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Friday, 29 April 2016

Freedom of panorama in France: could even a visit to Père Lachaise become a problem?

Adjusting the camera not
to include any copyright material
Game of Thrones? House of Cards? Forget them.

The battle around what until recently was an area of copyright not many cared knew about, ie freedom of panorama, has now become one of the most eventful sagas ever.


The relevant provision in this sense is Article 5(3)(h) of the InfoSoc Directive, which allows Member States to introduce national exceptions/limitations to the rights harmonised by that directive to permit the "use of works, such as works of architecture or sculpture, made to be located permanently in public places". 

Along with discussion of a new neighoubring right for publishers (whether in the press sector alone or also in other sectors), readers will remember that last month the EU Commission launched a public consultation [running until 15 June 2016] on this very topic [here].

In parallel with policy discourse, also national courts and legislators alike are contributing to the overall debate around freedom of panorama.

Recent case law: that Swedish ruling

On the one hand, earlier this month the Swedish Supreme Court issued a ruling [here, and here for an English translation] in which it held that online publicly accessible databases like Wikipedia cannot rely on the Swedish panorama exception within Article 24(1) of the Swedish Copyright Act. This provision states that:

"Works of fine art may be reproduced in pictorial form 
1. if they are permanently located outdoors on, or at, a public place 
2. if the purpose is to advertise an exhibition or a sale of the works of fine art but only to the extent necessary for the promotion of the exhibition or the sale or 
3. if they form part of a collection, in catalogues, however not in digital form."

The Swedish Supreme Court ruled that the making available of images of artworks through publicly accessible online databases would unreasonably prejudice the rightholders' legitimate interests, in that it would deprive them of potential commercial revenue arising from the exploitation of such dissemination channels.

 To this end, the public interest underlying the non-profit and open nature of Wikimedia's database would not offset the prejudice caused to rightholders.

Oscar Wilde's tomb at Père Lachaise
Recent legislative debate: the French Senate

Moving from courts to parliamentary assemblies, as readers will remember not all Member States have implemented a panorama exception into their own national copyright laws. 

Among those that have not taken advantage of the possibility under Article 5(3)(h) of the InfoSoc Directive there are Italy and for the moment still France.

As reported by Numerama yesterday the French Senate voted in favour of an amendment [which, I understand, to become law has now to be adopted also by the Assemblée Nationale] aimed at introducing into French law a (fairly restrictive) panorama exception [see here for a recap (in French)].

The text of the exception as adopted yesterday would allow "reproductions et représentations d’œuvres architecturales et de sculptures, placées en permanence sur la voie publique, réalisées par des personnes physiques, à l’exclusion de tout usage à caractère directement ou indirectement commercial."

Basically, what will be permitted is [WARNING: Kat-translation!] the reproduction and representation of architectural works and sculptures, permanently located on public roads, made by physical persons, with the exclusion of uses having direct or indirect commercial character.

If adopted in its current form, the French panorama exception would come with significant limitations which - incidentally - do not appear to have any basis in the formulation of Article 5(3)(h) of the InfoSoc Directive [whether this is permissible under EU law is doubtful, as I argued here]

And the most significant limitations do not really appear to relate to the prohibition of commercial uses:
  • First, the panorama exception would only apply to individuals, not also legal persons. As such, taking from the Swedish example, Wikipedia et similia would not be covered by it. 
  • Secondly, the exception would only apply to works located permanently on public roads: what about all those works located permanently elsewhere (eg public parks, stations etc)? 
The French panorama exception in practice: an example

Let's assume that the panorama exception in France is adopted in its current form.

Recently I have been to Paris and returned to the beautiful Père Lachaise cemetery

Among those who rest there, there is Oscar Wilde. His tomb is likely to be eligible for copyright protection in the first place [at the end of the day, it's France, not the UK, so subject-matter categorisation is not really an issue] and be still protected by copyright, since the sculpture who realised it, Jacob Epstein, died in 1959.

If I took a photograph of Wilde's tomb would I be covered by the panorama exception? That's not so certain - I would argue - as it may be doubtful whether a cemetery, with free access yet opening hours, could be regarded as part of the 'voie publique'.

But things could be worse for other subjects, ie Google. Currently Google Street View allows me to see Oscar Wilde's tomb right from my laptop's screen. 


