Replies to the public consultation on the "Panorama exception" : support to the Commission's analysis of the replies in view of the publication of the public consultation's "Synopsis Report" : final report.
Date: 2016-02-14
Institutions: Directorate-General for Communications Networks, Content and Technology
Subjects: copyright, provision of services, public consultation, publisher

Ref. Ares(2017)5134723 - 20/10/2017

Replies to the public 
consultation on the 
‘Panorama 
exception’ 

Support to the Commission's analysis of the 
replies in view of the publication of the public 
consultation's "Synopsis Report" 

FINAL REPORT  

Prepared for the European Commission 
DG Communications Networks, Content & Technology 
by: 

Digital 
Single 
Market 

 
 
 
 
 
 
 
 
This study was carried out for the European Commission by 

The College of Europe 

Experts’ Team 

Prof. Adam Cygan, Leicester Law School, University of Leicester 

Mr Florent Le Divelec, Academic Assistant, College of Europe 

Dr. David Rinaldi, Research Fellow, CEPS 

Project Management 

Ms Cristina Macovei, Project Manager, College of Europe 

Ms Tina De Dycker, Project Assistant, College of Europe 

Internal identification 

Contract number: 30-CE-0803769/00-46 

SMART number: 2016/0086  

DISCLAIMER 

By the European Commission, Directorate-General of Communications Networks, Content & Technology.  

The information and views set out in this publication are those of the author(s) and do not necessarily reflect 
the official opinion of the Commission. The Commission does not guarantee the accuracy of the data included in 
this study. Neither the Commission nor any person acting on the Commission’s behalf may be held responsible 
for the use which may be made of the information contained therein. 

© European Union, 2016. All rights reserved. Certain parts are licensed under conditions to the EU.  

Reproduction is authorised provided the source is acknowledged. 

 
 
 
 
 
 
 
 
 
 
Table of Contents 

1 

2 

Introduction ............................................................................................................................ 2 

Overview of Respondents..................................................................................................... 3 

Problem Identification: Q1 to Q4 .......................................................................................... 6 

3 
3.1 
Problems  faced when uploading images  of works made to be located  permanently in public 
places protected by copyrights on the internet ....................................................................................... 6 

3.1.1 Closed Question……………………………………………………………………..…………..6 

3.1.2 

Open 

Question………………………………………………………………………..………….8 

Provision  of    online  access  to  images  of  works,  such  as  works  of  architecture  or  sculpture, 
3.2 
made to be located permanently in public places protected by copyright .............................................. 9 

3.2.1 Closed Question……………………………………………………………………..…………..9 

3.2.2 Open Question…………………………………………………………………..………….….11 

3.3 
Use  of  image  of  works,  such  as  works  of  architecture  or  sculpture,  made  to  be  located 
permanently in public places in the context of business/activity ........................................................... 12 

3.3.1 Closed Question……………………………………………………………………..…………12 

3.3.2 Open Question……………………………………………………………………..…………..15 

3.4 
Use  and  offer  of  licences  for  the  use  of  works  made  to  be  permanently  located  in  public 
spaces ………………………………………………………………………………………………………….16  

3.4.1 Closed Question………………………………………………………………..………………16 

3.4.2 

Open 

Question………………………………………………………………………………….18 

4 
4.1 

Impacts: Q5 & Q6 ................................................................................................................. 19 

Introduction of an exception covering non-commercial uses ................................................... 19 

4.1.1 Closed Question………………………………………………………………………………..19 

4.1.2 Open Question…………………………………………………………………………..……..21 

4.2 

Introduction of an exception covering both commercial and non-commercial uses ................ 22 

4.2.1 Closed Question…………………………………………………………………………..……22 

4.2.2 Open Question…………………………………………………………………………..……..24 

5 

6 

Miscellaneous ...................................................................................................................... 26 

Appendix............................................................................................................................... 29 

                                                 College of Europe | 

1 

 
 
 
 
 
 
 
 
1 

Introduction 

The  College  of  Europe  was  asked  to  analyse  and  summarise  the  responses  to  the  "panorama 
section"  of  the  public  consultation  on  the  role  of  publishers  in  the  copyright  value  chain  and  on  the 
'panorama exception' provided to it by the Commission. 

This report (the 'Report') aims at supporting the analysis made by the European Commission for the 
publication  of  the  Commission  "synopsis  report"  and  shall  not  be  interpreted  as  stating  an  official 
position. 

Respondents  were  classified  within  one  of  the  following  categories  for  the  purpose  of  the  data 
analysis: 

• Member States and public authorities 

• Professional photographers 

• Visual artists and Architects 

• Other Authors (authors that are not visual artists, architects or professional photographers)  

• Online service providers (content aggregators, advertising service providers, social networks, search 
engines, hosting service providers and other service providers) 

• Collective Management Organisations 

• Other Rights  Holders (publishers, film/audiovisual producers, broadcasters, phonogram producers, 
performers) 

• Institutional users (owners or managers of works made to be located permanently in public places, 
libraries or cultural heritage institutions, educational or research institutions) 

• End users/consumers/citizens 

Where  appropriate,  respondents  who  for  the  purposes  of  the  questionnaire  defined  themselves  as 
‘semi-professional’  users  were, 
from 
‘professional’  users.    The  minimal  number  of  re-classification  of  such  respondents  had  no  overall 
impact on the results obtained.  

instances,  considered  alongside  responses 

in  certain 

This  report  analyses  the  replies  provided  by  the  European  Commission.  Confidential  treatment  of 
responses has been ensured. Blank responses have been omitted. 

                                                 College of Europe | 

2 

 
 
 
 
 
 
 
 
 
 
 
 
 
2 

Overview of Respondents 

The public survey consisted of two separate samples which have been analysed for this Report.  The 
questions asked by both samples were identical. The two surveys were organised by:  

1) The European Commission (EU Survey) and  

2) C4C Surveys 

Within this Report both the data and the summary of the open questions presented are the result of a 
combined analysis of both samples. 

Table 1 - Number of Respondents  

Individuals 
Organisations 
Total 

EU Survey 

2345 
313 
2658 

C4C 

2181 
37 
2218 

Total 
Respondents 
4526 
350 
4876 

% of Total 

92.82 
7.18 
100 

Within  the  total  number  of  answers  submitted  in  the  two  aforementioned  surveys,  92.82%  of 
respondents  are  individuals  answering  in  their  personal  capacity  and  are,  more  or  less,  distributed 
equally between the two surveys while answers given by organisations (7.18% of total replies) come 
almost entirely from the EU Survey.  

Figure 1 – Respondents per Survey 

92.82% 

7.18% 

89.43% 

10.57% 

Individuals

Organisations (EU Survey)

Organisations (C4C)

                                                 College of Europe | 

3 

 
 
 
 
 
 
 
 
  
 
 
 
Among  the  answers  submitted,  a  certain  number  of  identical  replies  was  observed.  Thus,  198 
answers in the C4C and 30 in the EU Survey were provided using the exact same wording, either in 
English or translated in to another language. 

Regarding  the  country  of  origin  of  respondents,  among  the  555  individuals  declaring  residence 
outside  the  EU,  around  2/3  are  from  North  America  while  as  many  as  247  respondents  of  the  C4C 
survey  are  resident  in  Canada,  which  has  a  total  share  of  over  45%  of  non  EU  respondents  and 
5.55% of total survey respondents. The US follows with about 34% of non EU respondents. Further 
details, can be found in the Appendix at Table C which shows the breakdown of respondents resident 
in non EU countries.  

Regarding  answers  submitted  by  EU  residents,  the  vast  majority  of  answers  were  provided  by 
individuals residing in the United Kingdom, Germany and France.  

Additional statistics on the geographic distribution of respondents, by survey and by role is available 
in the Appendix within Tables A and B. 

Figure 2 – Number of Responses by Country and Role   

1400

1200

1000

800

600

400

200

0

Individuals

Respondents

                                                 College of Europe | 

4 

 
 
 
 
 
 
 
 
 
 
 
 
 
Figure 3 – Responses by Country, Percentage 

30

25

20

15

10

5

0

Percentage of Resply among Individuals

Percentage of Replies among Organisations

Regarding  the  categorization  of  respondents,  several  elements  have  been  taken  into  consideration 
when analysing the statistics. 

Firstly,  a  vast  majority  of  those  who  identified  themselves  as  “Other”  within  the  survey  have  been 
reassigned  to  the  category  of  “Consumers  &  Individuals”.    That  refers  particularly  to  those  who 
described themselves as “retired”, “citizen”, “and private citizen ”,“ human being, citizen of the world ”,“ 
nonprofessional  photographer  ”,“  hobby  photographer”.  However,  semi-professional  photographers 
have  been  reassigned  to  the  “Professional  Photographers”  category  while  artists  and  product 
designers have been assigned to the category “Visual Artists & Architects”.   

