Summarize

Selfies have become an integral part of our lives. We want to fix the moment and ourselves in it. However, it should be taken into account that there are restrictions for dissemination of selfies, even if we have made a photo in a public place, on a street, in a museum or in a park. What should we do if there is a copyrighted work on our photo - a monument, building or a painting? Are we allowed to download it to our personal Facebook album? Here are the answers by the Turība University professor, Dr.iur. Ingrīda Veikša

Ingrīda Veikša, Dr.iur., professor

Turība University, Riga, Latvia

Use of works made to be located permanently in public places

Whether the monuments, sculptures, building architecture, different environmental objects, billboards located on the streets, squares, museums and exhibition halls or other publicly available places are protected by copyrights? Whether we are allowed to publish these images on the Internet, for instance, on our Facebook page? Whether travel agencies are allowed to publish these images in their travel catalogues or a homepage?

These questions become more and more topical with the technological development, which allows different objects, including those protected by the copyright, to be accessible by the wide range of people in so many different ways.

We can find the answers to these questions in the national laws of each particular state, as well as evaluating the overall development, taking into account the so called "copyright reform" being put into place.

Exclusive rights of the author

The primary task of the copyrights is to protect the fruits of author's work from the unlawful use.[1] The very title signifies that these rights prohibit others from copying the other person's - author's - work.

Copyright are exclusive rights. This means that the copyright holder can allow to prohibit the other from using his/her work. This forms kind of "monopoly rights" for the mentioned property.[2] Copyright laws of all the states provide the author with the rights to use his/her work in any way, to allow or to prohibit its use, as well as to receive compensation for the use of a work.

Latvian Copyright law[3] provides for the economic rights of the author out of which two are related to the question at stake - the use of the works of art made to be located permanently in public. The author has exclusive rights:

1. to copy or reproduce a work, moreover, production of a two-dimensional copy from a three-dimensional work is considered to be reproduction. Therefore, the photography (production of a two-dimensional image) from a three-dimensional object (a monument, environmental object, etc.) is recognized as reproduction;

2. to make a work available to the public by wire or by other means, so that it is accessible in an individually selected location and at an individually selected time (to simplify: putting a work on the Internet). This one is the most recent right, which appeared along with the technological development, when the viewer became able to choose the time and location when to look at the works of art available there from his/her computer or other gadget.

Exceptions from the copyright protection

The author alone can decide whether to allow or prohibit the photography of his/her sculpture. However, not anytime! If this sculpture is on its own located in a public place (on the street, square, exhibition hall or other public place), than the rights of the author are limited by the law, allowing anyone to use the image for their personal advantage without a need for permission or payment:

1. allowing to make photos or video records of the works of art permanently located in public - it is allowed to make a photo of one's family with the monument in the background and to put a photo in a personal album;

2. by introducing the so called "blank tape levy" – it is allowed to make one copy of the legally obtained work for personal advantage, since the producers of the blank tape (storage media) have already paid compensation to the author.

However, it is allowed to use this photographed image for personal purposes only, and not allowed, for instance, to place it in the advertisement or make a postcard with the image of the particular monument and sell it, or place in the Internet or otherwise, where the public can have access to it.

The Copyright law does not determine the definition of a "public place", therefore we can reach out to the Law on Public Entertainments and Holiday Events Security[4], where it is stated that a public place is any place, which independently from its use or property form serves the general needs of the public and ensures its interests and which is accessible to any physical person free of charge or for a certain fee.

As it is seen from the definition in this law, Internet is not considered to be public place, as some persons try to interpret it when justifying their illegal actions of using the image found on the Internet without permission. The works were only architectural, photography, visual artworks, design or works of applied arts, which are permanently located in places accessible to all the society.

Legal Regulation of the European Union

Article 5.3 of the Copyright Directive[5] states that Member States may provide for exceptions or limitations to the reproduction right or right of communication to the public by wire or wireless means (t.i. Internet) of the use of, for instance, authors’ architectural or sculptural works, which are made to be located permanently in the public places. Currently the Member States can freely choose whether to introduce in their copyright laws the so called “Freedom of panorama” rule as it is allowed by the terms of the Copyright Directive (Article 5.3).

This is one of the exceptions provided by the Copyright Directive for balancing of the authors’ and society’s rights. States are not forced to introduce this exception in their national laws, however, Latvia has included the exception in Article 25 of the Copyright Law[6].

In its turn, Article 5.2.b of the Copyright Directive allows the Member States to provide for limitations to the reproduction on any medium made by a natural person for private use and for ends that are neither directly or indirectly commercial, on condition that the right holders receive fair compensation. As it was analysed above, this limitation was as well introduced in Latvia by including the so called “blank tape levy” in Article 34[7].

The Copyright Directive requires to perform the so called “three-step test” every time before application of the limitation, in order to evaluate whether its use is not against the common use of the work or whether it does not unreasonably limit the legal interests of the authors. This rule is included in the Part 2 of Article 18 of the Latvian Copyright Law, stating that the limitations to the authors’ rights might be applied only in a way that does not confront the common use of the author’s work and does not unreasonably limit the legal rights of the author.

