Freedom of Panorama 2015 EVA GESAC

European Visual Artists(EVA) and the collecting societies group Author's societies(GESAC) have distributed a brochure titled "The Panorama Exception – Why you should confirm the JURI Report."

The report has a QA format and claims to separate myths from facts regarding the proposed non-commercial condition to Freedom of Panorama rights in Europe.

This article scrutinizes the EVA/GESAC statements.

Will I still be able to share my photos/videos on social media (Facebook, Instagram, Twitter etc.)?

Answer by EVA/GESAC

Yes, you will still be free to post your photos/videos on your social media account and share them with your friends. The provision does not mean that individuals will have to take down images posted online. It only says that using these photos/videos commercially (e.g selling them as postcards or embedding them in advertisement video clips), should require the authorisation of the authors (sculptors, architects, street artists). This will enable authors to be fairly remunerated when their work is used commercially.

Comment

No. Collecting societies have a history of suing citizens for any use of copyrighted images on any website with advertising: it is considered commercial. See SIAE vs. Homolaicus.com and others.

According to Nick Phillips, a copyright lawyer with Edwin Coe, this is the legal situation:

"If you're just taking a holiday snap of the Angel of the North, that's going to be non-commercial and so will be fine, but it becomes a grey area if, say, Facebook's terms and conditions give Facebook a licence to use your photograph for any purposes they like."

If your use falls outside the Freedom of Panorama exception, is there a legal risk?

Sharon Daboul, who is a registered UK and European trademark attorney, advises internet users to be cautious.

"Whilst it is hard to imagine SETE sending out a cease-and-desist letter or filing a lawsuit against individuals sharing holiday photos on Instagram, if an image starts to attract economic value or high public exposure, users should be aware that the penalties for copyright infringement can be heavy. The prevalence of infringing images online tends to support the view that individuals are unlikely to be approached, but it is best to err on the side of caution.

SETE would be within their rights to sue, if they felt an image of the Eiffel Tower taken at night had been published or reproduced for commercial gain and without permission."

The answer "Yes, you will still be free..." is disingenuous to say the least. The correct answer is that citizens of a few European states such as France and Italy never have been legally free to share photos including copyright buildings or sculptures on social media, and this proposal aims to remove the freedom to share from all European citizens. Uploads to commercial social media sites are 'commercial' regardless of the subjective intention of the uploader. Every responsible social media site imposes a contract term that users must not upload images that infringe the intellectual property rights of third parties. Wikipedia does the same. As the law stands at present, French and Italian citizens who attempt to share are automatically in breach of contract and are at legal risk. The fact that most sites (apart from Wikipedia) do not actively police for copyright infringements does not change the fact that millions of citizens from copyright-restrictive countries are innocently sharing images daily that break the law. The way to deal with that problem is not to harmonise to make all citizens law-breakers, but to harmonise towards freedom.

Will documentary photographers/film makers still be able to use photos/videos easily?

Answer by EVA/GESAC

Yes, photos/videos will still be easy to use. In fact, the laws in place in the various EU Member States already provide exceptions or authorisation schemes to facilitate the use of photos/videos. This will not change.

Comment

In many European countries photographers and film makers can currently use their work freely and for any purpose when they shoot images of buildings and sculptures in public places. With a non-commercial condition attached to the freedom of panorama rights, they would be required to seek permission from the architects or other copyright holders. The new requirements add costs and bureaucracy. In this respect, photographers and film makers will not be able to use their work as easily as they do today.

Furthermore, the proposals on the table would give building owners, property developers, architects and sculptors an absolute veto over how their copyright building or sculpture can be shown, requiring that the manner of each use be authorised. That is a radical change to the situation in most European countries today.

In a letter to the Times ('Photo bombshell', 27 June), Chris Wheeldon, a Location Manager, points out that

"Both domestic and international film makers may justifiably consider it too much of a risk that any building inadvertently overlooked, or so distant as to be almost unrecognisable, could hold the right to prevent the finished film from being seen or hold a financial gun to their heads".

Will the provision adopted by the JURI Committee rule out the exceptions that are in place in some Member States?

Answer by EVA/GESAC

No, the intention of the report is not to ask Member States to modify their traditional laws (some have implemented the optional exception provided in Directive 2001/29, others not). In fact, it is merely an initiative report, and as said by the rapporteur MEP Reda, “it’s not legally binding so it’s only as important as people think it is”. The report simply raises attention on the fact that commercial use of images/pictures requires authorisation from the authors/artists.

Comment

This is incorrect. No member state in the European Union can have copyright exceptions in addition to those stated in the InfoSoc Directive (article 5). Neither are member states permitted to broaden the allowed exceptions.