Cross-category organisations marked as “Other” have been reassigned to the category matching their 
predominant activity. For further details, a breakdown of the number of respondents by category and 
by country can be found in the appendix. 

                                                 College of Europe | 

5 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
3 

3.1 

Problem Identification: Q1-Q4 

Uploading images of works made to be located permanently in 
public places protected by copyrights on the internet 

3.1.1 Closed Question 

The  question  asked  was  the  following:  When  uploading  your  images  of  works,  such  as  works  of 
architecture or sculpture, made to be located permanently in public places on the internet, have you 
faced problems related to the fact that such works were protected by copyright? 

This  question  was  mainly  addressed  to  end  users  who  upload  images  of  works,  such  as  works  of 
architecture  or  sculpture,  made  to  be  located  permanently  in  public  places  protected  by  copyright 
online. 

Out of the 4876 answers obtained, 33.88% indicated that the respondent often faces problems when 
uploading their images of works due to copyright issues and 17.45% indicated that such a problem is 
faced  occasionally.  However,  29%  of  the  respondents  indicated  that  they  had  never  encountered 
such an issue.  

The  answers  given  by  the  respondents  classified  as  individuals  reflects  this  trend  with  28.83% 
indicating that they never encountered this issue and 35.02% and 17.48% respectively indicating that 
they have faced such an issue either often or occasionally.  

Among  the  350  replies  given  by  respondents  classified  as  organisations,  31.14%  affirmed  never 
having faced such an issue, with 12% indicating that they  hardly ever faced problems related to the 
fact  that  works  were  protected  by  copyright.  However,  17.14%  and  19.14%  respectively  affirmed 
having  faced  such  an  issue  either  often  or  occasionally.  The  question  has  been  considered  not 
relevant by 10.57% of the concerned respondents. 

Figure – Question 1: Percentages by Role 

                                                 College of Europe | 

6 

 
 
 
 
 
 
 
 
 
 
 
 
 
Never

Hardly ever

Yes,
occasionally

Yes, often

Not relevant

No opinion

No answer

Individuals

Organisations

Figure – Question 1: Percentages by Category 

40,00%

35,00%

30,00%

25,00%

20,00%

15,00%

10,00%

5,00%

0,00%

100%

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

Visual Artists &
Architects

Professional
Photographers

Other Authors

Collective
Management
Organisations

Member States &
Public Authorities

Other Rights
Holders

Institutional
Users

Consumers &
Individuals

Service Providers

Never

Hardly ever

Yes, occasionally

Yes, often

Not relevant

No opinion

When  considering  the  results  per  category  of  respondents  both  as  individuals  and  organizations,  a 
vast majority of Visuals Artists & Architects and Collective Management Organisations replied never, 
representing more than 60% of the total answers in these categories, while between 20% and 30% of 
respondents in the other categories gave such response. 

Professional  photographers  predominantly  answered  positively  with  more  than  50%  of  the  answers 
indicating  that  such  a  problem  is  faced  either  occasionally  (26.16%)  or  often  (25.17%).  However, 
more than 40% affirm to have never (32.45%) or hardly ever (9.93%) faced such a problem. 

                                                 College of Europe | 

7 

 
 
 
 
 
 
Other  authors  affirmed  to  have  faced  such  a  problem  in  more  than  60%  of  the  answers  provided 
either occasionally (16.2%) or often (45.31%), while 30% indicated they hardly ever (4.93%) or never 
(24.65%) have been in this situation. 

As indicated above, a vast majority (64%) of Collective Management Organisations indicated that they 
never  faced  such  a  problem,  while  24%  indicated  to  have  faced  it  occasionally  (4.00%)  or  often 
(20.00%). 12% considered this question not relevant to their situation.  

Member States & Public Authorities mostly indicated that the situation occurs occasionally (19.05%) 
or  often  (33.33%),  while  25%  of  the  respondents  affirmed  to  have  hardly  ever  (3.17%)  or  never 
(22.22%) been in such a situation. 14% considered the question not relevant to their situation. 

Other  Rights  Holders  predominantly  indicated  to  have  faced  such  a  situation  either  occasionally 
24.52%)  or  often  (32.15%).  However,  more  than  30%  of  the  respondents  indicated  to  have  hardly 
ever (9.54%) or never (23.98%) been in such a situation. 

Institutional  Users  answered  in  the  vast  majority  that  they  face  such  a  problem  often  (54.46%)  or 
occasionally  (14.33%),  while  18.15%  answered  negatively.  5.10%  indicated  to  be  hardly  ever 
concerned by such a problem.  

Consumers  and  individuals  answered  most  often  in  the  positive  and  indicated  that  they  either  face 
such an issue occasionally (18.80%) or often (34.48%). More than 30% of these respondents stated 
that they faced such a problem either hardly ever (5.72%) or never (27.27%). 

Finally, among Service Providers, a majority of respondents (60.00%) answered that they have faced 
copyright problems when uploading online images of their work, either occasionally (18.8%) or often 
(34.48%). However, more than 25% answered having faced such a situation  hardly ever (6.11%) or 
never (19.44%) 

3.1.2. Open Question 

If so, please explain what problems and provide examples indicating in particular the Member State 
and the type of work concerned 

A majority of respondents who indicated they have faced such an issue either  often  or  occasionally 
highlighted  that  the  reason  for  their  reluctance  to  upload  such  images  is  due  primarily  to  the 
uncertainty concerning the legality of their action and their concern of copyright infringement.  

The  majority  of  individuals  who  responded  never,  have  mentioned  the  uncertainty  of  the  border 
between  legality  and  illegality  in  their  respective  Member  States,  and/or  the  complexity  of  the 
legislation,  and/or  the  cost  of  the  procedure  which  is  required  to  obtain  an  authorization  to  upload 
such images. Several comments concerned the regulatory situation in France, Belgium, Estonia and 
Romania.  

A considerable number of the respondents highlighted the fact that even though the law within their 
respective Member States does not provide for a “panorama exception”, where such a law does exist 
it  is  not  applied  on  a  systemic  basis.  These  respondents  indicated  that  this  inconsistency  in 
application of the legal rules has increased the legal uncertainty.  

Some individuals identifying themselves as artists either categorized as professional photographers, 
or  consumers  &  individuals  (when  amateur)  highlighted  the  existence  of  different  laws  within  the 
European  Union  which  they  argued  impacts  negatively  upon  their  activity  by  dissuading  them  from 
uploading their work.  

A considerable number of the respondents affirmed that though they are aware of copyright protection 
for works of architecture or sculpture, which are located permanently in public places, they choose to 
ignore this and decide to upload the images in any event and take the risk of infringement procedures. 
Such a situation was particularly visible in the case of the maintenance of a blog, websites and other 

                                                 College of Europe | 

8 

 
 
 
social  networking  or  multimedia  platforms.  However,  no  indication  or  evidence  was  given  as  to  the 
existence and nature of such infringement procedures. 

3.2 

Provision of online access to images of works, such as works of 
architecture or sculpture, made to be located permanently in public 
places protected by copyright 

3.2.1 Closed Question 

The  question  asked  was  the  following:  When  providing  online  access  to  images  of  works,  such  as 
works of architecture or sculpture, made to be located permanently in public places, have you faced 
problems related to the fact that such works were protected by copyright? 

This  question  was  mainly  addressed  to  service  providers  which  offer  online  access  to  images  of 
works, such as works  of architecture or sculpture, made  to  be  located  permanently  in  public  places 
protected by copyright in the context of their commercial activity. 

When  asked  about  this  specific  problem  with  copyright,  out  of  the  4876  responses  given  to  this 
question, most respondents indicated that they have faced this problem either occasionally (13.6%) or 
often (31.87%) while a considerable number of respondents affirmed having never (22.27%) or hardly 
ever (5.00%) faced such an issue.  

Almost  20%  of  the  answers,  the  vast  majority  of  whom  were  individuals,  indicated  that  such  a 
question was not relevant to their situation. 

Among the respondents classified as  individuals, a majority indicated having faced a problem when 
giving  access  to  images  of  work  either  occasionally  (13.70%)  or  often  (33.07%),  while  26.46  % 
indicated  that  they  never  or  have  hardly  ever  been  concerned  by such  a situation.  Similarly,  almost 
20% indicated that they considered this question was irrelevant to their situation. 

Looking  at  respondents  from  organisations,  less  than  30%  indicated  that  they  have  faced  such  a 
situation  either  occasionally  (12.29%)  or  often  (17.14%),  while  more  than  35%  indicated  that  they 
never (24.57%) or hardly ever (13.14%) had been confronted by this problem. More than 20% of the 
respondents considered the question to be irrelevant. 

Figure – Question 2: Percentages by Role 

                                                 College of Europe | 

9 

 
 
 
 
 
 
Never

Hardly ever

Yes,
occasionally

Yes, often

Not relevant No opinion

No answer

Individuals

Organisations

Figure – Question 2: Percentages by Category 

35,00%

30,00%

25,00%

20,00%

15,00%

10,00%

5,00%

0,00%

100%

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

Visual Artists &
Architects

Professional
Photographers

Other Authors

Collective
Management
Organisations

Member States
& Public
Authorities

Other Rights
Holders

Institutional
Users

Consumers &
Individuals

Service
Providers

Never

Hardly ever

Yes, occasionally

Yes, often

Not relevant

No opinion

When looking at the results by category, several trends can be observed. 

The  respondents  categorised  as  Visuals  Artists  &  Architects  predominantly  answered  that  the 
question was not relevant to their situation (51,68%). By contrast,   more than 20% of the respondents 
answered  in  the  negative by  indicating that  they  never  (17,90%) or  hardly  ever  (3,36%)  have  faced 

                                                 College of Europe |  10 

 
 
 
 
 
 
such  a  situation.      However,  in  parallel,  more  than  25%  of  Visuals  Artists  &  Architects  answered 
positively (either often or occasionally).  

Of professional photographers who responded, more than 40% indicated facing such an issue when 
providing  online  access  either  occasionally  (23.08%)  or  often  (19.40%).  More  than  30%  answered 
negatively among which a vast majority indicated that they have never (25.75%) faced such an issue. 
However, 20% of the respondents considered this question to be irrelevant to their situation. 

Among the respondents classified as other authors a vast majority answered occasionally (13.25%) or 
often  (45.54%)  when  asked  such  a  question,  while  less  than  20%  indicated  that  they  never  faced 
such  a  problem  when  providing  access  to  protected  works  of  art.  As  in  the  other  categories,  a 
considerable number of respondents (19.28%) considered this question as irrelevant. 

Respondents categorised as a collective management organisation predominantly answered that they 
have  never  faced  such  a  problem  (44.00%),    while  less  than  25%  answered  positively  (either 
occasionally or often). More than 30% indicated the question to be irrelevant. 

Almost half of the answers given by Member States and public authorities indicate that they have had 
such problem either often (30.16%) or occasionally (19.05%). However, 25% of the answers indicate 
that  this  problem  was  either  never  or  hardly  ever  faced.    19.05%  of  the  answers  indicate  that  the 
question is not relevant to the respondent’s situation.  

Similarly,  other  rights  holders  indicated  predominantly  that  they  have  already  faced  such  a  problem 
either occasionally (16.80%) or often (34.16%). However, more than 30% answered negatively while 
in excess of 10% of these respondents considered the question to be irrelevant.  

Such a trend is also reflected in the answers given by institutional users who indicated that they have 
faced such a problem either occasionally (13.64%) or often (53.57%), while more than 20% answered 
the  question  negatively,  either  by  indicating  that  they  never  (17.21%)  or  hardly  ever  (4.22%) 
encountered the problem. 

The same observations can be made regarding the answers given by  consumers & individuals who 
indicated  that  they  have  faced  such  an  issue  either  occasionally  (13.95%)  or  often  (32.55%)  while 
more  than  30%  answered  in  the  negative.  However,  18.09%  of  the  respondents  indicated  that  the 
question was irrelevant.  

Finally,  service providers answered predominantly in a positive manner by indicating that they have 
occasionally  (16.29%)  or  often  (42.70%)  faced  such  problem,  while  less  than  25%  indicated  having 
never (17.42%) or hardly ever (7.30%) been in that situation. Similarly to the other categories, more 
than 10% of the respondent considered this question to be irrelevant. 

3.2.2 Open Question 

If so, please explain what problems and provide examples indicating in particular the Member State 
and the type of work concerned 

The  issue  of  time  and  budget  restrictions  was  considered  as  a  restraining  factor  in  a  considerable 
number  of  the  answers  given  and  most  importantly  in  the majority  of  answers  submitted by  Service 
Providers.  Thus,  a  considerable  number  of  respondents  who  identified  themselves  as  Service 
Providers  highlighted  the  fact  that  the  system  of  copyright  authorisation  and/or  copyright  owner 
identification  lacked  efficiency.  These  issues  were  identified  as  grounds  to  explain  the  lack  of 
recourse to images of works protected by copyright. 

A vast majority of the answers given by individuals concerned the sharing of family photos taken in 
public  places,  or  the  use  of  reproduction  of  such  works  for  educational  or  academic  purposes. 
Similarly as with the responses to question 1, a vast majority of problems were considered as taking 
place in the framework of the management of blogs, newspaper articles or other websites, and, social 
media platforms. 

                                                 College of Europe |  11 

 
 
 
Overall, the respondents who have responded, as in question 1, that they chose not to grant access 
to  such  images  of  works  online  highlighted  that  their  decision  arose  from  the  legal  uncertainty 
concerning  the  granting  of  authorization  for  the  use  of  such  images,  and  the  fear  of  infringement 
procedures in cases where such an image was shared online.  

Some respondents, predominantly within the categories of consumers & individuals (and identified as 
a website or blog owner)  also highlighted the problem of using images taken in one Member State, 
but which are made publicly available through a platform in another Member State. Some indicated to 
have received a request for a photographic image to be deleted from the platform on which they had 
provided access to it, although no concrete examples of infringement procedures was provided .   

A considerable number of respondents from EU Member States where such a “panorama exception” 
is  fully enforced (for both commercial and  non-commercial purposes) expressed their fear of seeing 
the  legislation  changed  in  a  regressive  way  while,  conversely,  a  vast  majority  of  respondents 
highlighted their support for the need for EU regulatory intervention in order to provide clarity to the 
law. 

3.3 

Use  of  image  of  works,  such  as  works  of  architecture  or  sculpture, 
made  to  be  located  permanently  in  public  places  in  the  context  of 
business/activity 

3.3.1 Closed Question 

The  question  to  be  answered  to,  was:  Have  you  been  using  images  of  works,  such  as  works  of 
architecture  or  sculpture,  made  to  be  located  permanently  in  public  places,  in  the  context  of  your 
business/activity, such as publications, audiovisual works or advertising? 

This  question  was  mainly  addressed  to  professional  users  (e.g.  advertising  service  providers, 
publishers). 

Out of the 4876 answers submitted, a majority of 53.81% of the respondents indicated having used 
images of works on the basis of an exception.  10% of respondents indicated having done so on the 
basis  of  a  licence.  More  than  15%  answered  in  the  negative.  However,  more  than  15%  of  the 
respondents (17.17%) considered this questions as being irrelevant. 

This  trend  can  be  observed  in  the  answers  submitted  by  both  individuals  and  organisations  with 
respectively  54.15%  and  49.43%  indicating  having  used  such  images  of  works  on  the  basis  of  an 
exception  while  9.52%  and  16.29%  have  done  so  on  the  basis  of  a  licence.  Individuals  more  often 
answered  negatively  (16.20%)  that  they  never  had  recourse  to  such  images  of  works,  while  only 
6.86% of the organisations answered in the negative.  

The  relevance  of  the  question  was  rejected  by  both  individuals  and  organisations  in  respectively 
16.90% and 20.57% of the answers.  

                                                 College of Europe |  12 

 
 
 
 
 
 
 
 
 
 
Figure – Question 3: Percentages by Role 

60,00%

50,00%

40,00%

30,00%

20,00%

10,00%

0,00%

Never

Yes, on the basis of a
licence

Yes, on the basis of
an exception

Not relevant

No answer

Individuals

Organisations

Figure – Question 3: Percentages by Category 

                                                 College of Europe |  13 

 
 
 
 
 
 
 
 
 
100%

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

Visual Artists
& Architects

Professional
Photographers

Other Authors

Collective
Management
Organisations

Member
States &
Public
Authorities

Other Rights
Holders

Institutional
Users

Consumers &
Individuals

Service
Providers

Never

Yes, on the basis of a licence

Yes, on the basis of an exception

Not Relevant

The  respondents  categorized  as  visual  artists  and  architects  are  the  only  respondents  who 
predominantly replied having used such images of works on the basis of a licence (46.09%), while a 
considerable minority of respondents affirmed having used such images on the basis of an exception 
(29.53%). However, 13.42% of respondents affirmed having never used such images of works while 
10% considered the question to be irrelevant.  

