Commons talk:Copyright rules by territory/Australia

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Freedom of panorama with 2D

The article suggests that we have freedom of panorama in Australia in relation to 3D works but not 2D works. This came to my attention as part of a proposed deletion of a photo I uploaded. Having had no reaction to my comments there, I thought I would raise the issue here.

I think the position documented in this article in relation to freedom of panorama with 2D works may be a misinterpretation of the Australian Copyright Act. According to the Australian Copyright Council, see page 7 of their document "Exceptions to Copyright", downloadable from here, you will see that Section 65 of the Copyright Act, it covers 2D works such as paintings, drawings, etc. If you look at section 65 of the Copyright Act itself, I can see why people may think it is only an exception for 3D as it appears to be talking about sculpture but if you follow through to Section 10 and scroll down (the definitions are in alphabetic order), we find that for the purposes of Section 65 of the act, the meaning of artistic work is "a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;" so 2D would appear to be in scope. Certainly 2D is regarded as OK for freedom of panorama according to en:Freedom of panorama#Australia, and, if nothing else, these two articles should be consistent. Kerry Raymond (talk) 01:53, 20 December 2018 (UTC)

I don't follow your argument. section 65 says it applies to "sculptures and to works of artistic craftsmanship", which doesn't include paintings and drawings etc. section 66 applies to buildings and models of buildings. section 67 seems to cover any kind of artistic work, but only for incidental inclusion in cinematograph films or television broadcasts. I don't see how you can extend section 65 to paintings etc., when it clearly says it's only applicable to sculptures and to works of artistic craftsmanship. Where section 65 links to the definition of "artistic work" in section 10, it's not saying that everything mentioned in that section is included, just the works of artistic craftsmanship. --ghouston (talk) 05:34, 20 December 2018 (UTC)

@Ghouston: How are paintings and drawings not "works of artistic craftsmanship" within the meaning of section 65?   — Jeff G. ツ _{please ping or talk to me} 06:27, 20 December 2018 (UTC)

You can see in the definition of "artistic work" in Section 10 that "works of artistic craftsmanship" are a completely different category to (a) a painting, sculpture, drawing, engraving or photograph and (b) a building or a model of a building. It refers to things like hand-crafted furniture, and I think basically anything "artistic" which doesn't fit into the other categories, although this legislation doesn't seem to have a definition. --ghouston (talk) 06:53, 20 December 2018 (UTC)

Section 65 is limited to sculptures and works in paragraph (c) of the definition of "artistic work". Paintings, drawings, etc. is paragraph (a), and seem to be explicitly excluded. Paragraph (c) is just works of artistic craftsmanship. This is all inherited from UK law which has pretty much the same wording. A painting or drawing does not have any craftsmanship -- it is pure art. This page tries to define the term for the UK; such work would have to exhibit both artistry and craftsmanship, where craftsmanship is "a durable, useful, handmade object made in a skillful way". Such works are typically 3D. If a work of craftsmanship has a painting on it, that may qualify, but a pure painting would not -- I don't see how section 65 could include them, using the links posted above. This section applies to sculptures and to works of artistic craftsmanship of the kind referred to in paragraph (c) of the definition of artistic work in section 10. That states the scope pretty firmly; paintings and drawings are not works of artistic craftsmanship and are listed in paragraph (a), not (c). Carl Lindberg (talk) 06:58, 20 December 2018 (UTC)

Unfortunately, this is incorrect in Australia. Under Burge v Swarbrick the court ruled that works of artistic craftmanship have the quality of "artistic craftmanship" depends on whether it is a work of craftsmanship the artistic form of expression of which is sufficiently 'unconstrained by functional considerations'. - Chris.sherlock (talk) 00:32, 30 November 2019 (UTC)

"65. Sculptures and certain other works in public places. This section applies to sculptures and to works of artistic craftsmanship ... copyright ... is not infringed by the making of a painting, drawing, engraving or photograph of the work or by the inclusion of the work in a cinematograph film or in a television broadcast." I think the intent is that it is o.k. to make a 2D copy of a 3D work in a public place, but not a 2D copy of a 2D work, or 3D copy of a 3D work, since these could be close enough to reduce demand for the original.

