From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Friday, 26 June 2015

Freedom of panorama: what is going on at the EU level?

Freedom of panorama in Europe
(red is no-no countries)
As IPKat readers will be well aware of, debate is currently being undertaken at the EU level as regards possible reforms of the legislative framework in the area of copyright.

Both the Commission [here] and the Parliament [here] are involved in this process. With particular regard to the latter, a few days ago the Legal Committee of the European Parliament voted on an amended version of the draft Report prepared by MEP and Pirate Party member Julia Reda on the implementation of the InfoSoc Directive

Whilst the final vote in the plenary of the Parliament is due to take place in early July, among the amendments made to the original draft Report (and approved by the Legal Committee), there is one that concerns what is perhaps a little-known area of copyright which nonetheless is attracting a good deal of attention even outside traditional IP-focused media outlets, eg The Times, The Telegraph, and Forbes, and is at the centre of an ongoing campaign organised by Wikimedia

It is the so called freedom of panorama, which of course has its roots in a beloved piece of EU legislation, the InfoSoc Directive, more specifically its Article 5(3(h). This provision allows Member States to introduce into their own national copyright laws an exception to the rights of reproduction, communication/making available to the public and distribution to allow "use of works, such as works of architecture or sculpture, made to be located permanently in public places". 

Member States have such an exception [it is s62 of the Copyright, Designs and Patents Act 1988], but other Member States, eg France [check out the now famous example of  pictures of the Tour Eiffel taken at day time as opposed to night time here], and this Kat's native land (Italy), decided not to implement such exception into their own national legal systems [see this helpful freedom of panorama map here].

While this is perfectly possible under the InfoSoc Directive because all exceptions and limitations in Article 5 [with the sole exclusion of the exemption for temporary copies in Article 5(1)] are optional for Member States to adopt, the relevant amendment to the Reda Report on this very point and which was approved by the Legal Committee appears a bit puzzling.

Is lack of freedom of panorama
an extra-source of frustration
on top of the impossibility for Kats
to make a duckface?
The original version of the Report contained a recommendation that - similarly to a number of other exceptions and limitations in Article 5 - freedom of panorama be made mandatory (rather than merely optional) for Member States to implement into their own legal regimes. 

The amended version of the Report, which has received the approval of the Legal Committee, currently includes a recommendation that "the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorisation from the authors or any proxy acting for them".

Besides noting that it is usually the relevant copyright owner(s), rather than the author(s), who is actually empowered to authorise certain uses of a work and thus grant licences, what does this mean?

Possibly not just that the approach to freedom of panorama at the level of the European Parliament may now appear rather different, but also that to translate this proposal to reality, then the InfoSoc Directive should be amended first.

But is this something likely to happen? Debate around reform of this piece of EU legislation has gone on forever a while. Despite hints from the Commission itself in the past [a review of the directive had been announced in the 2011 IPR blueprint as something due to take place in 2012 ... but nothing happened in the end], this does not currently appear to be something that will feature in the policy agenda any time soon. 

The Digital Single Market (DSM) Strategy in fact does not contain much copyright-wise, and at the moment the only possible intervention in the realm of the InfoSoc Directive appears to be text and data mining. 

Even lacking EU freedom of panorama,
Stonehenge would possibly remain out-of-copyright 
However, let's imagine that the approach now included in the amended Reda Report was to become law at the level of all EU Member States. What would that imply?

From a legal standpoint, to give effect to the recommendation approved by the Legal Committee it would be necessary to amend Article 5 of the InfoSoc Directive. The possible outcome of all this could be that freedom of panorama would become only possible for non-commercial reasons, while text and data mining – at least considering the intention expressed in the DSM Strategy - is likely to become possible for commercial and non-commercial reasons alike. Would this double-standard approach make sense?

