Freedom of Panorama is under attack

On 9 July 2015, the European Parliament will vote on whether to abolish our right to freely take and share photographs, videos and drawings of buildings and works of public art.


Please note: an update was posted to this story on 6 July 2015: Street photography in Europe and Freedom of Panorama: an update

Questo articolo è disponibile in lingua italiana anche.

First, what’s the background?

Julia Reda, MEP for Piratenpartei Deutschland and president of Young Pirates of Europe. Photo by Aktron / Wikimedia Commons, licensed CC BY.

Since being elected to the European Parliament in May 2014, Pirate Party MEP Julia Reda has been named rapporteur of the Parliament’s review of the Copyright Directive (2001/29/EC).

Her initial report, covering all aspects of copyright and related rights, was greeted with a wide range of responses, from Swedish Pirate MEP Amelia Andersdotter criticising the proposals as being too conservative and “more of the same” to French collecting society SACD rejecting the report as “unacceptable to all those who want cultural creation to remain ambitious, strong and diverse in Europe”.

One of the many aspects Reda covered in her review is something called “freedom of panorama”, which is the right to take and use photos of cultural works located in public spaces — buildings, sculptures and public art. The Copyright Directive allows member states to create such an exception within their copyright laws but does not require it, so different countries naturally have taken different positions:

Freedom of Panorama rights across Europe. Greens indicate territories with a right to Freedom of Panorama, with lighter green countries providing FoP only over images of buildings, not other works. Yellow territories have FoP for non-commercial use only and red countries have no FoP in their laws. Map by King of Hearts and others, licensed CC BY-SA.

In the UK, we have an explicit right under section 62 of the Copyright, Designs and Patents Act 1988, originally dating back to the Copyright Act 1911. Ireland’s Copyright and Related Rights Act 2000 (s93) and Australia’s Copyright Act 1968 (s65) provide the same rights.

For comparison, the USA would be pale green on this map — the equivalent law, 17 USC 120(a), excludes pictorial representations of buildings from the architect’s copyright, but does not provide the same exception for public works of art.

The grave of Arman, in Père-Lachaise cemetery, censored due to French FoP laws; pixellated out from the image is a sculpture of a violin. Photo by Gede, censored by Coyau and multilicensed CC BY-SA.

In other countries — notably France, Italy and Greece — there is absolutely no such right. In theory, in Italy, for example, when publishing pictures of “cultural goods” (buildings, sculptures, paintings and so on) for commercial purposes one must obtain authorisation from the Ministry of Arts and Cultural Heritage. Iceland has restricted panorama rights too — there are no pictures of Hallgrímskirkja on Wikimedia Commons, as it is under copyright there until 2021.

Reda’s initial report recommended harmonising this disparity, proposing a unified standard allowing “images of works that are permanently located in public places”. So far, so sensible…
Jean-Marie Cavada, French ALDE MEP and president of Mouvement européen France. Photo by Leila Paul, multilicensed CC BY-SA.

Back in the Parliament, however, the Legal Affairs committee (JURI), has just adopted French centrist MEP Jean-Marie Cavada’s amendment to the report, removing Freedom of Panorama rights across the EU (and EFTA) member-states by adding the unitalicised text to the following paragraph from Reda’s report:

16. Considers that 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;
Ivan Jakovčić, ALDE MEP and head of the party Istrian Democratic Assembly. Photo by Roberta F., licensed CC BY-SA.

This despite IMCO, the Internal Market committee, having endorsed the opposite in its advice to JURI — in part because the majority of EU (and of EU+EFTA) countries have such freedoms. Unconditional reuse does have support — another JURI amendment, proposed by Croatian liberal/regionalist MEP Ivan Jakovčić was only narrowly defeated, calling on the Commission “to prevent the parasitic development of new commercial interests at the expense of authors and their rights”. Strong words indeed!

