REPORT ON THE FREEDOM OF PANORAMA in EUROPE
(University of Library Studies and IT, Bulgaria)
- 1 I. Freedom of Panorama
- 2 II. Legal framework in European Union
- 2.1 1. AUSTRIA
- 2.2 2. BELGIUM
- 2.3 3. BULGARIA
- 2.4 4. CROATIA
- 2.5 5. CYPRUS
- 2.6 6. CZECH REPUBLIC
- 2.7 7. DENMARK
- 2.8 8. ESTONIA
- 2.9 9. FINLAND
- 2.10 10. FRANCE
- 2.11 11. GERMANY
- 2.12 12. GREECE
- 2.13 13. HUNGARY
- 2.14 14. IRELAND
- 2.15 15. ITALY
- 2.16 16. LATVIA
- 2.17 17. LITHUANIA
- 2.18 18. LUXEMBURG
- 2.19 19. MALTA
- 2.20 20. NETHERLANDS
- 2.21 21. POLAND
- 2.22 22. PORTUGAL
- 2.23 23. ROMANIA
- 2.24 24. SLOVAKIA
- 2.25 25. SLOVENIA
- 2.26 26. SPAIN
- 2.27 27. SWEDEN
- 2.28 28. UNITED KINGDOM
- 2.29 29. RUSSIA
- 3 III. Table – situation with Freedom of Panorama in accordance to the relevant legal provisions per country
- 4 IV. Comparative Analysis
I. Freedom of Panorama
Freedom of Panorama is a notion that applies for an exception in the copyrights laws. According to this principle the subjective rights of copyright owner are limited (i.e. there is a restriction in the scope of copyright) to a different extent (in accordance to the different legislations) regarding the use copyrighted works permanently located in public places. For the purposes of the present report shall be taken the understanding for Freedom of Panorama as “the right to take photograph of public spaces and to use such photographs for personal and commercial purposes”, given by Bryce Clayton Newell (Freedom of Panorama: A Comparative Look at International Restrictions on Public Photography, 44 CREIGHTON LAW REVIEW 405 (2011). Though that in many jurisdictions are provided narrow or widen forms of use of publicly placed works, it could be considered that the above understanding presents the core of the notion as well the most common form of use. The extent of the provided free use regarding the publicly placed copyrighted works varies in the different countries.
II. Legal framework in European Union
Art. 5, Section 3 (h) Directive 2001/29/EC provides the opportunity of such provision (copyright’ exception) to be implemented in the legislations of Member States (“Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: …use of works, such as works of architecture or sculpture, made to be located permanently in public places.”) Below shall be discussed the relevant legal provisions regarding the Freedom of Panorama Exception under the Copyrights Laws in European Union per country. It must be also noted, that the below discussed provisions applies to works that are permanently placed in public places.
1.1. Relevant legal provision “Free Uses of Works of Art, Article 54.1—(1) It shall be permissable…5. It shall be permissible to reproduce, distribute, present in public by means of optical devices and broadcast works of architecture after their construction or other works of fine art permanently located in a place used as a public thoroughfare; this provision shall not extend to the replication of a work of architecture and the reproduction of a painting or a graphic work for the purpose of placing such reproduction permanently in a place of such kind, or to the three-dimensional reproduction of a three-dimensional work.” 2
1.2. Comments The rule applies to works of architecture and generally to works of art (works of literature as defined in § 2 of the Federal Law on Copyright are excluded). Ways of use that are permitted are reproduction, distribution, presentation in public as well broadcast (photography is included in the permissible actions of use). Interesting clarification is included in the above provision – it applies to works of architecture only after their construction. It means that architectural works during their erection/construction process even placed in public spaces are not subject to the provision’ exception. Under the above provision there are two restrictions: regarding making of three dimensional copies of three-dimensional work; and a specific restriction for architectural work/painting/graphic work for which copies are forbidden if aimed to be placed permanently in public. - It is forbidden copies to be done for the purposes of placing them on public. No restriction stated with regard to the commercial use. In conclusion – Freedom of Panorama is enjoyed to a high extent in Austria.
