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The General Data Protection Regulation (GDPR) and the Way Forward

By Nikolaos Theodorakis

The General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679) was introduced in April 2016 with the intention of strengthening and unifying data protection for individuals within the European Union (EU). It will enter into force in 2018, replacing the outdated data protection directive of 1995. The GDPR is intended to make citizens masters of their personal data, and to simplify the regulatory environment for international businesses. Personal data may range from a name, to a photo, email address, bank details, or a computer’s IP address.

The regulation applies to data controllers, data processors, and data subjects that are based in the EU. It provides for harmonization of data protection regulations throughout the EU and includes a strict data protection compliance regime with severe penalties of up to 4% of global turnover. The proposed EU data protection regime also extends the scope of the EU data protection law to foreign companies that process data of EU residents. The regulation does not extend to the processing of personal data for national security activities or law enforcement, however.

In implementing the GDPR, each member state will establish an independent Supervisory Authority (SA) to hear and investigate complaints, sanction administrative offences, etc. SAs will cooperate to provide mutual assistance and organize joint operations. For businesses that operate in multiple Member States, a business will have a single SA as its “lead authority” based on the location of its headquarters. The lead authority will act as a “one-stop shop” to supervise all processing activities throughout the EU. A European Data Protection Board will coordinate accordingly.

The notice requirements of the prior directive are expanded by the GDPR. Citizens’ automated individual decision-making include profiling, whereas citizens now have the right to question and fight decisions that affect them that have been made on an algorithmic basis. A Data Protection Officer is also given the duty of administering the Regulation.

As for data beaches, the independent Data Protection Officer (DPO) has the legal obligation to notify the Supervisory Authority without undue delay. There is no de minimis standard, and it is likely the GDPR will require that such breaches be reported as soon as possible. In the case of a data breach, the following sanctions may be applicable: a warning in writing in cases of first and unintentional non-compliance; a regular periodic data protection audit; a fine up to 10 million EUR or up to 2% of the annual worldwide turnover of the preceding financial year in case of an enterprise; or a fine up to 20 million EUR or up to 4% of the annual worldwide turnover of the preceding financial year.

The right to erasure replaces the right to be forgotten, and will be somewhat more limited in its scope. Under this right, the data subject has the right to request erasure of personal data related to him on a number of grounds, and if the interests or fundamental rights and freedoms of the data subject override the legitimate interests of the controller.

Data portability recognizes that a person shall be able to transfer their personal data from one electronic processing system to another, without being prevented by the data controller. The data must be provided by the controller in a structured and commonly used electronic format.

 

The way forward

The proposal has given rise to much discussion and controversy. Thousands of amendments were proposed and GDPR has attracted considerable criticism.

First, the Data Protection Officer is a new concept that several EU countries did not have before. It has been criticized for creating an administrative burden. The GDPR has also been criticised for not sufficiently considering requirements for handling employee data.

Data portability is also not seen as a key aspect for data protection, but rather as a functional requirement for social networks and cloud providers. Language problems may occur here, since there is not a single DPA that can be contacted, but rather the DPA that a company chooses.

In any event, the GDPR must be examined vis-à-vis the EU-US Privacy Shield that has aimed to replace the Safe Harbor agreement and has still attracted considerable criticism.

It remains to be seen how the GDPR will be implemented in practice since it requires comprehensive changes of business practices for companies that had not implemented a comparable level of privacy before the regulation entered into force. Naturally, the European Commission and DPAs will have to provide sufficient resources to enforce the implementation and a certain level of data protection must be agreed to by all European DPAs.

The road to the future of European traffic: European Commission publishes strategy on Cooperative Intelligent Transport Systems

By Martin Miernicki

On 30 November 2016, the Commission published the Communication COM(2016) 766 on Cooperative Intelligent Transport Systems (C-ITS). C-ITS involve the cooperation, connectivity, and automation of vehicles, and they enable the communication between — and the coordination of — road users and traffic infrastructure. The additional information provided by C-ITS assists drivers and traffic managers in decision-making, especially with regard to road safety and traffic efficiency.

