After the European Parliament votes on “freedom of panorama” on Thursday, July 9, travelers to Europe, along with millions of Europeans might have to watch their backs after posting their photos, as the “law” could be just a few footsteps behind.
Under an “upside down” proposal to EU (European Union) copyright law, posting building photos on Facebook and alike could make travelers liable for civil penalties, and even jail.
If the proposed law passes, even if you post images solely to your own online gallery, if it has advertisements on any page with your photos, you could still be liable under the proposed law.
What is “freedom of panorama” and why should we care?
In the United States, photos of buildings, as long as the building is in a public space or visible and photographable from a public space, can be made and published without infringing on building copyrights, due to a “photographer’s exception” in the law. This is true for public and private buildings. There are some limitations with regard to artwork and trademarks.
In Europe, many countries, including the United Kingdom, Germany, and Spain have enacted “freedom of panorama” clauses in their copyright laws. France, Belgium and Italy have not. “Freedom of panorama” is a provision in copyright law similar to the “photographer's exception” in the US. It permits photographers to make and publish photographs and videos of buildings, and sometimes art works, which are permanently located in public places, without infringing on their copyrights.
Julia Reda, a German politician, is a member of the European Parliament. Reda presented a report on EU copyright law to the Parliament's Legal Affairs Committee. Among the issues she reviewed was the “freedom of panorama.” Reda explains that in some countries, publications
“require a permission from the architect or rightholder of the public artwork, while the majority of EU member states enjoys the so-called Freedom of Panorama, which allows anyone to publish photographs, documentary films and other works depicting public places without restriction.”Reda pointed out requiring a license for “such everyday activities as sharing one's holiday pictures on social media was anachronistic.” Her report called on the European Parliament to apply the “freedom of panorama” for the entire European Union.
Unfortunately, Jean-Maire Cavada's counterproposal was adopted by the Legal Affairs Committee. Under Cavada's proposal, the “freedom of panorama” would be totally eliminated for all commercial, money-making, photographic uses, even in countries which previously individually adopted it.
If passed, professional photographers will have to get permission to make photos of buildings in Europe. The difficulties and expense for photojournalists, professional photographers, documentary photographers and filmmakers, book publishers, and informational websites such as Wikipedia to comply with this law would make their work extremely expensive and difficult at best.
Even if permission could be obtained, one copyright holder which couldn't be tracked down, or one copyright holder refusal could eliminate the image for use.
The way copyright laws have been applied in the EU in the past, this change would likely cause thousands of news websites, and informational websites like Wikipedia to hand edit out millions of images unless and until permission from the copyright holder could be obtained. Tens of thousands of postcards would have to be pulled from sale. Thousands and thousands of books could no longer be sold unless the publisher obtained permission from every copyright holder of a building in the images in the books.
Wikipedia cofounder Jimmy Wales stated,
“The 'reform' would have terrible consequences for the way we share and create culture and knowledge. The UK creative industry, recognized as one of the most vibrant in the world, would be encumbered with interminable bureaucracy. Photojournalists would need to seek permission after permission instead of doing what they do best: taking fine photographs.”I would ask, does this proposal even do anything positive for the copyright holder, the architect? Is there any benefit at all to the copyright holder or society? Architects produce buildings, not photos or videos.
Answering that question, the Royal Institute of British Architects which could benefit from the proposal have severely criticized it, even for its intended use, saying,
“We are concerned that the well-intentioned proposals to ensure that architects are paid for the use of images of their work by commercial publishers and broadcasters would instead have negative implications and represent a potentially damaging restriction of the debate about architecture and public space.”We all benefit from these images but how does this proposed law directly hurt leisure travelers and typical tourists?
The problem is the line between what is a noncommercial and commercial use of an image can be very blurry. If you upload a wonderful photo you made while traveling in London, Berlin or Paris to Facebook or Instagram, it's a noncommercial use, or is it? You're not charging anyone to view your photo, and Facebook or Instagram surely isn't paying you for the upload.
Users, however, agree to Facebook's or Instagram's terms of service, through which you give them permission to use your photos commercially and agree any image you've uploaded doesn't infringe on any rights of third parties, including copyright holders. If your photo displays a building which requires permission from the copyright holder to use it commercially, it's your responsibility to determine that, and obtain permission before you can legally upload that travel photo.
So, the proposed restriction on “freedom of panorama” for commercial use, if passed into law, would cause millions of Europeans, and millions of travelers to Europe to violate EU copyright law over completely harmless, everyday, personal use of their travel photos. Copyright law in the EU has both civil and criminal penalties.
Even if you post your travel photos solely to your personal galleries you may violate the proposed law. Many of the free online galleries are funded through advertisements. Those advertisements turn your galleries commercial, which means you would be subject to the proposed law, if passed.
If you don't live in the EU it's unlikely you have to worry too much, though it wouldn't be surprising for the EU to attempt to have your social media account disabled, but of course, the next time you travel to the EU, who knows what would happen.
If you disagree with the proposed law and agree the “freedom of panorama” should be applied without restriction across the EU, I invite you to join me in signing the petition at change.org.