"Work of artistic craftsmanship" is poorly defined. The 2017 version of the Act says "artistic work means: (a) a painting, sculpture, drawing, engraving or photograph... (b) a building or a model of a building... or (c) a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b)." A work of artistic craftsmanship could thus be a painting, sculpture, drawing etc., or could be something else, but presumably must have a "craftsmanship" aspect, made by an artisan rather than an artist, whatever that means. Aymatth2 (talk) 14:04, 20 December 2018 (UTC)

Well that's not correct. Your "..." elided the fact that it specifically states that "whether the work is of artistic quality or not". Which means anything made by anyone, regardless of their artistic merit. See my discussion below for what the High Supreme Court actual said about "artistic craftmanship". - Chris.sherlock (talk) 23:20, 29 November 2019 (UTC)

Freedom of Panorama

There is a point in here that states:

Not OK for: paintings, drawings, engravings or photographs

How did we come up with this interpretation of the (archived!) PDF? Firstly, it contradicts what is clearly stated in the law which states that:

68 Publication of artistic works

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 section 65, section 66 or section 67, the making of that painting, drawing, engraving, photograph or film did not constitute an infringement of the copyright.

Section 65 then states that:

65 Sculptures and certain other works in public places

(1) This section applies to sculptures and to works of artistic craftsmanship of the kind referred to in paragraph (c) of the definition of artistic work in section 10.

(2) The copyright in a work to which this section applies that is situated, otherwise than temporarily, 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 by the inclusion of the work in a cinematograph film or in a television broadcast.

Section 10 states that:

(c) a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b);

This is the Copyright Act of 1968.

In fact, in Burge v Swarbrick the court ruled that works of artistic craftmanship have the quality of "artistic craftmanship" depends on whether it is a work of craftsmanship the artistic form of expression of which is sufficiently 'unconstrained by functional considerations'.

Furthermore, Justice Pila opined that

"In the discussion below I consider that view, and other aspects of the Court's decision. I suggest the requirement for artistic quality is simply a requirement for a WAC '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".

Given that the point is wrong, I am removing this. - Chris.sherlock (talk) 23:08, 29 November 2019 (UTC)

I have removed:  Not OK for: paintings, drawings, engravings or photographs. (which cites Information Sheet G011v15 - Photographers & Copyright. Australian Copyright Council (February 2012)., a defunct document on copyright.org.au which in any case does not state what the point says it states). - Chris.sherlock (talk) 23:10, 29 November 2019 (UTC)

For the record, this not OK was added in example, photographing and publishing a photograph of a sculpture or work of artistic craftsmanship that is permanently situated in a public place, or in premises open to the public, does not infringe copyright (s.65). This does not apply to other public art, such as murals81&oldid=327473734 this edit, which seems to have taken the wrong interpretation of the law itself. - Chris.sherlock (talk) 23:12, 29 November 2019 (UTC)

So now I see why the point was added. The person who wrote this based it solely off an ancient essay by someone called Jane Fitzgerald, written in 1997 (!) which was what the copyright council had considered accurate at the time. The issues are: the law was updated, and as you can see the prevailing view of the HighSupreme Court was against Ms Fitzgerald. - Chris.sherlock (talk) 00:06, 30 November 2019 (UTC)

Are you saying that a "work of artistic craftmanship" is the same as "artistic work", and includes 2D works such as photographs and painting? My understanding is that the term applies only to 3D works, such as items that would normally be only functional, such as furniture, but are considered (ultimately, by a court), to have artistic merit. Also, you've removed the requirement that works of artistic craftmanship be on permanent display in a public place for freedom of panorama to apply, was this intentional? --ghouston (talk) 11:08, 30 November 2019 (UTC)

I am. That was somewhat unclear. Let me clarify. To make an artistic work, you must create it via an activity that requires some skill. This is the definition of "craft". Using that skill is what we refer to as "craftmanship". Craftmanship alone, however, does not make art. However, by it's very nature, "artistic craftmanship" requires art. So if you take a picture of a mural, then this is a work of art and a work of artistic craftmanship.

In actual fact, the law used to distinguish between the two but now specifically does not. Section 10 defines artistic work under section (c) which used to say "a work of artistic craftsmanship to which neither of the last two preceding paragraphs applies. "but this is now "a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b)", which is a complete reversal of what it stated before.

In terms of the delineation between 2D and 3D works is sort of irrelevant now. It refers to sculptures and 2D artwork in the same section, so I'm not sure why this is a concern. It could be have been that in 2004 (I think) there might have been a distinction, but as it currently stands there is none.

