The French law for a Digital Republic (Loi
pour une République Numérique) finally came into force on October 7. Its
article 39 modifies article L. 122-5 of the French intellectual property Code,
which now recognizes some limited freedom of panorama rights. It is now legal
in France to reproduce and to represent, without having to secure the authorization
of the copyright holder, “architectural works and sculptures, located
permanently on public roads, made by natural persons to the exclusion of commercial
uses."
« Les reproductions et représentations d'œuvres architecturales et de
sculptures, placées en permanence sur la voie publique, réalisées par des
personnes physiques, à l'exclusion de tout usage à caractère commercial. »
The law does not define however, what is a “commercial use,”
and reading the congressional records is not of much help.
France’s lower Chamber, the
Assemblée Nationale, had added a freedom
of panorama right to the original bill, presented by junior minister Axelle
Lemaire. Its scope was broader than the freedom of panorama exception finally
enacted, as it would have authorized reproduction of “architectural works and
sculptures, located permanently on public roads, made by natural persons for
non-profit purposes" (see article 18 ter of the bill).
« Les reproductions et
représentations d’œuvres architecturales et de sculptures, placées en
permanence sur la voie publique,
réalisées par des particuliers à des fins non lucratives. »
The French Senate changed the wording for this
exception, narrowing it somewhat as it would have only authorized “reproductions
and representations of architectural works and sculptures, located permanently
on public roads, made by individuals, excluding any use for direct or indirect
commercial nature" (see article 18 ter of the bill).
« Les reproductions et représentations d'œuvres architecturales et de
sculptures, placées en permanence sur la voie publique, réalisées par des
personnes physiques, à l'exclusion de tout usage à caractère directement ou
indirectement commercial. »
Then the Commission
mixte paritaire, a commission composed of seven Representatives and seven
Senators whose duty is to find a compromise on the text of a bill in case both
Chambers differ in their views, yet again changed the wording for this freedom
of panorama exception. It was only provided from now on if “made by natural
persons to the exclusion of commercial uses."
« Les reproductions et représentations d'œuvres architecturales et de
sculptures, placées en permanence sur la voie publique, réalisées par des
personnes physiques, à l'exclusion de tout usage à caractère commercial. »
This still leaves us in the limbo as to what exactly is “commercial
use.” Unfortunately, we cannot turn to the European Union law for guidance as
to its signification. Indeed, article 5.3(h) of the Directive 2001/29/EC of the
European Parliament and of the Council of 22 May 2001 on the harmonisation of
certain aspects of copyright and related rights in the information society (the
“InfoSoc
Directive”) gives Member States latitude to have or not have a freedom of panorama
exception for “use of works, such as works of architecture or sculpture, made
to be located permanently in public places,” but does not mention nor define commercial
use.
Not having a definition of what must be considered to be a commercial
use will undoubtedly chill the enthusiasm of photographers, who may hesitate to
post on their web sites, blogs, or on social media, the images they have taken
of buildings, houses, statues, churches, or fountains located in public spaces.
It is not even clear from the wording of the French law if
it is only the individual who took the picture who must not benefit commercially
for this use, or if anybody, including any platforms, must not benefit from that
use. Many web sites or blogs, while not commercial, are participating in
advertising programs. Some bloggers are
using a free blogging program, such as wordpress.com, which runs ads on free blogs to
cover their costs. In this case, it is the platform which benefits from the
ads, not the blogger. It could also be argued that blogging platforms and
social media sites commercially benefit, albeit indirectly, from all that User
Generated Content uploaded on their sites, images of French public buildings
and sculptures included. Will it take a lawsuit to clarify how the law must be
interpreted? On va voir…
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