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Free Knowledge Advocacy Group EU

Publishers&Panorama Consultation

The European Commission has launched its Public consultation on the role of publishers in the copyright value chain and on the 'panorama exception'. This is the Wikimedia working page to draft answers.

Who should submit answers to the Commission?

Movement entities and individuals are welcome to submit own sets of answers, but are kindly asked to assure non-contradictory replies across the movement.

Organisational details

Idea behind consultation

After the Copyright Consultation, it is apparent that the Commission is focusing on a few major issues, like ancillary-copyright-like proposals and Freedom of Panorama. This consultation means that the announcement of the copyright reform part of the Digital Single Market package was postponed from July to September.

Important deadlines

We have until 15 June to submit our responses.

Previous Relevant EU positioning by Wikimedia

Answers

Please note that there are two answering sets. The first is an answering guide for general public volunteers, the second are Wikimedia's own answers.
Answers submitted by Dimi on behalf of the FKAGEU
Wikimedia chapters, user-groups, thorgs and individual Wikimedians can and should participate, but please don't just copy and paste. Rephrase your answers to give a personal perspective and share own experiences.
Wikimedia Deutschland answers
Wikimedia Sverige's answers

1. When uploading your images of works, such as works of architecture or sculpture, made to be located permanently in public places on the internet, have you faced problems related to the fact that such works were protected by copyright?

Yes, often (Wikimedia)
Yes, occasionally
Hardly ever
Never
No opinion
Not relevant

1.2. If so, please explain what problems and provide examples indicating in particular the Member State and the type of work concerned.

Wikimedia
A considerable amount of the resources of each Wikimedia project is dedicated to make sure copyright laws are fully respected. This is a conditio sine qua non, as liability exceptions that we rely on apply if we act in good faith. Images depicting public spaces in Europe are deleted almost daily. This not only destroys work of people who wish to contribute to the public good, but also ties up volunteer and paid resources that would otherwise be used to improve access to knowledge globally. We are also often challenged with borderline cases where it is not clear if a certain photograph or depiction falls under the exception. This consumes additional time and sometimes external expertise and even then we are sometimes left with ambiguous guidance.

2. When providing online access to images of works, such as works of architecture or sculpture, made to be located permanently in public places, have you faced problems related to the fact that such works were protected by copyright?

Yes, often (Wikimedia)
Yes, occasionally
Hardly ever
Never
No opinion
Not relevant

2.2. If so, please explain what problems and provide examples indicating in particular the Member State and the type of work concerned.

Wikimedia
We’re bound by the good faith principle, upon which liability exceptions are conditional, to delete images from countries with none or a lmited exception (see Luxembourg, France, Italy, Belgium and Greece for a selection).
We also experience some difficulties in countries that nominally have applied a more comprehensive exception. In these cases particular constraints in national law or the claims of rightsholders force us to spend resources on investigating individual cases. Some examples can be seen at: Freedom of Panorama cases in Poland, Sweden, Hungary, Portugal and the Netherlands.

3. Have you been using images of works, such as works of architecture or sculpture, made to be located permanently in public places, in the context of your business/activity, such as publications, audiovisual works or advertising?

Yes, on the basis of a licence
Yes, on the basis of an exception (Wikimedia)
Never
Not relevant

3.2. If so, please explain, indicating in particular the Member State and what business/activity, and provide examples.

Wikimedia
Yes, when images can safely be included in creative and innovative process on the basis of comprehensive national exceptions, they are being re-used as part of commercial activity. Examples include postcards, merchandise like t-shirts, mugs and calendars, photography books, tourist guides, artistic works including paintings and films and web page design. Attempts to reach licensing agreements with collecting societies to realease at least one freely licensed image of major landmarks have so far failed. Individual architects or sculptors have granted the necessary permission, but these experiences have proven to be very time-consuming.

4. Do you license/offer licences for the use of works, such as works of architecture or sculpture, made to be located permanently in public places?

Yes
No (Wikimedia)
Not relevant

4.2. If so, please provide information about your licensing agreements (Member State, licensees, type of uses covered, revenues generated, etc.).

Wikimedia
Past attempts to reach licensing agreements with collecting societies have not been successful, as the agreements offered were not permissive enough to cover even everyday online uses. The European Parliament has attempted to give Wikimedia permission to re-use the image of its Strasbourg principal building (Louise Weisse), but failed because the rights remain with the architect.

5. What would be the impact on you/your activity of introducing an exception at the EU level covering non-commercial uses of works, such as works of architecture or sculpture, made to be located permanently in public places?

strong positive impact
modest positive impact
no impact (Wikimedia)
modest negative impact
strong negative impact
no opinion

5.2. Please explain

Wikimedia
It is practically impossible to categorise user generated content as non-commercial. Wikipedia’s and other free knowledge projects that are widely available have a scope that can very well be considered of commercial scale. Sites that allow users to exchange works run ads or have subscription fees which makes them a priori commercial. Virtually every case of user generated content will, in way or another, be considered commercial. Limiting what is allowed to just a very few and unclear cases will interfere with free speech and impede creativity online.

6. What would be the impact on you/your activity introducing an exception at the EU level covering both commercial and non-commercial uses of works, such as works of architecture or sculpture, made to be located permanently in public places?

strong positive impact (Wikimedia)
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion

6.2. Please explain

Wikimedia
It would allow free knowledge projects like Wikipedia to depict public spaces from all European countries, thus improving access to knowledge and availability of European culture globally. It would enable the largest photography contest in the world to be organised in all European countries (a number of them are currently excluded due to the lack of full Freedom of Panorama). It would allow travel bloggers and travel guides to safely share their European experiences with potential future travellers. It would allow for far more quality educational material for young architects and sculptors. Artists would be allowed to paint street scenes across the continent, potentially reviving a lost art.

7. Is there any other issue that should be considered as regards the 'panorama exception' and the copyright framework applicable to the use of works, such as works of architecture or sculpture, made to be permanently located in public places?

Yes (Wikimedia)
No

7.2. If so, please explain and whenever possible, please back up your replies with market data and other economic evidence.

Wikimedia
Some countries that have implemented comprehensive Freedom of Panorama exceptions (e.g. allowing commercial use) have different approaches to specifying the rule. In Germany, for instance, the POV of the photographer/painter is considered, who needs to be standing on a public place. In most other countries the structure/sculpture itself needs to be built on a public throughfare. Such peculiarities have lead to legal uncertainties and even litigation. Moreover, other types of rules such as antiquity laws that apply in some Mediterranean countries narrow down the practical threshold of Freedom of Panorama exceptions even further and aggravate the complexity issue for citizen-driven projects.