The answer to this question is not obvious, due to a lack of harmonisation on the global or even the European level of regulations governing “freedom of panorama,” a form of permissible use limiting the entitlements of copyright holders. In addition to copyright, national legislation on protection of cultural heritage as well as the right to privacy may also present a barrier to importing images of buildings or urban spaces into the world of a video game. Below we outline the importance that freedom of panorama can have for the game development industry.

Freedom of panorama—when the author’s consent is not required

Generally,
freedom of panorama allows persons who have not obtained the consent of
the holder of economic copyright to disseminate works permanently
displayed to public view. In practice, in countries where this freedom
has been enshrined in legislation, exercise of freedom of panorama
primarily boils down to photographing or filming buildings, sculptures
and other objects that remain under copyright protection but are located
in public space. Thus this freedom generally extends to images of
buildings, squares, sculptures and other objects that could still be
covered by copyright, i.e. designed at the end of the 19^th
century or later (considering that copyright protects works for the
lifetime of the author and a further 70 years after the author’s death).

The
scope of permitted use is regulated differently from country to
country. For example, in France freedom of panorama is limited
exclusively to making available works of architecture and monuments
erected permanently in public places, by natural persons and excluding
use for commercial purposes (Art. L.122-5(11), Code de la propriété
intellectuelle). In Germany, freedom of panorama allows duplication,
dissemination and public playback of works permanently located in roads,
streets or public places, using graphics, painting, photography or film
techniques, without any subjective restrictions, including for
commercial purposes (§59, Gesetz über Urheberrecht und verwandte
Schutzrechte). Italian copyright law, by contrast, provides no exception
at all in the form of freedom of panorama. Moreover, dissemination and
making available of images of architectural structures situated in the
Italian landscape (regardless of whether they are covered by copyright
protection) requires compliance with additional conditions under
regulations protecting cultural heritage and the landscape
(Art. 107–108, Codice dei beni culturali e del paesaggio).

Freedom of panorama in Poland

In Poland, freedom of panorama
is regulated by Art. 33(1) of the Act on Copyright and Related Rights,
which provides: “It is permissible to disseminate works permanently
displayed in publicly accessible roads, streets, squares or gardens, but
not for the same use.” The act does not specify that dissemination may
be done solely for non-commercial purposes, and thus based on this
provision it is permissible for example to create and market postcards
with images of buildings or sculptures protected by copyright, or even
street-art murals.

A condition for exercise of this right is the
accessibility of the reproduced view from a public place and permanent
placement within that context. However, any dissemination of temporary
exhibitions or installations held in public space will require the
consent of the holders of copyright to the exhibited works. In turn,
freedom of panorama excludes any places to which access is limited, even
if located in public space (e.g. the façade of a building visible only
through binoculars from a private balcony), as well as any building
interiors, regardless of their character and public accessibility.

Can video game developers exercise freedom of panorama?

The
greatest doubts in applying the Polish provision is whether freedom of
panorama allows only a faithful reproduction of works located in public
space, via photography or film techniques, or also permits creation of
other derivative works: graphics, paintings, drawings, souvenirs with
images of famous buildings, or, indeed, inclusion of images of buildings
and sculptures found in public space in video games.

This issue
has not yet been categorically resolved. Lawyers generally have no doubt
that under the freedom of panorama provided for in Polish law, it is
permissible to execute graphics or paintings depicting works protected
by copyright, as in legal terms these works involve creative elements
and may thus qualify as derivative works in relation to the depicted
works (K. Gienas, commentary on Art. 33 in E. Ferenc-Szydełko (ed.), Act on Copyright and Related Rights: Commentary
(Warsaw 2016)). But there is controversy surrounding for example the
issue of designing and disseminating three-dimensional miniatures of
architectural icons (e.g. as souvenirs). Opponents of recognising such
activity as falling within the bounds of permitted use point to the need
to evaluate whether such use of works accessible in public space
infringes the legitimate interests of the authors. This assessment has
to be made in each instance where a protected work is being exploited on
the basis of any of the provisions establishing permitted private or
public use, as stated in Art. 35 of the Copyright Act.

In the
context of video games, it should be pointed out that in most instances,
the graphics of the game are based on 3D models, and thus the views of
spaces presented in the game do not constitute a recording of publicly
accessible places using photographic or film technology. A technology
that has gained popularity recently for creating game graphics is
photogrammetry, where numerous photographs are taken of a given object,
in a range of shots and angles, and these photos are then processed to
render a 3D image. This technology was used for example in creating The Vanishing of Ethan Carter and Star Wars: Battlefront.
The sites where the narrative of the game plays out are thus generally
presented realistically, but their appearance is not subject to any
noticeable distortion. Moreover, even when not executed through video
recording, the use of shots of publicly accessible spaces in realistic
games may be compared to their use in films, which generally does not
give rise to any major controversies under the Polish freedom of
panorama.

But objects existing in reality are often imported into
games stripped of their natural context, or are used in games featuring a
violent narrative. Use of images of others’ works in a context
different from that intended by their creators could thus lead them to
express their concern or objection to such use. Then the authors could
challenge the use of their work without consent not only on the basis
that it conflicts with their creative interests under Art. 35 of the
Copyright Act, but also relying on their moral rights, specifically the
right to respect for the integrity of the work.

In summary, video
game developers wishing to import into the world of the game structures,
sculptures or other works located in public space and covered by
copyright must display sensitivity in selecting objects for use in the
game. The differing scope of freedom of panorama in different countries
may encourage them to set the narrative of the game in countries where
the regulations and case law are more favourable to game developers. The
economy of those countries may also benefit from this use due to the
increased tourist traffic. But even in countries, like Poland, where
freedom of panorama has been regulated quite liberally, it is essential
in each instance to conduct an individual analysis to identify potential
challenges to use of the work, relying for example on Art. 35 of the
Polish Copyright Act or infringement of the author’s moral rights.

Ewa Nagy