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European Commission Consultation: More Panorama, Less Neighbouring Rights

Paris, 13 April 2016 — On 23 March, the European Commission launched a consultation on the role of publishers in the copyright value chain and on the 'panorama exception'. While this consultation reflects the will of the Commission to tackle possible exemptions to copyright, it is far less progressive than the recommendations made by the European Parliament through the Reda report. Even worse, the questionnaire is directed towards creating a new kind of "editor's right", at the expense of authors and users, a path that the Parliament rejected at the time.

The consultation first considers the opportunity to create a new neighbouring right for publishers. Then it asks about the possibility to modify certain aspects of the existing copyright exemption for the freedom of panorama, already present in the 2009 Directive.

Previous experience of creating a neighbouring right for publishers, tried out in several European countries 1, show that it is an ineffective means to protect the rights of content creators:

  • On the contrary, a new related right would tilt the balance even more in favour of publishers, making it even harder for authors to exercise their rights;
  • Adding a new related right would be reflected either in the final sale price at the expense of consumers, or in a decrease on the royalties paid to authors;
  • The implications for education and research uses will be negative;
  • The creation of a related right on press content is likely to limit the development of smaller actors (news aggregators, search engines, monitoring services), for the benefit of existing dominant services such as Google News;
  • Introducing new related rights to benefit publishers could help to erode the use of hyperlinks or quotations, which actually are the "building blocks" of the functioning of the Internet.

By committing to create a related right for publishers, the European Commission could very well further weaken the position of authors and make the already lopsided system even more unequal. As such, this new right would hinder the freedom of access to information or freedom of expression.

The exception of panorama considered in the second part of the consultation would be an exception to copyright that for example allows for everyone to take pictures of buildings that are under copyright, whether for commercial purposes or not. Rejecting this exception implies that everyone needs to know whether the photographed buildings are still under copyright or not, which is a complex requirement for most buildings. The Commission's consultation tends to point towards limiting this exception to non-commercial purposes, which would be a step backwards from current national legislations in many EU member states, that do include commercial purposes in the exception of panorama. However, freedom of panorama can only be fully functional if commercial purposes are included, because considering current digital practices, the division between commercial and non-commercial is often not crystal clear. In order to ensure that images may be shared under a free licence, it also essential to include commercial purposes.

Establishing a EU-wide exception of panorama including commercial purposes would be a major step towards improving legal security and the reappropriation of public space. This issue has actually already been discussed in the French Senate in relation to the Digital Law, although some of the suggested restrictions make us fear that even if the exception of panorama is included, it will remain mainly useless except for some very specific cases.

La Quadrature du Net publishes its answers to the consultation and encourages as many people as possible to also answer before June 15, 2016.