The EU should propose a freedom of panorama exception, mandatory across the EU, that would give users the right to share photos, videos, and images of any copyrighted works that are permanently located in public spaces. Such an approach, adjusted to our daily practices, would give legal certainty to EU citizens when using online platforms to share visual pieces of their daily lives.
The right to take and re-use pictures of our public spaces is critical for the arts, preservation of culture, and education. It is also highly relevant to freedom of expression. It forms the foundation upon which many European photographers, painters, and visual artists create art and earn a living. Nevertheless, the national copyright frameworks of the EU currently do not offer consistent rules on the freedom of panorama. The majority of countries have this right, but others are missing it entirely (e.g. France).
Without a mandatory freedom of panorama exception, citizens across the EU cannot share online photos and videos of copyrighted works located in public spaces (such as sculptures and murals) taken during their travels. The lack of harmonized rules also makes it difficult or even impossible to organise a European photography contest, or publish a book with photographs of street art. A broad EU-wide freedom of panorama exception, which applies to both commercial and noncommercial uses of all works permanently located in public spaces, should thus be introduced.
Despite broad support for freedom of panorama from various stakeholders, the European Commission decided not to include this issue in their DSM proposal. By not tackling this issue the European Commission perpetuates EU cross-border legal issues and thus fails to deliver on the primary goal of the reform.
History
The copyright framework for freedom of panorama in Europe is fragmented. While the InfoSoc Directive Art. 5(3)(h) contains a broad and flexible freedom of panorama exception, the exception is optional for Member States to implement. This creates legal uncertainty for people who share images of publicly located works anywhere on the internet.
Despite broad support for freedom of panorama from various stakeholders (shown in the public consultation of 2016), the European Commission did not propose to introduce a mandatory EU-wide freedom of panorama exception.
The Council did not include a mandatory freedom of panorama exception in its May 2018 negotiation mandate. In the European Parliament multiple MEPs proposed amendments that would have added a mandatory EU-wide freedom of panorama exception to the Directive, but these proposals did not made into the final text that was voted in September 2018.
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