Panorama freedom under threat?

German copyright law permits any person to take exterior photographs, graphics and paintings of copyright-protected works that are located on public roads, streets or squares. This panorama freedom also allows anyone commercial use of these photographs. Does the EU Parliament now want to change this?

The German Copyright Act (Urhebergesetz) defines panorama freedom as follows:

"It is permitted to reproduce, distribute and publicly communicate works which are permanently located on public roads, streets or squares by means of painting or graphic art, by photograph or by film. In the case of buildings, these rights extend only to the external appearance."

Panorama freedom therefore permits photography in public spaces. This means that anyone can also produce commercial images of public buildings and may commercially exploit these, for example, as postcards or in calendar form.

Photography from private land is not permitted – even if the building can be photographed from a different perspective in the public space. The Federal Court of Justice (BGH) decided this in a landmark decision (BGH, Urteil vom 17.12.2010 – Az. V ZR 45/10 – Preußische Schloss- und Parkanlagen) on panorama freedom.

Proposed legislation

The EU Parliament had received a draft law for the new copyright legislation by the EU Commission planned for autumn, which would have restricted panorama freedom. Specifically, it was proposed that commercial use of copies such as photographs, video material or other depictions permanently placed at physical public locations should only be permitted with the consent of the copyright holder.

However, the EU Parliament voted yesterday with a large majority against such a restriction of panorama freedom and rejected the proposed consent requirement.

Although the resolution of the EU Parliament is not yet binding, the members of parliament will not recommend the proposed restriction of panorama freedom.

Conclusion

This means that in Europe everything remains as it is for the time being. For photographs of public buildings and sculptures, no permission from the copyright holder needs to be obtained in at least most EU Member States.

But be careful! In France, Italy, Greece, Belgium and Luxembourg, commercial use of photographs of copyright-protected buildings and works of art may in some cases require permission from the copyright holder.