A proposed reform to copyright law, due to be voted on next month by the European Parliament, could lead to restrictions being imposed on the right to use photographs of modern buildings and public artworks, such as statues. At present, UK law allows such images to be used freely by the photographer, a right known as “freedom of panorama”. Spain, Sweden and Germany offer a similar freedom to photographers, but France, Italy, Belgium and Greece, amongst others, impose restrictions on this right. Other countries, such as Norway and Finland, permit the use of such images only where the subject matter is a building, rather than a work of art. Yet another permutation is to allow such images to be published for non-commercial use, as is the case in Slovenia for example.
The fragmentation of copyright laws throughout Europe is a matter of concern to the Parliament, whose Legal Affairs Committee issued a Draft Report in January this year on the implementation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. The Draft Report took account of the increasing fragmentation of copyright legislation throughout the Member States of the European Union, for example the term of copyright protection. In the words of the Rapporteur, MEP Julia Reda, it is now necessary to “reduce the legal uncertainty that Europeans face when accessing copyrighted works today”.
In relation to the freedom of panorama, the Report proposed harmonisation of the laws of the Member States by allowing images of works that are permanently located in public places (see para. 16). However, an amendment to the Report was proposed on 16th June which would restrict the commercial use of photographs, video footage or other images of works which are permanently located in physical public places, requiring prior authorisation for any such use. This amended text is now due to be voted on by the European Parliament when it considers the full text of the Report in its plenary session on 9th July.
It is feared that if the amendment is accepted, the consequences could be far reaching. How will the word “commercial” be interpreted? How aggressively will rightholders pursue infringers? At the moment, publishers tend to err on the side of caution when deciding whether or not to use images of buildings and artworks in France or Belgium. Might the uploading of holiday snaps to a Facebook or Instagram account be deemed to fall within the scope of “commercial” use? The company that maintains the Eiffel Tower in Paris has not hesitated to use its rights over the “artwork” formed by the dramatic lighting of the Tower since the Millennium to prevent commercial reproductions of images of the Tower at night. The Cour de Cassation (France’s highest court) has declared that “the composition of the interplay of lighting, designed to reveal and emphasise the lines and shape of the monument constituted an original ‘visual creation’and, therefore, a work of the mind; that it necessarily follows from this that the author of this work benefits from an intangible property right, notwithstanding the public event for which this work was commissioned, and any reproduction was therefore clearly illicit.”