A new exception to Belgian copyright legislation has been enacted. Until recently, it was technically possible for rights holders of a copyrighted work displayed publically in Belgium to ban reproductions of that work, or communications of that work to the public. Under the new exception, known as the ‘freedom of panorama’, this comes to an end, ensuring that you can now freely post your most beautiful snapshots of the Brussels Atomium or the Antwerp MAS museum and share them publicly, at least under certain conditions.
The amendment to the law can be framed in a European context. Under the InfoSoc Directive of 2001, EU Member States were granted the option to implement this exception through national legislation. The exception has been adopted by many Member States, except for a few such as France, Italy and Belgium.
Significantly, the European Commission is now seeking to further harmonise the freedom of panorama exceptions. However, concrete legislative proposals are yet to be published, so the exact means of harmonisation remain unclear.
The main Flemish parliamentary parties, not wishing to wait for the European process, have taken the initiative to insert the freedom of panorama into the Belgian Copyright Act (a chapter of the Belgian Commercial Code). On the 16th of June 2016, the plenary of the chamber of representatives added the freedom of panorama to the list of exceptions on copyright as embedded in the article XI.190 of the Commercial Code. The exception focuses on the reproduction and communication to the public of “works of visual, graphic or architectural nature” only. In addition, there are a number of criteria which must be met in order for the reproduction or communication of the work to fall within the parameters of the exception.
Firstly, the work must be ‘made’ (and thus not necessarily ‘meant’)’ to be placed permanently in public places. This leaves room for interesting discussions with regard to the way in which, for example, the intentions of the original creator or the purchaser of the work should be taken into account. Ambiguity also exists in relation to works that initially were not ‘made to be placed permanently in public places’, but are later relocated by a subsequent owner.
The new law (in contrast to legislation of other member states such as Sweden) is not limited to public places in open space, and subsequently can also cover works made to be placed permanently inside public buildings. The explanatory memorandum clarifies that it must concern places which are ‘permanently accessible’ and not “public museums or the interior of buildings which are not permanently open to the public”. However, this condition of permanent accessibility, which limits the applicability of the exception, is not incorporated in the final text and should therefore, in our opinion, not be taken into account.
Another point to note is that the exception applies only to a reproduction or communication of the work ‘as it appears in a public place’, so beware of using deforming camera filters, photo-shopping or other creative excesses which could result in a less accurate representation.
Finally, any reproduction or communication should neither conflict with a normal exploitation of the work nor unreasonably prejudice the legitimate interests of the author. By inserting this requirement, the legislator explicitly obliges the judge to apply the so-called ‘three step test’, which was introduced through the InfoSoc Directive as well as jurisprudence relating to other exceptions to copyright. This test of reasonableness does, however, impose a subjective element, which may entail judicial uncertainty.
An amendment submitted to the legislation by the PS (the French speaking centre-left party), which seeks to exclude “every direct or indirect commercial use”, had been inspired by SOFAM (the Belgian association for visual arts), as well as a similar legislative proposal in the French senate. The amendment has been voted down as it entailed an extra layer of legal uncertainty concerning the exact content of this criterion. Moreover, this amendment could create conflict with the general terms and conditions of multiple social network sites which stipulate a (commercial) right to use the pictures of their users. The use by social media networks of its user’s pictures in this manner would run the risk of partially robbing the freedom of panorama of its purpose.
It appears that this new copyright exception still contains sufficient vagueness which might spark extensive debates. Also, the question is raised as to whether the effects of all these legislative endeavours will reach much further than the Commercial Code or the media. Indeed, the authors cannot recall many judicial cases which, under the new legislation, would have been decided differently, or which at least should have had a different result. The above cited legislation and jurisprudence, existing exceptions to copyright such as news reporting and the right to quotation, legal concepts such as abuse of law, implied consent and forfeit of rights, and an ever clearer framing of the terms ‘reproduction’ and ‘communication to the public’, already provided some useful arguments which could sustain a factual freedom of panorama. Critics will wonder whether the Belgian legislators have other priorities, especially given that at European level a further harmonisation concerning the same subject is already being pursued which in the future might create a deviating legal framework for Belgium once more.
Nevertheless, the amendment to the law helps to bring copyright legislation a little closer to today’s reality. Therefore, the true advantage of the amendment of the law seems to be mostly symbolic, and there is nothing wrong with that.