PHOTOGRAPHERS' RIGHTS: WHEN IS 'PUBLIC' LAND PRIVATE?

[Chaz Photos]

If you have not read this your should

 

[KIPAX]

If you have not read this your should

Juts read it all.. but struggling to see the point ...unless its to warn anyone who is thinking of going to salford quays.. in which case you could ahve narrowed it down wiht a better worded thread title

 

[OneTen]

A few of us were considering a TP meet at Salford Quays...we would probably mobilise their small army.

 

[Chaz Photos]

A few of us were considering a TP meet at Salford Quays...we would probably mobilise their small army.

 

[Chaz Photos]

Juts read it all.. but struggling to see the point ...unless its to warn anyone who is thinking of going to salford quays.. in which case you could ahve narrowed it down wiht a better worded thread title

well I am sorry if you missed the point... I.E where next? is the first question
OH and if you read it you see its Their Title not mine.......

 

[DazJW]

I would hope most people know that public access doesn't mean public land.

 

[lucyb]

A few of us were considering a TP meet at Salford Quays...we would probably mobilise their small army.

I second that.

I hate that previously public land is being sold off to private companies, and without even informing people (by the sounds of it, even the security guards for that land don't quite know which bits are public, 'public' or private).

 

[Flash In The Pan]

Hasn't this point already been covered ad nauseum here on TP? :shrug:

 

[Bernie174]

If the point you are making is an objection to sale of public land, then you need to address that to the local Council.

If its now private, its private. The owners have the same rights as you do in your front room, if you don't want people walking in and taking photo's you can stop them, so can they, or their representatives or agents on their property

In answer to your question, 'where next?', then it depends on what you mean. Where next that will be sold off? Ask the owners, ie the Council.
If you meant where next will photographers be stopped taking photos? Well, anywhere private that doesn't want you too. There's nothing new in that, its been the case since Fox Talbot.

 

[paulminus273]

For once I have to agree with Bernie
What would be useful is if anyone knows of a resource to find out what is public land particularly in urban areas

 

[Flash In The Pan]

For once I have to agree with Bernie
What would be useful is if anyone knows of a resource to find out what is public land particularly in urban areas

It's not even as clear cut as whether land is public or not. If you take Glasgow as an example, Glasgow Green was, by the admission of the City Council "gifted to the people of Glasgow in the 15th century", which you would assume makes it public land, yet visit there (and in all the other similar areas of the city) carrying "professional" camera equipment when there is an event on and you stand a fairly high chance of being stopped and whereupon you will be informed that it is private property and questioned as to why you are taking photos.....

 

[Chris Primadona]

Its a good read, I would have probably assumed it was public land too.

 

[Bernie174]

Flash
The difficulty with the word 'gifted' is that there can be caveats attached to the gift, so it could be that those apply, and it's only public ish.
You're right, the distinction appears more blurred now, although I think the reality is more that owners of land object for whatever reasons now, whereas in the past, they didn't care.

 

[footman]

While on the subject, can anyone enlighten me on the difference between a public place and a public space?

 

[Flash In The Pan]

Flash
The difficulty with the word 'gifted' is that there can be caveats attached to the gift, so it could be that those apply, and it's only public ish.
You're right, the distinction appears more blurred now, although I think the reality is more that owners of land object for whatever reasons now, whereas in the past, they didn't care.

Leaving aside the fact that this is Scots law and not English and therefore the definition may actually differ, the green areas (Glasgow being the "Dear Green Place") have always historically belonged to the people of the city, so it's not a case of owners suddenly objecting, it's more a case of ill-informed council officials trying to dictate to the populace as to what they can and cannot do.

 

[Bernie174]

If something is gifted, then it can't have always belonged to the people. I'm not sure there is such a thing anyway, in any UK legislation. As I recall, if somethings not owned by a person or corporation, then it's owned by the Crown.

Not that law has anything to do with it, if there's a caveat, then there's a caveat. If you know there's not, then speak to the council. You may well find it's not as clear cut as you think.

 

[Flash In The Pan]

If something is gifted, then it can't have always belonged to the people. I'm not sure there is such a thing anyway, in any UK legislation. As I recall, if somethings not owned by a person or corporation, then it's owned by the Crown.

Not that law has anything to do with it, if there's a caveat, then there's a caveat. If you know there's not, then speak to the council. You may well find it's not as clear cut as you think.

