28 Jun 2016

Has the freedom of panorama been restricted?

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If you take photographs in European public spaces, are you free to use those photographs as you wish? The answer to this question is actually very complex. It depends on which member state the photographs are taken in, whether artistic works and architecture are included in the photograph, and how you use the photographs.

In a number of EU countries, there is an exception in copyright law known as the “freedom of panorama”. The extent of this “freedom” varies, as can be seen below. In fact, many countries do not provide exceptions for photographs of publically shown artworks and buildings to be used without permission at all.

 Map of Europe  
BlueBullet  Public interiors are OK, but schools, opera buildings, entrance halls of businesses, and museums are not public places for the purpose of Dutch law, while railway stations are.

DarkGreenBullet OK, including public interiors

LightGreenBullet  OK 
YellowBullet  OK for buildings only

RedBullet  Not OK (Note: this is from the Wikimedia Commons standpoint, so includes countries with non-commercial FOP)

GreyBullet  Inconclusive or unknown (only Andorra, San Marino, Monaco, Crimea, and Sweden are marked as "Inconclusive or unknown")
   
© Blank map of Europe cropped.svg: Revolus derivative work: Quibik (Blank map of Europe cropped.svg) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons   
   
   
   
   
  

The lack of a freedom of panorama exception obviously affects professional photographers and commercial media bodies most heavily, but not-for-profit websites such as Wikipedia are also affected. Because of the automatic licensing provisions the companies impose, it is also not clear whether uploading photographs to Facebook or Instagram would be infringement where no freedom of panorama exception exists.

In a recent judgment of the Swedish Supreme Court, the freedom of panorama concept seems to have been restricted, causing considerable concern for copyright users in Europe. In this case, even though Swedish law has a freedom of panorama exception, it was held that an online image database, which provided a map of art in public places along with photos of the artworks, amounted to copyright infringement. This was because the Court stated that online publicly accessible databases, even non-profit sites like Wikipedia, cannot rely on the freedom of panorama exception.

The Court reasoned that if images of artworks were made publicly accessible online, this would unreasonably prejudice the artists' legitimate interests by depriving them of potential commercial revenue. The public interest in making the images available was thought not to offset the prejudice caused to artists.

Understandably, this has been a very controversial decision. Although technically only binding on Sweden, this judgment would undoubtedly be considered influential by other European courts in similar cases. As such, until further clarification is issued from Europe or further cases on this point are decided, even in countries where freedom of panorama applies it would appear that the freedom may not extend to online dissemination.

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