An obscure clause in EU copyright rules means no one can publish photos of public buildings in Belgium, like the Atomium, or France’s Eiffel tower at night without first asking permission from the rights owners.

The optional rule extends to the buildings of the European Parliament in Brussels and in Strasbourg.

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Belgian laws prohibit publishing photos of its landmark monument without first asking for permission (Photo: Nro92 + Romaine)

“Every website of every MEP that uses [an image of] the parliament building on it is a copyright infringement in the sense of the law,” said Dimitar Dimitrov, a so-called Wikimedian or policy expert for the European Wikimedia chapters in Brussels, on Tuesday (4 November).

The EU’s 2001 information society directive contains a clause that says photos of architectural projects in public spaces can be taken free of charge. Experts describe it as a freedom of panorama, after the term used in German copyright law, Panoramafreiheit.

But the clause is optional. France, Belgium and Italy decided not to transpose it into national law.

“If you take an image of the Atomium and put it on Facebook, that is copyright infringement,” said Dimitrov.

The Atomium website notes “any use of the image of the Atomium must be submitted to the organisation before it is published.”

Only people who take photos for non-promotional uses on “private websites” do not need to ask.

The Atomium picture on Wikipedia's page is a photo of a model built in Austria. Elsewhere, the monument is simply blackened out to respect Belgian rules.

In France, the issue is further complicated.

People can now take photos of the Eiffel tower during the day but not at night. This is because the architect has been dead so long that the copyright rules no longer apply. But they have since installed lights.

“The lightshow is protected by copyright,” notes Dimitrov.

The rule changes from member state to member state.

In Bulgaria, Romania, and Slovenia, for instance, it is fine to take photos of public buildings so long as the images are not sold.

Elsewhere, like the UK, the Netherlands, and Germany, anyone can take photos of public buildings for any reason without risk.

Another oddity is that because the European Parliament does not own the copyright license of its buildings, it cannot legally grant permission for people to take photos of it.

Wikipedia, for instance, despite getting a written permission to use a photo of the Strasbourg assembly from the parliament’s secretariat earlier this year, was still unable to use it.

“We had it checked it with our lawyers and then it turns out that the parliament doesn’t own the right to its own buildings,” says Dimitrov.

The owner is a French architecture bureau, which only grants permission when photos are used for news purposes. One possible way around is to take a photo of the flags with the parliament building in the background.

The rule is seldom enforced and its fragmented nature, especially when put online, creates legal uncertainty and confusion for those who attempt to apply the laws in full.

“It’s only a problem if you follow the law,” says Dimitrov.

The confusion has long caught the attention of EU lawmakers.

Former EU digital agenda commissioner Neelie Kroes even had a minor twitter war over the summer with Atomium’s director.

For German Pirate Party MEP Julia Reda, the problem is that the freedom of panorama exception in the 2001 EU rulebook is not mandatory.

“A lot of member states have either not implemented it all or they have implemented it in a very restrictive ways,” she says.

The 2001 EU copyright laws are up for reform but debates and future public consultations means the EU commission won’t be expected to present a proposal any time soon.

A regulation or a directive?

European Commission president Jean-Claude Juncker requested that his new EU digital chief Gunther Oettinger put forward some ideas on the digital single market within the first six months of his mandate.

When asked if this includes copyright reform, the commission is vague, noting instead “copyright rules should be modernised, during the first part of this mandate”.

But Oettinger, speaking at a closed event at the German Bundestag committee on the Digital Agenda on Tuesday, is reported to have said he could envisage tabling a non-official draft within six months and did not rule out upgrading the directive into a much stronger regulation.

A commission spokesperson was cautious about Oettinger's statements and would be surprised if anything came out in six months but noted that the commissioner is open to the idea of both a directive and a regulation.

"Whatever he says at this stage are his personal ideas but not any formal position that the commission has taken," said the contact.

The spokesperson noted that an impact assessment report needs to determine whether or not a directive or regulation is needed.

The mixed message is causing concern for some who want the reforms to be tabled sooner rather than later.

A commission public consultation on copyright was already carried out earlier this year. It secured over 10,000 responses to 80 questions.

“The old commission made a long assessment of these replies and the way Oettinger sounds now is like this hasn’t happened yet,” said the German MEP.