However, you are correct about the permanence bit - I will fix this. - Chris.sherlock (talk) 19:31, 1 December 2019 (UTC)

Argh... I kept writing "Justice" instead of "Justine". Anyway, I have update this to make it more clear. - Chris.sherlock (talk) 18:12, 1 December 2019 (UTC)

I removed the words "There is now absolutely no mention of 3D vs 2D in the law, incidentally other than the fact that they decided to mention sculpture." as I unnecessarily confused what I was trying to say. Sorry. - Chris.sherlock (talk) 19:31, 1 December 2019 (UTC)

Commons:Copyright rules by territory/United Kingdom does admit the possibility of 2D works of artistic craftmanship, but still excludes 2D "graphic works". Burge v Swarbrick was about the design of a yacht, so doesn't seem to be relevant to the question. It's hard to say whether the argument you are making would stand up in court in Australia, or not, without a relevant precedent. --ghouston (talk) 22:11, 1 December 2019 (UTC)

The "Arts Law Centre of Australia" also disagrees [1]: "For example, photographing and publishing a photograph of a sculpture or work of artistic craftsmanship that is permanently situated in a public place, or in premises open to the public, does not infringe copyright (s.65). This does not apply to other public art, such as murals". --ghouston (talk) 22:20, 1 December 2019 (UTC)

I don’t know how they justify that murals are not included in a work of artistic craftmanship. It is a work of artistic craftmanship. The Copyright council says that:

Copyright automatically protects most works of street art as “artistic works” where those works:

• have resulted from some skill and effort;

• are not simply copied from something else; and

• are recorded in “material form” (for example, stencils, murals, graffiti, posters, yarn bombing, stick-ups or tags)

so they are contradicting this view!

I would suggest that your source has... issues. - Chris.sherlock (talk) 09:34, 2 December 2019 (UTC)

They would be "artistic works", sure, but not necessarily "works of artistic craftsmanship". I have never seen any source which allows that works without functional/utilitarian components can be "works of artistic craftsmanship". If all artistic works are automatically works of artistic craftsmanship, there would be no need to specify "sculpture" in addition to "works of artistic craftsmanship" in the section 65 exemption. But they do, so there is obviously a distinction. It is true that Australian law did slightly change to allow some overlap, i.e. there are some works that can be both a "painting" and a "work of artistic craftsmanship". But it also clearly implies that some works are still just one or the other. The cited court rulings gave "painted tiles" as the extreme of what a "work of artistic craftsmanship" could be, and those probably are also "paintings", but I don't see how pure paintings/murals are "works of artistic craftsmanship". Every discussion on those that I have been seen or pointed to basically assumes they are always at least partly functional, with artistic aspects. This is what the Berne Convention calls "applied art", and other countries call "industrial design". The Burge decision was about finding the point where the functional requirements leave too little artistic leeway to be protected by copyright, while for section 65 the more important dividing line is finding the point that something is no longer a "work of artistic craftsmanship" but a pure painting. I don't see any legal discussion which equates all "artistic works" as "crafts"; that seems to be an invention here. I believe "works of artistic craftsmanship" was meant to be works with functional/utilitarian components only. The law did change slightly in 2004 to make clear that some works can be both, i.e. there is some overlap, but as far as I can see it comes nowhere near stating that all artistic works are now "works of artistic craftsmanship". The law's wording would make little sense if it was. I put up a more detailed post at the corresponding undeletion request discussion. Carl Lindberg (talk) 02:00, 4 December 2019 (UTC)

And yet, the Supreme Court found the opposite of what you expected, and overturned the High Court's same assumption. As I have already pointed out, Burge shows this. I have pointed to the fact that the law was changed around this area. I have already cited Justine Pila above as she states that "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". If you choose to ignore this, then that cannot be helped.

It is also slightly amazing that you distinguish between a mural and a painting. A mural is a painting. How do you define what is and isn't an artistic work/a work of artistic craftmanship? You seem to have a very arbitrary definition. - Chris.sherlock (talk) 21:39, 4 December 2019 (UTC)

I still don't see how Burge v Swarbrick is relevant, since it was a court case about whether a utilitarian 3D object could be interpreted as a "work of artistic craftmanship", and as far as I can see there were no 2D graphic works or FoP involved. Anything said by the court would be in the context of 3D copyright. So for your interpretation of FoP there is a) a lack of legal precedent, either in Australia or in any other country with a similar FoP clause b) no support on other websites. So the only thing we have is your opinion about how the law should be interpreted, which isn't likely to carry much weight in a court. If somebody republishes a mural from Commons in a book, and expects FoP to protect them from liability, they are surely taking a risk they they will be sued, and it's not clear that a FoP defence would be accepted by a court. It would be making a new precedent, and legal logic doesn't necessarily work as you may expect. --ghouston (talk) 00:44, 5 December 2019 (UTC)

OK, so you quote the same line from Pila that I do -- that includes the phrase "the fact they are functional too". What do you think Pila means by that? To me, that means that WACs are inherently functional, in that they have functional aspects as well as artistic aspects. Works without functional aspects are pure art, and are not WACs, and are covered by other parts of the law. That would include paintings, sculptures, engravings, and the like. The Burge decision was on boat hulls. Nowhere that I can see does it say that all artistic works are craftsmanship. Rather, that ruling was about finding the point where the functional restrictions are simply too much to allow enough artistic freedom to qualify for copyright protection, which was the case for the works in question. Obviously there are works which do allow enough artistic freedom, and even some others where there is so much freedom they probably overlap with pure art categories. That decision gives "painted tiles" as the high-end extreme of what would still qualify as a WAC -- nowhere does it say that a pure painting can be a WAC, unless I'm missing something. Can you quote me the part where the Supreme Court found that paintings can be WACs? That's not normally a point of dispute when it comes to deciding a case on boat hulls, so I would be surprised there was anything in there. I have now read through that entire decision, and don't recall seeing anything more than trying to find the *lower* boundaries of what a WAC can be (and finding that boat hulls are below that line). Carl Lindberg (talk) 03:16, 5 December 2019 (UTC)

In the longer discussion of this topic at Commons:Undeletion requests/Archive/2019-12#File:Wyalkatchem_recycling_centre_mural.jpg, I believe @Chris.sherlock: did agree that "works of artistic craftsmanship" need to be "useful", i.e. functional or utilitarian which would not include pure paintings, and that the wording here will need at least some adjusting. However, he has stated that he believes that murals still qualify as "useful".

I'm not sure I've found a case which specifically mentions murals, but there is Meskenas v ACP Publishing Pty Ltd, which does say:

13. In its written submissions the respondent claimed there was an argument available to it under ss.65 and 68 of the Copyright Act. I do not propose to set out these sections because the respondent goes on to say that it would not maintain this ground of defence at trial. But frankly I do not think that the ground exists at all in respect of a photograph of a painting. The defence applies only to sculptures and certain other works of artistic craftsmanship. Again as the learned authors of the Lahore service say at [42,030]

"The only works to which this defence extends are sculptures, including casts or models made for the purposes of sculpture, and works of artistic craftsmanship of the kind referred to in paragraph (c) of the definition of "artistic" work in s.10(1) of the 1968 Act. The defence does not extend to paintings...As a result to take an unauthorised photograph of a painting hanging in a public art gallery would be an infringement of any copyright subsisting in that painting...".

The UK section says that works which have been named by cases as qualify as works of artistic craftsmanship are hand-painted tiles, stained glass, wrought iron gates, and the products of high-class printing, bookbinding, cutlery, needlework and cabinet-making. I think that was from the Hensher case. It also mentions hand-knitted woollen sweaters, fabric with a highly textured surface including 3D elements, a range of pottery and items of dinnerware (quoting other court cases, including Australian ones). Those still to me all mean a product of some kind, sold for its functional purpose but also containing some artistic aspects.

The dacs.org.uk page on UK's FoP mentions murals, saying they are not subject to the UK exemption:

This exception is outlined in the Copyright, Designs and Patents Act 1988. It is important to stress that this exception does not extend to all forms of public art. Art forms such as original paintings (eg murals), drawings, engravings or photographs which are exhibited in public places or in premises open to the public are not included in this provision.

The artslaw.com.au site, in a Street photographer’s rights information sheet, also says murals are not allowed by the exception:

Sculptures, monuments and artwork may be protected by copyright. Unless an exception applies, you need permission from the copyright owner of the work. Exceptions to this general rule are found in the Copyright Act. For example, photographing and publishing a photograph of a sculpture or work of artistic craftsmanship that is permanently situated in a public place, or in premises open to the public, does not infringe copyright (s.65). This does not apply to other public art, such as murals. If the public place is a gallery or museum, remember that your rights to photograph may be limited by the conditions of admission on your ticket. As previously discussed, you can also take pictures of buildings without infringing copyright.

The same site has another Snapping In The Street article also says that murals do not qualify. It does mention that photos which include such works but only as part of a larger scene (as opposed to focusing on the artwork itself) are more likely to be OK:

Murals and graffiti: Although murals and graffiti are generally situated in a public place, because they are two-dimensional artworks the section 65 exemption does not apply. As such, if you substantially reproduce a mural or graffiti work in a photograph you may be infringing the copyright in that mural or graffiti work. Substantial reproduction is not a question of how much has been reproduced like 10% of 70%, but rather a question of quality (i.e. what has been reproduced). This means a photograph looking down a street that happens to have a mural wall running down one side adding perspective is less likely to infringe copyright than a photograph that focuses on a key part of the mural making it the main subject of the photograph, even though the first photograph shows more of the mural.