 

Background

The promotion and regulation of C-ITS is part of the Commission’s larger policy focus on emerging technologies. Related activities include the Digital Single Market Strategy, the Digitising European Industry Strategy, and the European Strategy for Low-Emission Mobility. In 2014, the Commission created the C-ITS platform in order to address remaining problems in connection with the application of this technology. The platform published an expert report in early 2016, which resulted in the C-ITS communication. The need for a common European strategy on C-ITS was further expressed by the European transport ministers in the 2016 Declaration of Amsterdam.

 

Core aspects of the communication

The communication highlights multiple advantages associated with the use of C-ITS, like increased road safety, reduced emissions of greenhouse gases and air pollutants, more efficient traffic, and positive effects on the European economy overall through the creation of new jobs in the sector. However, several problems must be addressed before C-ITS can be fully deployed.

  • Security of C-ITS communication

The use of C-ITS makes transport systems more vulnerable to hacking and cyber-attacks. For this reason, the Commission proposes to develop a common security and certificate policy in order to ensure that C-ITS adequately respond to security threats. This process should involve all relevant stakeholders (e.g. public authorities, vehicle manufacturers, etc.).

  • Data protection and privacy

The Commission underscores that the data transmitted by C-ITS can qualify as personal data, which are subject to the European rules on data protection. The Commission believes that the protection of such data is crucial to the acceptance of C-ITS by end-users.

  • Communication technologies & interoperability

The strategy focuses on a “hybrid communication approach” which combines different complementary communication technologies, rather than proposing a single technical solution for C-ITS. In the Commission’s opinion, the most promising communication mix is a combination of ETSI ITS-G5 and existing cellular networks. Furthermore, the Commission emphasizes the need to ensure the interoperability of C-ITS by the development of an EU-wide standardization process. In this connection, the C-Roads platform was launched in 2016.

 

Further action

The overall aim is to deploy C-ITS in 2019. For this purpose, the Commission announced plans to publish guidance regarding the C-ITS related security and certificate policy in 2017 and regarding data protection in the following year. In order to create the necessary legal framework for C-ITS, the Commission will adopt delegated acts by 2018, especially considering the ITS Directive.

European Commission publishes a preliminary report on the e-commerce sector inquiry

By Nikolaos Theodorakis

On 6 May 2015, the European Commission launched a sector inquiry into e-commerce within the context of the Digital Single Market strategy, and in connection with Article 17 of Regulation 1/2003. In March 2016, the Commission published its initial findings on geo-blocking, which refers to business practices whereby retailers and service providers prevent the smooth access of consumers to the digital single market. In doing so, geo-blocking usually has three dimensions: (i) it prevents a consumer from accessing a website because of his IP address; (ii) it allows the consumer to add an item to his online shopping basket, but it cannot be shipped to his location and (iii) it redirects the consumer to another local website to complete his order.

As part of the sector inquiry, the Commission requested information from various actors in e-commerce throughout the EU, both related to online sales of consumer goods (e.g. electronics and clothing) as well as the online distribution of digital content. For that purpose, the Commission gathered evidence from nearly 1,800 companies operating in e-commerce and analyzed around 8,000 distribution contracts. The inquiry wished to look into the main market trends and gather evidence on potential barriers to competition linked to the growth of e-commerce.

E-commerce has been growing rapidly over the past years, and the EU is the largest e-commerce market in the world. As a result, any barrier in online trade may have severe consequences and distort healthy competition. In September 2016, the Commission published a preliminary report with certain findings. It identified issues arising from distribution agreements, which pertain to trade in goods, and licensing agreements, which pertain to trade in services.

 

Issues arising from distribution agreements

Distribution agreements may create geo-blocking restrictions, both from the manufacturers’ and the retailers’ side.

Manufacturers have adjusted to the increasing popularity of e-commerce by adopting a number of business practices that help them control the distribution of their products and the positioning in the market. These practices are not by default illegitimate, however under specific conditions, they can be.

For instance, manufacturers use selective distribution systems in which products can only be sold by pre-selected authorized sellers online. They also use contractual sales restrictions that may make cross-border shopping or online shopping more difficult and ultimately harm consumers since they prevent them from benefiting from greater choice of products and lower prices. The reasoning behind selective distribution systems is to control the quality of the product and safeguard brand consistency. This, nonetheless could classify as a vertical restraint and could be considered discordant with the principles of EU competition law.

Retailers use geo-blocking to restrict cross-border sales. Several retailers collect data on the location of their customers with a view to applying geo-blocking measures. This most commonly takes the form of refusal to deliver and refusal to accept payment from cards issued in other countries.

 

Issues arising from licensing agreements

With respect to digital content, the availability of licenses from the holders of copyrights in content is essential for digital content providers and a key determinant of competition in the market. The Preliminary Report finds that copyright licensing agreements can be complex and exclusive. The agreements provide for the territories, technologies and digital content that providers can use. As such, the Commission is expected to assess on a case-by-case basis whether certain licensing practices are unaccounted for and restrict competition.

In fact, one of the key determinants of competition in digital content markets is the scope of licensing agreements that determine online transmission. These agreements, between sellers of rights, use complicated definitions to define the reach of the service, creating differences in technological, temporal and territorial level. These contractual restrictions are practically the norm, whereas access to exclusive content increases the attractiveness of the offer of digital content providers.

A striking 70% of digital content providers restrict access to their digital content for users from other EU Member States. Further, the 60% of digital content providers are contractually required by rightsholders to geo-block. This practice is more prevalent in agreements for films, sports and TV series. Licensing agreements enable rightsholders to monitor that content providers comply with territorial restrictions, otherwise they ask for compensation. These agreements usually have a very long duration and they may make it more difficult for new online business services to emerge and try to win a stake in the market.

Additional questions arise when online rights are sold exclusively on a per Member State basis, or bundled with rights in other transmission technologies and then are not used. This might signal a semi perfect price discrimination policy depending on how much money each Member State is willing to pay, and a consequent further balkanization of the digital single market.

 

Next Steps

After publishing the preliminary report, the Commission is soliciting views and comments of interested stakeholders until 18 November 2016. The final report of the sector inquiry is expected in the first quarter of 2017. As a follow-up to the sector inquiry, the Commission may further explore if certain practices are compatibility with the EU competition rules and launch investigations against specific distributors and/or resellers on matters of both goods and digital content.

Finally, the results of the sector inquiry provide useful information for the debate on Commission initiatives relating to copyright and the proposed geo-blocking regulation.

New EU-U.S. privacy shield in force

By Maria Sturm

On 12 July 2016, the European Commission issued its implementing decision pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-U.S. Privacy Shield (Decision 2016/1250).  This action became necessary after the ECJ declared the Safe Harbor policy of the EU commission concerning the USA invalid in the Schrems case.

 

Maximilian Schrems v Data Protection Commission (C – 362/14)

In this case, the ECJ held that the “Commission Decision (…) of 26 July 2000 pursuant to Directive 95/46/EC  on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce” (Decision 2000/520) is invalid.

Art. 25 (1) of the Directive prohibits transfers of personal data to third countries that do not ensure an adequate level of protection for that data. The EU Commission declared in its Decision 2000/520, binding on the EU Member States according to Art. 288 (4) TFEU, that U.S. companies ensure such an adequate level if they comply with the principles set out in the decision.

However, the ECJ found, that no adequate level of protection was given, due to several reasons: first, U.S. public authorities were not required to comply with the principles. Second, only the adequacy of the level of protection was dealt with in Decision 2000/520, but not the measures by which the United States ensures an adequate level of protection.. Third, according to Decision 2000/520 there were to many exceptions since “national security, public interest and law enforcement requirements” had supremacy over the safe harbor principles. Fourth, the derogation rules were too general, as neither the sensitivity of the information nor the consequences for the persons affected were taken into account. Fifth, in the U.S., there were no rules limiting interference with the fundamental rights of the persons whose data is transferred from the EU. Finally, the efficacy of the legal protections were questioned, as the only enforcement measures which were possible were those before the FTC—which are limited to commercial disputes.

