In 2001, the European Union sought to harmonise the rules and standards relating to intellectual property law. EU Directive 2001/29 (the 'InfoSoc Directive') listed a number of areas where it is considered desirable to introduce exceptions to the absolute nature of copyright protection, but these exceptions, outlined in Article 5(3), are not mandatory, leaving Member States free to decide whether or not to implement them in their domestic copyright legislation. As a result, there has been great divergence amongst the Member States who have either maintained, implemented or ignored Article 5(3). Since then, however, the huge expansion of the Internet has aggravated some of the issues that the 2001 Directive sought to address. One major cause of concern and confusion relates to the growth of Internet platforms that allow individuals to share photographs. Inevitably, some of the images posted by tourists to show off their travels to friends at home include images of buildings and sculptures located in public places but which may, in some cases be protected by copyright if the artist or sculptor is still living or died less than 70 years ago. In some EU Member States an exception to copyright exists in these circumstances: panoramafreiheit or freedom of panorama permits, in certain circumstances which vary from State to State, the use of images of buildings and sculptures located in public spaces. However, the differences in the scope of the freedom mean that considerable uncertainty exists as to which buildings and sculptures may be freely photographed and which are protected by copyright. Thus, the need for a strong harmonisation of the freedom of panorama was highlighted in a report conducted by Julia Reda in 2015. In response, the European Union has recently decided to bring this controversial issue back to its political agenda. This article examines the challenges created by Article 5 (3) (h) of the EU Directive 2001/29. In addition, it poses the question--is the harmonisation of the freedom of panorama exception really necessary? This paper suggests that it is, in order to put an end to the remaining legal uncertainties. If the European Union plans to create an effective digital market, harmonisation is recommended.
COPYRIGHT AND THE CHALLENGES OF THE FREEDOM OF PANORAMA EXCEPTION
In 2016 a Proposal for a Directive of the European Parliament and of the Council on Copyright in the Digital Single Market was published. The need for a new Directive in this area to replace/supplement Directive 2001/29/EC of the European Parliament and the Council on the harmonisation of certain aspects of copyright and related rights in the information society ('InfoSoc Directive') is outlined in the Explanatory Memorandum as follows:
The evolution of digital technologies has changed the way works and other protected subject matter are created, produced, distributed and exploited. New uses have emerged as well as new actors and new business models. In the digital environment, cross-border uses have also intensified and new opportunities for consumers to access copyright-protected content have materialised. Even though the objectives and principles laid down by the EU copyright framework remain sound, there is a need to adapt it to these new realities. The emergence of the digital world, and particularly the development of the Internet, has created new challenges for copyright law. The very nature of the Internet means that it allows individuals to communicate and share information, interconnecting them through various different means. Simultaneously, the growth of social media platforms such as Instagram or Facebook has deeply affected intellectual property regulations. Copyright law is challenged every day in cyberspace. (1)
Copyright is a property right which gives the author of an original literary, artistic, musical or other creative work, the exclusive right to copy the work, to issue copies of the work to the public, to rent or lend the work to the public and to communicate the work to the public. (2) In view of the commercial importance of copyright and the diffusion of information facilitated by the growth of the Internet, it was inevitable that the European Union would seek to harmonise these related intellectual property rules. This harmonisation process resulted, in 2001, in Directive 2001/29/EC of the European Parliament and the Council on the harmonisation of certain aspects of copyright and related rights in the information society: the 'InfoSoc Directive'. According to its Preamble, this Directive aims to harmonise the copyright laws and related rights of the EU Member States in order to maintain prosperity and competition in the internal market. (3) The 2001 Directive focuses on particular aspects of copyright such as the identity of the rightholder, the definition of communication and distribution, and the sanctions and remedies. (4) When a work is eligible for copyright protection, only the rightholder can allow the reproduction and communication of the work (5) and when it expires, (6) the formerly protected work falls into the 'public domain': it is no longer protected by copyright and may be freely used by anyone.
The huge increase in use of social media platforms referred to above has given rise to a new conundrum for copyright law: to what extent should images of buildings and sculptures posted by, among others, tourists on Facebook and other social media sites, be protected from copying whilst still in copyright? This issue is, perhaps surprisingly, not covered in the 2016 proposed Directive, although there was a public consultation on the issue--the German MEP Julia Reda has sought to raise awareness of the problems that arise from a non-harmonised copyright law relating to diffusion of images of buildings and sculptures. In 2015 she wrote an own-initiative report in response to proposals by the Commission to update copyright legislation to make it suitable for the digital age. In this she warned that a non-mandatory and non-harmonised freedom of panorama would generate legal uncertainty in the European Union: (7)
The status quo is a mess. It's time to end once and for all any debate over whether or not you're allowed to share a photo of the Eiffel Tower at night--or any other building or artwork. Rules that might have made sense when the only commercial use of photos of landmarks was selling postcards have turned into a nuisance for both creators and the public at large. Lawmakers need to realize that more copyright is not always better. (8) Architectural and sculptural works permanently located in public places do not necessarily fall into the public domain. In many cases, buildings, monuments and sculptures are subject to copyright protection. (9) As a result, these works cannot always be freely reproduced and communicated to the public. (10) Photographers, for example, need to seek the consent of the artist or architect if they want to reproduce copyright-protected works. However, this requirement has proved to be problematic (11) and exceptions have been developed to allow for certain reproductions, in some jurisdictions and in some circumstances, to be permitted without the requirement to obtain prior authorisation from the rightholder. Article 5 of the InfoSoc Directive which lists the exceptions and limitations that might apply to copyright is generally regarded as the Directive's most controversial provision.
Among the exceptions listed in Article 5, one in particular has given rise to considerable debate over the years--freedom of panorama. The freedom of panorama exception is defined in Article 5(3)(h) as the:
use of works, such as works of architecture or sculpture, made to be located permanently in public places. In other words, freedom of panorama is the right to:
publish pictures of public buildings and artworks such as sculptures permanently installed in public places. (12) Although this exception might appear innocuous, it is in reality somewhat controversial, (13) and has been approached in different ways by the various Member States of the European Union. Unlike some of the other provisions of the Directive, the implementation of the exceptions to the normal rules of copyright listed in Article 5(3), including that relating to reproduction of works of architecture and sculpture in public places, is optional rather than mandatory. The discrepancies in implementation between the Member States have hindered the attainment of the EU goal:
of promoting a single internal market throughout Europe, and safeguarding freedom of expression and free movement of services throughout the European Union. (14) This failure to attain a uniform freedom of panorama exception throughout the European Union means that there are uncertainties and discrepancies between Member States as to what may or may not be freely reproduced or posted, resulting in difficulties for "end-users, service providers and others", (15) The social changes created by the emergence of the Internet explained above have been considered as creating the impetus for the introduction of the freedom of panorama exception. The constant sharing of pictures on social media sites has led to several surprising findings of copyright infringement. (16) These relate in particular to experience-sharing platforms such as Facebook. Bertoni and Montagnani take as an example a German case in which a 'photograph of carefully arranged food was shared on the Internet. The chef claimed that this reproduction constituted an infringement of his copyright (17) and that the photograph could not be published on digital platforms without his consent. (18) Similar issues arise in relation to the exception contained in Article 5(3)(h), and the lawfulness of images featuring copyright-protected artworks permanently displayed in public places. (19)
The huge expansion of the Internet means that it is arguable that the InfoSoc Directive, adopted in...