From a practical standpoint, for instance, if you went to Milan and wished to take a photograph of Maurizio Cattelan'L.O.V.E. scultpure [Merpel bets that only a few people would miss such an opportunity], due to remain permanently located in Piazza Affari just outside the Italian Stock Exchange, then you would have to make sure to use your work - no matter whether selfie or other type of photograph - only for non-commercial purposes or only after obtaining a licence. 

What "non-commercial" means has proved controversial to define. If you uploaded the photograph you took of your mamma with L.O.V.E. in the background on Facebook, your use would be probably non-commercial. However, Facebook Terms of Service state that "you grant [Facebook] a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook". Does this means that you should also make sure that Facebook does not use your photograph for commercial reasons then?

Let's now wait to see what happens in the Parliament plenary and, above all, whether the Commission tables any proposals re a reform of freedom of panorama. Merpel again would bet that nothing of this sort would happen, which would be good news for selfie & other types of photographs aficionados. But of course you never know ...


Andy said...

"Member States like the UK took advantage of this exception under EU law"
This statement perhaps gives the misleading impression that prior to the InfoSoc directive, the UK did not acknowledge the Freedom of Panorama concept. In fact, as far back as the 1911 Copyright Act (s2 (iii)), the making and publishing of paintings, drawings and photographs of sculptures situated in a public place, and "any architectual work of art", were specifically listed as not being infringing acts.

Federico said...

Thanks. I do hope that the Commission will not ignore the huge cross-border problems caused by the lack of freedom of panorama, unlikely as it might be for the Cavada proposal to have a followup.

In general, it's very troubling to see how little insight legislators have on the "commercial" or "non commercial" clauses.

TreatyNotifier said...

Eleonora, I wonder what the bearing of the Deckmyn judgement is on the wikimedia map shown. Should those (Denmark, Finland, Lithuania, Croatia) that according to that map implemented the exception only with regards to architecture (and not other art forms) be considered to also have allowed other art because of the uniform interpretation of the exception as suggested by Deskmen?

Tom Ang said...

Lack of clarity regarding whether a use of a photograph is 'commercial' or 'non-commercial' leaves initiative in the hands of buildings' owners and leaves photographers nervous because of the uncertainty. Status of the image is also changeable. For example, an image made by an amateur for personal use may be entered into an amateur competition. If it wins a cash prize, is that use commercial?

It may prove counter-productive in the long run. Professional photographers are being discouraged from photographing what is already a long list of subjects (see and passim) with the consequence that these sites will not feature in stock imagery which could have been used to promote visitors to these sites. With any luck, rights owners in buildings will realise that they will lose more than they hope to gain if they remove freedom of panorama.

Roufousse T. Fairfly said...

I see a chilling effect of such a directive on news reporting.

Imagine a journalist investigating an illegal landfill, an overcrowded hog farm or leaks at a nuclear waste processing plant. The owners don't give interviews and won't let a camera team onto their premises. Now they would have a golden excuse to prevent even outside views of their facilities. Our pigsty is an original and protected work of art!

Certain kooks in funny "navy" uniforms who love to squeeze Campbell soup cans could give a lesson or two in the creative use of existing copyright laws for shutting up critics.

An illustration: German media reported late 2013 on foreign spying.

A TV crew took thermal and aerial pictures of the US installations in the country, as well as the fence of the GCHQ antenna farm in Cornwall. (Is the panorama of the US Embassy in Berlin shown in the preview protected under US or German law? What about the use of infrared spectrum? If there are several landmarks or art pieces in sight, must you get permission from each and every owner? When Google photographed the façades of every building in Germany, tens of thousands of residents and owners applied to have their own area masked.)

Does "prior authorisation" in the Cavada amendment means prior to filming/photographing or prior to use? The men in blue could at last have a "legitimate" reason to get out their truncheons, instead of simply "questioning" the journalists as in the above excerpts...

That a former broadcaster belonging to the "liberal" faction puts forward such a wording by is somewhat odd, IMO.

I used to consider the Pirates as utterly useless, especially because of their juvenile infighting. My opinion might change.

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