Freedom of panorama in the Russian copyright law and its understanding by the Constitutional Court of the Russian Federation

Free use of works is the most important tool for balancing copyright and human rights, the interests of copyright holders and the interests of society. In 2024, for the first time in its history, the Constitutional Court of the Russian Federation adopted the Decision on the constitutionality of the Civil Code of the Russian Federation provisions on the free use of works (Decision No. 33-P). The relevant clause establishes a case of free use of works, which unofficially is called “Freedom of panorama”. According to the Court's opinion, the inclusion in a guide of sculptures images located in a place open to the public does not require the consent of the copyright holder, even if the guide is distributed for commercial purposes or if the image of the sculpture is the main object of use. This position contradicts the clear text of Article 1276 of the Civil Code, which does not contain such exceptions. According to the authors of this article, the Constitutional Court opposed legal formalism with legal realism. The Court unreasonably identified the interests of guidebook publishers with the interests of society. We also believe that a number of the Court’s arguments do not relate to the essence of the case and are insufficiently substantiated.