The ‘Freedom of Panorama’ clause debated at the European Parliament

On 9 July 2015, the European Parliament voted on the ‘Reda Report’ (read the full resolution here) concerning the revision of Directive 2001/29/EC on copyright. Julia Reda is a German member of the European Parliament's Legal Affairs committee. Her report recommended extending the ‘Freedom of Panorama’ throughout the European Union. ‘Freedom of Panorama’ means that anyone can take pictures of public modern buildings, public art installations, or landmarks and distribute them without permission of the architect or rightholder. Currently, some EU member states do provide freedom of panorama rights and others do not. This inconsistency between national laws makes it difficult for photographers but also for heritage professionals in general to share knowledge online. For instance, the United Kingdom, along with Spain or Germany, currently enjoys freedom of panorama, whereas in France, Belgium or Italy, there is no such clause.  As an illustration, while it is legal to take a picture of the Eiffel Tower during the day because its copyright has expired, this is not the case at night because there is an independent copyright protection of the Eiffel Tower’s light show (added in 2003).

A debate started last month between members of the European Parliament on the introduction of a non-commercial clause into the extended freedom of panorama rules. The amendment in question stated: “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 or any proxy acting for them.”. This well intentioned proposal would nevertheless have negative implications and represent a potentially damaging restriction of the debate about cultural heritage and public space. This EU proposal could indeed see millions of people face legal action for uploading photos of famous landmarks onto personal websites or social media. Monuments such as the London Eye may need to be blacked out in holiday snaps to avoid breaching the copyright.

Due to the controversy of the case, the paragraph addressing the freedom of panorama was ultimately deleted from the report. This means that for now nothing has changed - countries that had freedom of panorama rights under their domestic laws still have them and the other countries will not need to adopt one. The final text has been sent to the European Commission, which will use it as input for a legislative proposal on copyright reform, expected to appear by the end of the year.

The debate on the harmonisation of the freedom of panorama across Europe will still have to be addressed at some point with the advent of digitisation (under the claim that digitisation grants new copyright protection to public works) and for cross border reasons (due to the territoriality of copyright). “Commercial” and “non-commercial” in particular is an ambiguous and difficult distinction (“non-commercial” does not mean “not for profit” and vice-versa) which will require further definitions. The European Heritage Legal Forum (EHLF) will remain alert on this reform as it represents a typical case of ‘non-direct heritage legislation’ carrying potential impact on immovable heritage.


EC report ‘Cultural heritage: Digitisation, online accessibility and digital preservation 2011-2013’: