The opinion recently advocated in the European Parliament by members of Popular Socialists and Liberals and rejected by the plenary vote on 9 July, supports the need to protect copyright on the images that, for example, shared on social networks can be reproducible for commercial purposes in the broadest sense. The need for regulation derives from the fact that a Community rule to compliance the Member States different disciplines does not exist yet.

So in the UK photographs of monuments and works of art in public places may be taken and used as you wish. In contrast, for example in France, the freedom of panorama is already restricted. That is why the Eiffel Tower cannot be captured at night. Even in Italy, there is the prohibition of capture contemporary art and architecture in public spaces, for use other than private.

Well, that group of European parliamentarians, represented by Jean-Marie Cavada, in defence of ownership rights, fully overturned the proposal from the German parliamentarians Julia Reda, secretary of the Pirate Party, as part of the Committee on Legal Affairs occupied on a address text to reform European legislation on copyright. In fact, the original version included the freedom to use photographs, video or other images of works permanently located in public places. The amendment changed this in the opposite way. That is providing the freedom of panorama to be referred to prior permits issued (predictably for a fee) by the authors or others who manage the good.

We think that a very first questionable step concerns precisely whether the reproduction of a picture of the work goes to touch and affect the sphere of intellectual property rights. Following the same line of argument clearly advocated by that group of Popular Socialist and Liberal parliamentarians, we do not see how a drawing can or should differentiate, if it is sold or simply uploaded to a website that contains banner ads. From our point of view, it is clear that such perspective really ends not to be sustainable in terms of the need for an even balance between the ownership rights and the guarantee of freedom of expression to the individual.

Intellectual property right does not mean to be the tool to achieve a further enrichment. To understand this, we should refer to that value of moral and cultural enrichment to the community that should be the sense of being of the work of art that is exhibited to the public. This principle, in the setting designed by part of European Parliament, seems to be crushed in the name of the lower interpretation of copyright and intellectual property. To establish a system of licenses for the reproduction of works and monuments means to quantify and therefore to degrade that value, principle of meta-legal substance also, that of artistic and cultural beauty. Exposing a work of art to the public certainly does not mean taking it away from the freedom of his eye.

The ratio of copyright is to stimulate and to support the production of art. But the predisposition of an authorization system would end up being counterproductive with respect to this purpose. It would rather have the effect of discouragement to the production and the circulation of art.

Further point, fundamental indeed, is now if the public space should be interpreted or not as a “common good”. Or, rather, as a collective resource of which every individual should be able to freely enjoy. It certainly is a political issue. But so much, to be solved in its own legal tautology. So public places would constitute size of free collective enjoyment, and we also mean for profit in a broad sense. From this would be the need for a mechanism of legal protection, providing the right of freedom of panorama to a Community level.

Contrary to what the amendment rejected in Strasbourg made, is to define then the meaning of commercial purpose. There should be no particular difficulties of interpretation for the offline use of the reproduction. Instead, referring to the online use the contours of the concept begin to fade out, since it depends on the context in which the digital image is introduced. We think for example to social networks and blogs that contain advertisements and campaigns. Is in those cases the publication of the image specifically useful for profit purposes?

Anything said up to this point certainly preclude the possibility of finding a concrete synthesis between the freedom of panorama and the copyright. It is in the very purpose of copyright legislation that we have said before: the circulation of artistic production and its promotion. We believe therefore that this balance may occur in the protection of the freedom of panorama on one hand – as a pre-existing subjective situation deserving of legal protection – and on the other hand in the provision of moments of compression of the freedom of panorama, because of the protection of intellectual property rights from business purposes. However, in this time, they have to be determined in the meaning, not open, inclusive until not-definition, but quite limited and restrictive. For example, cases of the commercial purpose could be restricted to the sole advertising use.

 

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