Interestingly, the 1962 New Zealand law's version of the section 65 exemption read:

(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.

I'm not sure how long the phrase "or in a mural" was present in New Zealand's law, but it was not there in their 1994 rewrite, returning to just sculptures and works of artistic craftsmanship. However, the fact they spelled out murals separately would seem to directly imply they were not contained in the "work of artistic craftsmanship" term. (Buildings were exempted in the immediately preceding paragraph 4 in that law, much like Australia does today in section 66.)

In short, I do not see a source which would identify murals as "useful" works, and many sources which explicitly do not. They are effectively paintings to me, just with a particularly-shaped canvas (the building or wall), and I don't think being constrained by the shape of a canvas amounts to restricting artistic choice. To me, there should be some limitations to artistic choice mandated by the functional requirements of a product to qualify as a "work of artistic craftsmanship". The Burge decision was about finding the lower bounds of that type of work, which is largely immaterial to FoP, because works around that line are either works of artistic craftsmanship (where the exemption applies) or not covered by copyright at all (which would not need an exemption in the first place). It still should be mentioned on this page, as it is a major decision and discussion on the type of work, which courts have been notoriously averse to trying to define (and even the Burge case does not try to define a line, just saying that boat hulls are below it). However, section 65 is more concerned with the upper bound, where works stop being "works of artistic craftsmanship" and are purely other types of "artistic work".

The 2004 law change was about works which qualify as both paintings and works of artistic craftsmanship -- before that change, such works could be read as being excluded from the exemption since they were excluded from paragraph (c) of section 10, but since then they would qualify, as section (c) is now simply all "works of artistic craftsmanship", same as the UK wording. The countries (and New Zealand) seem to routinely cite each others' rulings, so they would seem to have the same definition of "work of artistic craftsmanship" as each other, however ill-defined it is.

In summary, I think we should return to the previous wording here, which primarily points to the UK page, though should note (like the UK section does) that 2D works which qualify as "works of artistic craftsmanship" would apply (such as hand-painted tiles, identified as such a work in a court case). The newly-cited references (the Burge case and the Pila paper) do not really contradict that anywhere, as far as I can see. I think we should need some very good sources to expand the list of "work of artistic craftsmanship" beyond what is on the UK page. Carl Lindberg (talk) 15:05, 7 December 2019 (UTC)

Reference to UK FoP rules

I've re-removed a statement suggesting that readers consult the entry on the UK's FoP arrangements for more details on Australia's. As the formal links between Australian and UK law have long since ended, evidence from an expert Australian body is needed to sustain a claim that British laws and precedents can safely be assumed by non-experts to apply to Australia. Nick-D (talk) 23:34, 30 October 2020 (UTC)

There were many links in the discussion immediately above, and the discussions referenced, some of which were UK cases. For example among many, a 1976 UK case called Hensher which is cited by numerous Australian cases.[2]. The countries share a common law tradition, and very similar copyright laws, and look to each others' court cases for decisions in these areas -- if an Australian court tackled a problem that a UK court had not, but then a similar issue came up in the UK, they would certainly look at the Australian decision. The reverse is also true. Obviously rulings in the UK are not binding in Australia, but the logic can often persuade. And I don't think we have found an Australian ruling which contradicts UK precedent. Please put the statement back, unless you have some specific evidence that supports it, since the existing text was based on long discussions here. The FoP provisions in both laws are basically identical, so it would stand to reason that they would be interpreted similarly. (And in New Zealand, etc.) If Australian law differed, then sure, but it doesn't seem to (in this particular area). Carl Lindberg (talk) 00:48, 31 October 2020 (UTC)

Carl, that all looks to be your personal interpretations. I think that a link to an Australian body stating that current British FoP laws and precedents are directly relevant to Australia is needed to support this claim. Can you please provide this? I suspect that the claim is correct, but it seems unsafe for amateur photographers to rely on without such evidence. Nick-D (talk) 01:03, 31 October 2020 (UTC)