[Edited to correct: Apparently I misunderstood Jakovčić’s amendment and it was against Freedom of Panorama. Still, IMCO recommended in favour of Reda’s unamended text here and there is widespread support for widening our panorama rights, rather than Cavada’s amendment for restriction. — 22 June 2015, 0915 GMT]

And by comparison, only last year the Russian Wikimedia chapter succeeded in changing the Civil Code to bring about a handful of changes to their copyright law, including introducing Freedom of Panorama rights.

On 9 July 2015 — in just 3 weeks’ time from when I’m writing this — the European Parliament will vote on the amended report in plenary session. The report is formally an “own initiative” report, which does not have legislative weight, but it is expected that will be very influential in shaping the eventual legislative proposal from the European Commission.

There is an excellent article in this week’s Wikipedia Signpost by James Heald with a lot of background: “Three weeks to save freedom of panorama in Europe”; I’ve borrowed quite heavily from that article in writing this one.

Ok, but what would all of this mean?

The Millau Viaduct in France, censored due to French FoP laws. Photo blacked out by SPQRobin from a photo by Clem Rutter and licensed CC BY.

The image rights from public art really are “gleanings from the field” — they are utterly marginal to the creators of new buildings and new art but they’re of immense value to the ability to publicly depict and discuss these works.

Copyright on the Eiffel Tower has expired. Since a 1990 court case, however, its lighting displays are considered “original visual creations”, thus this image is censored due to French FoP laws. Photo whited out by SPQRobin from a photo by Sami Dalouche and licensed CC BY-SA.
The Louvre Pyramid, censored due to French FoP laws. Photo whited out by 84user from FOLP image 2269; public domain.
The John Hejduk Memorial Towers in Santiago de Compostela. Photo blacked out to illustrate FoP rights by Elisardojm from a photo by Lmbuga and licensed CC BY-SA.

Rather than allowing everyone to take and publish photographs of buildings and monuments in public places — as celebrated in Wiki Loves Monuments every year, as well as many, many books with author-supplied photographs — full permissions, clearances and royalties would need to be negotiated for videos, photos, paintings or drawings with any potential commercial use, or only authorised images could be used, again with royalties to be paid.

As merely one example of why this is a big deal, Wikipedia does not accept images unless they can be reused for any purpose. Wikimedia Commons has a category full of deletion requests that relate to FoP, with over 4500 images having been deleted; there have been nearly 100 images deleted of the Louvre Pyramid alone.

The Atomium in Brussels, exists on Wikimedia Commons only in this censored form due to Belgian FoP laws and renownedly litigious rightsholders. Photo by Nro92, blacked out by Romaine; public domain.
The Vitra Design Museum. Photo blanked out to illustrate FoP rights by Rillke from a deleted original by Taxiarchos228; licensed as Free Art. The left-hand text translates to “Following the proposed change to freedom of panorama in the EU, many modern buildings and buildings with changes by contemporary architects would no longer be shown in Wikipedia”.

The status of existing books published without such clearances would become unclear; most Wikipedia images depicting public art would be lost; and it would become very much more difficult and more expensive to publish future books comprehensively illustrating architecture and public art — or even artists’ sketchbooks depicting them.

The Atomium — the national monument of Belgium — is copyrighted, with litigious rightsholders; Wikipedia articles do not have a photograph of the building itself because they cannot. SABAM, Belgium’s collecting society for copyrights, has claimed worldwide intellectual property rights on all reproductions of the image. It is illegal to publish photographs of the Atomium until the copyright expires on 1 January 2076.

This is plainly a terrible idea. This isn’t going to raise any significant quantity of money for the creators of these cultural works — and it would be very hard to argue that an architect or an artist commissioned to create a piece of public-space art should receive royalties in the same way as musicians or authors do, for example.

Of the 7 EU countries where architects and visual artists earn the highest incomes, 6 have full and unrestricted Freedom of Panorama (with Luxembourg being the exception). And creators aren’t making these works ignorant of their destination — it is not the public space entering the artist’s atelier, but the artist’s work being presented into public space.