The  respondents  classified  as  collective  management  and  organisations  predominantly  responded 
that either the question was not relevant (40%), or that they have relied on a licence to use images of 
works (32%). 16% declared having relied on an exception and 12% to have never made use of such 
images of works.  

Aside of these two categories of respondents, the remaining responses indicate a similar trend. Thus, 
a clear majority of respondents classified as professional photographers affirmed to have relied on an 
exception to use such images of works while less than 20% relied on a licence (17.39%). However, 
similarly as with the visual artists and architects, 13.71% of the respondents considered the question 
irrelevant, while 13.38% affirmed having never used such images. 

Similarly, the category of other authors affirmed in 65.24% of their answers that they have relied on 
an  exception  to  use  images  of  works  protected  by  copyright  while  12.14%  relied  on  a  licence. 
Likewise, more than 10% of the respondents indicated having never used images of works (12.62%), 
or that the question was not relevant (12.62%). 

Respondents  of  the  category  of  Member  States  &  public  authorities  indicated  in  52.38%  of  their 
answers to have relied on an exception to use images of works protected by copyright, while in 6.35% 
of instances such use was relying on a licence. In turn, 22.22% of the respondents indicated having 
never  used  such  images  of  works,  while  19.05% considered  the question  to  be  irrelevant.  However 
the  respondents  within  this  category  submitted  very  little,  or  no  indication  as  to  the  context  within 
which  such  type  of  images  were  relied  upon.  The  only  examples  submitted  were  in  the  context  of 
landscape pictures to be used for tourism purposes and official website illustrations. 

Other  rights  holders  indicated  in  a  clear  majority  of  the  answers  to  have  relied  on  an  exception 
(72.33%)  when  using  images  of  works  protected  by  copyright  while  a  small  minority  of  8.39% 
indicated  that  a  licence  was  relied  upon.  An  equal  amount  of  respondents  of  this  category  (9.59%) 

                                                 College of Europe |  14 

 
 
 
indicated  to  have  either  never  made  use  of  such  images  of  works  or  that  the  question  was  not 
relevant. 

Such  a  trend  is  also  observable  in  the  answers  provided  by  institutional  users,  consumers  & 
individuals  and  service  providers.    Predominantly,  they  indicated  to  have  used  an  exception  for  the 
use of images of works, such as works of architecture or sculpture, made to be located permanently 
in  public  places,  in  the  context  of  a  business/activity  (between  50.00%  and  more  than  75.00%  of 
respondents),  while  a  clear  minority  relied  on  a  licence  (between  3.00%  and  less  than  10%  of 
respondents).    Those  who  had  never  made  use  of  such  images  of  works  were  in  the  minority 
(between  7.00%  and  20%  of  respondents).  The  question  was  considered  as  not  being  relevant  by 
8.63% (institutional users), 22.46% (consumers and individuals) and 14.94% (service providers). 

3.3.2 Open Question 

If so, please explain, indicating in particular the Member State and what business/activity, and provide 
examples. 

A considerable number of respondents considered the question asked to be too broad to be properly 
answered.  Many  have  indicated  to  have  relied  on  an  exception..  Similarly,  many  other  respondents 
indicated to having recourse to open source databases and creative common licences.  

A  number  of  respondents  replied  by  merely  stating  that  different  rules  were  enforced  in  different 
Member  States.  Such  responses  were  either  not  expanded  upon  in  greater  detail,  or  it  was 
accompanied  by  a  comment  indicating  that  the  disparities  of  rules  within  the  EU  is  a  source  of 
uncertainty and confusion. 

However, when respondents identified themselves as being concerned by the scope of the question 
they  submitted  a  broad  range  of  answers.  Thus,  a  large  number  of  professionals  have  commented 
upon  their  use  of  images  of  works,  such  as  works  of  architecture  or  sculpture,  made  to  be  located 
permanently  in  public  places  in  the  context  of  a  business/activity.  From  these  responses  it  appears 
that the majority of respondents made use of these images (regardless of the use of an exemption, a 
licence  or  none  of  these)  for  many  purposes  such  as:  the  contextualisation  of  a  real-estate  offer, 
advertising, promotional videos, the layout of a brochure or the illustration of travel agencies’ offers. 
Regarding this last purpose, in addition to website and blog contributions, both the existence of such 
copyright restrictions and the complexity of the procedure required to obtain the right for the use of an 
image  in  particular  for  commercial  uses  were  considered  by  some  respondents  as  impeding  the 
dissemination  of  cultural  information  and  the  economic  activities  of  actors  operating  in  the  field  of 
tourism and culture.  

Individuals,  such  as  respondents  from  the  category  of  consumer  &  individuals,  indicated  in  a  vast 
majority  of answers  that  they  have  made  use  of  images  of works  as  described.  However, such use 
was  either  made  without  knowing  that  such  works  were  protected,  or  they  were  used  regardless  of 
such  protection  due  to  the  confusing  legal  regime  applicable  to  such  works.  Thus,  the  purpose  for 
which individuals made use of images of works are diverse and range from a mere active participation 
on a social network platform, to the inclusion on a blog and other website, or the use of such images 
for cultural purposes. 

Nevertheless,  in  the  overall  negative  answers  brought  by  the  respondents,  the  majority  of  the 
explanations  provided  focussed  on  the  illegality  of  the  free  use  of  such  images  of  works  due  to  the 
presence of copyright restrictions protecting the creators of the work. Respondents identified that this 
may have hindered online activities of individuals or the dissemination of cultural material.  

The  educational  sector  often  relies  on  such  images  of  works  by  both  educators  themselves 
(professors,  academics)  and  students.  For  instance,  several  answers  were  submitted  by  architect 
students (the majority resident in Belgium) who indicated that the law enforced in their Member State 
might  hamper  their  present  and  future  work  as  both  students  and  future  professionals.  Similar 
comments  were  provided  by  architecture  professors  who  indicated  that  the  use  of  images  of  work 
                                                 College of Europe |  15 

 
 
 
 
were  most  often  relied  upon  as  either  illustration  for  their  classes,  or  as  the  basis  of  assignments 
given to students. 

As with the answers found in questions 1 and 2, a dichotomy persists between respondents residing 
within Member States where a “panorama exception” is currently available and those who are located 
in a Member State where such a law does not exist. Thus, if the first category of respondent express 
their  fear  for  any  drawbacks  in  the  law  of  their  respective  State,  the  latter  category  of  respondents 
show their support for EU regulatory intervention.  

3.4 

Use  and  offer  of  licences  for  the  use  of  works  made  to  be 
permanently located in public spaces 

3.4.1 Closed Question 

To the question “Do you license/offer licences for the use of works, such as works of architecture or 
sculpture,  made  to  be  located  permanently  in  public  places?”,  out  of  4876  answers  submitted,  the 
majority  of  the  respondents  (51.29%)  responded  in  the  negative,  while  34.29%  considered  that 
question to be not relevant. Overall, only 8.45% of the respondent answered in the positive. 

Among the 412 respondents licensing or offering a license for the use of such works, the vast majority 
were individuals (87.6% of the positive answers), though such responses amounted to just 7.98% of 
the total answers provided by individuals. On the contrary, 14.57% of the respondents categorized as 
organisations provided a positive answer. 

Figure – Question 4: Percentages by Role 

                                                 College of Europe |  16 

 
 
 
 
 
 
 
 
 
 
 
 
60,00%

50,00%

40,00%

30,00%

20,00%

10,00%

0,00%

100%

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

Yes

No

Not relevant

No Answer

Individuals

Organisations

Figure – Question 4: Percentages by Category 

Visual Artists
& Architects

Professional
Photographers

Other Authors

Collective
Management
Organisations

Member
States &
Public
Authorities

Other Rights
Holders

Institutional
Users

Consumers &
Individuals

Service
Providers

Yes

No

Not relevant

The  majority  of  the  positive  answers  (70%)  are  to  be  found  among  the  visuals  artists  &  architects 
(35.97% of the answers within the category of respondent and 38.5% of the total of  yes submitted), 
the  professional  photographers  (representing  only  21.21%  of  the  answers  within  this  category  and 
15.29%  of  the  yes  submitted)  and  the  consumers  and  individuals  (representing  only  2.69%  of  the 
answers within this category and 16.50% of the total of yes submitted). 

                                                 College of Europe |  17 

 
 
 
 
Aside  the  category  of  collective  management  organisations  and  visual  artists  and  architects  out  of 
which 56% and 35.97% respectively answered in the positive, the answers given in all the categories 
of respondent were predominantly negative (ranging from 45% to 60%). 

The question has however been considered not relevant by a constant minority of respondents across 
categories  ranging  from  24%  (collective  management  organisations)  to  38%  (consumers  and 
individuals).  

