expression. This right allows people to take photographs and video recordings in public places without needing to obtain permission from the owners of the property or any other person or entity. People can take and share photos of public spaces and art without fear of legal repercussions, allowing for a more open and democratic society.

1.4 Conclusion

The article has shown that the Zambian copyright act does not recognise the freedom of panorama as an exception to copyright protection. This essentially means that there is a great deal of copyright infringement that goes on in Zambia of copyrighted public works such as the Kenneth Kaunda statue. This problem is further compounded by the fact that many members of the public have little to no knowledge of copyright law and its niceties. Unequivocally, it is has been argued that recognising the freedom of panorama under the Zambian copyright act would allow people to freely take and share photos of public buildings and statues like that of ?Kenneth Kaunda without a threat of a potential lawsuit for copyright infringement. This could certainly be a great way to share, appreciate art, preserve our cultural heritage, boost tourism and promote the freedom of expression.

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REFERENCE LIST

CASES

Preforming Rights Society v Francis Anthony Hickey (1979) Z.R. 66

STATUTES

Copyright and Performance Rights Act chapter 406 of the Laws of Zambia

The Constitution Chapter 1 of the Laws of Zambia 1996

JOURNAL ARTICLES

Andrew Inesi, Images of Public Places: Extending the Copyright Exemption for pictorial Representations of Architectural Works to Other Copyrighted Works, 13 J. INTELL. PROP. L. 61, 63 (2005).

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Anna Shtefan, Freedom of Panorama: The EU Experience, 2 EUR. J.LEGAL STUD., no. 2, 2019

Barron Oda, 'Mobile Devices, Public Spaces, and Freedom of Panorama. Reconciling the Copyright Act with Technological Advances and Social Norms Regarding Content Creation and Online Sharing' (2018) 14(2) cited by Anna Shtefan, Freedom of Panorama: The EU Experience, 2 EUR. J.LEGAL STUD., no. 2, 2019.

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Bryce Clayton Newell, Freedom of Panorama: A Comparative Look at International Restrictions on Public Photography, 44 CREIGHTON L. REV. 405,406, 413-14 (2011).

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Mélanie Dulong de Rosnay, Pierre-Carl Langlais. Public artworks and the freedom of panorama Controversy: a case of Wikimedia influence. Internet Policy Review, Alexander von Humboldt Institute For Internet and Society, 2017, 6 (1), ff10.14763/2017.1.447ff. ffhalshs-01472414ff

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INTERNET SOURCES

How to use public art to boost tourism — B.R. Howard Art Conservation and Restoration (brhoward.com) 06/07/2023

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https://en.unesco.org/content/preserving-our-heritage 06/07/2023

www.lexology.com/library/detail.aspx?g=3df8e059-79e6-4d33-bcfe-ba1e4a67de29 visited 05/07/2023

[1] SS Rana & Company, Freedom of Panorama, available at www.lexology.com/library/detail.aspx?g=3df8e059-79e6-4d33-bcfe-ba1e4a67de29 visited 05/07/2023

[2] Mélanie Dulong de Rosnay, Pierre-Carl Langlais. Public artworks and the freedom of panorama Controversy: a case of Wikimedia influence. Internet Policy Review, Alexander von Humboldt Institute For Internet and Society, 2017, 6 (1), ff10.14763/2017.1.447ff. ffhalshs-01472414ff

[3] Anna Shtefan, Freedom of Panorama: The EU Experience, 2 EUR. J.LEGAL STUD., no. 2, 2019.

[4] Barron Oda, 'Mobile Devices, Public Spaces, and Freedom of Panorama. Reconciling the Copyright Act with Technological Advances and Social Norms Regarding Content Creation and Online Sharing' (2018) 14(2) cited by Anna Shtefan, Freedom of Panorama: The EU Experience, 2 EUR. J.LEGAL STUD., no. 2, 2019.

[5] Mélanie Dulong de Rosnay, Pierre-Carl Langlais. Public artworks and the freedom of panorama Controversy: a case of Wikimedia influence. Internet Policy Review, Alexander von Humboldt Institute For Internet and Society, 2017, 6 (1), ff10.14763/2017.1.447ff. ffhalshs-01472414ff.

[6] ibid

[7] Andrew Inesi, Images of Public Places: Extending the Copyright Exemption for pictorial Representations of Architectural Works to Other Copyrighted Works, 13 J. INTELL. PROP. L. 61, 63 (2005).

[8] Section 21(1) of the Copyright and Performance Rights Act

[9] ?Bryce Clayton Newell, Freedom of Panorama: A Comparative Look at International Restrictions on Public Photography, 44 CREIGHTON L. REV. 405,406, 413-14 (2011).

[10] Anna Shtefan, Freedom of Panorama: The EU Experience, 2 EUR. J.LEGAL STUD., no. 2, 2019.

[11] (1979) Z.R. 66

[12] Mélanie Dulong de Rosnay, Pierre-Carl Langlais. Public artworks and the freedom of panorama Controversy: a case of Wikimedia influence. Internet Policy Review, Alexander von Humboldt Institute For Internet and Society, 2017, 6 (1), ff10.14763/2017.1.447ff. ffhalshs-01472414ff

[13] How to use public art to boost tourism — B.R. Howard Art Conservation and Restoration (brhoward.com) 06/07/2023

[14] https://en.unesco.org/content/preserving-our-heritage 06/07/2023

[15] Chapter 1 of the Laws of Zambia, 1996.