However, this reproduction by Google would be likely regarded as unlawful under the new exception, since Google is certainly not a 'personne physique' falling within the scope of the exception. As such, could this mean that in France Google would have to seek a licence to reproduce images of architectural works and sculptures, no matter where permanently located [this might not be the only image-related headache for Google in France: see here]?

In this example, probably both Google and I could be in trouble. This way, even a harmless visit to Père Lachaise could turn into something that - unlike the place itself - would be anything but peaceful. But what do readers think?

7 comments:

Anonymous said...

Wikimedia Sweden
The key part of the Swedish Wikimedia case was that Wikimedia Sweden's open database of artworks has a commercial value, despite Wikimedia being 'not-for-profit': their intended activities were commercial. The ruling didn't mention the individual users uploading pictures of buildings and monuments etc.

French Panorama
The UK has the s.62 exception for buildings and sculptures. But does anyone know if an individual in the UK has ever been sued or been 'in trouble' when posting pictures of these works on the internet?

To Eleonora: you appear to be able to see the tomb at present in Google Street View and then you say 'it would be likely regarded as unlawful under the new exception', yet technically the situation would be no different to right now where there is no exception, surely? And presently you can see the tomb in Street View... so what seems to be the issue?

Eleonora Rosati said...

@Anonymous: thanks for your comment.

Personally I don't really think that freedom of panorama (or lack thereof) deserves all the attention it is attracting. Even in Member States that do not have it, eg France and Italy, the number of cases litigated is very low (lack of enforcement may be why Google Maps/Street View is available in these countries without any particular restrictions.

However, if we accept that freedom of panorama should be acknowledged (this appears to be what has prompted French legislator to intervene) then the scope of the resulting exception should be sensible and workable. It seems to me that the French text fails to do so at the moment.

Andy said...

"If adopted in its current form, the French panorama exception would likely allow individuals to take photographs of/selfies with the Tour Eiffel at night without significant risks".
Eleonora, I don't think that is correct. The proposed exception would apply to "reproductions et représentations d’œuvres architecturales et de sculptures" but what is protected about the Tour Eiffel at night is the light show, which the French courts have declared to be a performance, and so would not fall within the works (architectural works and sculptures) referred to in the exception.

And I'm also not sure that you are right about the exception not applying to Wikimedia. The wording "réalisées par des personnes physiques" refers to how the picture is made, not by whom it is ultimately published. Therefore an image taken by a human and released under a creative commons licence for use by Wikimedia, might well fall within the exception. On the other hand I agree that given the automated nature of the Streetview technology, Google's use might well fall outside the exception.

Eleonora Rosati said...

Thanks for your comment Andy. You are right re the Tour Eiffel, but I read the "personnes physiques" differently: I think that publication on and re-use by Wikipedia would fall outside the scope of the exception. According to Numerama, subjects like Wikipedia would be indeed unable to rely on this new defence if adopted in its current form.

Anonymous said...

Eleonora,

You might be interested in this communiqué issued by the French visual arts collecting society ADAGP and others after the debate, including the statement:

"Cette exception formalise désormais, et sans aucun doute possible, que les particuliers qui postent des œuvres architecturales et de sculptures protégées sur les réseaux sociaux, ne seront pas poursuivis."

There was also a lengthy rejoinder that was issued by ADAGP in response to claims made by the French chapter of Wikipedia. Response 2 in particular seems to be a clear statement that under the proposed exception (or the earlier Asemblée Nationale version anyway), an individual posting an image on twitter, or wikipedia, or their own blog dedicated to architecture would, without question, be within the scope of the exception -- but anyone downloading such a photo to make and sell their own derived work would not.

It seems to me that, such is the worldwide respect that you (or at least Merpel) command, you could do the world a great service, and take a lot of confusion out of this debate, if you could contact the press contact that ADAGP are offering at the end of their communiqué, and try to clarify beyond all doubt what ADAGP is saying about Twitter, Facebook, Instagram, Flickr, Dailymotion, and other online platforms.

Is this a commitment by ADAGP that it will not be seeking to negotiate a use-license from the above platforms as commercial entities for images uploaded by individual users ?

