The EU Public Interest Clinic and Wikimedia Present: Extending Freedom of Panorama in Europe

26 Pages Posted: 5 May 2015 Last revised: 20 Jun 2015

Joshua Lobert

New York University (NYU)

Bianca Isaias

New York University School of Law

Karel Bernardi

HEC Paris

Giuseppe Mazziotti

Centre for European Policy Studies ; Trinity College Dublin

Alberto Alemanno

HEC Paris

Lamin Khadar

New York University (NYU) - NYU School of Law (Paris); HEC Paris; European University Institute, Students

Date Written: April 25, 2015

Abstract

This paper advocates for the adoption of freedom of panorama in the European Union. The term “freedom of panorama” (FoP) refers to an unconditional copyright exception vis-à-vis works of architecture and sculpture placed permanently in public places. The current lack of uniformity with respect to copyright exceptions at the EU level has proven problematic to end-users, service providers and other intermediaries. It has also frustrated the ultimate goal of promoting a single internal market throughout Europe, and safeguarding freedom of expression and free movement of services throughout the EU.

The current system does not harmonize copyright exceptions throughout the EU. Rather, each Member State is free to adopt copyright exceptions as it sees fit. The result is a heavily fragmented system that leaves businesses and users with the necessity to individually deal with each Member State and rights holder concerned. A mandatory exception for FoP would play a key role in guaranteeing freedom of expression, access to education and the free movement of digital services in the internal single market.

FoP is critical for ensuring freedom of expression and access to education. Additionally, the growth of net companies that rely on user generated conduct (UGC), such as through YouTube, Wikipedia and blogs, has led to the constant fear among most EU citizens of violating copyright law. This reiterates the need for a FoP exception that covers both commercial and non-commercial uses. Furthermore, many new cross-border educational initiatives in Europe do not fall within the “non-commercial educational and scientific research purposes” exempted under the current InfoSoc Directive. Some national systems that broadly extend the education exception to uses that fall outside the “non-commercial” definition do not extend the exception to online uses.

The EU Copyright Directive should be re-written to include a mandatory FoP provision, as is already the case in the national law of EU Member States such as the United Kingdom and Germany, as well as third countries like Brazil. This solution would also comply with copyright-protective countries’ call – among them Italy, Spain and France – for such an exhaustive list. This solution would provide clear direction to Member States without becoming an overly lengthy and unwieldy document.

Several problems remain with this approach. First, there has been reticence on the part of the European Court of Human Rights to protect FoP from a freedom of expression standpoint when the images’ use was commercial. Second, there is the possibility for Member States to use trademark law, cultural heritage law, or other national laws to get around a mandatory FoP exception. The uses of trademark and cultural heritage law do not pose a significant barrier to a mandatory FoP exception at present. However, the reforms ultimately decided upon must take into account the possibility of the use of this law to frustrate the Directive’s objectives.

The HEC-NYU EU Public Interest Clinic (the “Clinic”) presents its justifications for a mandatory FoP exception below. We also include an annex and model legislation that addresses many of the deficiencies of current EU law.

Suggested Citation

Lobert, Joshua and Isaias, Bianca and Bernardi, Karel and Mazziotti, Giuseppe and Alemanno, Alberto and Khadar, Lamin, The EU Public Interest Clinic and Wikimedia Present: Extending Freedom of Panorama in Europe (April 25, 2015). HEC Paris Research Paper No. LAW-2015-1092. Available at SSRN: https://ssrn.com/abstract=2602683 or http://dx.doi.org/10.2139/ssrn.2602683

Joshua Lobert (Contact Author)

New York University (NYU) ( email )

Bobst Library, E-resource Acquisitions
20 Cooper Square 3rd Floor
New York, NY 10003-711
United States

Bianca Isaias

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Karel Bernardi

HEC Paris ( email )

1 rue de la Liberation
Jouy-en-Josas Cedex, 78351
France

Giuseppe Mazziotti

Centre for European Policy Studies ( email )

1 Place du Congres, 1000
Brussels, 1000
Belgium

Trinity College Dublin ( email )

House 39 New Square
Trinity College Dublin
Dublin, Dublin 2
Ireland

HOME PAGE: http://https://www.tcd.ie/Law/GiuseppeMazziotti/index.php

Alberto Alemanno

HEC Paris ( email )

1 rue de la Libération
Jouy-en-Josas Cedex, 78351
France

Lamin Khadar

New York University (NYU) - NYU School of Law (Paris) ( email )

Paris
France

HEC Paris ( email )

1 rue de la Liberation
Jouy-en-Josas Cedex, 78351
France

European University Institute, Students ( email )

San Domenico di Fiesole
Italy

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