3.4.2 Open Question 

If so, please provide information about your licensing agreements (Member State, licensees, type of 
uses covered, revenues generated, etc.). 

As  a  preliminary  remark,  this  open  question  was,  among  the  seven  asked  in  the  survey,  the  least 
answered with only 528 replies collected.  This compares to an average of more than 1600 answers 
submitted for each of the other open questions. 

The  majority  of  respondents  who  have  indicated  their  country  of  origin  when  having  recourse  to 
licensing agreements were located in Germany, France, the Netherlands and Italy. 

Many respondents both end users and artists (predominantly categorized as consumers & Individuals, 
professional  photographers  and  Visual  Artists  &  Architects)  indicated  having  licenced  their  work. 
Some  did  it  under  the  regime  of  the  creative  commons  through  different  types  of  licencing  such  as 
CC-BY-SA1 and Share Alike 3.0, or other free licencing regimes such as General User Licence and 
General  Public  License.  Some  respondents  indicated  that  as  well  having  licenced  their  work  they 
have  also  offered  some  privileges  for  specific  use  of  their  work,  for  example  in  the  preparation  of 
documentation2  or  upon  simple  request  by  a  user  under  the  condition  that  the  author’s  name  is 
referenced on the work.  

Other  type  of  licences  which  have  been  mentioned  by  respondents  include  European  and 
International licences, both exclusive and non-exclusive. 

Among  the  responses  obtained,  the  respondents  who  have  used  licences  to  protect  their  work 
indicate that they use both the method of direct authorisation and the grant of a licence through their 
to  such  collective  management 
collective  management  organisation.  Though 
organisations  is  particularly  visible  amongst  the  answers  provided  by  French  respondents  who 
indicated ADAGP as the main organisation relied upon3, such a trend is also echoed within answers 
provided  by  respondents  from  Germany,  France,  Italy,  Denmark  (Copydan  Billeder)  and  the 
Netherlands. However, few further details were submitted by these respondents as to the identity of 
their  respective  collective  management  organisation  or  as  to  the  amount  of  work  which  is  licensed 
through it.  

the  reference 

Nonetheless,  collective  management  societies  commonly  highlighted  in  their  submissions  that  their 
role  is  to  offer  licensing  on  the  basis  of  transparent  tariffs,  which  differ  depending  on  the  media 
involved.  Collective management societies indicated they would examine individual requests in order 
to propose the most suitable licensing option. Similarly, collective management societies emphasised 
that  for  non-commercial  use,  the  licensing  is  offered  on  a  different  tariff,  and  in  many  instances, 
without any charge.  

1 Such format grants to the user the right to share (copy and/or redistribute the material in any medium or format) and/or adapt 
(remix, transform, and build upon the material) both for commercial and non-commercial purposes. 
2  For  instance  a  respondent  indicated  having  recourse  to  “Dokumentationen  für  Künstler  und  Kunstverbände  (bbk)”  when 
licencing his work. 
3 Here however, many answers provided were similar and/or identical. Thus, the respondents indicated havin recourse to their 
respective Collective Management organisation before highlighting the importance to retain the liberty to authorize the use of 
their works whetehr or not these are located in a public place.  

                                                 College of Europe |  18 

 
 
 
 
 
 
 
                                                            
Finally, a considerable number of end users indicated that, though they did not make use of a license 
to exploit their work, social networks  would often  impose licencing agreements upon the user when 
uploading a picture on their platform.  

4 

Impacts: Q5 & Q6 

4.1 

Introduction of an exception covering non-commercial uses 

4.1.1 Closed question 

To the question “What would be the impact on you/your activity of introducing an exception at the EU 
level covering non-commercial uses of works, such as works of architecture or sculpture, made to be 
located permanently in public places?”, out of the 4876 answers submitted, the respondents indicated 
predominantly that such an introduction would have no impact (44.57%).  

The answers submitted by  Individuals reflects such a trend with similar  percentages  of respondents 
considering  the  introduction  of  this  exception  to  have  a  negative  impact,  either  strong  or  modest 
(16.17%). 45.91% considered that no impact would be expected and 32.94% considered that such a 
measure would bring a positive impact, either modest (7.05%) or strong (25.89%). 

Among  organisations,  the  respondents  predominantly  considered  that  the  introduction  of  such  an 
exception  would  have  either  no  impact  on  the  current  situation  (27.14%)  or  a  negative  impact 
(40.57%)  either  modest  (8.00%)  or  strong  (32.57).  However,  more  than  20%  of  the  respondents 
considered  this  introduction  to  have  a  potential  positive  impact  either  modest  (7.71%)  or  strong 
(16.00%). 

Figure – Question 5: Percentages by Role 

                                                 College of Europe |  19 

 
 
 
 
 
 
 
 
 
 
 
 
 
50%

45%

40%

35%

30%

25%

20%

15%

10%

5%

0%

100%

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

Strong negative
impact

Modest
negative
impact

No impact

Modest
positive impact

Strong positive
impact

No opinion

No answer

Individuals

Organisations

Figure – Question 5: Percentages by Category

Visual Artists &
Architects

Professional
Photographers

Other Authors

Collective
Management
Organisations

Member States
& Public
Authorities

Other Rights
Holders

Institutional
Users

Consumers &
Individuals

Service
Providers

Strong Negative Impact Modest Negative Impact No Impact

Modest Positive Impact

Strong Positive Impact

No Opinion

                                                 College of Europe |  20 

 
 
 
 
Aside  from  visual  artists  &  architects,  professional  photographers  and  collective  management 
organisations, a majority of answers submitted by the respondents  in the other categories  indicated 
that  the  introduction  of  such  exception  would  have  no  impact  on  the  current  situation  (from  44%  to 
62%). 

Similarly,  and  aside  from  visual  artists  &  architects  and  collective  management,  a  stable  strong 
minority  of  respondents  indicated  that  such  a  measure  would  have  either  a  strong  positive  impact 
(between  14%  and  32%)  while  a  stable  minority  considered  it  to  have  a  strong  negative  impact 
(between 8 to 20%). 

Among  visual  artists  &  architects  and  collective  management,  a  clear  majority  of  respondents 
considered  that  this  exception  would  have  a  strong  negative  impact  (with  respectively  51.45%  and 
72.00%),  while  a  minority  considered  such  a  measure  as  having  no  impact  on  the  current  situation 
(27.96% and 24.00%). 

4.1.2 Open Question 

Please explain 

The  justification  provided  by  respondents  mostly  end  users  (consumers  &  individuals)  and  some 
artists  (professional  photographers  and  other  authors)  who  indicated  that  such  an  exception  would 
have either a negative impact, no impact or a modest positive impact highlight the fact that, due to the 
blurred line dividing non-commercial and commercial activities online, such an exception would either 
introduce uncertainty as to the extent to which a free use would be authorized, or would aggravate the 
current legal certainty revolving around the use of such images of works located in public places when 
the current law provides for a full exemption. 

The complexity of the procedure to obtain such permissions is also highlighted by those respondents 
in parallel with the complexity already highlighted in questions 2 and 3. The arguments advanced in 
response to this question were similar to the one developed in the response to question 2. 

Thus,  the  question  of  definition  of  what  constitutes  commercial  use  has  been  put  in  the  forefront  of 
many submissions within which the position taken by the respondents of many categories, especially 
end  users  and  Service  Providers,  can  be  summarized  as  follows:  though  such  an  exception  might 
seem attractive, such an option would not provide for legal certainty with regard to the use of images 
of works located in public places due to the lack of a clear separation between commercial and non-
commercial activity online. 

Such an issue has been highlighted regarding the use of blogs, social networks and other networks 
and  also  by  a  vast  range  of  profiles  categorized  as  “end  users/consumers”,  painters  or  employees 
within  the  education  sector.  The  main  issue  raised  by  respondents  concerns  the  differentiation  of 
commercial/non-commercial purposes in light of the inherent presence of advertising on a significant 
majority  of  websites,  irrespective  of  whether  these  websites  are  intended  to  be  a  platform  for 
professional activities or for non-economic purposes. 

Respondents  in  many  categories,  especially  end  users,  were  concerned  that  the  risk  of  litigation 
would  remain  present,  even  after  the  introduction  of  such  exception,  and  especially  so  as  a 
consequence of what some respondents defined as the “chain of responsibility” in the use of images 
of  the  concerned  works  by  third  parties  when  such  an  image  has  originally  been  made  available 
online for a non-commercial purpose. 

Regarding  education  professionals,  a  majority  of  respondents  affirmed  that  such  an  exception 
regarding  non-commercial  use  only  would  be  sufficient  to  guarantee  them  legal  certainty. 
Nevertheless,  a  minority  of  respondents  of  this  sector  still  have  concerns  about  what  constitutes  a 
“non-commercial” purpose in the light of the commercial nature of some educational institutes which 
would then, in turn, be at risk when using such images for education support online.   

