Updated on 09 August 2016.
Written by Helmut Masson and Sarah Watson,
Creative works, including buildings, sculptures or street art are, as a matter of principle, subject to copyright protection under EU law. However, Article 5(2)(h) of the 2001 Copyright Directive states that Member States may limit copyright for the use of such works located permanently in public places.
This exception, generally referred to as freedom of panorama , allows citizens e.g. to take photographs of public spaces and use such photographs for personal and for commercial purposes, depending how the copyright exception is defined in national law.
However, under current EU law, the freedom of panorama exception is merely optional, which means that Member States can decide to introduce them in their national law (e.g. the UK or Germany) or not (e.g. France or Italy). The exact scope of the freedom of panorama and its availability depends, therefore, on national law and, ultimately, on its interpretation by domestic courts.
The adoption on 9 July 2015 of the EP Own-initiative report on the implementation of the Copyright Directive (Procedure file: 2014/2256(INI); rapporteur, Julia Reda, Greens/EFA, Germany) gave rise to protracted negotiations concerning, inter alia, the EU legal framework relevant to the freedom of panorama exception.
On 23 March 2016, the Commission launched a public consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’ to determine the best approach to such exception. The consultation closed on 15 June 2016.
The following Keysource is a compilation of informative materials presenting the various interests and issues at stake, and the progression of proposals for amendments.
Overviews
Review of the EU Copyright Framework: Implementation, application, and effects of the “InfoSoc” Directive (2001/29/EC) / Stéphane Reynolds … [et al.], European Parliamentary Research Service Impact Assessment, PE 558.762, October 2015, 356 p.
This is a commissioned study conducted by the European Parliamentary Research Service at the request of the Committee on Legal Affairs (JURI) to evaluate proposals for amending key aspects of EU copyright legislation. It begins by examining the current legislative framework, identifying the key problem areas (p. 47 & 127) and evaluating it based on its effectiveness, efficacy, coherence, and relevance. Freedom of panorama is explicitly addressed in section 2.3.8 (p. 136), and in Table 14, Annex A: National implementation of selected copyright exceptions and limitations in a sample of Member States. (214)
Swedish Supreme Court issues decision regarding the freedom of panorama / Johan Norderyd and Elna Jönsson, Kluwer Copyright Blog, 09.05.2016.
In the case between Bildupphovsrätt i Sverige ek.för. (BUS) vs Wikimedia Sverige (Case nr Ö 849-15), Swedish authors and a company wishing to create a public database of works of fine art faced a dispute concerning copyright laws and how the word “depict” in copyright legislation should be interpreted. The Swedish Supreme Court applied the test laid out in the InfoSoc Directive, and on 4th April 2016 handed down its decision . The Court found that the intended database exploited the works of art, and failed to provide due compensation to the authors.
France
Projet de loi pour une République numérique
In June 2016, the Assemblée nationale adopted a draft law including Art. 18ter granting the freedom of panorama to private persons, but excluding all commercial use. The text has been scheduled for debate in the Sénat in September 2016.
Analysis
Report on the freedom of panorama in Europe / Plamena Popova, 2015, 29 p.
This report examines relevant legal provisions of each Member State of the European Union and Russia on the extent of their individual legislation pertaining to freedom of panorama – or more specifically regarding permanent copyrighted works in public places. The author then compiles the data in a table, and conducts a comparative analysis.
Panoramafreiheit in Europa / Susanne Janetzki und John Weitzmann, 2014, 35 p.
Die Autoren untersuchen die Rechtslage zur Panoramafreiheit in der EU und den Mitgliedsstaaten, sowie in Norwegen, der Schweiz und Island. Der allgemeinen Übersicht folgen eine Auflistung der Länder, sortiert nach Reichweite der Panoramafreiheit, und der dazu gehörigen Problemstellungen, sowie mögliche Lösungsvorschläge.
Freedom of panorama: what copyright for public art and architectural works ? / Lilla Montagnani, Kluwer Copyright Blog, 12/07/2015.
This blog post begins by highlighting the growing debate surrounding what forms of copyright can be applied to subject material. It also examines the key tensions between public art and architectural works, which are then displayed in four characterizations of conflict types. It concludes with comments pertaining to the proposed amendments to the EU InfoSoc Directive, and expresses a need for greater, more in depth research into public interest underpinning public art and architectural works.
Freedom of Expression and Right to Privacy in the European Union: The Right to Photograph Private Properties / Alifia Qonita Sudharto, Indonesian Journal of International Law, July 2014, Vol. 11, Issue 4, pp. 25 p.
