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Copyright · Exceptions and Limitations · Intellectual Property · Legal Framework

Is Freedom of Panorama Provided for in Bulgarian Legislation?

The short answer to this question is “it depends”. As in most European countries, there are certain exceptions to authors’ rights to explicitly permit use of their works, which exceptions are limited to certain kinds of use.

 

Free public access does not mean free public domain

Architects and sculptors, like other authors, have the right to explicitly permit, respectively, to stop reproduction of their works, to seek reward for any use, display, dissemination and alteration. This right is not limited to the use of author’s plans and drawings, and does not protect the author merely from copying the general appearance of a building or sculpture by another author. This right also concerns the dissemination of images of the subject-matter of copyright.

The fact that buildings, monuments and sculptures are permanently exhibited on streets, squares and other public places may, though, under certain conditions, restrict the rights of authors under the so-called “Freedom of Panorama “- the possibility freely – without permission and free of charge – to capture, draw, broadcast, disseminate, etc. copyrighted works.

 

Legal framework

Bulgarian Law on Copyright and Related Rights sets the exceptions and limitations to copyright in its Chapter V – “Free Use of Works”. Under the law, “Free use of works shall be permissible only in the cases specified in this Law, provided that it does not conflict with the normal exploitation of the work and does not prejudice the legitimate interests of the copyright holder.”

The law does not refer to the term “Freedom of Panorama”, however this specific exception is established under art. 24:

“The following shall be permissible without the consent of the copyright holder and without payment of compensation: 

(…)

Use of works permanently exhibited on streets, squares and other public places, excluding mechanical contact copying, as well as their broadcasting by wireless means or transmission by cable or other technical means, if done for the purposes of information or another non-commercial purpose.”

Therefore the above exception is limited to non-commercial use.

As such, the Bulgarian legislative approach turns out to be just one degree more liberal than, for example, the existing French one (as of October 2016), where free use is reserved for non-commercial purposes and by physical persons only.

 

Uses of commercial or non-commercial nature

However the distinction between commercial or non-commercial nature is in itself a significant issue, subject to interpretation.

In this respect the Creative Commons community has issued express recommendations for rightholders, distributing their content under CC licensing, to refrain from using too much of the CC-NC – Non-commercial clause, as a significant number of genuinely non-for-profit uses cannot be unambiguously legally considered as non-commercial uses. It can be argued that the Non-Commercial clause is “most minutely heeded where its consequences are least intended”, such as for uses which do not bring any remuneration to the user, but nevertheless can be seen as commercial, because the respective endeavour in general is operated to generate revenue, or somehow linked to commercial activities. Such uses, which can be seen as commercial, include publications in Wikipedia, newspapers (considered in any case as commercial users, disregarding of the fact if they may be distributed for free) and blogs (displaying advertisement). Even schools, trainings and Universities, which are not exclusively publicly funded, or exclusively financed by donations, can be considered as operating for a commercial advantage and financial recompensation and thus – excluded from the scope of non-commercial users.

The CC recommendations state that for rightholders who are private individuals there is no good reason for a restriction to non-commercial use only. The use of the Share Alike module is recommended as equally effective yet often more efficient way to prevent content from being used with financial intentions. (Klimpel – Publ.: Wikimedia Deutschland, iRights.info, CC DE, under license CC BY-SA 3.0 Unported)

Although Bulgarian courts seem to have very little experience regarding this particular copyright exception, one of the rare examples of relevant caselaw is Bulgaria concerns precisely the assessment if a particular use is of commercial or non-commercial nature. In the specific case, the graphic representation of a well-known statue has been used in election campaign brochures. The court in this case states that, while the election campaign is clearly a non-commercial endeavour the activity of printing the brochures in itself is unambiguously of commercial nature. As a result the whole campaign falls in the realm of commercial use of the copyright protected work. Thus the Court reached the conclusion, that the exception of panorama cannot be applied to the particular use of the representation of a publicly displayed artwork in a political campaign.

 

Getting permission

In the event the intended use of a publicly exhibited copyrighted work is of commercial nature, authorisation must be sought from its author by way of individual agreement or through collective management of rights.

In Bulgaria there are two (competing) collective management organisations in that field – both claiming to protect architects’ rights. However, both organization seem not to perform collective management of rights in the proper sense of the word.

Sculptors are generally more likely to control how their work is being used once displayed in public spaces, but they tend to enforce their IP rights individually.

Currently the European Union seem to fail at establishing freedom of panorama as a mandatory exception of copyright on EU level thus maintaining the complexity of keeping track of the respective regulation on the use of publicly displayed works of art and architecture. This affects the work of photographers and advertisers alike, but also impedes the development of new forms of art, entertainment and communication, such as mapping services that provide 360-degrees panorama and Augmented Reality.

The Wikimedia Foundation maintains a very useful page, containing information on the freedom of panorama regime in different countries worldwide.

The whole article on freedom of panorama under Bulgarian legislation, containing some caselaw examples, comparative analysis on the respective legal regulation in some other EU countries, overview of the ongoing European Commission attempts of a reform on copyright, including the exception of freedom of panorama, or more precisely, the lack of such, as well as examples of restrictions on the use of publicly exhibited monuments and buildings, other then of IP nature, such as specific regime of pre-emptive authorisation of commercial photos of cultural heritage assets, can be found here (in Bulgarian language).

 

Let me now if you found this article helpful. If you have questions, send me a message here.

Photo: Wikimedia France, CC-By-SA

About the author

Ana Lazarova

Ana Lazarova is an attorney at law, based in Sofia, Bulgaria, practicing mainly in the field of corporate and commercial law and intellectual property. She is a member of the Sofia Bar since 2007. Ana is also an industrial property representative before the Bulgarian Patent Office and European trademark and designs attorney. Read more

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