There is a 2007 Australian case Burge v Swarbrick, which was discussed pretty extensively in the above discussions. That case quoted widely from the UK Hensher case I mentioned above, on the point of what constitutes a "work of artistic craftsmanship", which is particularly relevant to FoP. As the link I gave above showed, UK, Australian, and New Zealand courts routinely cite each other's decisions (and Hong Kong, etc.). There was a 2011 UK Supreme Court case called Lucasfilm v Ainsworth -- given a list of cases which cited it, you can see many UK cases, and also a few from Australia, New Zealand, and India (all countries where the copyright law was inherited from the British). That is just in the last nine years. Courts don't like to set different precedents without good reason, so if a court from a similar legal background has tackled the issue, they will certainly look at them. If there is something specific in Australian law which would cause differing results in Australia, sure that matters. But there is no evidence of that in this particular area, but instead quite the opposite. If you are claiming that Australia's interpretation differs, I would expect a citation to a particular case which shows that. That is not impossible -- a Canadian case on the threshold of originality decided that since Canada had joined NAFTA, the requirements there had moved Canada's threshold away from its UK origins and closer (though not all the way) towards the U.S. definition. But in this particular area, the laws seem identical and every case from Australia which has been brought up here did not diverge. If you know of one, by all means let us know, but until then I don't see any reason to remove the link, as it's effectively changing policy without any real evidence (put there by others, not me). You asked me for evidence -- hopefully I obliged -- and I would ask you for the same ;-) [Australia did actually once have a very slight difference in their FoP, possibly unintentional, but a 2004 change made the wording exactly the same as the UK's again.] Carl Lindberg (talk) 01:30, 31 October 2020 (UTC)

Clindberg, one issue is that under Australian law the definition of "work of artistic craftsmanship" (paragraph (c) of the definition in s10 of the Copyright Act 1968, which s65 specifically refers to) is defined as not excluding items in paragraphs (a) and (b) (which includes graphic works). The definition was expressly changed (it previously was defined as works of artistic craftsmanship that "to which neither of the last two preceding paragraphs applies" - so (c) was mutually exclusive to (a) and (b) - that is no longer the case). The UK legislation (in s4 of the Copyright, Designs and Patents Act 1988) is similar to the former Australian definition and is a separate category. This makes commentary using the old legislation difficult to rely on to justify this. I am concerned that a policy is being applied without consulting someone who actually knows what the real situation is in Australia. Deus et lex (talk) 10:01, 1 November 2020 (UTC)

To make this even clearer, the Explanatory Memorandum to the Bill that introduced this change in 2002 (the Designs (Consequential Amendments) Bill 2002) makes it clear that the change was intended to ensure that a work of artistic craftsmanship could also be a work under paragraphs (a) or (b) of the definition in s10). Deus et lex (talk) 10:43, 1 November 2020 (UTC)

That was the 2004 change I was referring to. UK's law also allows works which qualify as both artistic works, and works of artistic craftsmanship, to be covered by FoP. That law change brought Australia back into exact alignment with UK law, really. The phrase "whether or not mentioned in paragraph (a) or (b)" doesn't change the meaning -- the UK definition also does not exclude works from qualifying as both when it comes to FoP. The previous Australian definition did exclude them explicitly, which differed from UK law. They then changed to match the UK, but instead of simply removing their extra phrase they altered it to have no effect, probably to make the change from their previous wording more clear. The law change was mostly meant to affect the definition of "corresponding design" (which could previously have been read to exclude certain types of works from copyright protection altogether), but does affect FoP too. Carl Lindberg (talk) 15:26, 1 November 2020 (UTC)

And a paper by the Australian Law Reform Commission has centred on the definition of "artistic craftsmanship" as simply referring to something (whether 2D or 3D) which has substantial artistic merit - see [3] (scroll down from this heading or do a search for that term, it includes some suggested definitions). There's nothing in that discussion that expressly excludes artworks such as paintings or murals. Deus et lex (talk) 10:59, 1 November 2020 (UTC)

The term "craftsmanship" excludes them -- that implies a functional component to the work, and not purely a work of fine arts. In other words, the artistry is restrained in some way by the functional requirement of the work. If the term "works of artistic craftsmanship" applied to all "artistic works", then there would be no need to mention "sculpture" in the same law clause, since that is also an "artistic work". The furthest extreme, given by the UK courts and agreed with by the High Court of Australia in Burge v Swarbrick (which was after the law change you are referring to), was "hand-painted tiles". At that extreme, it probably overlaps with paintings a bit. Beyond that, there is no longer any craftsmanship -- it's purely art, with the artistic expression unrestrained by a functional requirement. A classic example is stained glass windows -- it still needs to work structurally as a window, strong enough to keep out weather, etc., but there is a fair amount of artistic expression still possible. Artistic works that are *not* "works of artistic craftsmanship" are not covered by FoP, either in the UK or Australia. If you look at pretty much any definition of the term, it will mention "functional" or "industrial design" or terms like that. Pure paintings are excluded. As the Swarbrick decision says, The determination turns on assessing the extent to which the particular work’s artistic expression, in its form, is unconstrained by functional considerations.

