Freedom of panorama
In computer games and apps, the use of images of nature, like mountain streams, does not raise doubts in terms of copyright. But the use of architectural structures, such as bridges, monuments or buildings, can be problematic, because they are generally regarded as “works” for copyright purposes.
Using images of architectural structures and disseminating them in any form (e.g. a photo) depends on the consent of the creator of the structure. There is no problem if the copyright to the structure has expired. Then nobody’s consent must be obtained. But the requirement to obtain consent applies to all works for which the copyright is still in force. Then the principle of “freedom of panorama” can come into play. It permits the use of images of structures within a public space without obtaining the consent of the designers.
Freedom of panorama is not harmonised across the EU, which causes lots of confusion. It is not provided for example by French, Greek or Italian law. In some countries the institution functions but applies only to non-commercial use (e.g. in Estonia, Iceland, Latvia and Lithuania). In yet other countries, it applies to both commercial and non-commercial use, and its scope is broad enough to cover both structures and works of art (e.g. in Germany, Poland, Portugal and Spain).
Where’s the panorama?
Perhaps the best-known computer game using landscapes with Polish architecture is “The Vanishing of Ethan Carter.” Players manoeuvre through an area stylised as Colorado, but in reality the buildings, bridges, dams and mines are in Lower Silesia.
Nowadays a computer game is not exclusively a commercial domain, but is also a tool for constructing cultural identity. Thus Polish provinces, regions and cities increasingly create their own computer games and apps to showcase landmarks, such as town halls, monuments, and signature works of contemporary architecture. Photos of some Polish cities are also used in traditional board games, such as Monopoly. Gdańsk is preparing an adventure game that takes place in the contemporary city and surroundings. There are also many apps that are mobile guides to major Polish cities, obviously including photos of buildings and other structures (squares, parks, landmarks, skyscrapers, churches, hospitals, museums and so on).
For all creators of games and apps, exercising the freedom of panorama is an invaluable right. Under Polish law, this institution is addressed in Art. 33(1) of the Act on Copyright and Related Rights as one type of permissible use. According to the act, “it is permissible to disseminate works permanently displayed in generally accessible roads, streets, squares or gardens, but not for the same use.” From the point of view of software developers, what is most important here is the lack of restrictions on commercial use of images of Polish architectural structures and obtaining benefits from their dissemination. But how can the freedom of panorama be legally exploited, and where are its limits? What cannot be included in a game or app?
Level 1 – not for the same use
An office tower, shopping mall or bridge can be photographed and then for example with the help of photogrammetry included in a computer game. The work will then definitely not be put to the same as the original, because the method of use will not be identical to the main method in which the original work is used. This will be a permissible use.
Level 2 – generally accessible
Permissible use of a panorama applies only to works that are displayed, but only in a free, open and generally accessible space. General accessibility is not excluded by the fact that the structure is open only during certain hours or with an admission fee. But one cannot freely exercise the freedom of panorama to use the interiors of buildings. This applies not only to the interior as such, but also to works that are displayed in interiors. This refers for example to restaurants, train stations, post offices, banks, public buildings and shopping malls. Even though they are publicly accessible, the works displayed there are not located in “free space.”
Level 3 – permanent
For the image of a work to be used, it must be displayed permanently. This should be tied to the location of the work in a specific public place, without time limitations on its presentation. It thus may be problematic to apply the freedom of panorama to structures that are short-lived because of the materials they are made from, such as structures made from ice or sand, but also graffiti on buildings, walls or bridges, although in the latter case the views may vary. Shop windows would not fall under the freedom of panorama because of their impermanence.
Level 4 – in roads, streets, square or gardens
The somewhat unfortunate choice of the preposition “in” roads, streets, squares or gardens should not discourage exercise of the freedom of panorama. This formulation should be understood to mean that freedom of panorama applies to structures located next to such places, and has nothing to do with the perspective from which they are seen. Thus there is no reason such structures cannot be photographed from the air, from an observation deck or from any other perspective.
Level 5 – additions
Another type of problem may arise when, for example, the game is supposed to take place at night, and images of buildings with lighting are to be used. It must be borne in mind that lighting may enjoy its own protection as a separate work, but it would not be covered by the freedom of panorama. Therefore, while use in a computer game of a picture of the building itself will be permissible, use of a picture of the same building illuminated with a lighting installation will require the relevant consent. A similar problem could arise for example with respect to advertising displayed on buildings.
“Panorama, we have a problem”
Looking at the Polish regulations governing the freedom of panorama, one may well ask where the problem lies. The problem is that it is not entirely clear whether the freedom of panorama apples only tophotography, as fixed on film, and thus transferring architectural structures into a game or app “directly,” or also secondary works in which the image of the structure has been modified, e.g. paintings, drawing or graphics, which play a huge role in computer games.
As indicated above, in Poland the freedom of panorama is a form of permissible use. To what extent should this understanding be adjusted through the wording of Art. 35 of the Act on Copyright and Related Rights? This provision states that permissible use must not infringe the normal use of the work or conflict with the valid interests of the creator. Does this mean that the broad rule on the freedom of panorama only seems at first glance to be so broad, but is in fact restricted by Art. 35?
Welcome to the game
Despite these doubts, Polish developers of games and apps enjoy more extensive freedom to use their native landscapes than is the case in many other European countries. The Polish computer game industry is truly world-class, which makes the possibility of safely exploiting the country’s panoramas all the more encouraging.
Lena Marcinoska, Intellectual Property Practice, Wardyński & Partners
The article is a part of the New Technologies Newsletter, November 2015