It should be noted, that the rights of monuments’ and buildings’ authors are protected only during the copyright protection term (all the lifetime of the author and 70 years after his/her death). The works, which copyright term has expired, can be used freely by any person, observing the right of the author to a name and inviolability of the work.

Lawsuits

The use of the works permanently located in the public places has been evaluated by the courts of many countries.

For instance, in France, there was a court case, where the dispute on the reproduction right and the right of commercial use of the photos of Chambord Castle[8] has been reviewed. Kronenbourg brewery used the images of the Castle in their promotion campaign of one of their beer products. It was not a copyright dispute though, but the one about the property rights, since the copyright protection term of the Castle’ s architect had already expired. The question was about the need to receive the permission from the social organization responsible for the Castle. The court (in two instances) decided that the commercial use of the images of the building, copyright term over which has expired, is allowed without any prior permission or financial compensation, if the image does not create any unforeseen troubles for the building owner.[9]

In Latvia there also was a court case about the use of the house photo. In this case the right to use the work permanently located in the public place was not evaluated, but rather the transfer of author’s rights to the developer, and from the developer – to the property owners. The dispute was between the five house’ s owners and the company which made public (made accessible on the Internet) the photos of their building without asking for prior permission. The Supreme Court stated that in case property rights for the building, the project for which was ordered by one person, have been transferred to another person, the new property owner does not automatically become a legal successor of a building as an architectural work or its project, since it requires for special clause in the agreement[10].

The Swedish court has reviewed the dispute between the artists’ rights collective management organization BildkonstUpphovsrätt i Sverige and an enterprise „WikimediaSweden” (hereinafter – Wikipedia), which is managed by the Internet encyclopedia Wikipedia, about the images of the art objects located in public places published in the offentligkonst.se. Wikipedia made reference to the Swedish law and the EU rules, which allow to use the publicly located works of art, including making them publicly available on the Internet, if it is done without commercial purpose. The Supreme Court of Sweden, referring to the Copyright Directive (2001/29/EK), which provides for the copyright exceptions, took a decision in the case[11], stating that such an exploitation does not sit the “three-step test” of the Directive, since it allows to use the authors’ works without any compensation to the authors. As a result the rights are infringed to a greater extent that the limitation foresees. In this case the non-commercial use is unimportant.[12] Notwithstanding the fact that the site was available to the public free of any charge, the court considered such use excessively infringing on the authors legal interests, and therefore not allowed[13]. It was concluded respectively that according to the existing legal regulation, placing of publicly accessible works of art, which copyright term is not expired, on the Internet prohibited.

The Copyright reform of the European Union

The European Union is currently in the process of the copyright reform – the “Copyright directive in the digital age”[14] is being prepared for adoption. Within the process of the drafting of the Directive the EP members discussed the rules of whether the prior permission of the authors is necessary to commercially use the social buildings and publicly located works of art.

Wikipedia actively participated in these discussions protesting against the possible wording of the Directive and being afraid that unfavourable conditions might be included therein. In doing so Wikipedia even closed its pages in many countries of the EU, including Latvia. Wikipedia considers that the Directive offered by the European Parliament might “if adopted, substantially harm to the Internet freedom. We want to continue offering free, open and jointly made encyclopedia with the revised content.” Wikipedia at home page also calls for introduction of the so called “Freedom of panorama” throughout the EU.[15]

The term “Freedom of panorama” is not defined in any legal act, therefore Wikipedia defines it on its site stating that this is the provision that permits taking photographs and video footage and creating other images (such as paintings) of buildings and sometimes sculptures and other art works which are permanently located in a public place, without infringing on any copyright that may otherwise subsist in such works, and the publishing of such images. The Freedom of panorama limits the rights of the copyright holder to go against the makers and publishers of such images. This is an exception from the general rules, which state that the copyright holder has exclusive rights to allow to make and disseminate a derivative work. This phrase has arisen from the German word panoramafreiheit. Wikipedia states that the is no Freedom of panorama in Latvia.[16]

The last statement, that there is no Freedom of panorama in Latvia, is discussable though, since the Copyright law allows the use of the publicly located works of art for private purposes or in the news. However, the law does not allow to use these works commercially, since it is not currently allowed by the existing Copyright Directive.

It is mentioned in the background documentation of the draft of the New Directive that within the process of drafting of the Directive (from 23 March 2016 to 15 June 2016) social debates were held regarding the “Freedom of panorama”, which allowed for several opinions to be obtained. It should be noted though that currently there is nothing about the development of the “Freedom of panorama” in the available text (draft) of the Directive, therefore we should follow the future changes in the draft, which after adoption of the Direction will be introduced in the national laws, including the Copyright law of Latvia.

[1]Jacob, R., Alexander, D. A Guidebook to IntelectualProperty, FourthEdition. London: Sweet&Maxwell, 1993. p. 640.