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Study – Paul Keller

Article 14 of the Directive is one of the very few unambiguously good provisions of the new EU Copyright Directive. The Article is intended to ensure that reproductions of public domain works of visual art cannot be protected by exclusive rights, and as a result be taken out of the public domain.

This legislative intervention comes in response to the relatively widespread practice of museums in claiming exclusive rights of digital reproductions of public domain works that they have in their collections and which they make available to the public. In practice this has already led to Spanish Museums claiming copyright over paintings by Dutch masters who have been dead for 350 years, and German museums suing Wikipedia for hosting reproductions of public domain works as part of Wikimedia Commons. While at first glance it seems counterintuitive that a museum should be able to control the rights for artworks of long dead artists, such claims do have a basis in existing law. In general, for a work to be protected under copyright it needs to show “the author’s own intellectual creation.” However, there is another category of copyright-like rights (also called “related rights”) that exist in a number of EU Member States. These schemes grant exclusive rights to the creators of photographic works that do not meet the originality criterion necessary to receive copyright protection ^[1]See this 2015 study by Thomas Margoni for more details. Related rights arise even when a reproduction is nothing more than an exact photographic copy of a work. Where copyright protects original artworks, these related rights protect simple copies.

As museums have started to make works in their collections available online, the practice of relying on related rights to restrict the re-use of non-original reproductions of public domain works has become controversial. Both the Public Domain Manifesto and the Europeana Public Domain Charter demanded that what is in the public domain in analogue form must stay in the public domain in digital form. While the overall majority of museums have always acted in the spirit of expanding the public domain, and have made reproductions of public domain works available without any restrictions on re-use, a small number of museums from Member States that allow the protection of non-original reproductions of public domain works continue to claim rights over such reproductions.

From the perspective of users trying to identify the copyright status of these reproductions of public domain works, this fragmented legal landscape was difficult to grasp. If works by the same creator could be protected by copyright-like rights in one Member State but could be in the public domain in another, there was no legal certainty when using the reproductions online and across borders. Harmonizing the copyright status of these reproductions in every EU country was, thus, necessary to safeguard the users right to enjoy the works of visual arts that have fallen into the public domain.

In the majority of Member States national legislators will not see the need to take action on this Article, as national laws and jurisprudence do not foresee any protection on faithful reproductions of works in the public domain. Member States which do recognize the protections of non-original reproductions ^[2]According to the study undertaken by Thomas Margoni this concerns Austria, Denmark, Finland, Germany, Italy, Spain and Sweden. will need to implement Article 14 into their national copyright acts. At the minimum this means excluding faithful reproductions ^[3]While most of the discussion has centered on photographic reproductions of 2 dimensional works such as paintings is is important to note that the Article applies to all non-original … Continue reading of visual artworks in the public domain from any existing neighbouring rights protections.

Article 14 as a general rule

Article 14 in its current form is the outcome of a late stage legislative compromise between the European Parliament and the Council ^[4]It can be traced back to efforts by civil society organisations advocating for open access to knowledge and culture to introduce a general public domain protection clause in the DSM Directive.. And while it is an important step forward in protecting the public domain from appropriation, the limitation on “works of visual art” does not make any sense. The rationale that a non-original reproduction of a public domain work should not be protected by exclusive rights applies just as well to all other types of work. Member States implementing Article 14 into their national laws should therefore implement it in such a way that non-original reproductions of all types of public domain works are not subject to copyright or related rights.