User:MarcoAurelio/FoP-ES

35.2

Article 35.2 of the Spanish Copyright Act (the FoP exception)

Original text	Unofficial translation
Las obras situadas permanentemente en parques, calles, plazas u otras vías públicas pueden ser reproducidas, distribuidas y comunicadas libremente por medio de pinturas, dibujos, fotografías y procedimientos audiovisuales	Works permanently located in parks, streets, squares or other public thoroughfares can be freely reproduced, distributed and communicated by means of paintings, drawings, photography and audiovisual means.

Pictures of works located indoors or inside private property

Article 35.2 of the Spanish Copyright Act (the FoP exception) does not apply to works located indoors (e.g. File:Certeza Exhibition AmoakoBoafo&NickCave.jpg is not okay). It only allows the free reproduction, communication and distribution by bi-dimensional means of works permanently located in parks, streets, squares or other "public thoroughfares". The meaning and the extent of what constitutes a public thoroughfare is disputed between scholars.

The only court opinion I could find addressing that concept is one from the 28th Section of the Provincial Court of Madrid (Judgement no. 95/2014 dated June 16, 2014; AC 2014\1573; ECLI:ES:APM:2014:11756) which held that a public thoroughfare is a space in the public domain suitable for pedestrian perambulation and/or motor vehicle circulation.

As such, FoP does not apply where the work is located inside of a building, and it does not apply either when the work, although permanently located outdoors is placed inside a private property, even if you can see such work from the outside said private property.

In that particular case, the court held that the picture of a house back façade facing a coastal cliff was not covered by the FoP exception because while the façade is permanently located outdoors, the work was nonetheless not in a public thoroughfare but in a privately-owned plot of land. In response to the defendants' argument that the picture could have been taken from the airspace, from the sea or through satellite imagery, it held that Article 35.2 is not about how easy or intricate is to take the picture, but where the work is located; holding as well that neither cliffs, nor the sea nor the airspace can be considered public thoroughfares although they do belong to the public domain.

The 15th section of the Provincial Court of Barcelona (Judgement no. 147/2006 dated March 28, 2006) held that Article 35.2 does not apply to the works located indoors of a church (in this case, photographing protected works the interior of the Barcelona's Sagrada Familia Cathedral is not covered by FoP).

Removal of the surrounding panorama

I couldn't find any judgement which states that it is as a copyright infringement to remove the panorama surrounding a FoP picture. While copyright limits have to be narrowly construed, the law explicitly allows to reproduce the work. No article of the Spanish Copyright Act requires the surrounding panorama to be present for FoP to apply, and scholars agree that the reproduction can have the protected work as the main element, or use it only in a partial way or as part of a panoramic view, respecting the paternity and integrity moral rights (See e.g. Bercovitz Rodríguez-Cano, R. (coord.), Manual de Propiedad Intelectual, 5.ª ed., Tirant lo Blanch, Valencia, 2012, pp. 104-105, ISBN 978-84-9033-304-4 -or- Martín Salamanca, S.; Rodríguez Tapia, J. M. (dir.) (2009). «Comentarios al artículo 35». Comentarios a la Ley de Propiedad Intelectual: texto refundido, Real Decreto Legislativo 1/1996, de 12 abril (2nd edition). Civitas. ISBN 978-84-470-3211-2).

Caution with transformations

The 15th section of the Provincial Court of Barcelona (Judgement no. 147/2006 dated March 28, 2006) held that no transformation of the work is allowed under Article 35.2 LPI, because transformation is not within the list of permitted activities and copyright exceptions must be narrowly construed. Therefore FoP only applies when the work is reproduced as it exists, without arbitrary changes.

Scholars on the other hand argue that while transformation is indeed not listed as a permitted activity in Article 35.2 LPI, it cannot be ruled out entirely because some acts of transformation will happen nonetheless by performing one of the allowed activities (photography, drawing, painting or video). In any case, these must be reasonable, fair, and respect the paternity and integrity moral rights to comply with the Berne 3 steps test (Bercovitz Rodríguez-Cano, R. (coord.), Manual de Propiedad Intelectual, 5.ª ed., Tirant lo Blanch, Valencia, 2012, pp. 104-105, ISBN 978-84-9033-304-4).

