Sharing a photograph of the Eiffel Tower at night on Facebook without paying for it could land you in hot water. Even if it’s just a holiday memento.

Such quirks of EU copyright law will persist even after the bloc next week unveils its long-awaited proposals to overhaul them. It says a lot about the national, ideological and even generational divisions within Europe over how to regulate the digital future. And it underscores the power of one country, France, to impose its will on the rest of the European club.

At issue is a legislative battle over a concept called “freedom of panorama,” which concerns the use of depictions of buildings and art permanently located in public areas that are covered by existing copyright protections. While protected images are already shared millions of times per day on Facebook and other social platforms, the French are aggressively applying a protectionist stance to get the Commission to quietly dilute its reforms.

In countries where the freedom is limited, including France but also Italy and Denmark, people will still need permission before sharing or selling photos of buildings protected by copyright, or — at least in theory — face a fine. Landmarks protected by copyright include Copenhagen’s famous Little Mermaid Statue, the Louvre’s pyramid in Paris and the European Parliament in Strasbourg. There are even limitations on the near 2,000-year-old Colosseum in Rome.

“It’s fair to say France is particularly attached to the protection of cultural heritage,” said Olivier Cousi, a French lawyer. “There is also a French notion of copyright, which is more protective of the creator of cultural content than in the Anglo-Saxon model.”

In Italy, cultural heritage laws limit the commercial use of images of public art and architecture — including the Colosseum.

For online freedom advocates, lobbyists and MEPs from several EU states, the failure to secure unlimited freedom of panorama across the bloc is an example of Europe at its worst.

“The European Commission is afraid to pick a fight with the French government,” said Julia Reda, a German MEP from the Pirate Party. “The French government has been quite clever and are telling the Commission that they’ve done something, so drop the issue. I’m not buying this argument.”

A consultation leading nowhere

In its overhaul of the EU’s copyright rules, the Commission had three options when it came to freedom of panorama: provide unrestricted freedom of panorama; limit it for non-profit purposes; or not to extend it. To help it decide which path to take, the Commission asked for public input on freedom of panorama in March.

The public consultation closed in June, but neither the preliminary nor full results have been released. The European Commission had promised to publish the preliminary results in July. This week, spokeswoman Nathalie Vandystadt declined to say when the report will be published.

Behind the scenes, however, European Parliament staffers and intellectual property lawyers acknowledged that the Commission came up against Paris’ obsession with protecting cultural heritage, as well as its particular definition of copyright law.

Commissioner Günther Oettinger told POLITICO that “25 or 26 EU nations” were ready to introduce freedom of panorama, with France being the only heavy-hitter fighting back. And that given that opposition, the Commission opted to leave language about freedom of panorama out of its bill, and let countries decide for themselves. “There’s no need to Europeanize the law,” Oettinger said.

The Little Mermaid

Under current French law, it’s not illegal to snap a photo of the illuminated Eiffel Tower — one of the world’s most popular tourist destinations and happy-snap stars. But publishing that photograph or sharing it on Facebook or Instagram could potentially draw the attention of copyright lawyers.

That’s because the tower’s nightly light display, designed by Pierre Bideau in 1983, is classified as a separate “artistic installation,” and protected by copyright.

“The duration of the protection is equal [to] 70 years after the death of the artist,” said Baptiste Laparlière, an assistant for the heritage fund at the Societe d’exploitation de la Tour Eiffel, which manages the historic site. “Pierre Bideau is alive, so we don’t have a deadline for now.”

It’s not just France. Danish brewer Carl Jacobsen asked sculptor Edvard Eriksen to immortalize Hans Christian Andersen’s fairy tale “The Little Mermaid” by creating a statue of the fairy tale’s protagonist. In 1913 the artwork was mounted in Copenhagen. After Eriksen’s death in 1959, his grandchildren inherited the estate and have fiercely defended the mermaid’s copyright and sell 150 kilogram bronze replicas for just under €74,000, excluding VAT and shipping. They have the right to do that until 2029.

In Italy, cultural heritage laws limit the commercial use of images of public art and architecture — including the Colosseum.

Social media grey area

In a leaked impact assessment for copyright reform obtained by POLITICO, only one line out of 181 pages is dedicated to freedom of panorama. It states that because some EU nations have updated their rules to provide freedom of panorama, the executive body doesn’t need to weigh in.

“The panorama exception in EU copyright law allows member nations to lay down exceptions or limitations to copyright concerning the use of works made to be located permanently in public places,” said Vandystadt. “Almost all member states have introduced this exception in their law.”

Few beyond the architecture lobby endorse the Commission’s position.

“There is no need for EU harmonization because the existing differences in national legislation are no obstacles to the smooth function of the internal market,” said Carola Streul, secretary-general of European Visual Artists, a visual authors society.

In the past few years, some countries have introduced legislation lifting restrictions on images of public buildings and artwork. Just this summer, Belgium’s government introduced freedom of panorama, which allowed the Berlaymont, the home of the Commission, to be photographed and shared on Wikipedia without the threat of legal action.

Even France has updated its copyright laws, amending them to include freedom of panorama provisions that allow non-commercial photos to be taken. In principle this draws a clear distinction between photos meant for sale, like postcards, and those meant to be stored in family leather-bound albums. But social media has created a gray zone.

“It is a bad form of policy, and one that doesn’t sit easily with the modern society” — Fredrik Erixon, director of the European Center for International Political Economy

While users may think the photos they have uploaded onto Facebook belong to them, the user in fact gives the company a non-exclusive, transferable and payment-free global license to use that content however it likes, until their account is deleted.

“New legal challenges have emerged because so many pictures people take are uploaded on social media, which is considered ‘publishing’,” said Dutch MEP Marietje Schaake.

Facebook said that users own their content but article nine of its terms show that users grant the company permission to use their content and information in connection with commercial use. Users also agree to indemnify Facebook against all damages relating to content or information.

The rights-holders to the Eiffel Tower’s nightly display say they do not pursue people who post on social media or publishers who use the image in news. But French law leaves open the possibility for them to change their mind as to what constitutes commercial use, whether it’s direct exploitation or indirect and casual usage.

The French Ministry of Culture did not respond to a request for comment.

The fight ahead

Lobbyists for the Wikimedia Foundation have joined a handful of vocal MEPs, including the Pirate Party’s Reda and Schaake from the Alliance of Liberals and Democrats, in fighting to lift restrictions on freedom of panorama throughout the EU.

“It is a bad form of policy, and one that doesn’t sit easily with the modern society,” said Fredrik Erixon, director of the European Center for International Political Economy.

Their argument: Unless laws are applied the same way across the bloc, businesses and citizens will remain in the dark about their rights — and the digital single market will remain a theory.

“Harmonization at a European level is important for the single market, to make sure that a print or a magazine produced legally in one country can also be sold in another,” said Reda.

Once the Commission’s proposals are published, the matter will enter the European Parliament. The limitations on freedom of panorama are unlikely to pass through unchallenged.

“Not including an explicit protection of freedom of panorama in the copyright reform proposals may have been a deliberate choice by the Commission to protect this effectively granted freedom from becoming subject of lobbying to restrict it,” Schaake added. “Yet, after so much discussion took place about the freedom of panorama last year, there may well be amendments by the European Parliament.”

This story has been updated to correct the description of European Visual Artists.