Read this before going on holidays in the EU: a panorama of freedom of panorama
By Marie-Andrée Weiss
Article 5.3(h) of the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the “InfoSoc Directive”) gives Member States of the European Union (EU) the choice to provide or not exceptions or limitations to the reproduction and communication rights for “use of works, such as works of architecture or sculpture, made to be located permanently in public places.”
Not every Member State has chosen to implement this exception in their legal framework. While, Germany and the United Kingdom recognize it, Finland and Norway recognize it only for buildings, and Iceland recognizes it only for non-commercial use. Sweden, Greece, Italy, Belgium and France do not recognize freedom of panorama at all. The issue of whether this exception should be implemented by every Member State is currently debated in the European Union, by the Commission and the Parliament, and by several of its Member States.
Harmonization of freedom of panorama in the EU
Julia Reda, Member of the European Parliament from the Pirate Party, presented in January 2015 a draft report on the current copyright framework for the European Parliament. It recommended “adding an exception for full panorama freedom across Europe in order to “[i]mprove legal certainty of everyday activities.” Ms. Veda’s report was amended during the debates. While she had proposed an unfettered freedom of panorama across the EU, the legal affairs committee voted to adopt amendment 421 restricting it to non-commercial use of photographs, video footage or other images of works permanently located in physical public places. However, this amendment was stricken down by the (non-binding) resolution adopted by the Parliament on 9 July 2015.
The EU Commission is currently seeking to harmonize copyright in the EU, as part of its ‘Digital Single Market’ project, first unveiled in May 2015. On 23 March 2016, the European Commission launched a public consultation on neighboring rights and panorama exception in EU copyright, which seeks “views as to whether the current legislative framework on the “panorama exception” gives rise to specific problems in the context of the Digital Single Market.”
In the mean time, in the Member States…
Meanwhile, some Member States are addressing the issue in their own legal framework. On 4 April 2016, the Swedish Supreme Court ruled (English translation here) against Wikimedia Sverige, an independent nonprofit organization that supports the Wikimedia movement and hosts the Offentligkonst.se database, which features maps, descriptions and pictures of works of art in public places and is available to the public free of charge. A Swedish association representing artists in copyright matters, Bildkonst Upphovsrätt i Sverige, filed a copyright infringement suit against Wikimedia Sverige, claiming that the database could not reproduce the works without permission of the copyright holders, and won. Michelle Paulson, Wikimedia’s legal director, wrote in a blog post that “this ruling undermines the fundamental purpose of the freedom of panorama: the right for people to capture and share, online or otherwise, the beauty and art of their public spaces.”
In France, legislators are currently debating a comprehensive bill, Economie: pour une République numérique (Economy: for a digital Republic), which was presented by Axelle Lemaire, a junior minister of the French government in charge of digital issues (in France, the government can propose bills to be voted on by the legislators). The bill addresses many issues raised by the new digital economy, from Internet neutrality to online privacy and online piracy. One of the issues debated, hotly debated as a matter of fact, is whether it is judicious to add freedom of panorama to the list of exceptions to copyright infringement enumerated by Article L 122-5 of the French Intellectual Property Code.
Ms. Lemaire did not want freedom of panorama to be addressed by the bill, and had not included it in the bill, because she wanted the issue to be addressed at the EU level. However, during the debate, Representative Lionel Tardy introduced an amendment to create a freedom of panorama exception for all, even if the use of the reproduction is commercial, noting during the debates that “it is very difficult to determine where commercial use begins.” Mr. Tardy gave as example “the case of an individual who disseminates his holiday pictures on his blog: the mere fact that his blog features some advertising is sufficient to be considered commercial use of these photos.”
This argument had been made by Julia Reda as well, who had noted on her blog that without a broad exception, social media users cannot upload pictures of works in a public space protected by copyright on Facebook, as they agreed to the site’s terms of service giving permission to Facebook to use their uploaded pictures commercially.
The Representatives voted in favor Mr. Tardy’s amendment and the text of the bill that they forwarded to the Senate included an exception to copyright infringement for “representations and reproductions of sculptures and architectural works placed permanently placed in public places, which are taken by individuals for non-profit purposes.” The exception is written in such a way that there must be four cumulative conditions for the exception to take place: it is still unlawful to take a picture of a work which is not a sculpture or an architectural work, or which is only temporally placed in public place (One day? One year?), or if the picture is taken by an individual who may receive some revenue, however meager, from advertising on her blog. The Senate somewhat broadened the scope of the exception by adding non-profit-organizations as entities allowed to take advantage of the freedom of panorama exception. The debates are ongoing.
Belgium is also currently debating a bill recognizing freedom of panorama, which, if enacted, would be broader than the French bill as it would also include all works in the public space, not only sculptural and architectural works.
Public v. copyright holders?
The freedom of panorama debate seems to pit the general public against the copyright holders. Mr. Tardy argued that “the artists involved, the architects for instance, have other sources of income, much more consistent than they could from these photographic reproductions.” But several organizations representing French copyright owners have published a common position against freedom of panorama, claiming that the exception must remain strictly limited to individuals, and for non-profit use only. In the U.S., there is no per se freedom of panorama exception, but it would be generally covered (or not) by fair use and its four factors.
Maybe the EU Commission could take inspiration from Section 107 of the Copyright Act and propose a set of factors to analyze whether a particular use of the public panorama is legal or not, including the effect of the use upon the potential market and value of the copyrighted work, without even having to consider who has the right to take these pictures. It can be argued that, it most cases, the effect would be nil.