EU policy/Strategy/FoP/Argumentation

FoP - Argumentation

This page defines our argumentation in support of the Freedom of Panorama demand.

In one sentence
The freedom to take, use and share images taken in public spaces should be secured across the EU.

What exactly are we demanding?
The currently optional exception to use images of works, such as works of architecture or sculpture located in public places, should be harmonised. (Directive 2001/29/EC Article 5/3/H)

Main arguments in bullet points

• Currently, 28 very different implementations result in a framework that causes legal insecurities and risks hampering creativity and innovation.
  • We have three parallel studies on the implementation and all come up with different results, causing a prohibitive legal risk.
• Using and re-using pictures taken in public spaces is nowadays a precondition for freedom of expression.
• It is impossible and undesirable to control the use of such images. Keeping impractical and largely inapplicable rules results in ineffective legislation.

Answers to common counter-arguments

• But what about extremists using the works? What about data protection? A copyright exception does not change the moral, privacy and personality rights of the authors and images. Nor does it alter legislation on hate speech, harassment or abuse there might be.
• But that means that everyone will be able to use the public art! The inverse would mean that we privatise public space. Currently, we charge people for displaying their works/products in public spaces. We call that advertising. A sculpture's value to a large extent comes from it being installed in a public square. Its value is part of the value of the square and vice-versa. The author is paid upfront for the artwork, and gets additional income from using the public space as an advertising space. And this exception is only valid for works permanently installed in public spaces (thus building permit etc.).
• No one will attack Wikipedia for using such images. It is true that collecting societies are saying that users and Wikipedia can use these photographs on social media and they won't go after them. Nevertheless, the use of this images is legally a clear copyright violation. This means that the collecting societies are admitting copyright rules and real-life don't match and are actively encouraging us to disregard it. We want to respect copyright. Additionally, in some countries copyright is part of the criminal law, leading to much higher risks for users.
• What about fair remuneration? Architects in countries with a full FoP exception don't earn less money then their colleagues in countries where this liberty isn't granted. Public artworks are paid/commissioned beforehand.
• We need to motivate authors to create! The incentive to create and pay for architecture comes from the fact that the work will be part of the public space. The author is paid beforehand by the municipality, developer or an initiative committee.
• We need to protect authors! FoP was created especially with protecting authors in mind. It was first introduced in Bavaria in the 1830s to make sure street painters wouldn't be put out of a livelihood by newly established copyright provisions. FoP is thus meant to protect authors and facilitate creativity.
• A non-commercial exception is good enough. Wikipedia can be seen in European law and jurisprudence as non-for-profit but of "commercial scope", due the its popularity and the effects its size has on the overall market. This makes it very unclear what a judge would rule in a court case. Private sites that have ads to cover even only the hosting fees can also be considered commercial. Social media platforms and comment sections in news sites are clearly commercial examples.
• We need to respect authors. Authors' moral rights are not changed. Wikimedia works on the attribution of works would support an attribution requirement for the cases where this is feasible. We are talking about permanently installed public works here, which means that the author is knowingly (municipal decision, building permit) making the choice to make her work part of the public space.
• What about photographers? Photographers are authors too, like the street painters of the 19th century. Freedom of panorama allows them to express their creativity by taking photos of public spaces. As authors, they must be able to sell their photos as well as to release them with free and copyleft licenses, another reason why freedom of panorama must allow commercial usages.
• Only Wikimedia wants this! The augmented reality industries (including games developers), photographers, film makers and car manufacturers (self-driving cars) want this as well.

When we need to interest someone for our issue quickly, what do we say?
Using a picture of the Atomium, the Eiffel Tower by night or the European Parliament buildings is currently illegal - even on a private blog with no intention of profit. The reason for this is that architecture is artwork and therefore rightfully covered by copyright. To follow the law, one has to request the architect's permission for each photo. Many EU countries provide an exception that ensures that images taken in public places can be used freely. We call this Freedom of Panorama and want it to apply across the European Union.

How to best briefly describe the issue and promote our solution?

• Two stories:
  1. If you go on holidays to countries like France, Italy or Greece and share your holiday photos on Facebook or your blog, many of them will be infringements of copyright and other laws. The reason for this is that architecture, as a work of art, is protected and images thereof are considered derivative works. This means that to follow the law you'd have to ask each architect for permission for each building you want to take a picture of until 70 years after her/his death. In Italy you also have to ask a public official.
  2. In an attempt to comply with the law, the European Parliament gave Wikimedians a written permission to use an image of its building in Strasbourg. It turned out that even the Parliament doesn't own the rights to its own building and isn't allowed to give usage permission other than for "news purposes". That doesn't cover Wikipedia or even a MEPs own website.
• Many countries have an exception to copyright, that allows the free use of images located permanently in public spaces. We call this exception Freedom of Panorama.
• Since this exception is optional under the current 2001 Copyright in the Information Society Directive, plenty of countries don't recognise it, while others have introduced it only partially.
• The result is a fragmented and confusing legal framework within the EU that not only prohibits images of public places to be used freely, but results in legal insecurity for commercial and non-commercial projects. (argument 1)
• A "non-commercial only" exception won't work: Wikimedia projects allow the commercial re-use of content, for example, and Facebook and Twitter are for-profit (i.e. commercial) sites. (argument 2)
• In countries with a full exception like the UK and Germany, architects don't earn less money. The structure remains protected (i.e. from being copied in other buildings) but images become freely usable. (argument 3)
• Why was copyright created? To give incentive to authors. In this case the incentive of the architect is to build the structure, not use images. (argument 4)
• The only conceivable practical solution to ensure freedom of expression, which in the internet age includes sharing pictures of public spaces, and a predictable legal environment is to harmonise the Freedom of Panorama exception on the EU level.