2.1. Relevant legal provision “Art. 22.3—(1) Once a work has been lawfully published, its author may not prohibit: … 2. reproduction and communication to the public of a work shown in a place accessible to the public where the aim of reproduction or communication to the public is not the work itself” 4
2.2. Comments The rule applies to all types of copyrighted works. Under the above provision the permissible use includes reproduction and communication to the public (i.e. it is permissible to photograph) as far as the sole work is not the aim of the taken action. This restriction means that the permitted actions, i.e. the freedom of panorama applies to very short types of reproductions. No restrictions are introduced in connection to the commercial use. In conclusion – the Freedom of Panorama is limited.
3.1. Relevant legal provision
“Permissible Free Use without Payment of Compensation Art. 24. 5The following shall be permissible without the consent of the copyright holder and without payment of compensation:
7. Use of works permanently exhibited on streets, squares and other public places, excluding mechanical contact copying, as well as their broadcasting by wireless means or transmission by cable or other technical means, if done for the purposes of information or another non-commercial purpose.”
3.2. Comments The rule applies to all types of copyrighted works. The rule also applies to all types of use (the term used in the provision states “use” which interpretation in connection to art. 19 means that all of types of use are meant including photography). It exclude however direct mechanical copying of the works. The provision includes restriction – such uses must be done for informational or other non-commercial uses, i.e. the commercial use is excluded for the scope of exception. In conclusion - Freedom of Panorama could be defined as relatively limited.
4.1. Legal framework “REPRODUCTION OF COPYRIGHT WORKS PERMANENTLY LOCATED IN PUBLIC PLACES Article 91 6 (1) It shall be permitted to reproduce the works, which are permanently located on streets, squares, parks or other places that are accessible to the public, and to distribute and communicate to the public such reproductions. (2) The works referred to in paragraph (1) of this Article may not be reproduced in a three-dimensional form. (3) The source and authorship shall be indicated on the copies referred to in paragraph (1) of this Article, unless such indication is not possible. REPRODUCTION OF ARCHITECTURAL STRUCTURE Article 92 The provisions referred to in Article 91, paragraph (1) of this Act shall apply only in respect of outer appearance of the architectural structure.”
4.2. Comments The rule applies to all types of works protected under copyrights with the exception of interiors of public buildings (architectural structure). It permits use in several forms (reproduction of the works and distribution/communication of such copies). Under the wording the photography is permitted form of use. It is explicitly forbidden to make three dimensional copies of the work under the present rule. There is also a requirement for indication of the authorship. No restriction is included regarding the commercial use, or regarding the aim of use of the copies. In conclusion – Freedom of panorama is enjoyed to a high extent.
5.1. Legal framework “Article 7.7—(1) Copyright in a scientific, literary, musical or artistic work or a cinematograph film or photograph shall consist in the exclusive right to control the doing in the Republic of any of the following acts: the reproduction in any form, sale, rental, distribution, lending, advertising, exhibiting in public, the communication to the public, the broadcasting, the translation, adaptation and any other arrangement, of the whole work or a substantial part thereof: Provided that copyright in any such work shall not include the right to control—
(c) the reproduction and distribution of copies of any artistic work permanently situated in a place where it may be viewed by the public;”
5.2. Comments The rule applies to the artistic works only. Under the legal definition of Art. 2,b “artistic works include paintings, drawings, etchings, lithographs, woodcuts, engravings and prints; maps, plans and diagrams; works of sculpture; photographs not comprised in a cinematograph film; works of architecture in the form of buildings or models; works of artistic craftsmanship and works similar thereto). The allowed under the provision use includes reproduction and distribution of copies, which means that the photography is included. No restrictions are provided regarding the commercial use or the purpose of use. In conclusion – Freedom of Panorama is enjoyed to a relatively high extent in Cyprus.
6. CZECH REPUBLIC
6.1. Relevant legal provision “Article 33 8 Use of a Work Located in Public Place (1) Copyright is not infringed by anybody who records or expresses by drawing, painting, graphic art, photography or film a work permanently located on a square, in a street, in a park, on a public route or in any other public place; copyright shall likewise not be infringed by anybody who further uses a work so expressed, rendered or recorded. If possible, the name of the author (unless the work is an anonymous work) or the name of the person under whose name the work is being introduced in public, the title of the work and its location shall be indicated. (2) The provisions of Paragraph (1) shall not apply to making a reproduction or imitation of a work of architecture in the form of erecting a building and to the reproduction and distribution of a work in the form of a three-dimensional reproduction.“
6.2. Comments The rule applies to all types of works. The possible use is defined as follows: record and expressing (including by photography) as well the further uses of the copies. There is included a requirement for indication of authorship (if possible) of the initial work. The provision includes specific restriction regard to reproduction/imitation of works of architecture (meant actual three-dimensional copy) as well three-dimensional copies of the rest of the works. There is no restriction regarding the commercial use. In conclusion – Freedom of Panorama is enjoyed to a high extent.
