|A photo like this will become illegal on July 9th, 2015, if if the EU parliaments votes yes to a proposal for an ill-considered new law.|
On the 9th of July 2015, the EU parliament will vote on whether to restrict the freedom to take photographs in public spaces. If the proposal goes through, it will be harmful to everyone who enjoys taking a photo, whether it be vacation photos, or street photography, whether it is amateur or professional photography.
The consequences, if the new law is adopted and enforced, can be devastating not just to photographers, but it can harm democracy by restricting news reporting. According to Farida Shaheed, UN special rapporteur in the field of cultural rights, the new proposal poses a danger to human rights.
In this article, I will go into details about the consequences of the proposal for a new law, but first things first: There is a protest movement fighting the proposal by gathering signatures for a petition.
The EU parliament vote is on the 9th of July, only a few days from now, so if you need to be quick if you want to help protect the right to take photographs.
The proposal explained: A Good Thing Gone Bad
It started out as a good thing that went bad: The EU member countries currently have copyright laws that are confusing, obsolete, and different from country to country. The copyright laws were written a long time ago, long before the Internet, and also long before the European Union. Some of it dates as far back as 300 years ago.
The EU parliament has been aware that copyright reform is sorely needed for a long time, but little has been done, until recently. Julia Reda, a member of the German Pirate party, was appointed to write a report on how to unify copyright laws across the European Union.
The original report by Julia Reda is pretty good. You can read a summary here. Basically, Reda wants to strengthen creator rights, while at the same time ensuring that public works are free.
The problem was that over 550 amendments were added to Reda's original report, and some of these were not good. One in particular stood out as exceptionally bad. Despite this, the EU parliament voted to add the amendment to the report.
The amendment causing all the trouble was written by French MEP Jean-Marie Caveda. Caveda's amendment, according to Caveda himself (English translation by Google), directly targets Facebook and Wikipedia, whom he considers to be American monopolies, with highly undesirable business models.
Be that as it may be with Facebook, but Wikipedia? Wikipedia is a non-profit organisation that produces and develops a free dictionary, and a library of public domain images and videos. The material is contributed by volonteer authors, photographers, and videographers from all over the world. The Wiki software that drives the Wikipedia web sites is in the public domain, and free to download and use.
Why on Earth target Wikipedia? And, Caveda's amendment does not really target Facebook, it targets Facebook users, like you and me.
Reda's original report wanted to extend panorama freedom, the right to take photos in public places, and publish them, to the entire EU. Many EU countries, like Sweden, where I live, already has panorama freedom. Other countries, like France, does not. For example, in France it is illegal to take a photo of the Eiffel tower at night, because the way the tower is lit, is copyrighted.
Caveda's amendment changes that. According to his amendment, if your photograph contains a copyrighted public building, or a public work of art, you are responsible for locating the copyright holders, which may be an architect, artist, or some other entity, ask the copyright owner for permission to publish your photo, and also pay a royalty. If you get permission to use your photo at all, that is…
Caveda's proposal covers commercial use, and that is where it gets sticky. As it turns out, the photos you take are likely to be commercial, even if you do not know it, and never get paid for them.
That is just for starters. It gets worse. A lot worse!
Let's have a look at some of the things that can happen if Caveda's amendment becomes law on Thursday 9th of July 2015.
I am going to paint a pretty harsh picture. Exaggerated? I hope so, but I fear it is not. As far as I can tell, this is pretty accurate, according to the existing proposal.
The Facebook FUBAR
If you use Facebook, G+, Instagram, Twitter, or some other social media, you have signed an end user agreement. I'll write specifically about the Facebook end user agreement, but other social media sites have similar ones.
According to the agreement you have signed with Facebook, the photos and videos you upload can be used by Facebook for commercial purposes, without remunerating you, or telling you about it. Thus, anything you upload is, by definition, commercial.
The end user agreement also states that you are responsible for making sure that if you upload anything, you have the right to do so. If you do not have the rights to the photo or video, you are legally responsible, and obligated to pay any costs incurred.
Thus, on July 9th, many millions of Facebook users may become criminals, and legally responsible to pay damages for anything they upload. Depending on the interpretation of the law, they may also be liable to pay damages for anything they have already uploaded, ever.
Forget about uploading vacation photos, street photos, shots of your friends in or near a building.
That is truly a major FUBAR.
The Death of Photojournalism
I am a photographer and a freelance journalist. On Thursday the 9th of July, much of the work I do for a living becomes illegal, if Caveda's amendment becomes law. Many other professional photographers and journalists are in the same situation.