                                                 College of Europe |  21 

 
 
 
Concerning  respondents  located  in  Member  States  where  a  full  exception  already  exists,  they 
expressed,  once  again,  their  fear  regarding  an  EU  regulatory  intervention  which  it  was  felt  would 
hamper their present freedom of use.  

Visual  artists  and  collective  management  organisations  generally  indicated  to  the  introduction  of  a 
"panorama exception" would have a very negative impact on their activities underlying that the use of 
these  images  in  specific  situations  (for  private  use,  for  educational  purposes,  for  information 
purposes)  was  generally  already  covered  by  several  exceptions  and  that  the  introduction  of  a 
"panorama  exception"  for  non-commercial  uses  would  undermine  the  possible  exploitation  of  their 
rights. 

4.2 

Introduction  of  an  exception  covering  both  commercial  and  non-
commercial uses 

4.2.1 Closed Question 

To  the  question  What  would  be  the  impact  on  you/your  activity  introducing  an  exception  at  the  EU 
level covering both commercial and non-commercial uses of works, such as works of architecture or 
sculpture,  made  to  be  located  permanently  in  public  places?,  a  majority  of  respondents  have 
answered  in  the  positive  by  indicating  that  such  an  initiative  would  have  a  strong  positive  impact 
(66.20%). 

Such  a  stance  is  clearer  among  individuals  (67.72%)  than  among  the  answers  provided  by 
organisations  (46.57%),  while  an  approximately  equal  number  of  respondents  from  both  categories 
considered this initiative as having a potentially modest positive impact (respectively 7.71% and 10%). 

Though  respondents  categorized  as  organisations  predominantly  indicated  that  such  an  initiative 
would have a positive impact, either strong or modest (56.57% in total), 20% of them considered this 
initiative  as  having  potentially  a  strong  negative  impact,  while  13.68%  of  individuals  shared  that 
opinion.  However,  overall,  1  organisation  respondent  out  of  4  considered  this  initiative  to  have  a 
negative  impact,  either  strong  or  modest  (25.71%),  while  less  than  1  out  of  5  shared  that  opinion 
amongst the individuals (16.09%). 

Figure – Question 6: Percentages by Role 

                                                 College of Europe |  22 

 
 
 
 
 
 
 
 
 
 
 
 
80%

70%

60%

50%

40%

30%

20%

10%

0%

100%

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

Strong negative
impact

Modest
negative
impact

No impact

Modest
positive impact

Strong positive
impact

No opinion

No answer

Individuals

Organisations

Figure – Question 6: Percentages by Category 

Visual Artists
& Architects

Professional
Photographers

Other Authors

Collective
Management
Organisations

Member
States & Public
Authorities

Other Rights
Holders

Institutional
Users

Consumers &
Individuals

Service
Providers

Strong Negative Impact Modest Negative Impact No Impact

Modest Positive Impact

Strong Positive Impact

No Opinion

                                                 College of Europe |  23 

 
 
 
 
 
Aside from the categories of visual Artists & Architects and Collective Management Organisations, a 
clear  majority  of  respondents  indicated  that  the  introduction  of  such  exception  would  have  a  strong 
positive impact (from 65% to 79%), while a residual minority indicated that the positive impact would 
be modest (from 4% to 11%).  

However, with the exclusion of Visual Artists & Architects and Collective Management Organisations, 
a  stable  minority  of  respondents  across  all  categories  indicated  that  this  initiative  would  have  an 
overall negative impact either modest (from 1% to 8%) or strong (from 6% to 18%). Thus, overall, and 
despite the two categories previously indicated, from 9% to 20% of these respondents consider that 
this measure would have a negative impact. 

Visual  Artists  &  Architects  and  Collective  Management  Organisations  respondents  considered 
predominantly  that  the  introduction  of  an  exception  for  both  commercial  and  non-commercial  use 
would have a strong negative impact (respectively 54.55% and 76%), while a minority of respondents 
considered  this  exception  as  having  a  strong  positive  impact  on  the  current  situation  (respectively 
29.71% and 16%).  

4.2.2 Open Question 

Please explain 

A  considerable  majority  of  respondents  across  all  categories  (at  the  exclusion  of  Visual  Artists  & 
Architects  and  Collective  Management  Organisations)  and  especially  end  users  and  Service 
Providers indicated that the introduction of an exception for both non-commercial and commercial use 
of images of works located in public places would have a positive impact on the current situation by 
providing for legal certainty and thus would diminish wariness and barriers to creation. Such a stance 
has been observed in the answers provided by photographers, publishers, performers, advertisement 
professionals,  audio-visual  workers,  end  users  or  individuals  working  in  the  education  sector  and 
others. 

The need for clarification of the legal regime is considered by these respondents to be fulfilled in this 
alternative which overall is depicted as a positive step and a positive impact brought by EU Law in the 
light  of  the  discrepancies  between  laws  in  the  Member  States  and  the  uncertainty  that  stems  from 
this.  

Many answers submitted stated that this alternative reflected the current situation in several Member 
States,  including  the  United  Kingdom,  Belgium,  Sweden,  Germany  or  Spain.  Notwithstanding  the 
case  of  the  United  Kingdom,  which  already  provides  for  a  broad  exception,  the  respondents  that 
referred to their national laws did so mostly to emphasize the lack of clarity of the current law for the 
use  of  such  images  of  works  located  in  public  places  and  to  highlight  the  positive  impact  that  the 
introduction  of  the  proposed  exception  could  have  on  their  situation.  However,  the  United  Kingdom 
respondents  highlighted  in  their  answers  that  the  law  already  enforced  in  their  United  Kingdom 
provides  them  with  sufficient  freedom,  but  that  an  exception  at  the  EU  level  would  ease  the  use  of 
images of works located in other Member States. 

These  responses  echo  the  main  line  of  arguments  that  may  be  observed  across  the  survey  and 
depending  on  the  Member  State  of  origin  of  the  respondent.  Thus,  within  countries  where  such  an 
exception  already  exists  (as  for  instance  the  United  Kingdom)  respondents  across  categories  (with 
the exception of Visual Artists & Architects and Collective Management Organisations) predominantly 
defend  such  an  initiative  and  welcome  this  line  of  harmonization  as  a  positive  and  clarifying  step.  
However, within countries where such an exception does not exist or covers only non-commercial use 
(such  as  France,  Sweden  or  again  Belgium),  the  introduction  of  this  exception  is  welcomed  as  a 
bearer of legal certainty. 

Among  other  identifiable  trends  within  the  answers,  many  respondents  referred  to  the  freedom  of 
creation  and  of  expression  as  a  justification  for  the  positive  impact  of  the  introduction  of  such  an 
exception.  This  answer  is  predominantly  observed  among  end  users  or  amateur  artists  such  as 
amateur  photographers  and  individuals  who  are  active  on  the  internet.  Similarly,  a  minority  of 

                                                 College of Europe |  24 

 
 
 
respondents indicated that such a measure would enhance cultural diffusion throughout the European 
Union and/or information about cultural heritage. 

However, a number of answers submitted highlighted the question of the border between public and 
private domain. Thus, some have indicated that the question of private property visible from a public 
space would not be sufficiently covered by the introduction of such an exception. 

Amongst  collective  management  organisations  and  visual  artists  &  architects,  a  vast  majority  of 
respondents indicated that this measure would have a strong negative impact. They highlighted that 
the  introduction  of  such  exception  would  result  in  depriving  some  artists  (e.g.  street  artists)  from 
exploiting  their  rights  since  all  uses  of  their  works  would  fall  under  the  "panorama  exception".  They 
considered that such an exception would therefore create a discrimination between visual artists and 
the other  authors  who can be remunerated for  the use of their works.  . The arguments  provided by 
members of this majority also come under the issue of revenue for artists and rights managers. Thus, 
several respondents from this category expressly indicated that extending the panorama exemption to 
both non-commercial and commercial uses would amount to allowing other stakeholders to profit from 
such  works  located  in  public  places  through,  for  instance,  online  services,  advertising  or 
merchandising without remunerating their authors. Furthermore, these respondents indicated that the 
introduction of such an exemption would be in contradiction with the three-step-test recognized within 
EU and International law.  

5 

Miscellaneous: Q7 

5.1 

Closed Question 

To  the  question  Is  there  any  other  issue  that  should  be  considered  as  regards  the  'panorama 
exception' and the copyright framework applicable to the use of works, such as works of architecture 
or  sculpture,  made  to  be  permanently  located  in  public  places?,  a  clear  majority  of  respondents 
(58.33%) considered that no other issues were to be considered while 28.51% answered positively. 