7.1. Relevant legal provision “Use of Works of Fine Arts etc. 9 24.−(1) Works of art included in a collection, or exhibited, or offered for sale may be reproduced in catalogues of the collection. Such works of art may also be used in notices of exhibitions or sale, including in the form of communication to the public. (2) Works of art may be reproduced in pictorial form and then made available to the public if they are permanently situated in a public place or road. The provision of the first sentence shall not apply if the work of art is the chief motif and its reproduction is used for commercial purposes. (3) Buildings may be freely reproduced in pictorial form and then made available to the public.” “24 a.-(1) A work of art that has been made public may be reproduced, if the terms regarding extend collective license according to section 50 have been met. This shall, however, not apply is the author has issued a prohibition against use of the work in relation to any of the parties to the license agreement.”
7.2. Comments The rule applies to the works of art (i.e. the literary works are excluded from its application – Section 1 of the Act, Protected works). The permitted use under the provision is described as per reproduction in pictorial form (i.e. photography is permitted) and communication to the public of the copies made. There is restriction for the form of use – the work of art may not be the chief motif (in other word main subject) of such reproduction. There is also a restriction regarding the purpose of use – commercial use is not allowed.
The above restrictions do not apply for the buildings.
There is also a specific text in connection to the extended collective license. In general, Freedom of Panorama is enjoyed to a full extent with regard to the buildings and to a limited extent regarding the works of art. Literary works are not included.
8.1. Relevant legal provision “§ 20’. 10 Free use of reproductions of works located in places open to public It is permitted to reproduce works of architecture, works of visual art, works of applied art or photographic works which are permanently located in places open to the public, without the authorization of the author and without payment of remuneration, by any means except for mechanical contact copying, and to communicate such reproductions of works to the public except if the work is the main subject of the reproduction and it is intended to be used for direct commercial purposes. If the work specified in this section carries the name of its author, it shall be indicated in communicating the reproduction to the public. [RT I 2004, 71, 500 – entry into force 29.10.2004]” “§ 20 Free use of reproductions of works of architecture located in places open to public in real estate advertisements The reproduction and communication to the public of reproductions of works of architecture in real estate advertisements to the extent justified by the purpose without the authorisation of the author and without payment of remuneration is permitted if mention is made of the name of the author of the work. [RT I 2006, 28, 210 – entry into force 30.06.2006]”
8.2. Comments The rule applies with regard to several types of works – of architecture, visual and applied art and photography (i.e. the specific list means that not all of the types of copyrighted works are subject to the exception but only those included in the list. Under the provision is permitted reproduction and communication of such copies (thus the photography of works is permitted under the provision). However, direct mechanical copying is not allowed as a method for reproduction. The rule provides several further restrictions - the copied work must not be the main subject of the copy. Further there is a restriction regarding the commercial use – the copy must not be intended for direct commercial purposes. The rule also requires indication of the authorship. There is included also a special provision regarding the use of works of architecture (exclusively) regarding real estate advertisements. In conclusion the Freedom of Panorama is limited – because of the restriction regarding commercial use (direct commercial purposes) and because of the requirement regarding the purpose of reproduction (main subject of the reproduction).
9.1. Relevant legal provision “Section 25a (14.10.2005/821)11 (3) A work of art may be reproduced in pictorial form in cases other than those referred to in subsections 1 and 2 if the work is permanently placed at, or in the immediate vicinity of, a public place. If the work of art is the leading motive of the picture, the picture may not be used for the purpose of gain. A picture having a material connection to the text may, however, be included in a newspaper or a periodical. (4) A building may be freely reproduced in pictorial form.” Section 25a (14.10.2005/821)
9.2. Comments The rule refers to works of art (literary works, Section 1(1) of the Act, are not mentioned).
It defines the form of use which is reproduction in pictorial form, (i.e. photography is permitted).
The rule includes one restriction formulated in interesting way – it forbids use for commercial purpose (economic gain) in case that the copied work is the main subject of the reproduction. However, it is specifically mentioned the buildings may be freely reproduced. In conclusion - the works of architecture enjoy full Freedom of Panorama and for the other works Freedom of Panorama is relatively limited.
