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?