[Advocacy Advisors] Freedom of Panorama case law - which law applies?

[John Weitzmann]

Am 03.02.2015 um 23:45 schrieb Jan Weisensee:
> (2) This is in my view exacerbated by the lack of logic in the German
> law. I think some people could understand if German FoP excluded
> pictures taken from the (private) ground of the protected monument
> itself, because it would protect those views on the monument which are
> potentially private (for instance if a building was explicitly built
> behind a wall or covering trees). But excluding a
> photograph taken from my own living room (if it happens to be on the
> opposite side of the street) doesn't seem to make much sense.

well, it turns on the notion of publication. The only outer appearance
of works of architecture and monuments that is "published" is the one
the public sees. Public means anybody. Ground level is in most
situations the only area actually open to the public. Your living room
is just as private as the private ground of the monument itself.

So there is some logic to it, and even aerial photography using drones
doesn't change that, even if there are no restrictions on where to fly.
The logic says, published means what the public can see, and what that
means see with their own eyes, not through technical means. So the quite
old case law on FoP in Germany already deals with ladders and stuff that
photographers used on public ground to peek over walls and such. What is
behind the wall is not published in that sense and so - according to the
idea - FoP cannot apply.

Greetz
John