Such a trend is clearly reflected within the answers provided by individuals (with respectively 26.98% 
answering  yes  and  59.50%  answering  no),  while  respondents  classified  as  organisations  are  more 
evenly  split  between  the  two  options  with  respectively  48.29%  and  43.14%  considering  either  that 
there is or there is no issue to be considered. 

Figure – Question 7: Percentages by Role 

                                                 College of Europe |  25 

 
 
 
 
 
 
 
 
70%

60%

50%

40%

30%

20%

10%

0%

100%

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

Yes

No

No answer

Individuals

Organisations

Figure – Question 7: Percentages by Category 

Visual Artists
& Architects

Professional
Photographers

Other Authors

Collective
Management
Organisations

Member
States & Public
Authorities

Other Rights
Holders

Institutional
Users

Consumers &
Individuals

Service
Providers

Yes

No

When looking at the results per category, the same dividing line between  Visual Artists & Architects 
and Collective Management Organization and the other categories that have been highlighted in the 
previous questions is observed. 

Thus, Visual Artists & Architects and Collective Management Organization predominantly answered in 
the  positive  (with  respectively  66.67%  and  84.00%),  while  respondents  of  the  other  categories 
answered predominantly in the negative (between 61% and 75%). 

5.2 

Open question 

                                                 College of Europe |  26 

 
 
 
 
 
 
 
 
 
 
If so, please explain and whenever possible, please back up your replies with market data and other 
economic evidence. 

Regarding the issues highlighted by respondents who are opposed to EU harmonising legislation the 
main arguments against the introduction of this exception are twofold. 

Firstly,  the  respondents  highlight  the  absence  of  any  concrete  impediment  to  the  freedoms 
guaranteed  within  the  Internal  Market.  Thus,  these  respondents  consider  that  the  margin  of 
manoeuvre  left  to  Member  States  following  the  adoption  of  the  Directive  2001/29  is  sufficient  and 
efficient to treat cross-border issues linked with the management of copyright.  

Secondly,  and  in  opposition  to  any  further  developments  in  this  area  of  copyright,  the  respondents 
argue  that,  contrary  to  the  current  article  5.5  of  Directive  2001/29,  the  introduction  of  a  broad 
exception would not satisfy the “three step test”4 present in International and EU Law such as within 
the  Directive  2001/29,  the  Berne  Convention  and  the  World  Intellectual  Property  Organization.

4 This test which limits limitations on exclusive rights and sets the boundaries of such limitations can 
be summarized as follows:  
A new limitation should be limited to: (1) certain special cases; (2) that do not conflict with the normal 
exploitation  of  the  work;  and  (3)  that  do  not  unreasonably  prejudice  the  legitimate  interests  of  the 
author and/or right-holder. 

                                                 College of Europe |  27 

 
 
                                                            
Among the respondents that have considered an exception for both commercial and non-commercial 
as  use  as  a  positive  step,  several  questions  pertaining  to  the  precise  legal  framework  of  such  an 
exception have been highlighted in this section. 

Thus, in summary, the main doubts remaining appear to be: 

  The definition of what constitutes a ‘public place’ and, for instance, the case of works visible 

from public places, but which are physically located in a private space. 

  The  definition  of  the  notion  of  “works  of  architecture  and  sculpture”  and  the  meaning  of  the 

wording “such as” in conjunction with this concept. 

  The  question  of  the  legal  status  of  works  which  have  been  temporarily  located  in  a  public 

place and how they are to be considered for the duration of their exposure. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
6 
The tables and graphics hereby added are classified per title and question.  

Appendix  

2. Overview of respondents 

Table A – Country of Residence of Individual Respondents 

Country 

EU Survey 

C4C 

Total 

% 

Austria 
Belgium 
Bulgaria 
Croatia 
Cyprus 
Czech Republic 
Denmark 
Estonia 
Finland 
France 
Germany 
Greece 
Hungary 
Ireland 
Italy 
Latvia 
Lithuania 
Luxembourg 
Malta 
Netherlands 
Poland 
Portugal 
Romania 
Slovakia 
Slovenia 
Spain 
Sweden 
United Kingdom 
Non-EU 

81 
37 
3 
4 
2 
37 
17 
6 
17 
473 
959 
7 
5 
12 
19 
2 
2 
4 
1 
54 
8 
15 
17 
6 
3 
39 
59 
417 
39 

27 
51 
4 
6 
2 
15 
19 
8 
33 
150 
158 
18 
11 
36 
37 
4 
4 
5 
0 
110 
37 
28 
22 
2 
3 
51 
62 
759 
519 

108 
88 
7 
10 
4 
52 
36 
14 
50 
623 
1117 
25 
16 
48 
56 
6 
6 
9 
1 
164 
45 
43 
39 
8 
6 
90 
121 
1176 
558 

2.39 
1.94 
0.15 
0.22 
0.09 
1.15 
0.80 
0.31 
1.10 
13.76 
24.68 
0.55 
0.35 
1.06 
1.24 
0.13 
0.13 
0.20 
0.02 
3.62 
0.99 
0.95 
0.86 
0.18 
0.13 
1.99 
2.67 
25.98 
12.33 

Total 

2345 

2181 

4526 

100 

                                                 College of Europe |  29 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Table B – Country of Establishment for Respondent Organisations 

Country 

EU Survey 

C4C 

Total 

% 

Austria 
Belgium 
Croatia 
Czech Republic 
Denmark 
Estonia 
Finland 
France 
Germany 
Greece 
Hungary 
Ireland 
Italy 
Latvia 
Netherlands 
Poland 
Portugal 
Romania 
Slovakia 
Slovenia 
Spain 
Sweden 
United Kingdom 
Non-EU 

21 
27 
1 
7 
3 
4 
11 
54 
66 
2 
4 
5 
9 
2 
10 
15 
2 
2 
2 
0 
18 
10 
26 
12 

Total 

313 

0 
1 
0 
0 
0 
0 
0 
1 
2 
1 
0 
1 
1 
0 
4 
0 
0 
0 
0 
1 
1 
1 
13 
10 

37 

21 
28 
1 
7 
3 
4 
11 
55 
68 
3 
4 
6 
10 
2 
14 
15 
2 
2 
2 
1 
19 
11 
39 
22 

6.00 
8.00 
0.29 
2.00 
0.86 
1.14 
3.14 
15.71 
19.43 
0.86 
1.14 
1.71 
2.86 
0.57 
4.00 
4.29 
0.57 
0.57 
0.57 
0.29 
5.43 
3.14 
11.14 
6.29 

350 

100 

                                                 College of Europe |  30 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Table C – Individual Respondents with Residence outside the EU 

Country 

EU Survey 

C4C 

Total 

As % of Non-EU 
Respondents 

As % of Individual 
Respondents 

Albania 
Argentina 
Australia 
Brazil 
Cameroun 
Canada 
China 
India 
Israel 
Japan 
Malaysia 
Mexico 
New Zealand 
Norway 
Oman 
Panama 
Russia 
Senegal 
Serbia 
South Africa 
South Korea 
Switzerland 
Taiwan 
Thailand 
Turkey 
Ukraine 
United States 
Vietnam 
Not Specified 

Total 

0 
0 
3 
1 
1 
4 
1 
0 
0 
1 
0 
0 
1 
0 
0 
0 
1 
1 
0 
0 
0 
11 
1 
0 
0 
1 
10 
0 
2 

39 

1 
1 
36 
0 
0 
247 
4 
1 
2 
2 
2 
1 
14 
12 
1 
1 
0 
0 
1 
1 
1 
9 
0 
1 
1 
0 
178 
1 
1 

519 

1 
1 
39 
1 
1 
251 
5 
1 
2 
3 
2 
1 
15 
12 
1 
1 
1 
1 
1 
1 
1 
20 
1 
1 
1 
1 
188 
1 
3 

558 

0.18 
0.18 
6.99 
0.18 
0.18 
44.98 
0.90 
0.18 
0.36 
0.54 
0.36 
0.18 
2.69 
2.15 
0.18 
0.18 
0.18 
0.18 
0.18 
0.18 
0.18 
3.58 
0.18 
0.18 
0.18 
0.18 
33.69 
0.18 
0.54 

100 

Table D – Geographic Distribution of Responses 

0.02 
0.02 
0.86 
0.02 
0.02 
5.55 
0.11 
0.02 
0.04 
0.07 
0.04 
0.02 
0.33 
0.27 
0.02 
0.02 
0.02 
0.02 
0.02 
0.02 
0.02 
0.44 
0.02 
0.02 
0.02 
0.02 
4.15 
0.02 
0.07 