About the Osborne and Raqueros decisions

• Osborne was decided mostly based on trademark legislation, with copyright being obiter dicta. The Osborne bull silhouette is a registered trademark. The defendants in that case were using that trademarked symbol to sell all kinds of souvenir products without authorization from Osborne & Co., the trademark owners (in fact, they explicitly asked the shop owners to stop before bringing charges against them). That judgement does not really analyse the scope or the requirements of article 35.2 LPI, as rightly pointed out too in RIIPAC 10/2018 (at p. 30, first paragraph in fine). But that judgement also states that, given Osborne & Co. has contributed to the "culturisation" or "vulgarisation" of their own trademark, it would be highly doubtful they would prevail if their trademark were being used in a exclusive or predominant cultural context, since no one can go against his own acts («En esta pugna de intereses tampoco nos ofrece duda el que debería prevalecer, frente a los intereses patrimoniales el interés cultural, y ello es así si además tenemos en cuenta la implicación de la entidad recurrente en el reconocimiento como símbolo cultural de su signo marcario, por lo que no sería admisible una actuación contraria a sus propios actos. Quiere esto decir que cuando la efigie del Toro sea utilizada como una dimensión estrictamente cultural, o predomine en su utilización esta finalidad, es más que cuestionable que algo pudiera objetar»).

• Raqueros is not about removing the surroundings of a picture, but about making a 3D replica of a protected work and try to profit from it. Reading the appellate judgement, it does not appear that the defendants-appellants in that civil action ever tried to use Article 35.2 LPI (FoP exception) to defend against the plaintiff's claims (among others, in their appeal they disputed the plaintiff's standing to sue, his authorship of the Santander sculpture, and also attempted to argued that the sculpture was res nullius - nobody's property). The court opinion does not seem to rely on the FoP exception or the Berne test one single time either. In any case, a literal reading of the list of allowed methods of Article 35.2 LPI clearly disallows 3D reproductions. This was too the opinion of the 28th Section of Provincial Court of Madrid in their January 2010 Cartero case.

Commercial use of media

Disputed / Unclear. Most likely not okay. Reuse outside Commons for that purpose at your own risk.

While it's not explicitly allowed nor prohibited in the Copyright Act, such uses would need to be examined through the Berne three-steps test (Article 40 bis of the Spanish Copyright Act) to determine whether that use is causing an "unfair prejudice" or negatively affecting the "normal exploitation" of the work by the copyright holder. These two concepts are not static, depend on the specific case and their scope is bound to change over time, given the circumstances, the technology used, etc. (Rodríguez Tapia, J. M. (dir.) (2009) «Comentarios al artículo 40 bis». Comentarios a la Ley de Propiedad Intelectual: texto refundido, Real Decreto Legislativo 1/1996, de 12 abril (2.ª edición). Civitas. ISBN 978-84-470-3211-2). That makes every use subject to scrutiny absent clear and uniform case law. When the copyright owner is exploiting his work, the more difficult becomes to justify that the exploitation is not being unfair or prejudicial to the copyright owner.

The Spanish Supreme Court (Judgement no. 172/2012, April 3. RJ 2012\5272, Megakini) reminded that (intellectual) property is not an absolute right as it is constitutionally limited to serve a higher social function according to the law. While copyright exceptions must be narrowly construed, 40 bis itself allow some inocuous uses of protected works that would otherwise require the copyright holder's permission (ius usus inocui which is basically COM:De minimis).

Similar appreciations from the ECJ: "The Court has thus previously held that there is nothing whatsoever in the wording of Article 17(2) of the Charter [of Fundamental Rights of the European Union] or in the Court’s case-law to suggest that the intellectual property rights enshrined in that article are inviolable and must for that reason be protected as absolute rights" (ECJ judgments of 24 November 2011, Scarlet Extended, C‑70/10, EU:C:2011:771, paragraph 43; of 16 February 2012, SABAM, C‑360/10, EU:C:2012:85, paragraph 41; and of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 61)

Wikimedia Commons uploads and hosting of files

Commons' scope is not commercial, it's educational and does not generate revenue through ads or other for-profit activities. In that regard, the 21st Circuit Court of Madrid (November 27, 2003; AC 2003\1929) resolved a case where a weekly magazine partially published the lyrics of some songs. Warner, EMI and Universal Music, among others, sued the magazine in court for copyright infringement. The court dismissed the plaintiffs' complaint because the mere reproduction of the lyrics of a song for information purposes only does not affect, from an economic point of view, the holders of the exploitation rights of the songs.

Some scholars argue that FoP does not (or rather, should not) apply to commercial uses (directly, indirectly or even potentially), while others consider that limiting FoP to non-commercial uses, as some EU countries did, is against Article 5 of the Directive 2001/29 (InfoSoc) (See e.g. Rosati, E. «Non-Commercial Quotation and Freedom of Panorama: Useful and Lawful?», 8 (2017) JIPITEC 311 para 1 -or- Cabedo Serna, Ll. (2022-12-22). «Difusión cultural y explotación comercial de imágenes de obras arquitectónicas y plasticas: la excepción "libertad de panorama" a examen». Journal of Cultural and Creative Industries 3 (1). ISSN 2660-8294. doi:10.21134/jcci.v3i1.1766).