I didn't say the land had always belonged to the people, in Glasgow's case the majority of the green areas were gifted to the people of the city by the crown as far back as the 15th century, at best the city council are guardians of said areas, they don't have powers of ownership that allow them to restrict access or, as they have tried to do in the past, sell the land for commercial development..

 

[Bernie174]

I didn't say the land had always belonged to the people,

Yes, you did.

the green areas (Glasgow being the "Dear Green Place") have always historically belonged to the people of the city

On the other hand, your original complaint wasn't this.

at best the city council are guardians of said areas, they don't have powers of ownership that allow them to restrict access

It was

yet visit there (and in all the other similar areas of the city) carrying "professional" camera equipment when there is an event on and you stand a fairly high chance of being stopped and whereupon you will be informed that it is private property and questioned as to why you are taking photos...

2 Different things. No, they may not have the right to restrict access, but thats not the same as restricting activity.
In fact, in England, the same thing applies, as I recall to Trafalgar Square, its a public place, but not public property. Activity, ie professional photography is prohibited there, without permission from the London Assembly.

 

[Smeggypants]

If the point you are making is an objection to sale of public land, then you need to address that to the local Council.

If its now private, its private. The owners have the same rights as you do in your front room, if you don't want people walking in and taking photo's you can stop them, so can they, or their representatives or agents on their property

In answer to your question, 'where next?', then it depends on what you mean. Where next that will be sold off? Ask the owners, ie the Council.
If you meant where next will photographers be stopped taking photos? Well, anywhere private that doesn't want you too. There's nothing new in that, its been the case since Fox Talbot.

So when the whole country is private land, but allows public access, you'll still defend the private land owners?

I would encourage anyone to fight against this trend, not just defend it like you are doing.

There's no logical reason to allow the public access, but then deny them the ability to take photographs in open air places. Furthermore it's a handicap to society.

The only reason uneducated security guards have a prejudiced against photography is becuase they have absurdly equated photography with a deluded paranoia of terrorism. Actual terrorism is a completely rare occurrence and even if it was a real threat stopping photography from SLRS but not bothering with cameras in mobile phones or tiny compacts is a stupid reaction.

I shall just continue to take photographs where I like and treat the occasional interference from borg security guards as an annoying part of life.

 

[Alastair]

I can't quite believe that anyone still believes that photography restrictions are in anyway anti-terrorism related. Please, let's drop references to terrorism in the arguments against restrictions as by repeating back the mantra we're being fed we're only serving to reinforce the false message being presented to us and the public.

In the Media City article, the photographer was undertaking a (amatuer) model shoot. Private developers know the value of their properties as location sets and restrictions are part of an attempt to monetise photography. Grease the wheels and a permit would no doubt have been forthcoming.

In wider society the prevelance of covert surveillence (by CCTV), papping of (non-)celebrities, media scare stories over "weirdos and paedos", etc has somehow managed to generate a subconscious animosity towards overt surveillence (what else is street photography?) and a desire to control privacy whan so much invasion of privacy can not be controlled (cctv, etc). This creates a public hostility to street photography. Probably not helped by folk with large SLRs trying the subject.. I can't think of one leading practitioner of street photography that is known for using anything other than a discreet rangefinder style camera.

With corporate buildings in the city I find it extremely ironic that they can be so active in discouraging photography from the street that they can't control whilst at the same time studding their own building with cameras that the public cannot control and has no access to view the footage of. Much of this coverage include the public space of footpaths and doorways in the immediate vicinity of their building. They want to watch us, but they most definitely don't want us to watch them.

If you want to encourage public acceptance of street photography, I think a useful start would be made in actively discouraging the every day covert surveillence of the public. Not so much, "I'm a photographer not a terrorist", but, "I'm a photographer and a member of the public just like you".

 

[Musicman]

What would be useful is if anyone knows of a resource to find out what is public land particularly in urban areas

Judging by the article, the management team at MediaCityUK could use one too.

'I then asked where the boundary for the private property was for MediaCityUK, so I would know where I could actually go.

'She checked for me and they did not know.'

This is part of the issue that AP are highlighting; there is often no way for a member of the public to tell whether they are in a public place or actually on private land. The design and all other clues may suggest that it is a public place, but it may be privately owned. The street is the epitome of a public place, but while they look little different to any other roads in Tower Hamlets, the roads at Canary Wharf are privately owned land. This is not uncommon in modern redevelopment schemes.

