Belgium: Freedom of panorama – a new copyright exception

September 27 2016

On June 27 2016, the Belgian legislature finally adopted a new exception to copyright law, namely the freedom of panorama (FOP). According to this new provision, a copyright owner cannot impose its right against "the reproduction and public communication of visual, graphic or architectural artwork intended to be placed permanently in public places, providing that it concerns the reproduction or communication of the work as it is and that said reproduction or public communication does not affect the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author" (Belgian Act of June 27 2016 modifying the Economic codex in view of implementing the freedom of panorama – new article XI.190 2/1° of the Economic codex).

In other words, the new provision allows under certain conditions the reproduction – for instance taking pictures – and the communication to the public – which can be sharing said picture on the Internet – of artworks located in public places, such as monuments and architectural works.

This new text has been long awaited in view of the development of the information society. It responds to a need that existed for a long time in the Belgian copyright legislation. Prior to the adoption of this legal provision, one could indeed be prosecuted for infringement of copyright for taking and sharing a picture, should the image include an object still protected by copyright.

The FOP exception applies to any visual, graphic or architectural work located in public areas. It is thus not limited to those objects located on public roads, which demonstrates the willingness of the legislator to give a broad application to the exception. The text nevertheless limits the rule to the works that are permanently located in the public area. It therefore excludes all temporary exhibitions and temporary works.

According to the provision, FOP duly authorises the reproduction and communication to the public of works protected by a copyright, but said reproduction and communication to the public should not affect the normal exploitation of the work, nor cause an unjustified prejudice to the author. This limitation intends to create a good balance between the purpose of the freedom of panorama on the one hand, and the author's rights on the other hand. This limitation notably narrows the exception to non-commercial purpose, as confirmed by the preparatory discussions of the Parliament. It means that any third party cannot invoke the FOP to commercially exploit reproductions of works located in a public area or communicate it to the public without the author's consent.

The new text entered into force on July 15 2016. Anyone can now safely visit the famous Atomium in Brussels, take a picture and share with their friends and family via social media, without fear of copyright infringement prosecution!