Freedom of panorama in Portugal: content and scope of the exception

Santuário de Cristo Rei (1959),
Lisbon

Until fairly recently, freedom of panorama within Article 5(3)(h) of the InfoSoc Directive was a relatively little-known copyright exception within those available to Member States under EU law.

With proposals that would make this exception mandatory for EU Member States to adopt and recent national legislative reforms (eg in Belgium and France), this is no longer the case.

After Italy, today the IPKat travels to Portugal to discover the situation in this Member State.

Carlos Madureira and David Serras Pereira (both Sociedade Portuguesa de Autores) explain. 

Heres’ what they write:

“One of the most controversial issues pending in the EU copyright reform – with a directive proposed by the Commission on 14 September last and currently being discussed in the European Parliament Committees – concerns the panorama exception, also known as freedom of panorama.

In addition to the discussion whether or not the exception should be harmonised further via legislative proposals, the topic is also being subject to court rulings. Among these we have to highlight the Swedish Patent and Market Court ruling of 6 July 2017, in which that court decided in favour of Bildupphovsrätt in a copyright dispute against Wikimedia Sweden concerning the communication to the general public by the latter, via the internet, of copyright-protected artworks permanently placed in or at a public place. Among other things, in excluding the availability of the panorama exception to Wikimedia, the Swedish court stressed that whether the communication took place for commercial purposes or not was of no significance.

We find it very important to present the Portuguese model for the panorama exception and discuss its application in contexts covered by the adaptation right. Furthermore, the discussion below offers an approach to the concept of public places for the purpose of the panorama exception and its relevant implications, as well the distinction between direct and indirect commercial purposes.

Portuguese provision on panorama and the Berne’s three-step test

The Portuguese provision at stake is Article 75.º, paragraph 2, point q) of the Portuguese Code of Authors’ Rights and Neighbouring Rights (Código do Direito de Autor e dos Direitos Conexos), created by the Decree-Law No. 63/85 of 14 March 1985 (as last amended by the Law No. 49/2015 of 5 June 2015).

This provision contains a catalogue of the exceptions/limitations to authors’ exclusive rights (exceptions to economic rights, not also moral rights), where its “closed” nature is the natural consequence of the structure of Article 5 of the InfoSoc Directive, as well as arguably the first step under Berne Convention three-step test.

The wording of the provision states that, among the uses allowed, there is “the use of works, such as, for instance, works of architecture or sculpture, made to be located permanently in public places” (75.º, paragraph 2, point q)

75.º § 4 completes the three-step test by including the two additional steps and stating that “the ways of exercising the uses foreseen in the preceding paragraphs shall not be contrary to the normal exploitation of the work, nor cause an unjustified prejudice to the legitimate interests of the author.”

75.º § 3 states that  “The distribution of the legally reproduced copies, to the extent justified by the purpose of the act of reproduction, is also legal.”

71.º adds that: “The statutory right to use a work without the author’s previous consent includes the statutory right to translate or otherwise transform, to the extent necessary to such use.”

As mentioned above, the exception is only available in respect of economic rights, not also moral rights. Article 76.º a) states that “The free uses mentioned in the preceding article shall be accompanied by (...) the indication, wherever possible, of the name of the author and of the publisher, the title of the work and other circumstances that identify them”. Article 56º underlines that the author enjoys the right to oppose all acts / uses / adaptations of the work that might affect his honour and reputation.

The first thing to underline is that, like all the other EU Member States, the list of exceptions under Portuguese law is exhaustive.

Secondly, the ‘special cases’ covered by relevant exceptions must be also subject to a use that: (a) is not contrary to the normal exploitation of the work; and (2) does not cause an unjustified prejudice to the legitimate interests of the author. Overall Portuguese copyright law uses very balanced and strict criteria to allow the exceptions to authors´ rights. 

Therefore the exceptions to authors’ rights (including the panorama one):

-       are only allowed in special cases (closed catalogue);

-       must not be contrary to the normal exploitation of the work;

-       must not cause an unjustified prejudice to the legitimate interests of the author;

-       are only allowed to the extent justified by the purpose of the exception at issue.

Commercial (direct and indirect) uses not covered

Portuguese copyright law is such that commercial uses are not covered by the panorama exception under Article 75.º § 2 q).

The commercial use of works by for-profit undertakings would deprive authors of potential commercial revenue arising from the exploitation of the various dissemination channels, therefore damaging the normal exploitation of the work at issue and amounting to an unjustified prejudice. Furthermore, a commercial use would exceed the extent justified by the purpose of the exception.

Will Adriano's photographs be covered
by the panorama exception?

The adaptation right and panorama

The above-mentioned conclusion can be also extended to the adaptation right (Article 71.º), which already includes the condition of the extent justified by the purpose of the exception. This is in line with Article 13 of the TRIPS Agreement. It shall not be, however, seen as an argument the non-harmonisation of the adaptation right within the scope of the InfoSoc Directive.

The misleading discussion regarding the concept of public place

Some intend to limit the scope of exclusive rights by trying to focus the discussion on the Portuguese concept of ‘public places’, and arguing that it must be understood as a place that is publicly accessible, even if the access to the public is implicit and/or an entrance fee is charged and/or the right of admission is reserved.

The main question is not “What is a public place?”. It is rather knowing if the work was made to be located permanently in public places. The main question is, therefore, to understand the intention of the author when he realised the work.

This leads to the conclusion that a ‘public place’ for the purpose of the panorama exception must be understood within the context in which it is included. We have to understand the concept “made to be located permanently”. With this expression the Legislator sent a clear message that a public place must be able to receive the permanent location of a work, and that the intention of the author, when creating the work, was to confer it a permanent location.

This is the reason why the Legislator introduced, as the types of works included in the exception, “sculptures and works of architecture”. Those two types of works are intrinsically linked to the concept of permanent location nature, and thereby public places.

The Portuguese exception is able to cover public interiors (for example a public subway station), yet it will not able to cover works in museums if the works were not made to be located there permanently. Such assumption is not based on the definition of public places, but rather on the concept of permanence and will of permanence.”