Three weeks to save freedom of panorama in Europe

On 16 June, the Legal Affairs Committee of the European Parliament adopted an amendment to a report on copyright reform prepared by Pirate Party MEP Julia Reda (addition in italics). Under the committee's text, the parliament

16. Considers that the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorisation from the authors or any proxy acting for them;

This amended text is now due to be voted on by the full European Parliament when it considers the full text of the Reda report in its plenary session on 9 July.

The report had originally suggested that the current disparity in laws on freedom of panorama across Europe (see map) be harmonised by proposing a unified standard allowing images of works that are permanently located in public places.

However by a roughly three-to-one margin, the committee instead adopted the text above by French MEP Jean-Marie Cavada that commercial use of such images should universally not be permitted, except by express permission of the copyright holder.

Rather than allowing people to take and publish their own photographs of buildings and monuments in public places—as celebrated in the annual Wiki Loves Monuments campaign, as well as many many books with author-supplied photographs—full permissions, clearances, royalties, and/or use of authorised images would be required for videos, photographs, paintings or drawings with any potential commercial use. (Wikipedia does not accept images unless they can be re-used for any purpose.)

This would end a long-standing tradition in many countries that the skyline and the public scene should belong to everybody; in the UK and Ireland, for example, this goes all the way back to the Copyright Act 1911,^[1] which first set down copyright exceptions in statute law, and is currently reflected in section 62 of the UK Copyright Designs and Patents Act 1988,^[2] and section 93 of the Irish Copyright and Related Rights Act 2000.^[3] (See c:Commons:Freedom of panorama for other countries).

The status of existing books published without such clearances would become unclear; most Wikipedia images depicting public art would be lost; and it would become very much more difficult and more expensive to publish future books comprehensively illustrating architecture and public art (or even artists' sketchbooks depicting them).

Although freedom of panorama was heavily voted down in the Legal Affairs Committee, the majority of EU countries do permit full use of photography taken in public places; furthermore, the MEPs on the Internal Market Committee, which had an advisory role to the Legal Affairs Committee in the matter, had earlier recommended that such photography should be allowed across the EU.

There is therefore every possibility that the clause adopted on Tuesday may be overturned in the full vote of the Parliament on 9 July—if enough individual MEPs can be persuaded to go against the Legal Affairs Committee's current text; so in the next three weeks, every letter or communication from concerned people received by an MEP will count.

If you're an EU citizen, for maximum impact please contact each of your local MEPs and ask them to communicate your concern to the MEP responsible for co-ordinating their group position on the matter—in the UK, for example, this would be Sajjad Karim (on-side?) for the Conservatives, or Mary Honeyball (wobbly?) for Labour—and ask them to ask the coordinating MEP to confirm that the group will be seeking to remove this clause as it currently stands from the report, and defend the full right to make use of photographs taken in public places, in this case the existing UK law. In this way you'll get the chance to learn what the group's detailed current position is (which you may then find you need to work to persuade your own MEP away from). The coordinating MEP will also thus be made aware of the full range of concerns being expressed to the group, and may be more likely to answer a request forwarded by a fellow MEP than a direct approach.

As with any communication of this kind, it makes all the difference if you can make your letter personal. Why does it mean something personally to you to be able to take a photograph of a public place, and do with it as you wish? For example, is there such a photograph you have taken that has a particular significance to you? Has it been reused in a commercial context? Or have you done research for which it has made all the difference to find comprehensively illustrated material in a library, a bookshop, or on the internet? The more you can talk about your personal experience and why this matters to you, to make your letter different from anybody else's, the more impact you will have. It is particularly important to communicate to MEPs why non-commercial use only is not enough.

MEPs receive a lot of email—in particular, they have recently been getting very heavy email about the current EU–US trade negotiations (TTIP). Unfortunately, not all MEPS answer all of the emails they receive. You can improve the chances of getting an answer by also sending a hard copy of your letter to Brussels by post—these are harder to ignore.

It's usually most effective and simplest to make a phone call to your MEP's office (free of charge) as a first thing, or when you wrote them and you've not received at least a holding response within a week.

Whatever final answer you do receive, please respond and follow up to the MEP—either to thank the MEP if you like what you have heard back, or to politely make very clear to the MEP why you are unhappy with the response.

The campaign to defend photography of public places will not be won if it is seen as just Wikipedia campaigning for something that will benefit Wikipedia. The public space is something that everybody should be able to share and to enjoy and to celebrate (or castigate). The broader we can make this campaign, the more different voices we can bring to the table, the more likely it is to succeed.