10.1. Legal framework Article L 122-512 of the French Code de la propriété intellectuelle which adresses the exceptions in copyrights lacks such a provision regarding the representation of publicly placed works of art. However, Art. L-122-5 contains the following text (with some relevance to the subject issue): “9. Reproduction or representation, in full or in part, of a work of graphic art, plastic or architectural art, through print media, broadcast or online press, for the exclusive immediate information and direct relationship with the latter, subject to clear indication of the name of the author. The first paragraph of this 9° shall not apply to works, including photographic or illustrative, designed themselves to account information.”13
10.2. Comments France is one of the few countries where the Freedom of Panorama is not provided in the legislation. However, the court practice has accepted several decisions where some levels of the copyright exception are pronounced. It means for example that taking of pictures of copyrighted works of architecture has to be authorized by the copyright owner. However, to some extent this is regarded as a stronger protection for the copyright over works of art and especially over architectural works. The above paragraph 9 from Article L-122-5 of French Code however allows use (reproduction and representation) of architectural, graphic and plastic art (there is no specification for their placement in public or not) with exclusive information purposes only.14
11.1. Relevant legal provision “Article 59. Works in public spaces15 (1) It shall be permissible to reproduce, distribute and make available to the public works located permanently in public roads and ways or public open spaces. In the case of buildings, this authorization shall only extend to the façade. (2) The reproductions may not be carried out on a building.” 11.2. Comments The notion Freedom of Panorama is derived from German copyright law. The rule applies to all types of works. However, the interiors of public buildings are excluded from the scope of works. The permitted use is described as reproduction, dissemination and making available to public – which means that the photography is permitted. No restrictions are mentioned regarding the commercial use or the way of reproduction of the work (main subject of the reproduction or not). In conclusion – The Freedom of Panorama is enjoyed to a high extent.
12.1. Relevant legal provision “Use of Images of Works Sited in Public Places Article 26.16 The occasional reproduction and communication by the mass media of images of architectural works, fine art works, photographs or works of applied art, which are sited permanently in a public place, shall be permissible, without the consent of the author and without payment.”
12.2. Comments The rule applied to several types of works – of architecture, fine and applied arts and photography. The rule permits use of two types (occasional reproduction/communication by mass media of images, i.e. specific types of reproductions and specific authorized persons). There is no restrictions regarding the commercial use or way of use (main subject or not of the image). In conclusion – relatively limited Freedom of Panorama.
13.1. Relevant legal provision “Article 68 17(1) Of a fine art, architectural and applied art creation erected with a permanent character outdoors in a public place a view may be made and used without the authorization of the author and paying remuneration to him. (2) For purposes of scientific educational lectures as well as of school education (Article 33, Paragraph (4)), the picture of a fine art, architectural, applied art and industrial design creation, furthermore artistic photographs may be used without the authorization of the author and paying remuneration to him.”
13.2. Comments The rule applies to several types of works – of architecture, of applied and fine arts. It permits making of “view” (i.e. photography is permitted) and its followed usage. No restriction with regard to the commercial use or whether the work is a main subject of the reproduction. In conclusion – relatively high extent of Freedom of Panorama enjoyed for the relevant types of works.
14.1. Relevant legal provision “Representation of certain artistic works on public display18 93.—(1) This section applies to the copyright in— (a) buildings, and (b) sculptures, models for buildings and works of artistic craftsmanship, where permanently situated in a public place or in premises open to the public. (2) The copyright in a work to which this section applies is not infringed by— (a) making a painting, drawing, diagram, map, chart, plan, engraving, etching, lithograph, woodcut, print or similar thing representing it, (b) making a photograph or film of it, or (c) broadcasting or including in a cable programme service, an image of it. (3) The copyright in a work to which this section applies is not infringed by the making available to the public of copies of anything the making of which is not, by virtue of this section, an infringement of the copyright in the work.”
14.2. Comments The rule applies to the works of architecture, sculptures and works of artistic craftsmanship. The provision provides specific listing of the forms of permitted use and types of reproductions allowed – in the list is included photographing. Further it includes the possibility copies of works received under the section to be lawfully communicated to the public. No restrictions are provided regarding the commercial use. In conclusion – Freedom of Panorama is enjoyed to a high extent with regard to the relevant types of works.