12.33 

United Kingdom 
Germany 
France 
Netherlands 
Sweden 
Austria 
Belgium 
Spain 
Italy 
Finland 
Poland 
Czech Republic 

Total 

% 

Individuals  Organisations 
39 
68 
55 
14 
11 
21 
28 
19 
10 
11 
15 
7 

1215 
1185 
678 
178 
132 
129 
116 
109 
66 
61 
60 
59 
                                                 College of Europe |  31 

24.92 
24.30 
13.90 
3.65 
2.71 
2.65 
2.38 
2.24 
1.35 
1.25 
1.23 
1.21 

1176 
1117 
623 
164 
121 
108 
88 
90 
56 
50 
45 
52 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
Ireland 
Portugal 
Romania 
Denmark 
Greece 
Hungary 
Estonia 
Croatia 
Slovakia 
Luxembourg 
Latvia 
Bulgaria 
Slovenia 
Lithuania 
Cyprus 
Malta 
Non-EU 
Total 

48 
43 
39 
36 
25 
16 
14 
10 
8 
9 
6 
7 
6 
6 
4 
1 
558 
4526 

6 
2 
2 
3 
3 
4 
4 
1 
2 
- 
2 
- 
1 
- 
- 
- 
22 
350 

54 
45 
41 
39 
28 
20 
18 
11 
10 
9 
8 
7 
7 
6 
4 
1 
580 
4876 

1.11 
0.92 
0.84 
0.80 
0.57 
0.41 
0.37 
0.23 
0.21 
0.18 
0.16 
0.14 
0.14 
0.12 
0.08 
0.02 
11.89 
100 

Table E - Number of Replies per Question 

Replies 
4750 
1799 
4679 
1264 
4706 
1556 
4585 
528 
4757 
2358 
4772 
2416 
4234 
1329 

No 
Answers 
126 
3077 
197 
3612 
170 
3320 
291 
4348 
119 
2518 
104 
2460 
642 
3547 

Closed 
Open 
Closed 
Open 
Closed 
Open 
Closed 
Open 
Closed 
Open 
Closed 
Open 
Closed 
Open 

Question 1 

Question 2 

Question 3 

Question 4 

Question 5 

Question 6 

Question 7 

3. Problem identification 

3.1  Problems faced when uploading images of works made to be 
located  permanently  in  public  places  protected  by  copyrights  on 
the internet 

                                                 College of Europe |  32 

 
 
 
 
 
 
 
 
Table - Question 1: Results by Category 

Never 

Hardly 
ever 

Yes, 
occasionally 

Yes, 
often 

Not 
relevant 

No 

opinion  Total 

Visual Artists & Architects 
Professional Photographers 
Other Authors 
Collective Management 
Member States & Public Auth. 
Other Rights Holders 
Institutional Users 
Consumers & Individuals 
Service Providers 
Total 

286 
98 
105 
16 
14 
88 
57 
715 
35 
1414 

13 
30 
21 
0 
2 
35 
16 
150 
11 
278 

29 
79 
69 
1 
12 
90 
45 
493 
33 
851 

88 
76 
193 
5 
21 
118 
171 
904 
76 
1652 

30 
13 
29 
3 
9 
26 
14 
256 
20 
400 

5 
6 
9 
0 
5 
10 
11 
104 
5 
155 

451 
302 
426 
25 
63 
367 
314 
2622 
180 
4750 

3.2  Provision  of  online  access  to  images  of  works,  such  as  works  of 
architecture  or  sculpture,  made  to  be  located  permanently  in  public  places 
protected by copyright 

Table - Question 2: Results by Category 

Visual Artists & Architects 
Professional Photographers 
Other Authors 
Collective Management 
Member States & Public Auth. 
Other Rights Holders 
Institutional Users 
Consumers & Individuals 
Service Providers 
Total 

Never 
80 
77 
68 
11 
14 
79 
53 
673 
31 
1086 

Hardly 
ever 
15 
22 
13 
0 
2 
37 
13 
129 
13 
244 

Yes, 
occasionally 
33 
69 
55 
2 
12 
61 
42 
360 
29 
663 

Yes, 
often 
79 
58 
189 
4 
19 
124 
165 
840 
76 
1554 

Not 
relevant 
231 
61 
80 
8 
12 
50 
22 
467 
23 
954 

No 
opinion 
9 
12 
10 
0 
4 
12 
13 
112 
6 
178 

Total 
447 
299 
415 
25 
63 
363 
308 
2581 
178 
4679 

3.3  Use of image of works, such as works of architecture or sculpture, made 
to be located permanently in public places in the context of business/activity 

Table - Question 3: Results by Category 

Visual Artists & Architects 

Yes, on 
the basis 
of a 
licence 

206 

Yes, on 
the basis 
of an 
exception 
132 

Never 
60 

Not 
Relevant 
49 

Total 

447 

                                                 College of Europe |  33 

 
 
 
  
  
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
  
 
 
  
Professional Photographers 
Other Authors 
Collective Management Org. 
Member States & Public Auth. 
Other Rights Holders 
Institutional Users 
Consumers & Individuals 
Service Providers 

Total 

40 
42 
3 
14 
35 
24 
526 
13 

757 

52 
51 
8 
4 
31 
24 
95 
17 

488 

166 
274 
4 
33 
264 
238 
1395 
118 

2624 

41 
53 
10 
12 
35 
27 
584 
26 

299 
420 
25 
63 
365 
313 
2600 
174 

837 

4706 

3.4  Use  and  offer  of  licences  for  the  use  of  works  made  to  be  permanently 
located in public spaces 

Table - Question 4: Results by Category 

Yes 

No 

159 
63 
41 
14 
3 
25 
22 
68 
17 
412 

140 
136 
224 
5 
35 
190 
179 
1500 
92 
2501 

Not 
relevant 
143 
98 
144 
6 
22 
138 
95 
964 
62 
1672 

Total 

442 
297 
409 
25 
60 
353 
296 
2532 
171 
4585 

Visual Artists & Architects 
Professional Photographers 
Other Authors 
Collective Management Org. 
Member States & Public Auth. 
Other Rights Holders 
Institutional Users 
Consumers & Individuals 
Service Providers 
Total 

4. Impacts: Q5 & Q6 

4.1 

Introduction of an exception covering non-commercial uses 

Table - Question 5: Results by Category 

Visual Artists & Architects 
Professional Photographers 
Other Authors 
Collective Management Org. 
Member States & Public Auth. 
Other Rights Holders 
Institutional Users 
Consumers & Individuals 
Service Providers 
Total 

Strong 
Negative 
Impact 
230 
62 
73 
18 
8 
48 
25 
212 
36 
712 

Modest 
Negative 
Impact 
21 
12 
11 
0 
5 
25 
6 
72 
10 
162 

No 
Impact 
125 
97 
251 
6 
32 
171 
197 
1212 
82 
2173 

Modest 
Positive 
Impact 
12 
29 
19 
1 
3 
26 
24 
219 
13 
346 

Strong 
Positive 
Impact 
37 
96 
61 
0 
14 
81 
53 
843 
43 
1228 

No 
Opinion 
22 
7 
11 
0 
1 
18 
9 
67 
1 
136 

Total 

447 
303 
426 
25 
63 
369 
314 
2625 
185 
4757 

                                                 College of Europe |  34 

 
 
 
 
  
 
 
  
Introduction  of  an  exception  covering  both  commercial  and  non-

4.2  
commercial uses 

Table - Question 6: Results by Category 

Visual Artists & Architects 
Professional Photographers 
Other Authors 
Collective Management Org. 
Member States & Public Auth. 
Other Rights Holders 
Institutional Users 
Consumers & Individuals 
Service Providers 
Total 

Strong 
Negative 
Impact 
246 
53 
77 
19 
7 
36 
20 
213 
18 
689 

Modest 
Negative 
Impact 
22 
15 
7 
0 
5 
15 
4 
57 
4 
129 

No 
Impact 
16 
7 
8 
1 
0 
22 
8 
122 
7 
191 

Modest 
Positive 
Impact 
17 
20 
21 
1 
7 
22 
26 
258 
12 
384 

Strong 
Positive 
Impact 
134 
207 
307 
4 
42 
264 
250 
1881 
139 
3228 

No 
Opinion 
16 
5 
6 
0 
3 
12 
5 
103 
1 
151 

Total 

451 
307 
426 
25 
64 
371 
313 
2634 
181 
4772 

                                                 College of Europe |  35 

 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
European Commission 

Analysis of the public consultation on the ‘Panorama exception’ 
Luxembourg, Publications Office of the European Union 

2016 – 35 pages  

 
 
 
 
 
 
 
 
K
K
-
0
6
-
1
7
-
1
6
5
-
E
N
-
N