So what can we do about it?

Writing a letter, by Petar Milošević; licensed CC BY-SA.

The Signpost piece also contains some concrete suggestions of what we can do. That the recommendation of IMCO was for an exception to be created Union-wide reminds us that most EU jurisdictions do have a concept of freedom of panorama; it’s entirely plausible that full vote of the European Parliament might overturn Cavada’s amendment from JURI.

To achieve that, though, we need to lobby MEPs.

The best way to do that, if you’re an EU citizen, is to ask your local MEPs to communicate your concern to the MEP responsible for coordinating their party position — this is more effective than contacting them directly. For UK residents, that’s Sajjad Karim for the Conservatives and Mary Honeyball for Labour; I’m not sure who it is for UKIP or parties in Ireland, but I’ll update this article if I find out. No other UK party has more than 3 MEPs, so just communicate your concern to the MEP themselves for other parties’ members.

Ask for confirmation that the group (or, for smaller parties, that the individual) will vote to remove this clause from the report and will defend the full right to make use of photos taken in public places — maintaining the existing law in the UK, Ireland and all the other countries coloured dark green in the map above.

WriteToThem.com is a website by non-profit mySociety that makes it easy for UK residents to contact their elected representatives. Disclaimer: I’m a director and trustee of mySociety.

UK residents can contact their MEPs through WriteToThem, where you just have to enter your postcode to get a list of them. Other countries’ residents will have to go through the European Parliament’s site, but there are email addresses on the Parliament’s MEP search engine, which allows you to narrow things down by parliamentary constituency; and Wikipedia has a page listing MEPs by country, translated into some of the other EU languages if you hit the links along the left-hand side.

For how best to make your case effectively, I’ll quote the Signpost article directly:

As with any communication of this kind, it makes all the difference if you can make your letter personal. Why does it mean something personally to you to be able to take a photograph of a public place, and do with it as you wish? For example, is there such a photograph you have taken that has a particular significance to you? Has it been reused in a commercial context? Or have you done research for which it has made all the difference to find comprehensively illustrated material in a library, a bookshop, or on the internet? The more you can talk about your personal experience and why this matters to you, to make your letter different from anybody else’s, the more impact you will have.

Other points are pretty obvious: be polite and respectful (especially if you’re writing to an MEP from a party you don’t usually agree with!) and follow up on their response — either thanking them for being receptive or politely explaining that you’re unhappy with their response.

Tell everyone you know! Orator, by southtyrolean, licensed CC BY.

As well as contacting MEPs, we need to spread the word to other people who might be interested and might take action. Contact professional bodies, trades unions, local history groups, architects, artists, writers, publishers, photographers, journalists, academics. Anyone you can think of who has a voice, please encourage them to speak out — and before 9 July 2015.

Edited to add: If you’re an editor on the English Wikipedia, there is a proposal on Village Pump that could use your input  22 June 2015, 1100 GMT.

And where can we find out more?

text/x-generic-info icon by Perhelion; public domain.

Wikimedia Commons has started putting together a page for campaigning ideas and resources at Commons:Freedom of Panorama 2015, along with a page of Talking points which includes rebuttals for common counter-arguments. And being a wiki, we can all contribute to those thoughts and ideas.

There are some great images showing of the effects of this proposal; I’ve used many here. The Wikimedia Commons has a category at Category:Censored by lack of FOP, which includes the subcategory of Category:Blacked out versions of images relying on FoP, showing images pre-emptively censored to make the point in the current political discussion.

Thanks for reading. Now go write your MEPs and tell everyone you know!☺

This article is dedicated to the public domain under the terms of the Creative Commons Zero license. Please translate, copy, excerpt, share, disseminate and otherwise spread it far and wide. You don’t need to ask me, you don’t need to tell me. Just do it!