What's your view of the panorama right?

Wikimedia's Freedom of Panorama graphic:
green for go, red for stop, yellow for, er, well,
just the outsides of buildings

It has been a little while since the IPKat last offered the followers of his weblog a chance to assist a bewildered reader -- but one such opportunity has propitiously arisen.  The reader in question, who prefers to remain nameless for the unusual reason that the revelation of his name will not assist readers in answering his question, asks about the "right of panorama", a term with which many copyright enthusiasts are not hugely familiar since not everyone uses it.  The query below gives sufficient indication, however, as to what it means and the question runs like this:

The United Kingdom is comparatively generous [to users of other people's copyright-protected works] in that the Copyright, Designs and Patents Act, section 62, allows the photography and publication of "certain artistic works on public display" (sculptures, buildings, models for buildings and works of artistic craftsmanship) without this being a copyright infringement. This defence applies to, among others, works on permanent public display in museums, galleries and exhibitions.  

But in an internet age, can people rely on that provision if the photographs are going to be seen or republished outside the United Kingdom?  It seems perhaps not.

The Cat House, Riga

Wikipedia has recently received a DMCA take-down notice from the Oldenburg Studio in New York, representing the interests of the artist Claes Oldenburg and his late wife Coosje van Bruggen, requiring it to take down 59 images of large-scale Oldenburg sculptures in public places, including a number of images of sculptures in Germany, the Netherlands and Spain, which all have freedom of panorama for outdoor works. Apparently, the Oldenburg Studio maintained that, although the various European national laws under which they were taken declared the images to be non-infringing, that did not establish any such non-infringement in the United States, where normally Mr Oldenburg's public works are protected by copyright.

Having thought about it for three weeks, the Wikimedia Foundation appears disinclined to argue the point, and has removed all 59 images. While leaving the door open to anyone who wishes to file a counter-notice, the Foundation cautions that "WMF will not be a party to any legal action that arises from you sending a counter-notice, and that WMF is unable to provide you with legal advice".

 So is s.62 really worth so little outside the United Kingdom?  And, given the patchwork of different laws across the EU, if it is, does this constitute a potential barrier to the free movement (or digital transmission) of goods across the EU's internal market?  Given the number of museums and galleries who rely on s. 62 to stock their postcard shops and online catalogues, the question might be of wider interest than just to creators of free internet encyclopedias.

This Kat is not the world's greatest expert on the bits and pieces of copyright law that stray from one country to another, but he has always naively assumed that, since copyright is granted nationally and applies on a territorial basis, s 62 of the CDPA and the other European freedoms of panorama apply as defences to what otherwise might be infringing acts under the law of the country which has enacted them and that, therefore, while s.62 applies in the United Kingdom, the United States courts, when asked to enforce a United States copyright against a local infringer, wouldn't give tuppence for any number of s.62s.  He is however happy to be corrected.

Adds Merpel: so far as the internet is concerned, she gets the feeling that, though it was a database right decision and not a copyright one, the Court of Justice of the European Union's ruling in Case C-173/11 Football Dataco v Sportradar can be read to support the proposition that a broadcast or communication to the public of a publicly displayed work will enjoy the benefit of s. 62 if it is transmitted from outside the United Kingdom to a target audience inside it. She too welcomes clarification from readers on this point.