 

The new privacy shield

In response to this criticism, the new decision contains the following alterations:

First, more effective supervision mechanisms have been introduced to ensure that companies follow the rules. In particular, the Department of Commerce has been given stronger oversight authority and is tasked with regularly reviewing the participating companies. Second, U.S. authorities will have more limited access to personal data. There will no longer be indiscriminate mass surveillance, and persons affected by data access through U.S. authorities can now bring complaints to an independent Ombudsperson within the Department of State. Third, there are now several different redress possibilities for individuals: individuals can complain directly to the company, which is obliged to reply within 45 days; individuals can participate in alternative dispute resolution (ADR), free of charge for the individual; or individuals can lodge complains with the data protection authority in his/her home country that works together with the U.S. Department of Commerce and the Federal Trade Commission (FTC). Individuals can also contact the U.S. Department of Commerce or the FTC directly, and, as last resort, a new privacy shield panel has been created which will ensure that there are enforceable decisions. Finally, the adequacy of these provisions will be reviewed on a regular basis to make sure that data are protected even under changing circumstances.

The EU Commission and the U.S. government showed sincere interest in fulfilling the ECJ’s requirements, but only a new challenge to this privacy protection shield will show if Privacy Shield is sufficient under EU law. It will be interesting to watch to see which measures the Commission will take after its annual decision review in 2017.

Joint report on competition law and Big Data, and the Facebook investigation

By Gabriele Accardo

On 10 May 2016, French and German Competition Authorities published their joint report on competition law and Big Data. Separately, the French Competition Authority announced the launch of a full-blown sector inquiry into data-related markets and strategies.

The joint report provides an overview of how the two authorities would look at relevant competition issues raised by the collection and commercial use of data, in particular the assessment of data as a factor in establishing market power

Interestingly, the authorities make reference to established antitrust principles (e.g. data as a barrier to entry, or use of data in exclusionary or exploitative abuses), and not to new theories to look at such issues. In fact, a number of past cases illustrates how competition authorities have analyzed the “data advantage” in “non-digital” markets, and provides useful guidance on which issues the authorities are likely to focus on in future cases.

While it is noted that there are several possible “data-based” conducts, whether exclusionary or exploitative, which may lead, depending on the circumstances, to enforcement action, however, the theories of harm underlying the prohibition of such conducts are premised, mainly, on the capacity for a firm to derive and sustain market power from data unmatched by competitors. Yet, before concluding whether a company’s “data advantage” has created or strengthened market power, enforcers should undertake case-specific assessments on whether data is scarce or easily replicable, and whether the scale and scope of data collection matters.

Two considerations are worth singling out.

First, the two authorities recall that refusal to access to data can be anticompetitive if the data is an essential facility to the activity of the undertaking asking for access. Based on existing EU case law, compulsory access to essential facilities can be granted only in exceptional circumstances as even a dominant company cannot, in principle, be obliged to promote its competitors’ business. In this context it is further noted that access to company’s data may raise privacy concerns as forced sharing of user data could violate privacy laws if company exchange data without asking for consumer’s consent before sharing their personal information with third companies with whom the consumer has no relationship.

Secondly, with specific regard to privacy concerns, it is recalled that under EU case law, any issues relating to the sensitivity of personal data are not, as such, a matter for competition law, but may be resolved on the basis of the relevant provisions governing data protection. Still, according to the two authorities, Decisions taken by an undertaking regarding the collection and use of personal data can have parallel implications on economic and competition dimensions. Therefore, privacy policies could be considered from a competition standpoint whenever these policies are liable to affect competition, notably when they are implemented by a dominant undertaking for which data serves as a main input of its products or services. In such instances, there may be a close link between the dominance of the company, its data collection processes and competition on the relevant markets, which could justify the consideration of privacy policies and regulations in competition proceedings.

For instance, looking at excessive trading conditions, especially terms and conditions which are imposed on consumers in order to use a service or product, data privacy regulations might be a useful benchmark to assess an exploitative conduct.

Facebook investigation in Germany

The presence of excessive trading conditions is the underlying theory of harm for the investigation launched by Germany’s Federal Cartel Office (FCO) Bundeskartellamt into Facebook to assess whether it has abused its dominant position in the market for social networks through its specific terms of service on the use of user data. In particular, the FCO will assess whether Facebook’s position allows it to impose contractual terms that would otherwise not be accepted by its users.

Andreas Mundt, President of the FCO, stated that dominant companies are subject to special obligations, including the use of adequate terms of service as far as these are relevant to the market. For internet services that are financed by advertisements such as Facebook, user data is very important. For this reason, it is essential to also examine the abuse of market power and whether consumers are sufficiently informed about the type and extent of data collected.