15.1. Legal framework Chapter Five “Free Use “19 of the Italian Law does not include specific provision regarding the exception Freedom of Panorama regarding copyrighted works, situated in public spaces.
15.2. Comments Italy, along with France is among the few countries that provides extensive copyright protection to the public spaces, i.e. do not provide exception related to the Freedom of Panorama. This approach corresponds to the extensive copyright protection of the architectural works granted by the Italian legislation. It however must be noted that there is a similar provision (as the one cited with regard to France) which allows use (reproduction and communication) of works (not specified to be publicly placed) for information purposes only. 20
16.1. Relevant legal provision “Section 25.21 Use of a Work on Public Display (1) It is permitted to use images of works of architecture, photography, visual arts, design, as well as of applied arts, permanently displayed in public places, for personal use and as information in news broadcasts or reports of current events, or include in works for non-commercial purposes. (2) That which is referred to in this Section shall not apply to cases when the image of a work is an object for further repetition of the work, for broadcast by broadcasting organizations or for the purpose of commercial use of the image of a work. [22 April 2004; 6 December 2007]”
16.2. Comments The rule applies to several types of works – of architecture, visual and applied arts, works of photography and design.
It permits the following use of images (i.e. reproduction by the way of photography is permitted) in several ways: personal use, non-commercial use and information in broadcast/report.
Restriction is provided with regard to commercial use. In conclusion - Freedom of Panorama is provided to a limited extent.
17.1. Relevant legal provision “Article 28. 22Limitations to Copyright in Works of Architecture and Sculptures 1. It shall be permissible to carry out the following acts without the authorisation of an author and without a remuneration: 1) to reproduce and make available to the public works of architecture and sculptures, made to be located permanently in public places., except exhibitions and museums; 2) to use a project, design, sketch or model of a building or any other construction works for the purpose of reconstructing this building or construction works. 2. The provisions of subparagraph 1 of paragraph 1 of this Article shall not be applied when a work of architecture or a sculpture is the main subject of representation in the reproduction, and when this is done for direct or indirect commercial advantage. 3. The provisions of subparagraph 1 of paragraph 1 of this Article shall not grant the right to reproduce works of architecture in the form of buildings or other construction works, and to make copies of sculptures.”
17.2. Comments The rule applies to several types of works – of architecture and sculptures (however it explicitly excludes works which are part of exhibitions and museums. Public spaces receive more restricted then usual definition – museums and exhibitions are excluded from the scope of the provision. The permitted use include the right of reproduction and communication to the public. However, actual copies (three dimensional) of buildings and sculptures are excluded of the provision’ application. The rule includes also a restriction regarding the commercial use (direct/indirect commercial advantage). In conclusion - the Freedom of Panorama is provided to a relatively limited extent.
18.1. Relevant legal provision “Section 2 23Exceptions to copyright 10. When the work has been lawfully made available to the public, the author may not prohibit:…7 reproduction and communication of works located in a place accessible to the public, where such works are not the main reproduction or communication issue.” 24
18.2. Comments The rule applies to all types of copyrighted works. In the provision are permitted ways of use - reproduction and communication, i.e. photography is included. No restriction is mentioned regarding to the commercial use. Restriction is provided with regard to the main subject of the reproduction – it must not be the work itself. In conclusion - Freedom of Panorama is provided to a relatively extent.
19.1. Relevant legal provision “Article 9.25 (1) Copyright in an audiovisual work, a database, a literary work other than in the case of a computer programme, a musical or artistic work shall not include the right to authorise or prohibit
(p) the inclusion in a communication to the public, the making of a graphic representation and the making of a photograph or film, of a work of architecture or sculpture or similar works made to be located permanently in public places; “
19.2. Comments The rule applies to several types of work – of architecture, sculpture (or similar works). It permits several types of use -graphic representation, photography, film. No restrictions are provided with regard to the commercial use or way of representation (if the work is main subject or not of it). In conclusion – Freedom of Panorama is provided to a high extent regarding the relevant types of works.
20.1. Legal framework “Article 1826 — It shall not be deemed to be an infringement of the copyright in a work referred to in Article 10, first paragraph, under 6 or at work relative to architecture as provided in Article 10, first paragraph, under 8, which is permanently displayed in a public thoroughfare, to reproduce or publish a reproduction of such work as it is there. Where it concerns adoption of a compilation should not be taken over the works of the same author .” 27
20.2. Comments The rule applies to several types of works – namely drawings, paintings, works of architecture and sculpture, lithographs, engravings and the like, designs, sketches and three-dimensional works relating to architecture, geography, topography or other sciences (Article 10, 1, under 6 and 8)). The permitted under the rule use includes – reproduction and publishing of such reproductions, i.e. photography is included). There are no restrictions regarding the commercial use. In general – Freedom of Panorama is provided to a significant extent in Netherlands.
