Freedom of Panorama – Background

I was one of 555,223 people who signed a petition last year to stop the EU abolishing the Freedom of Panorama (FoP). MEPs voted overwhelmingly to block legislation restricting FoP, the EU is currently undertaking a public consultation on how FoP affects it’s businesses and citizens. In this article I share my thoughts on some of the ways my clients and society might be affected if FoP were to be fully abolished.

Freedom of Panorama allows us to photograph in public places without having to obtain consent from or purchase licences from any architects and sculptors (still alive or died within the last 70 years) whose works are captured in the images and still use them for commercial purposes. As architects and sculptors are not always easily identifiable or contactable from their works (especially those who died within the last 70 years), identifying them and obtaining their consent to publish photographs of their works can at least be challenging.

Impacts

Architects, who are supposed to be one of he beneficiaries of abolishing Freedom of Panorama, often approach me to shoot townscape photographs into which they will insert artists impressions of the buildings they are designing that are then used to convince their clients and local authority planning departments the new designs will fit into their surroundings. If FoP were to be abolished their competitors could potentially demand prohibitively expensive fees for the use of these photographs.

The costs of producing these images would increase, potentially astronomically. I would have to undertake extensive administration to identify anyone from whom a licence is required, pay whatever fees are demanded and take out additional insurance to cover the risk of not identifying anyone from whom a licence is required. If I have to pass these costs onto my clients, they will no doubt pass them onto their clients, which in the case of public sector projects would ultimately be the taxpayer.

Postcards and tourist brochures may be subjected to licence fees as would the images used by real estate agents to sell property. Construction contractors, structural consultants, M&E consultants, construction material suppliers and building maintenance contractors could also be affected in the production of their marketing literature/websites, potentially with a knock-on effect on almost everything we purchase.

Challenges

Applying this to renovated buildings, could present special challenges. Iconic buildings such as the Reichstag in Berlin, designed by Paul Wallot (died 1912) and renovated 1992 by Lord Norman Foster (alive) are fairly easy to trace. Less well known buildings on the other hand could prove much more challenging, even to identify if any (visible) renovation has taken place.

Any architect or sculptor of an iconic piece of architecture, or whose work is close to an iconic work, could find themselves inundated with licence requests and have no alternative but to charge in order to cover their own administration costs.

Obviously this is presented as a bad case scenario. Nobody can predict the outcome of this consultation, we might get full Freedom of Panorama throughout Europe (FoP is currently restricted in Belgium and France and non existent in Iceland and Italy), a watered down or full abolition. In the event of full abolition, architects and sculptors could chose to waive any entitlement to fees but may still have to be contacted for commercial use of photographs depicting their works.

Example

Freedom of Panorama - Monorail Example

Commercial exploitation of the image above requires no consent as the scene is in Germany where Freedom of Panorama (Panoramafreiheit) exists under article 59 of German copyright law. If it were in Belgium or France identifying the designer of the suspended railway (Eugen Langen 1833-1895 and obtaining his/his aires and successors’ consent/licence had he not passed away more than 70 years ago) would be required, the surrounding buildings may fall under “incidental inclusion” and therefore not require licence. If this were Iceland or Italy the designers of the monorail and other buildings could demand licence fees. Note this only affects commercial exploitation of the images, there is no restriction on holiday snaps taken for private enjoyment.

Conclusions

A worse result would be the extension of this concept to other creative works, imagine having to obtain consent/licence from a fashion, jewellery, millinery, or tattoo designer before publishing a corporate portrait? Or an architect having to obtain consent from the designer of a vehicle parked outside his building or piece of furniture inside when it’s photographed for his portfolio.

I would encourage anyone with concerns about the EU’s proposals to participate in the consultation this is a questionnaire which should take about 6 minutes to complete. The originator of the petition I signed, Nico Trinkhaus, has also published his thoughts on the EU’s consultation. The Twitter hashtag in use is #saveFoP.