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Ever taken photographs of a famous building or sculpture? Maybe you are one of the many who have taken a selfie, from one of London’s bridges, which includes the London skyline? These photographs may soon be prohibited under new copyright laws being proposed by the EU’s Legal Affairs Committee.

Currently, the member states of the European Union (EU) are allowed (under the Info Soc Directive) to provide exceptions to copyright laws which can allow for the “use of works, such as works of architecture or sculpture, made to be located permanently in public places”. The UK has implemented such a provision in section 62 of the Copyright, Designs and Patents Act 1988 which is generally seen as giving photographers, film makers and others the right to photograph or film sculptures and buildings which are permanently situated in public places and to use those photographs or films commercially without the need to obtain a licence from the copyright owner of the sculpture or building. This exception has become known as “Freedom of Panorama”.

Some countries in the EU do not have such an exception (e.g. France and Italy) and you may therefore infringe copyright by taking and using photographs of sculptures and buildings in those countries.

Numerous sculptures and buildings will be “out of copyright” (i.e. it is more than 70 years after the death of the author) but there are many new sculptures and buildings popping up all the time to which these issues will be very relevant.

There is a patchwork approach to this issue in Europe with the majority of countries allowing Freedom of Panorama (in some form). A Member of European Parliament (MEP), Julia Reda, recently produced a draft report calling for EU law to be harmonised in this area in line with the UK practice of Freedom of Panorama. The Legal Affairs Committee voted on the report and agreed with the need for harmonisation but disagreed with the model to follow and instead proposed the view that commercial use of such photographs or films should be prohibited throughout the EU unless a licence is obtained from the copyright owner of the relevant sculpture or building (i.e. removing Freedom of Panorama throughout the EU). This report is due to be voted on by the European Parliament in early July and legislative proposals could follow within months.

The approach of the Legal Affairs Committee could clearly have a significant impact on professional photographers and film makers but it may also impact on members of the public submitting photographs of sculptures or buildings to social media sites or using the images on blogging sites. Under the Facebook terms of service, for example, by posting content to the site you give them the right to use your content commercially. If the law were to be amended to remove Freedom of Panorama, you may therefore be infringing a copyright owner’s rights by purporting to give Facebook a right which you would not have. Equally, most blogging sites will now feature some form of sponsored advertising opening the argument that use of the images was for commercial purposes. There are clearly numerous other scenarios where members of the public could inadvertently infringe copyright (and may, indeed, already be doing so in relation to photographs taken in France and Italy among others).

If a law removing Freedom of Panorama were to come into force, there are various questions which would need to be answered such as whether the law would be retroactive in effect and whether the current list of fair dealing defences would continue to apply to such photographs and films. Further, it is likely to be fairly complicated to work out who owns all of the rights in the various sculptures and buildings given that such rights may not have been dealt with formally in the past where there may have been no commercial value attached to them. We could see specialist collecting societies enter the market to deal with such rights.

It is a little too early to know how Freedom of Panorama may be affected or what the detail of any proposed legislation could look like but we will be watching for any proposed reform in this area with keen interest.

If you wish to discuss any of the issues raised in this article please contact Charlie White or any member of the Edwin Coe Intellectual Property team.

Edwin Coe LLP is a limited liability partnership registered in England and Wales (No. OC326366) and is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office: 2 Stone Buildings, Lincoln's Inn, London WC2A 3TH. "Partner" denotes a member of the LLP or an employee or consultant with the equivalent standing. Our privacy notice which we are obliged to give you under the GDPR is available here.

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