For example, if I cover a demonstration in Gothenburg, where I live, I can't photograph or film it, if there are buildings, or public works of art, that are in my field of view.
I can still take close-ups with a short depth-of-field, but there is no way I can show the scope of a demonstration by taking a wide angle shot.
Nor would I be able to cover things like sports events, because the arena is likely to be copyright protected. I can't cover the Gothenburg Marathon, because it takes place in the city streets, and some shots really require using a wide angle lens.
The magazines I work for have a lot of photos of buildings. Some of them cover nothing but building projects. They would be caught in an impossible situation.
This is a bizarre consequence not anticipated by Caveda, but if his amendment becomes law, it is what happens.
The Map Mishap
Can you imagine what would happen to map services like Google Maps and Apple Maps? They have satellite views with photos of every building and every publicly displayed work of art in the world.
Google, Apple, and the map service providers would have to locate the copyright holders for all those public works, and ask them, individually, for permission to use the satellite photos. And, they would have to pay enormous copyright fees, and create a ridiculous administrative apparatus to do the work.
For the end user, you and me, it probably means we would end up paying for it.
More likely, satellite views will be removed altogether.
The Movie Mortuary
Shooting a movie in the EU could get ridiculously difficult and expensive. Film makers, from small, independent, documentary film makers, to large studios, would suddenly be faced with the daunting task of identifying the copyright holder of every building caught on film or video tape, asking for permission to use it, and paying copyright fees.
If I was a film maker, I'd just make my movies somewhere else.
By the way, according to Julia Reda, there is a risk that the new law will be applied retroactively, to every movie, or photo, taken in the past 70 years, so, even if film makers move their business elsewhere, they may still become criminals retroactively.
If that happens, you need to carefully review all the photos and videos you have ever uploaded to social media, or you will become a retroactive criminal too.
Well informed, engaged citizens are a cornerstone of democracy. If it becomes difficult or impossible to cover important events because they take place in public spaces, democracy will suffer.
Even if the law is not applied rigorously, there is a risk that it can be abused for political purposes. For example, a political group could use it to block media coverage of the activities of other groups.
The long term effects are difficult to predict, but we already have a trend towards increased control, reduced democracy, and a drift towards oligarchy.
At the very least, the effects of Caveda's amendment should be thoroughly evaluated, before it is voted on!
To the best of my knowledge, this has not happened.
The Human Rights Hiccup
We should always keep in mind that copyright regimes may under-protect authors, contrary to what is usually assumed or expected. This is because “subsequent right-holders” (e.g. producers, publishers, distributors etc.) typically exercise more influence over law-making than individual creators, and may have divergent and possibly opposing interests to those of the creators.
– Farida Shaheed, UN special rapporteur in the field of cultural rights
According to Farida Shaheed, UN special rapporteur in the field of cultural rights, the panorama freedom is important to human rights. Farida argues that both human rights, and creativity, are to some extent dependent on restricting copyright.
She also, quite rightly, argues that strengthening copyright does not necessarily benefit the creators. Instead, it tends to benefit subsequent right-holders, companies that buy the rights cheaply from creators, and then use their power as intermediaries to make a lot of money for themselves, while passing very little to the original creators.
Copyright exceptions and limitations are tools that can – and therefore should – be used to ensure that States abide by their obligations in the field of human rights, in particular the right to freedom of expression, including artistic expression, and the right to take part in cultural life.
– Farida Shaheed, UN special rapporteur in the field of cultural rights
Farida also argues that copyright exceptions and limitations are important tools for strengthening human rights. This is a good point. If you cannot publish a photo, or a video, or quote a legal document, you may not even be able to discuss a human rights issue.
When considering Julia Reda's report, the Legal Affairs Committee chose to ignore the opinions of the UN special rapporteur. That is, I believe, a bit worrying all by itself.
Take a stand!
I would ask you to take a stand. Do not uncritically go by my opinion. Check for yourself. There is plenty of public material.
Both Julia Reda and Jean-Marie Cavada have blogged about their respective opinions. Cavada's blog is in French, but you can use Google Translate to obtain an English version.
If you decide that the panorama right is worth protecting, sign the petition!
You can also write directly to members of the European Parliament. Wikipedia has a web page that will help you get in contact with the right members.
A third way to show support, is to spread the information as much as you can. Plenty of people and organisations have written about this. If you search social media, like twitter, look for the hashtag #FoP.