It seems to me that ADAGP has not actually made such a renunciation; but that however, under the service-provider safe harbours of the e-Commerce directive, if platforms such as Facebook, Twitter, Flickr etc refused to enter into any blanket licence, ADAGP's only recourse would be to start issuing take-down notices against individually uploaded content (that could be held to have a commercial significance to the platform).

By its statements, is ADAGP irrevocably committing itself against any such a scenario, permanently renouncing any such an action as an option ?

Secondly, it would be useful to have ADAGP's on-the-record statement of how it reads "uses having direct or indirect commercial character" in the context of blogs (and other social media)

For example, does the IPKat blog possess a "direct or indirect commercial character" ? Or an image in the twitter stream of an MEP ? Or images in a personal blog dedicated to architecture, if the blogger also happens to be an expert available for engagement as a consultant on planning issues ? Are these promotional, or legitimate expressions of individual personal interests ?

According to a press release from European Visual Artists (EVA), whose president is the director general of ADAGP, the Senate text "ensures legal certainty for users".

I think it would be very useful if you or Merpel could get ADAGP to clarify its understanding of all this certainty.

Anonymous said...

(continued)

As regards Wikimedia, as I understand it Wikimedia makes a distinction between the U.S.-based Wikimedia Foundation that operates the servers, and the community of Wikimedia contributors who upload and curate the content. This distinction is designed to place it within the service-provider "safe harbour" provisions of the e-Commerce Directive in Europe and the DMCA in the United States, in exactly the same way as Facebook or Twitter.

A difference is that the Wikimedia community sees itself as gathering and developing material for wider re-use (not for Wikipedia as an end-use), including commercial re-use; so that in Wikimedia's case it is the users (rather than the lawyers) who are particularly active in removing content, removing material that could for example prevent any part of Wikipedia being reused, including commercially. So this community action would be the principal barrier for material being uploaded to Wikimedia.

It is not entirely clear (at least not yet to me) the exact position of Wikimedia Sweden in the BUS case, and why it did not just similarly invoke the take-down shelter. The exact exposure will presumably be spelt out in detail in the judgment that will be forthcoming from the court of first instance. It may be that Wikimedia Sweden received a take-down, and elected to defend it in court. Or it may be that by actively offering and promoting the map application they were seen to be directly taking ownership and responsibility for the material, or at least to be authorising its use. It's interesting to wonder what the position would have been had it been somebody else offering the map application, combining Wikimedia's images perhaps with public information as to the monuments' locations.

The judgment does seem an odd one, with the Court apparently focussing not so much on the images being made available, as much as the images being made readily findable. (Though one might think that findability was an essential part of availability -- or, at any rate, pretty much an inevitability, given today's internet). It also seems rather odd seeing a national court taking upon itself, rather than the CJEU, to essentially strike down a black-letter clause from the directive (that panorama images are suitable to be made available), throwing into doubt the holdings of photo libraries offering images made under this exception, right across the continent.

Mats Björkenfeldt said...

I have three comments:
1. Wikimeidia is not a commercial enterprise, and the reason for the Swedish Supreme Court´s ban was that a commercial ditto could make a link to Wikimedia´s site. But, if Wikimedia´s site is legal, there is no commercial interest to make a link. The court´s application of the three-step-test is completely wrong, cf Geiger, Gervais and Senftleben, International Intellectual Property, A Handbook of Contemporary Research, ed Gervais, Edward Elgar, 2015, p. 175.

2. The Court wrongly didn´t make a preliminary reference to the ECJ. If so, the ECJ shouldn´t have accepted that narrow construction of that special copyright limit, cf Favale et al, Modern Law Review, 2016, s. 57f.

3. Neither the Swedish Court nor the Frence Senate understand that “where a Member State decides to introduce a limitation on copyright, it may no longer avail itself of the scope allowed under the Directive and introduce a narrower national provision. Rather, it has to implement the relevant limitation into national law exactly as is required by the Directive.”, Dreier, JIPLP, No.2, 2016, p. 138f

It´s rather absurd that I and thousands of fan to Jim Morrisson, the lead singer of the Doors, must travel to Paris to see his tome at Père Lachaise, as it is that my Swedish relatives in USA no longer can enjoy the statues in Stockholm without crossing the Atlantic!

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