On 16 June 2015, the European Parliament’s Legal Affairs Committee adopted a report reviewing the EU’s legislative framework in the area of copyright law. The original draft of the report, authored by German Pirate Party MEP Julia Reda, has been subject to various amendments. One amendment that has spawned considerable debate concerns the so called freedom of panorama exception.

This exception to the rights of the copyright holder allows anyone to publish images of works, such as works of architecture or sculpture, made to be located permanently in public places without infringing any copyright that may subsist in such work. The amended draft includes a recommendation, however, 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 [the copyright holders, BB] or any proxy acting for them”.

On a European level, the freedom of panorama exception has its roots in Article 5(3)(h) of the Copyright Directive (2001/29/EC). This provision provides for the possibility of Member States having a freedom of panorama exception in their copyright laws, but does not require such a rule. The majority of EU Member States, however, currently apply such exception. For example, Germany enjoys a provision in section 59 of the German Copyright Act (UrhG) that allows anyone, even for commercial ends, to publish photographs of modern buildings or public art installations without infringing copyrights. Other Member States, including France, did not incorporate a freedom of Panorama exception into their national laws.

In France, for example, it is illegal to publish photographs of the Eiffel Tower at night. Whilst the structure of the Tower itself, built in 1889, entered the public domain a long time ago, the Tower’s illuminations are considered to be an artistic work and, thus, subject to copyright protection. As a result, publication of a photograph of one of Europe’s most iconic landmarks requires the photographer to first seek permission of the rights holder. The stance is confirmed by the Eiffel Tower’s operating company, who note the following in the FAQ-Section on their Website:

“The views from the Eiffel Tower are rights-free. Permission and rights must be obtained from the “Société d’Exploitation de la Tour Eiffel” (the Operating Company, or SETE) for the publication of photos of the illuminated Eiffel Tower.”

The final vote on the adoption of the amended report in the plenary of the European Parliament is due to take place on 9 July 2015. Even if the report were to be adopted in it’s present form, the result would merely be a (non-binding) recommendation. It would then be on the European Commission to put forward a formal proposal to revise copyright law. The Commission’s proposals would, in turn, need agreement not only by the Parliament but also by a large majority of EU Member States.

Conclusion

From a legal standpoint, giving effect to the amended report would not necessarily see millions of Europeans face legal action for uploading photos of famous landmarks onto their social network profiles. The restriction of the freedom of panorama exception would primarily affect professional photographers using images for commercial purposes. However, there remains a “grey area” since, for example, the terms of service of Facebook give Facebook the right “to use any IP content that you [the users, BB] post on or in connection with Facebook”. As Facebook and other social network platforms generate revenue through advertising, uploading photos might fall within the scope of the proposed restrictions.

Update: On 9 July 2015, the plenary of the European Parliament has rejected the proposal to restrict freedom of panorama. There is still a chance, however, that the European Commission could include such restriction into its legislative proposals to modernize (further harmonize) copyright law which are expected to be presented in autumn 2015.

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