Copyright: adoption of the controversial “Panorama exception”

arc-de-triomph-1209524_640On April 28th, 2016, the Senate adopted a so-called “panorama” exception to copyright law.

What is freedom of panorama?

On January 21, 2016, the National Assembly adopted, at first reading, the bill for a Digital Republic , an amendment that introduced the new legal exception to copyright law, also known as “freedom of panorama”. Today, this exception has also been adopted by the Senate after several amendments and will be further incorporated into Article L122-5 of the French Intellectual Property Code.

For French positive law, the panorama exception is a new exception to copyright law for “reproductions and representations of architectural works and sculptures, located permanently in public places, carried out by physical persons, excluding any commercial use.”

The representation of works located in public places

This issue of the reproduction of works located in public places is not a novelty.

There is currently a ban on publicly disseminating any reproduction or representation of a graphic or plastic work located in a place accessible to the public if the work is the main object without the author’s permission. The commercial exploitation of such reproduction or representation is also forbidden.

There are exceptions however. The 2001/29/CE EU directive of May 22, 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, provides the possibility for every Member State to include copyright limitations and exceptions in its domestic laws. One of the possible exceptions is for someone to reproduce and broadcast by any means architectural works, such as sculptures located permanently in public places.

The French Intellectual Property Code refers also to certain exceptions allowing some uses of works located in public places without prior authorization from the author. Article L122-5 stipulates that the author cannot prohibit the reproduction of a graphic, plastic or architectural work if this is done through the press and made exclusively for immediate information puposes and directly linked to the work.

French case law has clearly established under the “theory of the accessory” (théorie de l’accessoire), that a plastic work located in a public place may be reproduced where it does not constitute the main subject of the reproduction. In 2005, the Cour de Cassation had confirmed the court of appeal’s decision to authorise the reproduction of a memorial located at Place des Terreaux in Lyon. The court considered that it was part of the location’s overall architecture and therefore in a photograph, it was only an accessory.

A limited exception

The implementation of this exception, to a larg extent, was initially  challenged by associations who aim to protect the rights of authors, in particular by the French Society of Authors in Graphic and Plastic Arts (ADAGP) which denounced the fact that architects and sculptors were deprived of their copyright. On the contrary, Wikimedia, an organisation supporting free information sharing that also promotes Wikipedia, has been in favour of the exception since it was first adopted in the French National Assembly.

Consequently, freedom of panorama was amended and limited to meeting three cumulative conditions. ADAGP also welcomed the balance found between copyright and the freedom of expression of Internet users.

First of all, the legislation provides that the exception applies to architectural works and sculptures “located permanently in public places.” Thus, the exception does not include temporary structures located in a public place.

The exception is also limited to individuals and therefore excludes associations or companies. In fact, legal persons have no legal standing in light of the freedom of panorama.

It is stated in the legislation that the reproduction of an architectural work must be done not for profit. Nathalie Martin, the Executive Director of Wikimedia France, believes that this exception is  unenforceable because the licenses of Wikimedia websites allow for the commercial use of images. No photography of work located permanently in public places can therefore be distributed on these sites without the author’s prior authorisation.

The advantage of this new panorama exception appears to be relevant as it is restricted to very specific conditions. In addition, other exceptions already allow for the dissemination and private use of photographs of monuments located in public places (lit. 1 and 2 of Article L122-5 of the IPC).

In December 2015, the European Commission announced that it would prepare a report to modernize European copyright rules, including reviewing the online broadcast arrangements of reproductions of architectural works located in public places. This report provided mainly for imposing the panorama exception on all Member States, while the application is currently optional. The consultation period ended on June 15, 2016, and no further information has been received to date.

The matter is thus to be monitored.