The phrase of "substantial artistic merit" you referred to is more meant to find the dividing line between "works of craftsmanship" (which receive no copyright protection at all) and "works of artistic craftsmanship" (which do). That was also the line that Burge v Swarbrick was concerned with as well. In that case, the court ruled that a yacht hull was so constrained by functional considerations that there was not enough room left to allow for copyrightable artistic elements, so it was not covered by copyright. At the other end of the spectrum, a work with no functional considerations, like a painting, is also not a work of artistic craftsmanship (though obviously is covered by copyright). Yours was the same interpretation that Chris.sherlock brought above in previous discussions, and eventually agreed was incorrect (though in a DR, not on this page). He was still arguing that murals were constrained, but I don't see that -- there is no functional restraint on the content of the mural at all. The functional wall existed before the mural was there; nothing functional was being added. A painting is not "functional" because it's constrained by the shape of its canvas. Carl Lindberg (talk) 15:26, 1 November 2020 (UTC)

• I think the best thing here is to throw this issue to WMAU and have them request an interpretation from the Copyright council. My understanding is paintings in public space can be photographed, long standing practice of photographing graffiti and murals has never caused issue. Also the case Burge v Swarbric is about a boat. Arguments here are miss using that case the quote

  In Burge v Swarbrick [2007] HCA 17 (26 April 2007), the High Court of Australia considered the meaning of "artistic work" in s 10 and in s 77(1)of the Copyright Act and whether copyright protection for the designer was available for a yacht marketed as the "JS 9000" in Australia, Europe, the United States and elsewhere. The designer (Swarbrick) failed in his claim because the boat was designed to satisfy functional utilitarian considerations (eg speed, safety) and be mass-produced rather than for artistic purposes.

As for other jurisdiction those cases can be used to inform the courts but they do not have any legal standing nor constitute the law of Australia Gnangarra 10:29, 2 November 2020 (UTC)

• • Sure, any more opinions (particularly with references) are always welcomed. While UK courts are not directly binding on Australia, thus far it would seem that on this point Australian courts have quoted their decisions with approval, so to completely ignore them seems a bit rash -- I think we would need some examples where Australian courts turned away from UK precedent. And while Burge v Swarbrick was about a boat, yes, that doesn't mean you can ignore the ruling (which has a wider scope than just boats) for other types of works. One party was claiming the boat qualified as a "work of artistic craftsmanship", which the court disagreed with -- the boat was not a work of artistic craftsmanship (just a work of craftsmanship), thus had no copyright protection at all. In the ruling however, they quoted from UK precedent on the definition of "work of artistic craftsmanship" and seemed to apply it completely. The decision includes the "extreme" example of painted hand tiles, which would be the topmost edge of "work of artistic craftsmanship" before the functional/craftsmanship part goes away, after which it's just a work of fine arts (i.e. no longer a "work of artistic craftsmanship" but rather a different type of "artistic work"). It's hard to read that as including paintings in the definition. Every definition I've seen from Australian sources (including those brought up here in the discussions a year ago) agree that there must be a functional component to make something a "work of artistic craftsmanship", which paintings lack. I'd be very happy for Commons' sake if the law did in fact allow photos of outdoor paintings, but the plain wording of law restricts to sculptures and works of artistic craftsmanship. And the High Court of Australia seemed to apply the UK definition of the latter in full. Is there a citation out there which would indicate anything different? To use a different definition than the High Court of Australia would seem to require a citation, to me. When it comes to illegal graffiti, typical practice has been to allow them here (COM:GRAFFITI), though there are some who disagree. For legally-painted murals though, policy has been to not allow them unless covered by FoP, and the understanding has always been that Australian/UK law does not. Most real-life usages of such photos would likely fall under fair dealing and so are not likely to be problems -- which is a form of "OK", but not the one that Commons policy allows. Commercial use might be another matter though, which is the issue for Commons. Could you take a photo primarily of someone else's mural and sell a postcard of it? Carl Lindberg (talk) 14:57, 2 November 2020 (UTC)