So, as well as writing yourself, please think of others who might have an interest, and let them know and encourage them to declare a position—professional bodies, trade unions, local history groups, civic groups, artists, architects, writers, publishers, journalists, academics, celebrities—anyone who cares about the environment around them and being able to read or talk about it. Anyone you can think of who has a voice, please encourage them to speak out, before July 9. Wikimedia affiliates will be trying to reach out to other organisations; but it may be that much can be done more effectively by motivated individuals at a grass-roots level. Central resources may be very limited.

A central space for campaign ideas, resources and discussion is under construction at c:Commons:Freedom of Panorama 2015. Please sign up if you have ideas or can help in any way, and help to gather together a library of contacts made, letters sent and responses received.

The new European Commission, appointed in 2014, has announced that one of its priorities will be to improve the "digital single market", including an update to Europe's copyright laws, and in particular the 2001 Copyright Directive (also sometimes called the "InfoSoc directive"), which includes a menu of allowed copyright exceptions that member states have adopted in a pick-and-choose way, leaving European copyright law as an inconsistent patchwork.

The European Parliament announced it would produce its own report on the current legislation, with recommendations. This is the report for which the committee draft was finalised in the vote on Tuesday. The chance to be responsible for writing the report was grabbed with both hands by Julia Reda, the only MEP for the Pirate Party. Reda essentially proposed that anything that is even remotely possible to liberalise should be liberalised, including a reduction of the copyright term from life + 70 years to life + 50 years. Reda has proved a formidable communicator, as demonstrated by her website on the report; but the news of her appointment and her initial proposals triggered a mighty backlash, led in particular by French MEPs and the French government, which seemed to take it almost as a personal assault.

Reda was able to achieve negotiated compromises with the rest of the committee on most of the clauses of her report; this has led to a result that she hailed as a turning point in the copyright debate, but which has been criticised by some as watered-down, equivocal, and no longer ambitious.^[4]

Lobbying against a fully commercial exception for freedom of panorama has been pushed for by publishers' lobbyists, who have been promoting greater use of licensing across the board rather than copyright exceptions; and by collecting societies, promoting the view that there should be no reuse of copyright works without remuneration, and apparently seeing the right of public photography as the thin end of the wedge despite the interests of publishers and authors who currently rely on it. Representatives of some photographic libraries in countries without freedom of panorama have also weighed in, fearing the erosion of exclusive deals some of their members may have. In addition, there has been a general antipathy among many MEPs directed against internet services such as Google (but also companies such as Amazon and Apple and various streaming services), perceived as making huge profits as intermediaries at the expense of European creators on the breadline.

On the basis of these arguments, a number of Legal Affairs Committee MEPs (including from countries such as the UK that currently have full freedom of panorama) initially submitted amendments calling for public-space photography to be permitted but limited to non-commercial use only.

In subsequent discussions, it was believed that progress was afoot towards a compromise amendment that would have dropped the non-commercial condition. But these hopes were dashed following fiery speeches from French MEP Cavada and a Greek socialist MEP —both from countries without a tradition of freedom of panorama—in which they denounced the iniquity of others making money out of artists' works without compensation (even if, in reality, the image rights from public art really are the "gleanings from the field"—utterly marginal to the creators of new buildings and new art, but of immense value to the ability to publicly depict and discuss the work).

In the face of these objections, the group coordinators for both the centre-right EPP group and the centre-left S&D group dropped out of the compromise negotiations with Reda, in the interests of holding consistent internal group lines together across the committee. "The differences between the parties were too great". In the event, the committee adopted an even stronger amendment against freedom of panorama than some had originally pushed for, not just prohibiting unauthorised commercial use, but no longer even expressly permitting any non-commercial use. Indeed, the view of many MEPs towards unconditional reuse may be reflected in the wording of one amendment, which only narrowly failed, that called on the Commission "to prevent the parasitic development of new commercial interests at the expense of authors and their rights".^[5]

The Reda report now goes on to a vote by the full parliament on Thursday 9 July. While formally an "own initiative" (INI) report by the parliament, and not directly legislative, it is expected to be influential in shaping the European Commission's actual legislative proposal on copyright reform, expected in September, by indicating what the Parliament is or is not expected to find acceptable. As Reda herself puts it: "It's not legally binding, so it's only as important as people think it is. And people think this report is extremely important, everybody is completely agitated about this. ... They [the rightsholders and publishers] have given this report the weight in the public eye by going completely crazy about it."^[6]