I have myself been stopped taking photographs at Potters Fields, which is a public park next to Tower Bridge, by security from the adjacent More London Estate. In that case I received a written apology from the management after a strongly worded complaint.

If even the [security] representatives of private landowners do not themselves know the boundaries of their own property, what reasonable expectation can be placed on anyone else?

If you meant where next will photographers be stopped taking photos? Well, anywhere private that doesn't want you too. There's nothing new in that, its been the case since Fox Talbot.

Of course this is part of a wider issue in society that does not just affect photographers: the privatisation of public space. This might take the form of government selling off public land. Cardiff Council actually sold entire streets in the city centre to create the St David's shopping centre; when I was living there, when the shutters on the entrances went down at 7pm, then a significant chunk of town with its pedestrian routes was sealed off from use.

In other cases, a transfer of ownership (probably via a lease) may take place as part of a public-private partnership in the name of urban regeneration which the local authority could not afford by itself. Even in those rare cases where the local authority is the single landowner, they may assume the rights of private ownership. In the United States, the First Amendment of the Constitution prohibits the state from abridging freedom of speech, which includes photography and includes all land paid for by tax payers. We have no such guarantees in the UK.

Rather less obvious has been the development of retail parks, shopping malls and mega-supermarkets, whether or not they were built on land previously in public ownership.

In Fox Talbot's day, the vast majority of shops would have been found on the local high street or at a market in a public square. Today, our high streets are suffering in competition with out of town retail parks. The High Victorians would promenade in Regents Park; today we socialise by going shopping at Bluewater or Westfield.

In the modern world, much of our erstwhile public life takes place in private places. These are the places in the 'public realm' described in AP's article. For photographers who want to reflect the society about them, that poses obvious difficulties. For the wider public, of whom photographers form a part, your use of the space is frequently determined by whether it is compatible with your role as a consumer.

The rights of landowners are not necessarily sacrosanct. Precedent exists for the modification of the rights of landowners to control access to their land and what may be done upon it with the Countryside and Right of Way Act 2000 (AKA the "Right to Roam" Act).

There is a useful examination of the whole topic from a legal and social perspective in [urlhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1646254]Shopping in the Public Realm: The Law of Place[/url] an article by Antonia Layard of the Cardiff Law School, published in the Journal of Law and Society Issue 37 in September 2010.

 

[rhody]

I'm all for the new, privately owned shopping mall developments.

The councils trade off dying inner city areas by talking to private developers who inject millions of pounds developing sites beyond the financial dreams of the Local Authorities.

With their huge resources the developers bring big names into the malls and generate new life and business into areas not achieving their potential under council control.

If the trade off for that is restricted out of hours access and permission required for commercial photo shoots on what then becomes private land, I fail to see the problem with that.

Without the private sector investment and vision none of it would exist.

A good trade off I think.

 

[Splog]

With their huge resources the developers bring big names into the malls and generate new life and business into areas not achieving their potential under council control.

Perhaps!...... But isn't that the councils job too? ..... Rather than making a few quid selling off land they don't own anyway? :shrug:

 

[Bernie174]

Smeggypants

You're mistaking pointing out the facts of life with defending. A shame you didn't bother to read what I said, instead of what you think I said.
The only exception to that, is that I would defend the right for a property owner, be that a private individual or corporation, to be decide what they will allow on their own property.
If you support the notion that you can allow who you want into your front room, but put any restriction you want on that, you aren't in a position to complain when a company or corporation does the same on their land.
The logic of your argument departs company from the real world at that point.
As for the restrictions you assume are invented by security guards, then you're wrong, they are like traffic wardens, not allowed to think for themselves, and in general only act on instructions of property owners. So generally, thats where your insults should be addressed.

Musicman

While your points are mostly valid, they only refer to right of access. Right of access isn't the same as rights while you are there. For example you have can access to a football ground (on purchase of a ticket), but once there, trying using a dslr and 400mm lens. In general, you'd not be allowed to do so.
Assuming you've not got a press pass thats because they make money from the press being there, and don't want to loose that.
There's nothing you can do about it simply because its private property, and the owner can restrict activity there. Nothing in rights to roam changes that ability on the part of the owner.
Take a photo at Heathrow, and you don't own the copyright, the BAA do. It's in their by laws.
Drive round the perimeter road of Heathrow, from Hatton Cross to the A4, and you are subject to a whole host of rules and by laws. Why? Because its private property.