This piece explores the growing tensions between balancing the right to privacy, and freedom of expression that have surrounded the recent production and progression of the implementation of European Union copyright law. The author begins with an analysis of these two rights as laid out in the Charter of Fundamental Rights of the European Union, then critically analyses the 2001 Copyright Directive, particularly the power it gives to Member States regarding the regulation of Freedom of Panorama in their own jurisdiction and its juxtaposition with certain fundamental rights.
The EU Public Interest Clinic and Wikimedia Present: Extending Freedom of Panorama in Europe / Joshua Lobert [et. al.] HEC Paris Research Paper No. LAW-2015-1092, April 2015, 26 p.
This proposal advocates for the adoption of freedom of panorama at the EU level, creating harmonization throughout all Member States. It examines the benefits and drawbacks of drafting an EU freedom of panorama exception. It submits ultimately that this would not only benefit consumers and service providers alike, but also the general public interest and freedom of expression.
Freedom of Panorama: A Comparative Look at International Restrictions on Public Photography / Bryce Clayton Newell, Creighton Law Review, 2011, Vol. 44, p. 405-428
Although directed primarily towards restrictions on Freedom of Panorama in the United States, this piece addresses some of the key debates surrounding this phenomenon, as well as provides a comparative analysis of cross national approaches from the UK, the EU and Brazil. He concludes by voicing concerns pertaining to the direction freedom of panorama is taking, and how some laws restricting public photography for the sake of national security may be arbitrarily infringing on the public’s right to freedom of panorama.
Stakeholder views
Copyright Reform: Working Document / European Parliament, Working Group on Intellectual Property Rights and Copyright Reform, 17/05/2016, 29 p.
This report was compiled by a Working Group that was established by the European Parliament in order to examine various issues in EU legislation regarding intellectual property rights – including freedom of panorama. It was presented with and considered the viewpoints of multiple stakeholders, including Wikimedia, the European Visual Artists Organization (EVA), architects, academics, and the Federation of European Professional photographers (FEP). It concludes that the exception to freedom of panorama is increasingly central to the modern digital era, and thus in need of attention.
Freedom of panorama: a political “selfie” in Brussels / Anne-Catherine Lorrain and Julia Reda, European Intellectual Property Review, 2015, Vol. 37, Issue 12, p. 753-755.
Julia Reda, MEP representing the German Pirate Party and rapporteur of the recent InfoSoc Report is a strong advocate/activist for the liberalization of the freedom of panorama, but also copyright legislation in general. This piece is a synopsis of the recent progression that Freedom of Panorama has had through copyright law and describes the discussions during the elaboration of the InfoSoc Report. It analyses the current proposed legislation and holds that there needs to be a European standard which is applicable across all Member States. For further information on her views click here .
Public consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’ / European Commission.
On March 23, 2016 the Commission launched a public consultation so as to determine views on whether the current legislative framework surrounding freedom of panorama will potentially create specific problems with the Digital Single Market. The consultation ran until 15 June 2016.
Wikimedia Commons: Freedom of panorama, EU policy/Strategy/FoP/Argumentation and Panoramafreiheit (in German) / Wikimedia Foundation.
The Wikimedia Foundation is a stakeholder actively engaged in defending the freedom of panorama. The above web pages sum up the current debate and provide a number of references for further reading.
Exceptions for Works Permanently Located in Public Places / European Visual Artists (EVA), 13/04/2015, 7 p.
This article advocates on behalf of artists, architects and sculptors who are at risk of exploitation should the current exceptions surrounding freedom of panorama be maintained. Furthermore, it submits that the proposed legislation for harmonization at the lowest level would unduly prejudice visual authors, and cautions its pursuit.
The Panorama Exception: Why you should confirm the JURI report / European Visual Artists (EVA) and Authors’ Societies (GESAC), 26/06/2015, 4 p.
This brochure was published jointly by EVA and GESAC who represent the interests of artists and creators. It briefly answers some crucial questions that citizens may have surrounding the current copyright debate, and believes ultimately that there is no substantial indication for the need for further harmonization of EU Member State copyright legislation.
France
On the ongoing debate in France:
La liberté de panorama encadrée sur le web / Hubert d’Erceville, Le Moniteur des Travaux Publics et du Bâtiment, 20.05.2016 (full article only available within the EP).
Le droit d’auteur est-il soluble dans l’exception de panorama? / Marie-Anne Ferry-Fall, ADGP, 11/04/2016.
Liberté de panorama : le Sénat persiste dans l’erreur et signe ! / Wikimedia, 28.04.2016.