In order to access the social network, users must first agree to the company’s collection and use of their data by accepting the terms of service. It is difficult for users to understand and assess the scope of the agreement accepted by them. According to the FCO, there is considerable doubt as to the admissibility of this procedure, in particular under applicable national data protection law. If there is a connection between such an infringement and market dominance, this could also constitute an abusive practice under competition law.

The FCO is conducting the proceeding closely with the competent data protection officers, consumer protection associations as well as the European Commission and the competition authorities of other EU Member States.

EU trademark law reform enters into force

By Martin Miernicki

The adoption of Regulation (EU) 2015/2424 in December 2015 concluded a comprehensive reform process regarding trademark protection in the European Union. Most importantly, the regulation extensively amends Council Regulation (EC) No 207/2009 on the Community trade mark. On 23 March, important parts of the reform entered into force.[1] At the same time, Directive (EU) 2015/2436 was adopted, which establishes a new framework for the harmonization of national trademark laws.

Important changes to Council Regulation (EC) No 207/2009

Terminology: Throughout the entire regulation, the term (European) Community is replaced by (European) Union so that, most prominently, the trademarks granted under Regulation No 207/2009 are called “European Union trade marks” (EU trade marks) from now on. Moreover, the Office for Harmonisation in the Internal Market is renamed to European Union Intellectual Property Office – Article 2 [hereinafter: EUIPO].  Further terminological adaptions were made in addition.

Subject matter of trademark protection (effective as of 2017): It is no longer a requirement that EU trade marks be capable of being represented graphically. Instead, prospective trademarks must be capable of i) distinguishing goods and services of one undertaking from another; ii) “being represented on the Register of European Union trade marks […] in a manner which enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor.” – Article 4. The second criterion was newly introduced by the reform. Furthermore, sounds and colors are now explicitly mentioned in Article 4.

Application & registration procedure: All applications must be filed with the EUIPO; it is not possible anymore to file such applications with national offices – Article 25(1); the fee structure is changed to a “one-class-per-fee-system”, meaning that fees are payable for single classes of goods and services rather than for multiple classes – Article 26(2). The EUIPO highlights that the fee for one single class will be lower, the same for two classes and higher for more than two classes than prior to the reform.[2] Moreover, renewal fees are reduced. Furthermore, trademark applications must be made in accordance with the Nice Classification established by the Nice Agreement as well as the standards of clarity and precisions – Article 28. As regards the registration procedure, the search report is no longer mandatory – Article 38.

Exclusive rights: The existence of rights acquired prior to the filing date is expressly acknowledged – Article 9(1). Furthermore, EU trade marks confer – in cases where goods from third countries bear identical or not distinguishable signs – the right to prevent third parties from bringing such goods into the Union, even if they are not intended to be released to the European market, unless it is proved that the exclusive rights would not be enforceable in the country of final destination – Art 9(4) (goods in transit).

Limitations to exclusive rights: Amongst other changes, it is specified that (only) a natural person cannot be enjoined from using his or her name in the course of trade on the basis of an EU trade mark – Article 12.

Certification marks (effective as of 2017): A new chapter – Articles 74a-74k – is introduced which provides for a new type of EU trade mark, the EU Certification mark. Such trademarks are capable of distinguishing goods and services which are certified by the owner in respect of material, mode of manufacture etc. from goods and services where this is not the case.

Numerous further amendments were made and include changes to the absolute and negative grounds for refusal (Article 7, 8), the new intervening right which provides for a defense in infringement proceedings (Article 13a) and many administrative and procedural adaptions.

 

Impact of the reform

The reform modernizes the trademark framework and adapts it in many respects to what had been common practice or established case law. However, novelties introduced by Regulation (EU) 2015/2424 such as the intervening right or the rules regarding goods in transit should be kept in mind. The terminological changes lack substantive content, but underline the development from the European Communities to the European Union as a consequence of the Treaty of Lisbon.  As regards the harmonization of national trademark law, one will be able to assess the broader impact of Directive (EU) 2015/2436 on the respective national statutes once transposition is completed, a task for which members states are given several years. The previous directive is repealed as of January 2019.

[1] A number of rules will enter into force in October 2017.

[2] The applicable fees are listed in Annex I of the regulation.

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.