This report (de) summarises the outcome of the public consultation on the use of images of works, such as works of architecture or sculpture, made to be located permanently in public places (the ‘panorama exception’) which was conducted by the Commission together with a consultation on the role of publishers in the copyright value chain.
In practice this exception may cover copyright relevant acts such as uploading or using photographs of monuments online (in social media, web encyclopaedias, etc.) or publishing such photographs in print publications, advertisements, leaflets, etc.
The objective of the ‘panorama exception’ section of the consultation was to collect input for the Commission’s analysis of the current legislative framework applicable to this exception and to seek views as to whether the current rules give rise to specific problems in the context of the Digital Single Market.
The vast majority of respondents reported that they had been using images of relevant works on the basis of the national implementation of the ‘panorama exception’ or of a licence in the context of their business activity. Professional photographers, and other authors/rightholders, consumers, institutional users and service providers predominantly indicated that they were using images of works on the basis of a national ‘panorama exception’ and many of them specified the different applicable rules in their respective Member State.
As regards the exploitation of images of works, many visual artists and architects (in particular in Member States where the exception was not implemented or only covered non-commercial uses) reported that they were exploiting the images of their works through licences they granted to professional/commercial users.
Consumers, institutional users and service providers who replied to the public consultation generally put forward the differences between national legislations implementing the ‘panorama exception’, considering that these differences could lead to legal uncertainty when using images of the relevant works online across borders. This group of respondents also highlighted the lack of clarity of the national laws implementing this exception, the risk that this could lead to unintended infringements and the potential costs of obtaining prior authorisation to use images of relevant works. Some advertising service providers pointed out that the current fragmentation of rules across Member States represented a cost for their cross-border activities.
The majority of visual artists, architects, CMOs as well as some broadcasters and other rightholders reported that they had generally never faced issues when using images of these works, nor they were aware of concrete problems for other users. Some respondents in this group underlined, in particular, that many consumers were currently using photographs of public places on social networks without ever encountering any concrete problem. They added that no concrete obstacle to the Internal Market caused by the differences between national legislations was demonstrated.
Some professional photographers indicated that their creativity and their ability to exploit their photographs would be limited if they had to seek authorisation when uploading images of these works online or providing online access to these images.
Visual artists and CMOs were clearly opposed to a mandatory exception extending to commercial uses and considered, more generally, that the introduction of an exception of a mandatory nature at EU level was not necessary. They referred to the fact that most Member States had already adopted ‘panorama exceptions’ within the margin of manoeuvre of the current EU rules. They also highlighted that an exception extending to commercial uses would cover in practice all possible uses of the works of certain artists/creators such as street artists, thus resulting in practice, in their view, in an expropriation of their rights that would be contrary to the above mentioned “three-steps-test”.
These respondents also indicated that an exception covering commercial uses would deprive them of substantial revenues (at least in the Member States where no exception exists or where exceptions only cover non-commercial uses) that are currently generated by the licenses granted for advertising and tourism campaigns as well as merchandising products (e.g. bags, mugs, clothes). Visual artists explained that they contributed to a lively culture and to the embellishment of the European cities and that, such as films authors or song composers, who received revenues derived from the public performance of their works, they should also have the opportunity to be remunerated for the public display of their works.