[update] What Scrapping Freedom of Panorama Would Do to Games


June 29, 2015 Leave a comment
We couldn’t believe it at first, but it’s no hoax: The Legal Affairs Committee of the European Parliament has voted a paper that urges the EU Commission to significantly restrict “freedom of panorama” as a part of the anticipated reform of EU rules on copyright. Such step would have dire consequences for developers’ creative options and ultimately the degree of realism possible in computer games. [update 9 July 2015: Not a hoax, but all clear now: Commissioner Oettinger tweets that “We will not limit #FreedomofPanorama”]

What is “freedom of panorama”?

Most EU member states, including the UK, Ireland, Germany, Spain and Poland, have copyright exceptions in place that permit the free use of images of public places (under certain conditions), even if such images contain copyrighted works of third parties – aside from sculptures and other street art, this can particularly concern buildings as such, which are protected as works of architecture if they are expressive and somehow characteristic.

This freedom of panorama is important for game developers whenever they want to include realistic surroundings in their games, for example if football players are shown posing outside of famous sports arenas or first person shooters take place in existing modern-day surroundings.

Intended reform of the freedom of panorama principle

However, the legal situation in this regard differs considerably from one EU member state to the next. In a few states, including France and Italy, freedom of panorama does not exist at all. As a part of current efforts to reform the Copyright (or “Infosoc”) Directive (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 EU Parliament’s Legal Affairs Committee now wants to push for inclusion of a rule that copyrighted works may be used freely as part of such panaromas only for non-commercial purposes. Any commercial use would then require a license from the rights owner(s). Within the EU, this differentiated approach can already be found in the national copyright laws of the Baltic states, Romania and Bulgaria.

Possible consequences

Such change would significantly impact the work of artists and developers. Actually existing places could no longer be used for artistic purposes without first obtaining licenses from a multitude of rights owners. You would not only have to ask the architects, but also sculptors of distinctive ornaments and even graffitti artists whose works might be visible on the buildings. If a game was to include entire streets or squares taken from real life, the situation would quickly become entirely unmanageable. Properly obtaining all required licenses would be practically impossible. If this proposal because the law, many media productions would likely lose at least some of their distinctive edge.

Depending how the term of “commercial use” is defined in the upcoming EU copyright provisions, even private citizens might have to change their ways. Based on extensive interpretations like that of German law, even uploading a selfie with a copyrighted background to a private blog could be an issue – if the blog uses ads, it could be viewed as a commercial enterprise. A similar problem could aris with regards to the use in social media profiles, at least for artists and freelancers who use their profiles at least in part to advertise their skills or services.

The proposal has been voded as a non-legislative committee resolution, so nothing is set in stone yet. The EU Parliament will vote on the committee proposals on 9 July 2015 and will thus determine its political stance regarding EU copyright reform. Concrete draft legislation from the EU Commission is expected in late 2015. We will keep you posted.

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Felix Hilgert

Felix Hilgert

Senior Associate at Osborne Clarke
Felix is a lawyer with Osborne Clarke's IT Team in Cologne, where he acts for companies of all sizes, from start-ups to market leaders.

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