 

[rhody]

Perhaps!...... But isn't that the councils job too? ..... Rather than making a few quid selling off land they don't own anyway? :shrug:

I agree that in an ideal world it would be the councils job - but they simply don't have the funds, skills or expertise to design, build, develop, market and maintain shopping malls - hence they do deals with the private sector to turn run down and neglected areas into vibrant areas once again.

The downside is that it then becomes private land with terms and conditions applied

 

[jon ryan]

The High Victorians would promenade in Regents Park; today we socialise by going shopping at Bluewater or Westfield.

Umm, many of the parks during the 18th century and into the Victorian era were `subscription walks` - limited to those who could afford to pay (Harrison's Walk in Bath, which FT would have known, was an example). Many parks which are today open to all charged an entry fee and were incredibly strict as to what activities could take place.

Plus ca change...

 

[rhody]

Right of access isn't the same as rights while you are there.

Excellent summary Bernie - says it all really.

 

[Musicman]

Right of access isn't the same as rights while you are there. For example you have can access to a football ground (on purchase of a ticket), but once there, trying using a dslr and 400mm lens. In general, you'd not be allowed to do so.

...

Nothing in rights to roam changes that ability on the part of the owner.

No, I'll grant you that right of access isn't the same as rights of use. However, if I'm entering a football ground, I've paid for a ticket, agreed to the conditions of entry and passed through a turnstile to get in. There's a clear demarcation between that which is public and that to which I have been granted access.

That is far removed from the situation we are discussing here.

BTW, 'Rights to roam' (The Countryside and Rights of Way Act 2000) states, in Section 2, that

2 Rights of public in relation to access land.

Any person is entitled by virtue of this subsection to enter and remain on any access land for the purposes of open-air recreation, if and so long as—

(a)he does so without breaking or damaging any wall, fence, hedge, stile or gate, and

(b)he observes the general restrictions in Schedule 2 and any other restrictions imposed in relation to the land under Chapter II.

The restrictions in Schedule 2 relate to activities such as committing criminal offences, interfering with livestock, affixing advertisements, obstructing watercourses, etc.

Chapter II relates to national security, conservation measures, emergencies, etc.

Neither place restrictions on photography, landscape painting or picnicking. That which is not restricted by Schedule 2 or Chapter II is permitted by Section 2, and the law does materially change the rights of landowners in this respect.

Take a photo at Heathrow, and you don't own the copyright, the BAA do. It's in their by laws.

If that's the case, I'm honestly shocked. Can you refer me to the part of the law that allows Heathrow by-laws to override the Copyright Designs and Patents Act 1988 which states that, as the author of a photograph, I hold the copyright? As far as I'm aware, a bylaw cannot trump parliamentary statute.

Nor, indeed, can I find anything in their bylaws referring to copyright.

The most relevant passage for our interests is this

Acts for which permission is required

4(8) Apparatus etc
No person shall erect or use any apparatus for transmission, receipt, recording, reproduction or amplification of sound, speech or images for commercial purposes

[emphasis added]

Upon this examination, their bylaws do not prohibit amateur photography without permission.

I suspect my photos of buses at Heathrow bus station taken in the mid-80s are fairly safely in my copyright.

 

[Musicman]

completely off-topic, but one of the other Acts which require permission at Heathrow is this

4(14) Display signs

No person shall post, distribute or display signs, advertisements, circulars or other printed or written matter for commercial purposes.

those drivers who stand at Arrivals with signs saying MR JONES could be in trouble

 

[Bernie174]

Musicman
Thanks, saved me looking for them on the internet.
Clearly, if a photo is for your own use, then copyright doesn't apply, and that would be the same whatever you were photographing. If you publish, irrespective of being an amateur, then they would own the copyright, not you. Which is what the courts have held in the casse of by laws in the past. The Copyright Act may well have quoted as a defence, I don't know, but if it was it seems that it was trumped.

