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Originally Posted by Paul mabbott  'Technically' would need to be tested in a court of law. Can they prohibit you from wearing a red hat or from flying a kite as you walk along? Perhaps but I doubt they (or any other "landowner") would try it.
Why? Because any 'offence' would be a civil one therefore the landowner would have no power to make you desist, to impound your photographs (how, on a digital camera?) and would then have to take you to a civil court (very expensive and time-consuming) and then to prove that you had taken a photograph of their land - as opposed to that you were taking pictures of something off of their property or, indeed, that you had taken any photographs at all! I suspect that, if this ever came to court, there would be a campaign to emphasise that the National Trust is exactly that - it belongs to all of us. |
bye laws are as you say a civil issue and can pretty much prohibit whatever the land owner wishes.
however the issue relating to what the 1949 act (and subsequent acts) permit has been tested in court and case law has established that all they give you is the right to freely pass and repass as stated in the act ( the only major addendum being that wheelchairs and class one and two mobility vehicles qualify as pedestrians).
doing anything else has been ruled to be an act of trespass against the landowner. The most common case being cycling on footpaths. Now of course tresspass against the landowner is also a civil dispute not a criminal one - so long as it is not agravated by the commision of another illegal act such as invasion of privacy, harrasment, or criminal damage - This ruling has been used to charge papparazzi , hunt sabateurs, cnd protesters and assorted others with agravated trespass which
is a criminal offence.
However none of this is truly germane to the issue under discussion as the key point is not about them stopping you from taking photos (as far as i know there is no intent to do this outside of stately homes) but to stop people from selling or publishing them without permission.
the footpath thing comes up only in as much as to say that persons on a footpath are still covered by the bylaws governing the land through which the right of way passes - this has also been tested in case law (though not specifically relating to photography).
Therefore although you are correct to say that they would still have to prosecute you in a civil court for breaching the byelaws (which are essentially conditions of access to their land) it would not be an automatic defence to say that you were on a PRoW ,( except in cases where the byelaw prohibits an action allowed on the PRoW , for example you cannot be prosecuted for breaking a byelaw forbidding horseriding , if you are on a public bridlepath , restricted byway, byway, or highway at the time) but it would be to demonstrate that the picture was taken from outside the property boundaries (as beyond the boundary the byelaws dont apply.)
As a point of interest the other possible route (generally speaking as this isnt someing NT have done thus far) is for a landowner to assert that he has intellectual copyright to the "image" of his building and thus any publication or sale of images of it is a breach of copyright. There is a test case currently going through the courts relating in this regard to the london gherkin. However this would not be possible for 99% of NT properties as the trust didnt design and build them. In theory it could possibly be applied to grounds , though it never has been, but there is no way to apply it to natural landscape.
( Disclaimer: I work in PRoW and am a semi pro photographer so I have a good grasp of both access and copyright law - I am not however a lawyer and i take no responsibility for any action anyone takes based on the above advice)