The Legal Affairs Committee of the European Parliament has recently caused a stir by voting 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. The Parliament in a later plenary session scrapped this suggestion and Commissioner Oettinger called it a “misunderstanding” on Twitter, but not after much outrage in social media, most of it from digital activists and street photographers.
Such step however would also have had dire consequences for developers’ creative options and ultimately the degree of realism possible in computer games. Reason enough to take a closer look at a copyright exception that many games rely on in most parts of Europe.
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.
The duration of copyright usually extends until 70 years after the death of the creator of a work, so aside from many contemporary buildings, copyright can also still exist to a wide extent in older (post-war) edifices all across Europe.
Freedom of panorama in video games
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 racing games or first person shooters take place in existing modern-day surroundings. In all those types of scenarios, backgrounds will contain protected works of architecture. Normally, the developer or publisher would have to obtain permission from all involved creators – architects, designers, sculptors…, whose work can be seen in the game because it is publicly displayed in the environment the game wants to simulate. Such rights clearance would be difficult and potentially costly to obtain.
Under German law, the statute implementing the freedom of panorama principle permits the reproduction of protected works without the creators’ consent under certain circumstances. Firstly, buildings, sculptures or other works have to be permanently located in a way as to be visible from public land (although the works themselves can be on private land). Temporary art exhibitions in a public space however are not “permanent” for the purpose of the statute. The permitted reproduction techniques are also limited to drawing, painting, photography and filming.
As the statute dates back to 1965, it does not contemplate computer graphics at all. There is no case law in Germany specifically addressing the question whether digital recreation of existing vistas falls within the definition of one of the permitted techniques. However, the first case law in Germany on the copyright status of video games applies the rules for films to them as well (despite their lack of linearity). This would indicate that the reproduction of protected buildings in computer games is covered by the freedom of panorama exception (for a more detailed discussion of this aspect under German law, please see this post in our German video game law blog Online.Spiele.Recht).
There are limits to this freedom, however: The right to reproduce protected works only applies to exterior views visible directly from public land without any technological aids. Aerial views and views of interior courtyards are therefore not covered. Also, the reproduction must be as faithful as possible to the original, and the player cannot be allowed to interact with the building in a way that could deface it (such as spraying graffiti or destroying the building).
Freedom of panorama – not (yet?) a universal 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. In other parts of Europe, such as the Baltic states, Romania and Bulgaria, copyrighted works may be used freely as part of such panoramas only for non-commercial purposes. Any commercial use would then require a license from the rights owner(s). It was this rule that the Legal Affairs Committee wanted to extend to all Member States.
It remains to be seen whether the pendulum of reform can now even swing back and forge the path for extension of the freedom of panorama principle in those EU Member States that currently do not recognize this copyright exception.