The paragraph in the Julia Reda report about the possibility of harmonising to 'non-commercial' only reads:

"A distinction between commercial and non-commercial uses creates new problems in the online environment as an increasing number of users simultaneously act as producers of works. Conditioning the benefit from exceptions on non-commercial use discourages the adoption of innovative remuneration schemes such as micro-payment, which may prove vital for the development of new business models for creators."

If the freedom of panorama exception in the directive were restricted to non-commercial use, countries that currently enjoy full freedom of panorama would have to require authorization for any use considered commercial. Exactly which uses are deemed commercial is a grey area since many of our personal internet activities take place on commercial platforms.

It is possible that some Members of the European Parliament who voted for the amendment in the JURI Committee did not intend to support weaker Freedom of Panorama rights in countries such as Germany, Sweden and the U.K. If so, they have reason to overturn the JURI position at the July 9 plenary.

Is there a need to further harmonise the panorama exception?

Answer by EVA/GESAC

No, there is no evidence of cross-border problems or obstacles to the internal market. Each country has its own traditions and appreciation of the issue. Solutions already exist in every country to facilitate the use of works, be it through an exception or by authorisation mechanisms.

Comment

Yes, there is a need. As for lawsuits, this is demonstrated by case I ZR 192/00, caused by a conflict between Austrian and German law.

According to the Berne Convention and the European Court of Justice, the law that must be applied in copyright cases is the law where protection is claimed, the lex loci protectionis (Berne Article 5(2)). When a book can contain photographs that are lawful in Austria while being unlawful in Germany due to different freedom of panorama laws, it is a cross-border issue. Web sites containing images permitted only in countries with freedom of panorama complicate the legal situation further.

Full freedom of panorama facilitates the free movement of professional photographers and film makers throughout the European Union, as well as attracting international film makers who might otherwise prefer to work in less legally-restrictive countries. Full freedom provides an open market and level playing field for commercial photographic and film activities to take place anywhere, bringing income and employment benefits to the local population. The freedom is fundamentally aligned with the ethos and governing principles of the European Union, and should not be blocked by special interest pleading from one or two copyright collection societies who are determined to hold onto their personal streams of income.

That said, the vote on July 9 is now a choice between upholding freedom of panorama in Europe and removing it by requiring permission for commercial use. The proposal that EVA/GESAC have endorsed would constitute a substantial and damaging harmonisation by severely restricting commercial use of photos from public places in countries where this use is now freely permitted. Harmonisation is needed, but not in this restrictive form.

More on the Panorama Exception - Map made by GESAC

EVA/GESAC claim

The Panorama exception is one of 22 optional exceptions provided for by Directive 2001/29, and applies to the «use of works, such as architecture or sculpture, made to be located permanently in public places.» Today, some countries have transposed the exception for works in the public space, including commercial usage, whereas in other countries, commercial usage requires prior authorisation. In the countries where there is no Panorama exception, practical mechanisms and solutions are in place to facilitate granting authorisations. For example, if you want to photograph the Eiffel tower by night for your private use, there’s no need for an authorisation. If you want to print out these pictures and sell them as postcards or use them for advertisements, you are required to contact SETE (the company that manages the image of the Eiffel Tower on behalf of the City of Paris) to find out more about the authorisation you may need. In some countries, the remuneration for commercial use of photos/images of protected works is substantial for the artist. There is no reason to abolish this source of income. In France for example, the introduction of this exception would entail a loss of 3 to 6 million euros, or 10 to 19 percent of perceptions per year. This would mean a major loss in revenues for sculptors, authors of street art, architects, etc.

Comment

The map is inexact in that it does not differentiate between Freedom of Panorama for architecture and Freedom of Panorama for other types of visual arts, specifically sculpture. Denmark allows, for instance, images of architecture for all uses (Article 24(3) of the Danish copyright law).

Additionally, the map is inaccurate, as The Netherlands (article 18 of the Dutch copyright act), Spain (Article 35 of the Royal Legislative Decree 1/1996 of April 12, 1996, and amended by Law 5/1998 of March 6, 1998) and Portugal (§75(2)q of copyright law, version August 24, 2004) undoubtedly have full Freedom of Panorama. The number of countries in the EU that have full Freedom of Panorama for architecture and sculpture is 15 - a majority.

A well researched country-by-country analysis that cites the actual legal texts was compiled by the Wikimedia movement. Additionally, we have commissioned two professionally made legal studies (iRights Berlin and UniBIT Sofia) that also disagree with the information on the map by GESAC.

So who is currently asking for a larger and more harmonised exception for commercial use at EU level?

Answer by EVA/GESAC

To the best of our knowledge, and despite being a non-profit, only Wikimedia is asking for an EU-level exception that includes commercial use. Wikimedia knows perfectly well that the use of works in Wikipedia pages is not questioned by authors, even in countries where there is no panorama exception.

