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

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.