21.1. Relevant legal provision Article 33. 28It shall be allowed to disseminate: 1) the works permanently exhibited on commonly accessible public roads, streets, squares or gardens, although not for the same use; 2) the works exhibited in commonly accessible public collections such as museums, galleries, and exhibition halls, though only in catalogues and printed publications for promotion of such works and also in press and television current event reports within the limits justified by information purposes; 3) in encyclopaedias and atlases - printed artistic and photographic works if it is difficult to get into contact with the author. In such case, the author shall have the right to remuneration.”
21.2. Comments The rule applies to all types of copyrighted works (though it depends on the type of public place where these are placed – see par. 2 of the above rule). It permits the use of such works – term “disseminate” with no restriction regarding the commercial use. However, the allowed use must differ from the use (purpose) of the work itself. In conclusion – Freedom of Panorama is enjoyed to a relative extent.
22.1. Legal framework “Article 75 Unrestricted use 29 2 The following uses of a work are lawful without the author's consent … “q) The use of articles, for example, architectural works or sculpture, made to be located permanently in local public;”30
22.2. Comments The above provision provides full extent of Freedom of Panorama regarding architectural works and sculpture with no provided restrictions in the exception’ rule.
23.1. Relevant legal provision “Art. 33.31—(1) f) the reproduction, to the exclusion of any means involving direct contact with the work, distribution or communication to the public of the image of an architectural work, work of plastic art, photographic work or work of applied art permanently located in a public place, except where the image of the work is the main subject of such reproduction, distribution or communication, and if it is used for commercial purposes.”
23.2. Comments The rule applies to several types of works – architecture, plastic or applied art, photographic works. The rule allows use of image of such by reproduction, distribution and communication of the image ((i.e. the photography is allowed)
It provides restriction regarding the commercial use. It provides also restriction regarding the way of presentation, i.e. – the work itself must not be the main subject of the image. In conclusion – the application of Freedom of Panorama is limited because of the above restrictions.
24.1. Relevant legal provision “Section 2732 Use of work located in public areas (1) No consent of the author is necessary to express the work located in a public area on a permanent basis by a drawing, painting, graphic art, picture in relief and relief model or by photography or film; a work expressed or recorded as described above can, without the consent of the author of the work located in a public area on a permanent basis, be used by making its copy, by public distribution of the copy in the form of its sale or by other forms of assignment of title, or by its communication to the public. The above forms of use are appropriately governed by provisions of S. 25 third sentence. (2) Using the work pursuant to par. 1 does not result in an obligation to pay remuneration to the author.”
24.2. Comments The rule applies to all types of copyrighted works. The norm provides permissible use by a specific listing that includes explicitly photography. It also provides lawful use of the copies received in result of the use of work under the rule. Such a use however requires the indication of the authorship (of the work placed in public) – Section 25. It does not include restriction regarding the commercial use. In conclusion the Freedom of Panorama is enjoyed to a high extent with regard to the relevant types of works..
25.1. Relevant legal provision Article 4633 General provision „Limitations on copyright are permissible in cases mentioned in this Section, provided that the extent of such exploitation of copyright works is limited by the intended purpose, is compatible with fair practice, does not conflict with normal use of the work, and does not unreasonably prejudice the legitimate interests of the author.“
Article 55 Works located in generally accessible premises „(1) Works permanently placed in parks, streets, squares, or other generally accessible premises may be used freely. (2) Works mentioned in the foregoing paragraph may not be reproduced in a three dimensional form, used for the same purpose as the original work, or used for economic gain. (3) In cases stated in paragraph (1) of this Article, the source and authorship of the work must be indicated, if the latter is indicated on the work used.“
25.2. Comments The rule applies to all types of copyrighted works. It provides free use in general, i.e. it includes photography. The rule provides restriction regarding the commercial use (used for economic gain). It also forbids reproduction in three-dimensional form and usage for the same purpose as of the work itself. In conclusion - Freedom of Panorama is provided to a limited extent mainly because of the restriction regarding the commercial use.
