All you have ever wanted to know about panorama exception
Stop listening to those who want to weaken author's rights!
Current status of panorama exception in France and Europe
On June 29, french parliamentarians adopted a balanced panorama exception by formalizing without any soubt that individuals who post pictures of architectural works and sculptures on social networks will not be prosecuted. In all other cases, the rights of the authors and of their works will be respected.
At the European level, a public consultation was launched in March by the European Commission.
The major challenge is to understand that there is no reason to generalize the exception in Europe.
During the summer, the services of the European Commission will decide to legislate or not, ADAGP and its representatives in Brussels (EVA and GESAC) will do everything to prevent the artistes to suffer from anunjust and unfounded weakening of their rights.
Would Members of Parliament be prepared to subject other works to the same fate? No one can imagine it or would want it.
WE MUST ACT NOW.
ARTISTS, MAKE YOUR VOICE HEARD!
1/ Speak out on the social networks
Directly on #
2/ Write to the senators by email* or through Twitter
What is it all about?
The panorama exception is an exception to authors’ rights in works such as architectural works and sculptures made to be permanently located in public places which would allow those works to be used without authorisation and without remunerating the author.
In France, for the last nine months, detractors of authors’ rights and particularly Wikimedia (which operates Wikipedia) have been waging a campaign based on untruths and preconceived ideas to persuade the French Parliament to adopt this exception in the Bill for a Digital Republic and in doing so to dispossess artists of their rights with no justification.
The introduction of the exception in the Bill
At the end of January, the National Assembly created a panorama exception strictly limited to “reproductions and representations of architectural works and sculptures permanently located on public thoroughfares, made by private individuals for non-profit purposes”.
With this provision, the members of the National Assembly found a solution that is acceptable to artists in that it offers certainty to individuals who post their photos on the Internet without excessively affecting authors’ rights.
However, at their commission meeting on 6 April, the senators wished to broaden this exception. In the end, although the Bill still excludes commercial use, it nevertheless extends the exception (which was limited to individuals) to all associations covered by the 1901 law.
This extension is not insignificant: it means that pictures of your works could be used by any association as it sees fit, without it being possible for you to object to the use or to claim the slightest remuneration.
It is absolutely vital to convince the senators to keep to an exception that concerns only private individuals (and not legal entities, i.e. associations, companies, etc.).
Today, many entities – including powerful ones – are associations covered by the 1901 law. For example, unions and federations such as the French Football Federation and the employer federation MEDEF, associations set up to support or fund political parties and election campaigns and cultural organisations including the likes of the Church of Scientology as well as Wikimedia of course are all associations under the 1901 law.
It is not acceptable that all these entities should be able to use works without the agreement of the artists concerned.
Let’s set the record straight!
Several months ago, Wikimedia launched an intensive campaign of misinformation on the panorama exception to persuade MPs to adopt this exception.
To this end, they created a petition (which has received about 17,000 signatures) and a website containing a number of untruths to make people think that this exception is based on common sense and a necessary progression, when none of the arguments put forward (promotion of culture, conditions of use on social networks, artists paid from public funds, etc.) are specific to works in public spaces. Apart from being incorrect, this reasoning could be reused later to demand further exceptions.
Visual artists are authors like any others.
Unlike the position in the music, audiovisual and book sectors, authors of works of graphic and plastic art are vulnerable because they have no industry behind them.
In many cases, they have to defend their rights alone and this makes them an easy prey.
It is no coincidence that, of all the repertoires, the visual arts repertoire is the one that is already most affected by the exceptions to authors’ rights.
The use of works located in public spaces does not currently pose any problems. There are no more problems when individuals post an image of a work in a public place on a social network or their blogs than when they post other kinds of works. Moreover, dozens of licences are issued every month, including to associations, for works situated in public places. Yet it has still been considered appropriate to create an exception…
A new, unremunerated exception that expropriates architects and sculptors (who are authors as much as any others!) would set an incredibly dangerous precedent when all the relevant forms of use are already covered by contracts. There is no other example of such methods being used against one section of the country’s citizens!
The panorama exception must not exceed the strict context of individuals.
Point 46 of the report : “Considers that the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorisation from the authors or any proxy acting from them”.
You may be asking yourself the following questions:
Will I still be able to share my photos/videos on social media (Facebook, Instagram, Twitter etc.)?
YES, you will still be free to post your photos/videos on your social media account and share them with your friends. The provision does not mean that individuals will have to take down images posted online. It only says that using these photos/videos commercially (e.g selling them as postcards or embedding them in advertisement video clips), should require the authorisation of the authors (sculptors, architects, street artists). This will enable authors to be fairly remunerated when their work is used commercially.
Will documentary photographers/film makers still be able to use photos/videos easily?
YES, photos/videos will still be easy to use. In fact, the laws in place in the various EU Member States already provide exceptions or authorisation schemes to facilitate the use of photos/videos. This will not change.
Will the provision adopted by the JURI Committee rule out the exceptions that are in place in some Member States?
NO, the intention of the report is not to ask Member States to modify their traditional laws (some have implemented the optional exception provided in Directive 2001/29, others not). In fact, it is merely an initiative report, and as said by the rapporteur MEP Reda, “it’s not legally binding so it’s only as important as people think it is”. The report simply raises attention on the fact that commercial use of images/pictures requires authorisation from the authors/artists.
Is there a need to further harmonise the panorama exception?
NO, there is no evidence of cross-border problems or obstacles to the internal market. Each country has its own traditions and appreciation of the issue. Solutions already exist in every country to facilitate the use of works, be it through an exception or by authorisation mechanisms.
So who is currently asking for a larger and more harmonised exception for commercial use at EU level?
To the best of our knowledge, and despite being a non-profit, only Wikimedia is asking for an EU-level exception that includes commercial use. Wikimedia knows perfectly well that the use of works in Wikipedia pages is not questioned by authors, even in countries where there is no panorama exception. This also means that if point 46 of the JURI report were to become law, it wouldn’t actually change anything for them. In fact, Wikimedia has refused, time and again, to accept anything but an authorisation that includes supplying high definition files, commercial use of works and the right to use them in any modification or context, without permission or remuneration. If Wikimedia’s combat is to deprive authors of their rights in order to allow large companies to make easy money off their works, this is clearly unfair
and economically unjustified.
More on the Panorama exception
The Panorama exception is one of 20 optional exceptions provided for by Directive 2001/29, and applies to the «use of works, such as architecture or sculpture, made to be located permanently in public places.»
Today, some countries have transposed the exception for works in the public space, including commercial usage while in other countries, commercial usage requires prior authorisation. In the countries where there is no Panorama exception, practical mechanisms and solutions are in place to facilitate granting authorisations. For example, if you want to photograph the Eiffel tower by night for your private use, there’s no need for an authorisation. If you want to print out these pictures and sell them as postcards or use them for advertisements, you are required to contact SETE (the company that manages the image of the Eiffel Tower on behalf of the City of Paris) to find out more about the authorisation you may need.
In some countries, the remuneration for commercial use of photos/images of protected works is substantial for the artist. There is no reason to abolish this source of income. In France for example, the introduction of this exception would entail a loss of 3 to 6 million euros, or 10 to 19 percent of perceptions per year. This would mean a major loss in revenues for sculptors, authors of street art, architects, etc.
If you need more information, write to firstname.lastname@example.org
To read, send and print: the flyer Myths and facts about the optionnal panorama exception