Ip and Art: an International Perspective

• Jurisdiction: European Union
• Citation: Vol. 41 No. 4
• Publication year: 2016
• Author: CRISTINA MANASSE Manasse Studio Legale, Milan
• topic: Intellectual Property,Copyright law

IP and Art: An International Perspective

CRISTINA MANASSE Manasse Studio Legale, Milan

FREEDOM OF PANORAMA: A LIVELY DEBATE IN THE EUROPEAN UNION

YOUR CLIENT WANTS TO USE PHOTOS OR VIDEOS of the Pyramid at the Louvre, the "Atomium" in Belgium or even the lightshow of the Eiffel Tower. Be careful: Using photos or videos of these and other iconic European architectural and other cultural symbols could result in a copyright infringement claim.¹

In simple terms, under European law, "public art" is subject to copyright protection, unless a European Union member state has adopted an exception - which then means that copyright protection for such works under that country's laws might not be as extensive as protection for other works. Therein lies a conflict between what is perceived to be authors' rights and the rights of users of images of such public art and, at a more political level, a conflict between harmonizing all laws across the EU and giving member states more freedom with their own laws.

Freedom of Panorama: The Basic Idea

This exception has come to be known as the principle of "Freedom of Panorama." Under this principle, users would not be infringing copyright by using and sharing images of architecture, monuments, sculptures and works of art in general that are permanently located and displayed in public spaces.

The principle arose from the "InfoSoc Directive" in 2001, one of the more important directives on intellectual property issued by the European Commission.² Under that directive, the Commission made it clear - among other issues - that member states had to protect authors' rights from unauthorized copying, especially in light of emerging digital dissemination. EU law starts with the premise that creative works, including buildings, sculptures or street art, as with most legal systems, are subject to copyright protection.

Similar to other directives, the InfoSoc Directive listed exceptions to the basic principle of full copyright protection - member states could pass national laws that limited copyright protection for certain types and/or uses of creative works. One such exception referred to art in public spaces, specifically:

3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:
[...] (h) use of works, such as works of architecture or sculpture, made to be located permanently in public places; [...] ³

Member State Exceptions

Some countries incorporated the exception - and therefore the principle of "Freedom of Panorama" - into their national laws while others did not. For example, in such countries as France, Belgium and Italy, photographers/videographers must seek permission from rightsholders of the works displayed in public spaces (e.g., buildings, artworks such as sculptures, even street art) and judges must evaluate case by case if such use was for commercial or non-commercial...