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Thursday, 9 July 2015

EU Parliament rejects restrictions on freedom of panorama and ancillary right over news content

Commissioner Oettinger was very active
 on Twitter this morning ...
This morning the plenary of the European Parliament voted on the draft Report on the implementation of the InfoSoc Directive, as originally drafted [here] by MEP and Pirate Party member Julia Reda and as approved (with amendments) [here] by the Legal Committee a few days ago.

By 445 votes to 65 (with 32 abstentions), the Parliament adopted a non-binding resolution [UPDATE on 10/7/2015 at 11:14 am GMT: the text of the resolution is available herewhich assesses the implementation of the key aspects of this EU directive ahead of upcoming Commission plans [here] to update the relevant legislative framework in the area of copyright.

Whilst the consolidated version of the Report as passed by the Parliament is yet to be made available, it would appear that this morning's vote was mostly remarkable for two distinct aspects.

Freedom of panorama not to be restricted

First, the plenary removed the proposal by MEP Jean-Marie Cavada to restrict the scope of freedom of panorama [here and here], as currently envisaged in Article 5(3)(h) of the InfoSoc Directive. 

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". 

... Tweeting about freedom of panorama
In her original draft Report, Ms Reda had proposed that this optional exception [Member States like Italy and France do not currently envisage it] be made mandatory for Member States to have into their own legal regimes. 

The version passed by the Legal Committee however contained 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".

This morning the Parliament removed such proposal to restrict freedom of panorama. Moreover EU Commissioner Günther Oettinger clarified that the EU would not limit freedom of panorama, so that "[p]eople can take pictures of whatever they see in public places." Wait a second: does this mean that the Commission intends to table proposals to amend the InfoSoc Directive, particularly its optional system of exceptions and limitations in Article 5 thereof? Who knows ...

No EU-wide ancillary right over news content

The second major news of the morning was that the Parliament also rejected proposals from a number of German MEPs to introduce an EU-wide ancillary right over news content. 

Whilst readers may remember that not long time ago this idea appeared to meet the favour of Commissioner Goettinger himself [here and here], they will also remember that initiatives of this kind have been adopted in Germany [here, here,and here] and Spain [here, here, and here].

... And forthcoming EU copyright reform
(details of how yet to be defined though)
Now it would appear that the idea of creative an EU-wide right over news content may not be that likely to happen in the immediate future, possibly also on consideration of the criticisms expressed even by the beneficiaries of the relevant levies at the German and Spanish levels.

And now?


As mentioned, the resolution adopted by the Parliament is not a binding one.

Arguably the ball is now back [but had it ever left it, wonders Merpel] in the Commission's court. This means that we have probably just to wait and see whether and how the Commission intends to reform copyright. 

When will this be? Again, who knows. But possibly sometime after the summer break.

4 comments:

Anonymous said...

Oettinger's comments on freedom of panorama seem to suggest he thinks the provision has been implemented by all member states. In today's debate he said something like: "We (i.e. the Commission) think the principle should be that a free Europe should also involve the freedom to take photographs of monuments and buildings. This should not be limited. I just want to calm you down on that subject, there is no plan here." So he thinks everyone should have the freedom to take photographs of monuments and buildings, while in fact this is not currently the case in Belgium, France and Italy. Yet at the same time he mentions there is no plan. No plan to limit existing freedom of panorama provisions, or no plan whatsoever? The latter would seem to suggest either that the Commission is not currently striving to achieve said goal of everyone having the right to take pictures of works in the public domain, or that Oettinger thinks this ideal has already been realized (which would mean he's been thoroughly misinformed on the subject).

Federico said...

Oettinger very clearly said he doesn't want to restrict freedom of panorama, so there will be no proposal to weaken 5(3)(h).


As for expanding FOP, he was subtler in the debate (http://www.europarl.europa.eu/plenary/en/debate-details.html?date=20150709&detailBy=date#section0-4):
1) first he redefined "freedom of panorama", saying FOP is about *taking* pictures not *publishing* them (he said the EP debate was never about FOP);
2) then he said that cameras are just an extension of the eye, so taking a picture of something you see is as free as seeing it in the first place;
3) finally he concludes that there is freedom of panorama everywhere.

Too bad all of that is wrong.
1) True, the copyright directive is about the "making available" of copyrighted works, but people who ask freedom of panorama really are interested about the *publishing* (even to a small circle of friends), not just about the shooting.
2) Moreover, in some countries (especially Italy), even taking a photo is prohibited, by a quasi-copyright restriction on all cultural heritage: the camera is not at all a mere extension of the eye, in such countries. https://meta.wikimedia.org/wiki/Italian_cultural_heritage_on_the_Wikimedia_projects So, if he believes that, he should pass a directive to prohibit such quasi-copyright laws.
3) In conclusion, yes the EP proposal affected the freedom of panorama and yes we need a reform to extend freedom of panorama, even in the weakest definition proposed by the Commissioner.

He says the "save FOP" campaign was a marketing move, but his rhetorical tricks aren't any less annoying. I hope he did understand that half a million citizens were not just fooled by propaganda: they may have overreacted, but that only proves how much they cared and how only clear answers from the EU can reconcile the people with the copyright law.

THE US anon said...

Federico,

(love the moniker, by the way)

At least here in the States, the notion of copyright does not mirror exactly the power of exclusivity that may be found in the patent world.

To wit: copyright does not exclude even an exact creation of the exact same thing by another.

I go somewhere and take a picture and publish that picture. I do have copyright in my published picture.

You step into the exact same place I was standing and you take your own picture - it looks exactly the same. You have every bit the full scope of copyright protection in your picture as I do in mine. NEITHER of us have a right though to stop the other from publishing their own work - even if the content of the work is exactly the same. Copyright just does NOT have that sense of exclusivity - it is not that "deep" of a right.

Leastwise, this is how it works here in the U.S. I do provide for the possibility that your sovereign has a different setup.

Anonymous said...

This is a fine exegesis of Günther Oettinger's utterances, which is far more than they would ever deserve if he weren't in a position of influence.

The former premier of Baden-Württemberg is the fellow who transformed in an eulogy a certified nazi judge with blood on the robe into some sort of resistance fighter. He is also "renowned" for his foreign language abilities. As to his previous legislative record as EU-Energy-Commissioner or in BaWü, the less said, the better.

That Mrs. Merkel fomented the exile to Brussels of this embarrassment of a bloke is very telling of politics in general, and German ones in particular. Did she really feel threatened by him?

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