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The lack of harmonisation within Europe is the result of a complicated and varied history within the member states. The representability of the public sphere has been significantly, if not mostly, defined through jurisprudence and involves a wide array of concurring rights and cultural norms.
Copyright protection is only a piece of this puzzle, albeit the leading one in the latest debates. In this section, we provide some background on the notion of public artworks and present the historical foundations of their copyright status in Europe. While the concept has a long and complicated history following intense European debates on author rights and different cultural foundations for copyright in the s, the exact concept of "freedom of panorama" does not apparently appear before the end of the XXth century 4.
Freedom of panorama is closely related to the history of communication technology. The concept first emerged in the s in a context not too dissimilar to that of the current European debate. The legal aspects and implications of representing the public space was deeply redefined by a wave of disruptive innovations. To paraphrase Walter Benjamin, the work of arts came to the "age of mechanical reproduction": new techniques, such as photography, industrial presses or lithography lifted significant restraints to replications 5.
The impact of this structural transformation to the regulation of public space reproductions largely exceeds the field of intellectual property. In France, protection of privacy has long been the leading factor. A coherent sequence of case law effectively banned photographers from most of the urban public sphere by the second part of the XIXth century: the reproduction of streets were assimilated to a breach of privacy Tissot, This early debate on freedom of panorama was therefore mainly focused on other issues than intellectual property: most of the rare jurisprudence focused on sculpture and other forms of outdoor visual art 6.
In Italy, protection of the cultural heritage rather than copyright may have been the initial incentive.
In Germany the debate took another turn that brought it much closer to the terms of the current debate: it came to produce the very first piece of legislation establishing a copyright exception for works of arts displayed in the public sphere. German law was at the time a complex by-product of confederate agreements and, still, widely autonomous small states. In , the German Confederation approved a new author right disposition against reproductions " gegen den Nachdruck ". As was the use at the time, it made a special case of mechanical reproduction " auf mechanischem Wege " 8.
The reform aimed to establish a common standard on copyright law within the Confederation with a minimal protection length of 10 years 9. Three years later, in , the Kingdom of Bavaria edicted the very first "freedom of panorama": an exception to this general rule regarding the "work of arts and architecture in their exterior contours" situated in a public space quoted in Chirco, The initiative was imitated in other states so that the ongoing unification process of Germany opened up a nationwide debate on the proper imbalance between artists' right to control the dissemination of their work and the preservation of the public sphere as a "common good" " Gemeingut ".
The debate also served to overcome the different definitions of the public and private spheres within the German states. In , the German parliament agreed on a general exception in similar terms to the original Bavaria initiative.
Reproduction from private place were excluded from the scope of the exception. While it has resulted in a complex construct involving several rights, the institutionalisation of freedom of panorama in Germany remains exceptional. The United Kingdom has long applied a similar provision, but mainly through jurisprudence.
Reproductions of architectural works in two dimensions were authorised on the account of "the risk to which a citizen would be exposed who was photographing or sketching in any urban neighbourhood" Gibbs-Smith, This principle has only been institutionalised in as the Section 62 of the Copyright, Designs and Patents Act.
Significantly, even in Germany there was no acknowledged and uniform name to designate this array of exceptions and restrictions. While the concept was years old, the word only emerged in the s. This vernacular expression quickly disseminated in German and French-speaking countries This early success can be attributed to an appropriate semantic turn in the burgeoning debate on the application of intellectual property on the web: taking the viewpoint of the user. Consequently, the term is very early attested in prospective works on IT law and digital practices In this section, we introduce the context of public art and the variety of legal options available to regulate panorama 2.
We then analyse the scope of the exception of panorama in Europe and in selected relevant member states 2. In particular, we analyse the question of commercial use interaction with Creative Commons licensing 2. The broader category of public art is used to inform the question of freedom of panorama, including outdoor works of art and buildings which are still copyrighted, as well as cultural heritage sites, whose reproduction is regulated in some countries e. Italy , even if they are under copyright in the public domain.
As such, they are more than just simple works under copyright.
Public funding is almost always present for the creation or the preservation of public art, giving an argument in favour of the rights of the public to its urban space, at the crossing between intangible copyright impacting on urban shaping, see Popova, and the materiality of physical commons. Parallels and precedents, a useful methodology for lawyers, have been identified by Newell in cultural heritage law.
Italy enforces a charging policy for the reproduction of antique public domain works, Egypt had a similar bill for the pyramids, while Sydney Opera House is relying on trademark law to reach a similar effect. Other interests identified by Newell are the church authority they opposed the use of Landowski Christ in Rio in a Hollywood movie and national security law. French intelligence also tried to remove information on a building considered as classified information. Finally, another area of law which has been used to control the use of public artworks outside of the narrow and recent scope of the exception of panorama is the incidental inclusion of a work in another work.
For example, current case law in France has been relying on another copyright exception of the Directive, article 5. The legal battle opposing Buren and Drevet to postcards makers in the city of Lyon 14 granted the right of accessory representation of a copyrighted work when it cannot be extracted from a public domain space, namely a contemporary art installation on a public square.
Authors can still enjoy other aspects of copyright, notably moral rights, as they sued the municipality to preserve and repair their public artwork. Freedom of panorama is an exception under copyright, in the countries where it exists, it provides users the legal right under copyright to publish pictures of artworks which are in the public space, without asking for the permission of rightholders or paying royalties.
With some variations, there is no exclusive right for rightholders to control the reproduction of their works, which are in the public domain in countries such as Brazil, Germany, Portugal, the United Kingdom, the United States Nobre, , the Netherlands, etc… However, some exclusive rights are maintained in Albania, Argentina, Belgium, Bulgaria, France, Greece, Italy, etc. The international review of legislations, conveniently led by Wikipedians, stakeholders of the controversy, reveals a lack of harmonisation in Europe, as well as worldwide 15 , and the existence of broad variations in the scope of the artworks included and the definition of the right.
Given the very late attempt at formalisation presented in section 1, the legal standard provided in the European Directive on Copyright 16 does not define a "Freedom of panorama". Artworks can include permanently placed sculptures and 3D art, be restricted to 2D art, be limited to buildings only, or include public interiors.
Some jurisdictions have fine grained nuances to be taken into account to assess whether a reproduction can fall under a national exception. For instance, UK law 17 is distinguishing among 2D "works of artistic craftsmanship" and 2D "graphic works" for which exclusive rights stay reserved.
This could be due to the intervention of a category of authors, even if we have not found the source of this difference. Another example of national nuance is German law, which allows photographers to take pictures that are visible from publicly accessible places.
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According to case law, which has been influenced by a strong conception of privacy as underlined in the previous section, this includes private ways and parks with common access. However, it does not include railway station buildings or platforms. The picture must be taken from a publicly accessible point. As we have seen in the previous section, it is not permitted to take a picture of such a building from a private house or from a helicopter, which do not qualify as public spaces. The scope of the right of panorama may be restricted to non-commercial use or include even commercial usages.
In this section, we present the solutions which have been adopted in in French and Belgian law as well as in Swedish case law. Belgium introduced an exception covering also commercial usages, while France and Sweden continue to exclude them. We will explain the reason why the controversy has been crystallising around this notion: Wikipedia, the main actor lobbying for an exception also covering commercial rights, uses a Creative Commons license which also authorises further commercial reuse.
The dual-track strategy, when lobbyists pursue similar strategies at the national and the supranational levels, has been applied in by two member states, France and Belgium. They did not wait for the Copyright Directive current revision discussed in section 3 in order to legislate on the question. They ended up with opposite solutions. Belgium voted an exception on 27 June , creating a freedom of panorama following the limits of the three step test.
At the same time, the topic of public artworks which are in the public domain was also addressed in another law regarding national heritage. Based on the right of image of national domain, article L. The use for commercial purposes in all media of the image of the buildings that make up the national domains, is subject to prior authorisation from the manager of the relevant part of the national domain As explained in the introduction, Wikipedia is the only actor of the controversy affected by the distinction between commercial uses and non-commercial uses and moreover, carefully excluded of this limitative list of non-commercial uses which are free.
It is the only major actor in the controversy committed a Creative Commons license, unlike Facebook or Twitter, who have not been vocal in the debate. The consequence of restricting freedom of panorama to non commercial uses arises from the license which is used by Wikipedia and its viral effect. The Creative Commons Attribution Share Alike license allows indeed any third party to reuse texts and photos made available on the encyclopedia, even for commercial use.
The core of the controversy 24 on commercial use targets usage of public artworks in advertising by commercial brands Wikipedia is licensed under a Creative Commons licence authorising commercial reuse, in order to facilitate reuse without further question, since the notion of commercial use is difficult to assess. The virality of possible commercial reuse of a picture posted on Wikipedia by a company is the poster case of the argumentation by collecting societies.
Such a scenario where the reproduction of an image on Wikipedia would be reused by a commercial advertising campaign could happen in theory if photographs are available for free reuse on Wikipedia under the Creative Commons license. In practise, professional commercial re-users should know that the license does not apply to them when national heritage law decides otherwise. From to , the conflictual relationship between Wikimedian communities and collecting societies has been revolving around this question.
Collecting societies proposed a free license to Wikimedia chapters in countries which do not have the necessary exception for Wikipedians to post reproductions: Sweden and France. The contracts were proposing a compromise license to publish low resolution photos under a Creative Commons Attribution Non Commercial No Derivatives license BY NC ND in order to prevent further reuse by commercial companies and modifications allowed by the standard licenses used on Wikimedia projects. Both the associations behind Wikimedia Sweden and Wikimedia France rejected the proposition, which would not grant the right to redistribute high-quality works under the licenses accepted by the Wikipedia policy, promoting the largest dissemination of free knowledge, including reuse for commercial purposes.
In the case of Sweden, negotiations took place during a lawsuit opposing the Swedish Collecting Society v Wikimedia in Sweden 27 on the use of an image whose rights are managed by the collecting society.
The Court followed article 24 1 of the Swedish Copyright Act: "Works of fine art may be reproduced in pictorial form 1. If they are permanently located outdoors on, or at, a public place" The discussion opposed arguments in favour of an exception to copyright: the public interest to reproduce freely outdoors or public spaces, the fact that analogue dissemination is not prejudicial, but online dissemination was assessed as prejudicial to rightholders' legitimate interests as it could deprive them of potential commercial revenue.
This section presents the policy arguments behind statements used by policymakers and lobbyists.
The position on commercial reuse rights which was just described in the previous section is more a matter of principle for Wikipedia than a financial consideration. A Trojan horse, freedom of panorama is also emblematic of the battle of users' rights against copyright extension. The reaction of the Belgian collective society director after the vote of the exception also covering commercial rights summarises it well as a possible first step to get more exceptions in other fields of copyright:.