As for roaming, it does not apply to an airport, nor media city.
The relevant and important part of what you quote being of course the words "Access Land"

Thats defined as:

1
Principal definitions for Part I.

(1)
In this Part “access land” means any land which—
(a)
is shown as open country on a map in conclusive form issued by the appropriate countryside body for the purposes of this Part,
(b)
is shown on such a map as registered common land,
(c)
is registered common land in any area outside Inner London for which no such map relating to registered common land has been issued,
(d)
is situated more than 600 metres above sea level in any area for which no such map relating to open country has been issued, or
(e)
is dedicated for the purposes of this Part under section 16,

but does not (in any of those cases) include excepted land or land which is treated by section 15(1) as being accessible to the public apart from this Act.

So, having disposed of that fiction, we are left with the one point you've made which is valid.
Yes, in the football ground analogy, there's a demarcation, ie turnstiles and payment. In the original point on this topic that clearly didn't apply.
So yes, I agree, its perfectly reasonable to say that you inadvertently didn't comply with any ruling, bye law, regulation or whim in force for undefined private property but once you've been made aware that there is a restriction placed by property or land owner, even if thats simply because he feels like it, thats the end of the matter.

 

[Musicman]

Clearly, if a photo is for your own use, then copyright doesn't apply, and that would be the same whatever you were photographing.

Well, I'm glad we have that established.

If you publish, irrespective of being an amateur, then they would own the copyright, not you. Which is what the courts have held in the casse of by laws in the past. The Copyright Act may well have quoted as a defence, I don't know, but if it was it seems that it was trumped.

I should still be surprised if they were able to claim ownership of your copyright even in those circumstances. They may be able to impose the due penalty for breach of their by-laws, they might even be able to obtain some financial settlement.

However, since copyright is composed of not only the right of control of distribution of works and moral rights to those works, your contention that they would own the copyright would imply that they were able to freely publish any works obtained in this manner and be entitled to the credits for those works.

As I said, I should be grateful for any references you can supply to support your position.

As for roaming, it does not apply to an airport, nor media city.
...

So, having disposed of that fiction

I am afraid you're either misunderstanding or misrepresenting my original statement. I was merely pointing out that there is precedent for the rights of landowners to control what may be done upon their land to be modified in law.

The rights of landowners are not necessarily sacrosanct. Precedent exists for the modification of the rights of landowners to control access to their land and what may be done upon it with the Countryside and Right of Way Act 2000 (AKA the "Right to Roam" Act).

which was in response to your previous statement that

If you meant where next will photographers be stopped taking photos? Well, anywhere private that doesn't want you too. There's nothing new in that, its been the case since Fox Talbot.

I never said that the Countryside and Right of Way Act 2000 applies in Heathrow or Media City. However, it is quite clear that things have changed since Fox Talbot's days, which was my point of dispute with you.

Even before Fox Talbot's days, common land was usually owned by private individuals (or, perhaps more often, bodies like the church). Commoners were entitled to particular rights, such as the grazing of animals on those lands. The rights of landowners to control what goes on on their land has never been absolute in all circumstances.

In the modern era, other statutes have removed control rights from landowners. The Town and Country Planning Act 1947 nationalised the right of development of land, ascribing it to the state and requiring land owners to seek planning permission from the state when they wanted to undertake development.

As someone who trained as an architect, with an interest in planning and how cities function, I believe there are broader social issues at stake here about how we use and interpret the public realm. I am aware of the current state of the law. Laws, however, are mutable. Should we seek to limit debate to only that which is currently permissible, rather than include that which might also be desirable?

 

[rhody]

This is a great document concerning all photographic copyright issues.

It explains the risks of taking photos on private land and then trying to make commercial gain from them.

Private use is fine - commercial use could expose you to legal action

http://www.epuk.org/ABCD-of-Copyright/173/introduction

 

[Jimmy_Lemon]

Odd. Think I have shot down at Salford Quays about 3 or 4 times, have been told once (maybe twice) by security in the multistory cappark by the lowry that you need permission, but they said that then walked off.

Got watched while taking some shots of Media City earlier this year (I think) but he didn't seem too arsed.

It is either a new thing or rocking up with a model (and I am assuming some lights) would rouse their suspicion of you being a pro.

 

[rhody]

I agree. Turning up with a model and expecting to shoot on private land is hardly a "tourist" type activity.

It's also hard to believe the images would also not be used in a commercial capacity - in a portfolio or by the model.

Photographers do have rights - but so do landowners.

It's about time there was more respect and understanding on both sides