Freedom of Panorama Position paper of Wikimedia

What is Freedom of Panorama?

Freedom of panorama is the freedom to publish pictures of buildings and art that you find in public locations. This freedom allows, for instance, families to publish vacation pictures on the internet even when the centerpiece of the picture is a building or a sculpture. It also allows you to publish your pictures on sites like to illustrate articles. Most people take it for granted that they are free to share photos that they have taken themselves in public places, but, in several member states, the right to do so actually requires explicit permission from the right holder.

Freedom of Panorama in Europe

The EU Directive lists a number of copyright exceptions – activities allowed without needing permission from copyright holders. Freedom of panorama is covered by Article 5.3 h of the 2001 Directive, and reads:

Article 5.3: Member States may provide for exceptions or limitations to the [reproduction, communication and making available] rights ... in the following cases: h) use of works, such as works of architecture or sculpture, made to be located permanently in public places;

The exception, however, is voluntary and each member state chooses whether to implement it. This has resulted in a patchwork of different rules across the EU (see chart). Some countries have implemented the exceptions while others have not. Moreover, among countries that have the exception there is great variation in how it has been implemented. Some member states allow you to freely use images of buildings but not of sculptures. Others allow both. Some countries let you publish images of public interior spaces while others do not. Some countries allow commercial use of the images while others permit only non­commercial use.

Adding to the confusion that internet users face, it has not been settled which national law that applies when a picture of a monument is taken in one country, published to the internet from a second country and viewed from a third country.

Why is Panorama Freedom Important to Wikimedia and What Should be Done A harmonized panorama­freedom provision would mean increased legal certainty for all internet users. For Wikimedia projects such as Wikipedia, it would allow a more consistent coverage of public buildings and statues across the EU for our global readership base, and mean less bureaucracy in determining which photos are publishable.

One part of the solution is to make the panorama­freedom exception found in article 5, 3(h) in the current Copyright Directive mandatory. This would ensure panorama freedom in all of the .

The other part of the solution is to include the updated freedom­of­panorama provision as part of a regulation rather than as part of a directive. A regulation, which takes direct effect, is less open to different interpretations from member state to member state.

These simple steps would modernize European copyright law by making it more compatible with today's social­media society.

A Note Regarding Non Commercial Provisions

While it may be intuitive to cover only non­commercial use in copyright exceptions, this is generally a bad idea. Wikipedia only includes content that can be reused, including for commercial purposes, as that enables us better to fulfill the mission of providing a valuable and useful information source of for all web users.

What constitutes commercial use is a gray area, especially on the internet where the publication of a work often involves both commercial and non­commercial elements. Besides, commercial , as well as non­commercial fair use of copyrighted information, creates social value.

Further reading: For more information about the complexity of Panorama freedom in Europe and globally, see the article "Freedom of Panorama" on Wikimedia Commons. https://commons.wikimedia.org/wiki/Commons:Freedom_of_panorama