26.1. Relevant legal provision „(Use of Works Located in Thoroughfares) Art. 35.34 Works permanently located in parks, streets, squares or other public places may be freely reproduced, distributed and communicated by means of paintings, drawings, photographs and audiovisual processes.“
26.2. Comments The rule applies to all types of copyrighted works. The permitted ways of use – reproduction, distribution and communication – explicitly include photography as a mean of use. No restrictions are mentioned regarding the commercial use (or other types of restrictions).
In conclusion - Full Freedom of Panorama enjoyed.
27.1. Relevant legal provision “Article 23.35 Works of fine art which have been made public may be reproduced 1. in connection with the text in a scientific presentation which has not been prepared for commercial purposes, 2. in connection with the text in a critical presentation, except if it is in digital form, 3. in a newspaper and a periodical in connection with a report on a current news event, except if the work has been created for reproduction in such a publication. The provisions in the first Paragraph apply only if the use of the reproduction is carried out in conformity with proper usage and to the extent called for by the information purpose. (Act 2005:359). Article 24. Works of fine art may be reproduced in pictorial form 1. if they are permanently located outdoors on, or at, a public place 2. if the purpose is to advertise an exhibition or a sale of the works of fine art but only to the extent necessary for the promotion of the exhibition or the sale or 3. if they form part of a collection, in catalogues, however not in digital form. Buildings may be freely reproduced in pictorial form. (Act 2005:359).”
27.2. Comments The rule applies to works of fine arts only (literary works are excluded). Under the provision is allowed its use by means of reproduction in pictorial form (i.e. photography is included.) No restriction is mentioned regarding the commercial use. Freedom of Panorama is enjoyed to a high extent.
28. UNITED KINGDOM
28.1. Legal framework “Representation of certain artistic works on public display.36 62.— (1) This section applies to— (a) buildings, and (b) sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place of in premises open to the public. (2) The copyright in such a work is not infringed by— (a) making a graphic work representing it, (b) making a photograph or film of it, or (c) making a broadcast of a visual image of it. (3) Nor is the copyright infringed by the issue to the public of copies, or the communication to the public, of anything whose making was, by virtue of this section, not an infringement of the copyright.”
28.2. Comments The rule applies to several types of works – buildings, sculptures, model of buildings and works of artistic craftsmanship. It is allowed under the provision several types of usage (including photography, which is specifically mentioned). No restriction is mentioned regarding the commercial use (or other type of restriction). Full extent of Freedom of Panorama is enjoyed.
In Russia currently were introduced changes in the Civil Code that concern among others the Freedom of Panorama. The relevant text of Article 1276 (that shall enter into force from October 1, 2014) now states the following: “Article 1276. Free use of works permanently placed in open to public access 1. It is permitted without the consent of the author or copyright holder and without payment of remuneration reproduction and distribution of made copies , broadcasting by wireless means or transmission by cable, making available to the public a work of fine art or photographic work that is permanently located on a place open to public access, except if the image of the work constitutes the main subject of the use or the image of the work is used used for profit. 2. It is permitted free use by reproduction and distribution of made copies, broadcasting by wireless means or transmission by cable, communication to the public in the form of images of works of architecture, urban planning and landscape works of art located in a place open to public access, or viewable from this place.” 37
As seen above the current text of Article 1276 of the Civil Code of Russia accepts two levels of the Exception of copyrights related to the publicly placed works. For the first group of works (works of fine arts as well photographic works) is provided limited Freedom of Panorama (restrictions in connection to the purpose of reproduction as well to the commercial use are included). The second group of works (works of architecture, urban planning and landscape works) enjoys full extent of Freedom of Panorama’ Exception. These could be freely reproduced and the received works to be also freely used.