    UK law does not constrain Australian law. It may inform it because the Australian copyright act was originally derived from the UK one (true of many of our laws) but, after more than a century of independence, there is now no recourse to UK law in Australia, after the right appeal to the UK Privy Council was dropped in 1968. As for selling postcards of murals, there are loads of them e.g. [4] but there is no indication of copyright arrangements visible on the webpage or on the front/rear of the postcards depicted. Certainly having been to many murals in my travels, I have never seen any signage saying "you can't photograph this" or "you can photograph this but only for personal use" or ... Given how many people photograph these murals (they are often the only tourist attraction in many small towns), I think if the artist (or the whoever commissioned the work) was concerned about the rights of reproduction, there would surely be some kind of signage to that effect. You do see such signage about whether you can or can't photograph artworks in galleries either for particular exhibitions or individual works. You do see signage in some outdoor setting telling you not to photograph places or things at the request of the traditional owners or the privacy of residents; whether any of these have a legal basis in Australian law, I suspect not, but I imagine most reasonable people do as requested. But I really don't understand why we are having this conversation until there's been a court case in Australia that determines our FoP is restricted in this way. I don't think Commons should become a "kangaroo court". Kerry Raymond (talk) 21:45, 24 December 2023 (UTC)

Please comment: proposal to delete text under FOP heading

I propose that the text describing Justine Pila's article, under the heading "Freedom of panorama", be deleted. Reason: it does not really clarify the High Court judgement but only advances an argument that – convincing though it may be – asserts that the court's "orthodox view" did not address a further factor, on which she expounds. As such, Ms Pila's article doesn't add to the factors applicable to contemporary considerations of FOP copyright, which is the subject of the section.

I'm canvassing opinions here rather than doing the edit myself here and now because it's possible some people may not agree. (If the consensus is to retain the text, it needs to be edited to include words to the effect that Ms Pila's views do not alter the case law that stands at present.)  –  SCHolar44 🇦🇺 💬 at 05:11, 12 November 2021 (UTC)

@SCHolar44 (I felt it's more OK to comment here since the discussion at COM:VPC was suddenly archived by the bot) no need to delete the entire text, but instead add links to relevant discussions and a reference that there is still no community wide consensus about the claim that murals are works of artistic craftsmanship. I also added some important extracts from the 2019 information sheet of the Australian Copyright Council, seemingly to throw away the claims of several Wikimedians here that Australian street art can be freely exploited by Wikimedians. JWilz12345 (Talk|Contrib's.) 05:41, 24 December 2023 (UTC)

SCHolar44, I meant I added the extracts at COM:FOP Australia. Ping participants of Commons:Village pump/Copyright/Archive/2023/12#Concern on Australian murals who responded: @Jmabel, Jeff G., Aymatth2, Clindberg, and Kerry Raymond: . The Australian Copyright Council does not treat street art as those that can be freely exploited through Section 65. JWilz12345 (Talk|Contrib's.) 05:46, 24 December 2023 (UTC)

I will repeat my comment. A mural is a two-dimensional painting, a typical work of art. It is painted on plaster rather than on canvas, board, etc. but that does not affect its copyright status. A work of artistic craftsmanship is a functional object with artistic properties, typically something like a dress, plate or chair. The decision in Burge concerns a yacht, not a mural. Murals are protected. Aymatth2 (talk) 08:43, 24 December 2023 (UTC)

There are a lot of red herrings in the current FOP section, I propose to replace it with the following:

• OK for a painting, drawing, engraving, photograph, film or TV broadcast of sculptures and works of artistic craftsmanship if permanently in a public place or in premises open to the public. A painting, drawing, engraving, photograph, film or TV broadcast of a building or model of a building is also allowed. {{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.

According to the UK-based Design and Artists Copyright Society[5], a work of craftsmanship should be a durable, useful, handmade object made in a skillful way. Artistry should be seen as the utilisation of skill, taste and original thought on the part of the creator in producing an item which will appeal to viewers' artistic sensibilities as well as their aesthetic taste.

According to the Australian Copyright Council, Street Art & Copyright (November 2019), Copyright automatically protects most works of street art as artistic works where those works: have resulted from some skill and effort; are not simply copied from something else; and are recorded in material form (e.g. stencils, murals, graffiti, posters, yarn bombing, stick-ups or tags).[6]

Any objections? Aymatth2 (talk) 13:15, 4 January 2024 (UTC)

I might omit the "painting, drawing, engraving, photograph, film or TV broadcast of" part, as people looking quickly may think that photos of public paintings/drawings/etc. might be OK. Otherwise, looks good to me. Carl Lindberg (talk) 14:04, 4 January 2024 (UTC)

I could substitute "2D reproduction of". Aymatth2 (talk) 16:48, 5 January 2024 (UTC)