Malaysia: Copyright issues arising from photos of architecture
The rise in the use of social media networks has been cited as one of the key reasons for increased visibility in terms of photo sharing among social media users. Many users take to social media to share details of their everyday life, from the food they eat and what they will be doing next to sharing experiences which they perceive to be novel and unforgettable. For travellers, social media is seen not only as an apt platform for them to keep an account of the places that they have been to but also a platform that enables them to share photos of their travels with friends on Facebook or followers on Instagram. Photographs taken could well be landmark buildings from the countries they have visited. Some of the more notable buildings include the Eiffel Tower, Sydney Harbour Bridge, the Esplanade which is shaped like durian spikes in Singapore, and back in our home country, the towering and breathtakingly beautiful Kuala Lumpur Twin Towers and the KL Tower. In addition, businesses may wish to capitalise on the images of these architectural buildings. On the face of it, photographs featuring these architectural buildings may appear harmless, but is that really the case? This article seeks to shed light on some of the copyright issues that could arise out of these photographs.
Some countries such as France prohibit outright photography of the Eiffel Tower at night as copyright is said to subsist in the various light illuminations of the Eiffel Tower. Thus, night time photography of the Eiffel Tower for non-private use requires prior authorisation.
In Malaysia, a work of architecture, being a building or a model for a building, is recognised as an artistic work under the Malaysian Copyright Act 1987 (CA 1987). Copyright could also subsist in the actual work of architecture itself. Under Section 14 of the CA 1987, copyright in a work of architecture includes "the exclusive right to control the erection of any building which reproduces the whole or a substantial part of the work either in its original form or in any form recognisably derived from the original". This is qualified by a proviso which states that the copyright excludes the right to control the reconstruction or rehabilitation in the same style as the original, of a building to which that copyright relates.
Section 14 of the CA 1987 makes it clear that the owner of the copyright subsisting in a work of architecture has the right to control the construction of other buildings reproducing the copyrighted work. As a result, no one other than the copyright owner is allowed to erect a building which is identical/objectively similar to the said architecture. However, Section 14 does not address the issue of whether taking photographs of a work of architecture is prohibited under the CA 1987. Can the same right of control be accorded to a copyright owner when it comes to photographs taken of the owner's building? This is particularly significant given that photographing a copyrighted work amounts to reproduction. Under the definition in the CA 1987, this includes copying a three-dimensional work in two dimensions, which only the copyright owner has the exclusive right to do.
Fortunately for travellers, such a right of control has been specifically excluded. Section 13(2)(d) of the CA 1987 excludes the copyright owner's right to control the reproduction and distribution of copies of any artistic work permanently situated in a place where it can be viewed by the public. As seen earlier, works of architecture are artistic works. Therefore, travellers in Malaysia can take comfort from this express exclusion the next time they decide to post or publish photographs of say, the iconic Kuala Lumpur Twin Towers or KL Tower on thier social media. In addition, if the buildings are incidentally included in an artistic work (such as photographs), such an act is also exempted from the copyright owner's right of control by virtue of Section 13(2)(e) of the same act. However, it is prudent to highlight that this does not necessarily mean that there is no other legal risk that may arise from taking photographs of these buildings, as there may well be other potential legal issues that can arise from the commercial use of such photographs, if the images of these buildings have been registered as trade marks.
The public may have difficulties grappling with copyright issues as they could involve cross-jurisdictional considerations, especially when photographs are taken overseas. However, it is important to pay heed to these issues in order to avoid any possible legal implications.