Berne Convention

• Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979): It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

40 bis

Introduced in the Spanish Copyright Act of 1996 by Act no. 5/1998 with the aim to comply "and expand" the protections of Directive 96/9/EC (legal protection of databases), Article 13 of the TRIPS Agreement and Article 10 of the WIPO Copyright Treaty and states:

Article 40 bis LPI (introduced by Act no. 5/1998): The articles contained in this chapter [the limits or exceptions to copyright] may not be interpreted in such a way as to allow its application to be used in a manner which unreasonably prejudices the rightholder's legitimate interests or conflicts with normal exploitation of the work.

Potential extralimitation?

• Article 13 TRIPS (1994): Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
  • About the meaning of "certain special cases", "normal exploitation" and "unreasonable prejudice" see WTO's Dispute Resolution report, case WT/DS160/R (summary)

• Article 10 of the WIPO Copyright Treaty

(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

(2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author

• Article 6.3 of the Directive 96/9/EC: In accordance with the Berne Convention for the protection of Literary and Artistic Works, this Article may not be interpreted in such a way as to allow its application to be used in a manner which unreasonably prejudices the rightholder's legitimate interests or conflicts with normal exploitation of the database

(thus that disjuntive feels aimed at databases only, whereas the Spanish legislature extended it to all protected works).

More fun, EU legislators contradicting themselves apparently:

• EU Directive 2001/29/EC:
  • Recital 44: When applying the exceptions and limitations provided for in this Directive, they should be exercised in accordance with international obligations. Such exceptions and limitations may not be applied in a way which prejudices the legitimate interests of the rightholder or which conflicts with the normal exploitation of his work or other subject-matter. The provision of such exceptions or limitations by Member States should, in particular, duly reflect the increased economic impact that such exceptions or limitations may have in the context of the new electronic environment. Therefore, the scope of certain exceptions or limitations may have to be even more limited when it comes to certain new uses of copyright works and other subject-matter.
  • Article 5.5 of the EU Directive 2001/29/EC: The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.

• Recital 6 of the Directive (EU) 2019/790 (amending Directive 2001/29/EC): The exceptions and limitations provided for in this Directive seek to achieve a fair balance between the rights and interests of authors and other rightholders, on the one hand, and of users on the other. They can be applied only in certain special cases that do not conflict with the normal exploitation of the works or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholders.

The European Court of Justice seems to prefer and

In the second place, it should be remembered that, as regards the exceptions and limitations provided for in Article 5(2) of Directive 2001/29, Article 5(5), read in conjunction with recital 44 of that directive, provides that they are applicable only in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.

— Judgment of the Court (First Chamber) of 13 July 2023, Ocilion IPTV Technologies, C-426/21, ECLI:EU:C:2023:564, paragraph 32.

Third, the Member States’ discretion in the implementation of the exceptions and limitations relevant to Article 5(2) and (3) of Directive 2001/29 is also circumscribed by Article 5(5) of the directive, which makes those exceptions or limitations subject to three conditions, namely that those exceptions or limitations may be applied only in certain special cases, that they do not conflict with a normal exploitation of the work and that they do not unreasonably prejudice the legitimate interests of the copyright holder (...)

Article 5(5) of that directive also contributes to the fair balance mentioned in paragraphs 36 and 42 above, in that, as has been stated in paragraph 37 above, it requires that the exceptions and limitations provided for in Article 5(1) to (4) of the directive be applied only in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.

— Judgment of the Court (Grand Chamber) of 29 July 2019, Spiegel Online, C-516/17, ECLI:EU:C:2019:625, paragraphs 37 and 46.

This is all the more so given that the exemption must be interpreted in the light of Article 5(5) of Directive 2001/29, under which that exemption is to be applied only in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.

— Judgment of the Court (Fourth Chamber) of 16 July 2009. Infopaq, C-5/08, ECLI:EU:C:2009:465, paragraph 58.

Fifthly, the Member States’ discretion is limited by Article 5(5) of Directive 2001/29, which makes the introduction of the exception under Article 5(3)(e) of that directive subject to three conditions, which are, first, that the exception may be applied only in certain special cases, second, that it does not conflict with a normal exploitation of the work and, finally, that it does not unreasonably prejudice the legitimate interests of the copyright holder.

— Judgment of the Court (Third Chamber) of 1 December 2011, Painer, C-145/10, ECLI:EU:C:2011:798, paragraph 110.