III. Table – situation with Freedom of Panorama in accordance to the relevant legal provisions per country
|Country||Commercial use||Types of use||Buildings||3D Artwork||2D Artwork||Text||Public Interior|
|Austria||Yes||Restrictions38||Yes||Yes||Yes||No||Not specifically mentioned|
|Czech Republic||Yes||Restrictions 43||Yes||Yes||Yes||Yes||Yes|
|Denmark||Yes (in general)44||Restrictions45||Yes||Yes||Yes||No||Yes|
|Estonia||Yes (in general)46||Restrictions 47||Yes||Yes||Yes||No||Not specifically mentioned|
|Finland||Yes (in general)48||Restrictions 49||Yes||Yes||Yes||No||Not specifically mentioned|
|Greece||Yes||High restriction 52||Yes||Yes||Yes||No||Not specifically mentioned|
|Hungary||Yes||Some53||Yes||Yes||Yes||No||Not specifically mentioned|
|Ireland||Yes||Some54||Yes||Yes||No55||No||Not specifically mentioned|
|Latvia||No||Restrictions57||Yes||Yes||Yes||No||Not specifically mentioned|
|Malta||Yes||Some61||Yes||Yes||No62||No||Not specifically listed|
|Netherlands||Yes||Some63||Yes||Yes||Yes||No||Not specifically listed|
|Portugal||Yes||All||Yes||Yes||Not specifically listed||No||Not specifically listed|
|Romania||Yes 65||Restrictions66||Yes||Yes||Yes||No||Not specifically listed|
|Slovakia||Yes||Some67||Yes||Yes||Yes||Yes||Not specifically listed|
|Sweden||Yes||Some70||Yes||Yes||Yes||No||Not specifically listed|
|United Kingdom||Yes||Some71||Yes||Yes||No72||No||Not specifically listed|
IV. Comparative Analysis
1. Typical restrictions regarding the Freedom of Panorama Exception of Copyright laws
a) Commercial use In many of the legislation is provided restriction under which is not possible to use the publicly available work, i.e. the derivative work received upon its use (photo etc.) for commercial purposes. In one or other form restrictions regarding the commercial use are included in the Copyright law (Bulgaria, Denmark (partial restriction), Estonia, Finland (partial), Latvia, Lithuania, Romania and Slovenia. b) Main subject/Purpose of use In some of the legislations restrictions are included regarding the possibility to copy (use) publicly available work if the work itself is the main subject of the copy/or the copy is to be used for the same purpose as the initial work. States, where such a restriction is included in one or other form (formulation) are Denmark, Estonia, Finland, Luxemburg, Romania, Slovenia. The Belgium’ copyright law provided interesting variation of the above restriction – it allows use of publicly place works as far as the use is not aimed at reproduction or communication to the public of the work itself. Another criteria for non application of the exception rule in copyrghts taken in different variations refer to the purpose of use. For example, the Austrian rule regarding Exception Freedom of Panorama does not whereas “the replication of a work of architecture and the reproduction of a painting or a graphic work for the purpose of placing such reproduction permanently in a place of such kind”. The legislations of Poland and Slovenia also provides that use under the Exception’ rule could not extend to cases whereas the use is for the same purpose as of the initial work. c) Three-dimensional reproductions/Replications of Architectural works Under some jurisdictions hree-dimensional copies are explicitly excluded from the scope of Exception rule for Freedom of Panorama. For example – Croatia, Czech Republic, Luthuania and Slovenia. In Austrian law is explicitly mentioned that threedimensional copies of threedimensional works are not allowed. d) Formulations of the allowed ways of use (particular economic rights) In most of the copyright laws exists separation of the different economic rights enjoyed by the copyright owner, i.e. different rights allows different actions with the work in question (reproduction, dissemination, adaptation etc.). Thus, it is not necessary the following use of the copies made through the use of works to be allowed if only some of the rights are granted. This should be taken in mind while considering the Freedom of Panorama Exception in cases where the provision does not refer to the general term “use” (which includes all of the economic rights) but only to some of these rights. Where, the formulation of the relevant provision refers to some of the economic right a deepen analysis of the applicable Copyright Law has to be undertaken. e) Types of works included One of the most important criteria on the provided extent of Freedom of Panorama is the referred types of works.
It could be mentioned that in general, building (works of architecture) are presented in all of the relevant provisions. In some cases namely the architectural works enjoy the Freedom of Panorama Exception to a full extent (Denmark, Finland). However, many variations of referred types of works exist depending on the legislation. f) Summary France and Italy do not provide any exceptions regarding the use of works permanently located in publicly available places.73 Countries like Spain and Portugal provides full extent of Freedom of Panorama Exception to the relevant types of works. With this regard must be mentioned also United Kingdom, Ireland and Slovakia. Other countries, like Russia (after the current legislative changes), Finland and Denmark provide Freedom of Panorama on different levels depending on the types of works: Buildings in general (and is some cases other types of works) enjoy the Exception to a full extent. However, restrictions are provided for the other types of works.