This also means that if point 46 of the JURI report were to become law, it wouldn’t actually change anything for them. In fact, Wikimedia has refused, time and again, to accept anything but an authorisation that includes supplying high definition files, commercial use of works and the right to use them in any modification or context, without permission or remuneration. If Wikimedia’s combat is to deprive authors of their rights in order to allow large companies to make easy money off their works, this is clearly unfair and economically unjustified.

Comment

Multiple trade associations and GESAC members have voiced support for freedom of panorama in a letter to The Times. Professional associations in other countries have also shown their support of full Freedom of Panorama, including the German Professional Photographers Union and the German Journalist Union. There isn't a single Europe-wide association that is advocating for a universal restriction to non-commercial uses across Europe. EVA/ADAGP, organisations that do not by any stretch of the imagination represent European-wide interests, appear to be alone in their support of AM 421.

The claim that only Wikimedia is asking for an EU-level exception that includes commercial use is entirely incorrect. The governments of the majority of European states would disagree, having already recognised the importance of providing their citizens, photographers and film makers with full freedom in this area. Some governments implemented that freedom following the European Copyright Directive but many recognised the need long ago - in the case of the UK, over a century ago.

Regarding author rights, in the EC consultation several Wikimedia entities suggested ways to protect authors and strengthen their contractual position, which MEPs now have an option to vote for.

More on the Panorama exception

Statement by EVA/GESAC

The Panorama exception is one of 22 optional exceptions provided for by Directive 2001/29, and applies to the «use of works, such as architecture or sculpture, made to be located permanently in public places.»

Today, some countries have transposed the exception for works in the public space, including commercial usage while in other countries, commercial usage requires prior authorisation.

In the countries where there is no Panorama exception, practical mechanisms and solutions are in place to facilitate granting authorisations. For example, if you want to photograph the Eiffel tower by night for your private use, there’s no need for an authorisation. If you want to print out these pictures and sell them as postcards or use them for advertisements, you are required to contact SETE (the company that manages the image of the Eiffel Tower on behalf of the City of Paris) to find out more about the authorisation you may need.

In some countries, the remuneration for commercial use of photos/images of protected works is substantial for the artist. There is no reason to abolish this source of income. In France for example, the introduction of this exception would entail a loss of 3 to 6 million euros, or 10 to 19 percent of perceptions per year. This would mean a major loss in revenues for sculptors, authors of street art, architects, etc.

Comment

The copyright fee collecting schemes that exist in some countries without freedom of panorama (we do not know how many) do not seem to provide much real benefit to architects and sculptors. The only EU-wide data point we have is that architects have higher income in countries with freedom of panorama.

In France, the collecting societies don't provide a useful breakdown of their income so their claims can't be verified. The numbers mentioned most often refer to a very broad range of rights, for instance reproduction rights for works in general (including graphic works), only a tiny fraction of which relates to buildings and sculptures permanently exposed in public spaces.

As for Italy, public SIAE information shows that only a negligible revenue is generated: about half a million euros per year, of which only ten thousand euros are for online usages. Again this includes all sorts of reproductions of all sorts of works, the vast majority being works of graphic art which have no relevance at all to freedom of panorama issues (see below). The Italian registry seems to include not even a single sculptor, and only multi-millionaire "archistars" among architects. For them, the collecting society fee income is negligible.

Wikimedia Italia could not get a one-stop copyright licence to run Wiki Loves Monuments, in addition to cultural heritage restriction: authorisations have to be sought individually for each item or area.

The bureaucracy of the copyright fee collecting societies clearly does not benefit the market.

The alleged loss of revenue

The number of artists for whom harmonisation to full freedom of panorama would represent 'a major loss in revenues', as claimed, is vanishingly small. It is only individuals in the minority of copyright-restrictive countries that currently might have access to special additional payments from photographers, generally via national or local/regional copyright fee collecting organisations, and any loss of revenue from those organisations can perfectly well be made up during negotiation on the initial fee, as it already is in the majority of European countries.

Architects and sculptors normally work on a commission basis, and where they are designing for a building or sculpture intended for a public place, they know that in advance and can and do negotiate their fee accordingly. Any high-quality building or sculpture in a public place will inevitably attract photographers and film makers, and the fee paid for the commission should allow for that. There is no need for special national rules to provide additional payments to architects and sculptors who have already been paid a fair fee for their public works.

Graphic art is unaffected

It should be understood that freedom of panorama almost never applies to two-dimensional works of graphic art such as paintings, murals or street art: it relates to public works of architecture and to public sculptures. There has never been freedom for photographers to take pictures of copyright paintings, murals, street art, posters, signs, or images shown on electronic displays, whether permanently displayed in a public place or not, and artists working in those media are wholly unaffected. For example, when a copyright painting or a reproduction is permanently displayed in a public place, photographers and film makers have always had to seek permission, and that will not change.