Having an item in your collections does not necessarily mean owning its copyright. Copyright is not automatically transferred when a cultural object is endowed, gifted or otherwise added to the collection of a cultural heritage institution. Unless you made an agreement with the author of the work to transfer copyright, you do not own the copyright. 

When submitting data to Europeana, you have to assign digital objects a rights statement. A digital object can be a digital representation of a physical object, or an original object that was born digital. So when dealing with digital replicas, you must have clarity on the copyright status of both the physical object and its digital reproduction, because the rights statement will have to reflect both, at once.

The information below highlights some of the steps you need to take and questions you need to ask when identifying the copyright status of an item in your collections. Please note that many of the answers will vary from one country to the other. Once you have identified copyright in our collections, read our guidance for selecting a rights statement. 

1. Find out whether the item is protected by copyright. 

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Was the item ever protected by copyright?

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Copyright protects original works (works that reflect the author’s own intellectual creation), which include things like literary works, dramatic works, art, films, sound recordings, broadcasts, computer programmes and typographical arrangements. 

Some creations that are not original, such as non-original photographs, non-original databases, or the fixation of a performance, are also entitled to some economic rights in certain countries, with a shorter duration of protection. 

Copyright does not protect, among other things:

  • Works whose copyright term has expired

  • Content that does not meet the originality threshold

  • Ideas (copyright only protects expressions of creative ideas)

  • Natural artefacts (flowers, rocks, trees, songs of birds)

  • Mathematical problems and formulas

  • Under many legislations governmental, legal and/or judicial documentation.

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Is the work in the public domain?

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The public domain consists of works that are not protected by copyright. They can enter the public domain after the term of copyright protection has expired, was expressly waived, or if the work was never protected by copyright. 

The general rule in European Union Member States is that a work enters the public domain 70 years after the death of the author, effectively starting on the 1st January of the following year. However, there are exceptions to this rule which make the calculation quite complex, the moment from which the counting starts varies from type of work or authorship, and some changes remain between countries. When calculating whether a work is in the public domain, you should consider whether there are works inside the work whose copyright protection might expire at a later stage.  To identify the duration of the term of protection and moment from which it starts running, you need to take into consideration the type of material, the authorship, and/or when the work was first published. In addition, you should consider possible embedded works in the main work and the duration of neighbouring rights.

Among other things, the European Parliament’s Term Directive establishes that:

  • For anonymous or pseudonymous works the term of protection expires 70 years after the work has been lawfully made available to the public.  

  • The standard term of copyright in audio-visual works is 70 years after the death of the last author among the principal director, the authors of the screenplay and dialogue, and the composer of music especially written for the film.

  • In the case of a work of joint authorship, the term of 70 years is calculated from the death of the last surviving co-author.

  • The rights of producers of phonograms expire 50 years after the fixation is made. 

2. If the item is in copyright, determine if you can use it.

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Can you rely on an exception to copyright?

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European copyright laws have a series of exceptions or limitations to copyright that allow people  to use the works without obtaining permission from the author or rights holder under certain conditions. These include: 

  • To preserve a work

  • To use a work for educational or research purposes

  • To use a work for citation, parody or pastiche

  • To make Orphan Works registered at EUIPO’s Orphan Works database available online . Orphan works are creative works held in the collections of cultural heritage institutions that are protected by copyright, but where the copyright owner is either unknown or cannot be located.

Check the exceptions foreseen in your country’s copyright law and the extent and conditions in which they apply.

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Do you need to obtain permission to use the item?

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If you do not own the copyright, and you cannot rely on an exception for the intended use, you will need to identify the owner first and obtain the permission to use copyrighted material. 

Check whether the rightsholder agreed to transfer the rights to your institution when the item was acquired. It is also possible that the author transferred copyright to someone else, for instance, the author of the book to a publisher, or the author of the song to a record company. This is the person/institution that you should ask for permission to use the objects.

Make sure you know in advance which permissions you need. This can be as simple as stating your intended use in the agreement with the rightsholder such as  sharing a digital object with Europeana, or allowing additional uses like  education or commercial use. 

Collecting societies (organisations that collect copyright royalties on behalf of authors) might be in a position where they can give licenses to cultural heritage institutions to make collections available online, even if the author is not known or not in the collecting society’s repertoire.

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What if you cannot identify or locate the rightsholder?

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Consider relying on the orphan works exception in your country. After conducting a diligent search with no success, among other conditions, you will be able to make it available online (although not allow its reuse).

Some institutions take a risk-managed approach to use the objects, after carefully examining the risks and considering aspects such as whether the work was ever commercially available, its age, type or the intended use. However, using copyrighted materials without the permission from the rights holders could damage the reputation of your institution, your relationship with donors and creators of works from your collections, as well as expose you to the copyright infringement claims. 

3. Consider other restrictions

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What further things are worth considering before making an item available online, or allowing its use further?

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When digitising the object, your institution may have agreed (maybe with the company that digitised the item or the person who photographed it) that you would limit the publication or reuse of the digital reproduction. Make sure you take note of such possible restrictions. In addition, there might be privacy concerns that challenge the sharing of the digital object, or the dissemination of the object could have a negative impact on a community. 

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Can you, and do you want to claim rights on the digitisation of the item?

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Usually, digitisation processes (e.g. scanning, taking photographs of 2D and 3D objects) do not trigger new copyright or copyright-related protection. This can only happen if:

  1. The digitised replica meets the EU standard of originality, which requires that the work is the “author’s own intellectual creation.” If the reproduction can be considered a new original artwork in its own right, the one who digitised the object will get full copyright protection. In most cases, digital objects created through digitisation will not meet the required originality threshold and will not qualify for any form of protection based on copyright. 

  2. The digitisation is done in a country where neighbouring rights are recognised to non-original photographs and the requirements for this protection are met. If this is the case, the one who digitised the object will get some copyright protection. In line with the Public Domain Charter Europeana encourages Data Providers not to claim those rights. In addition, from June 2021, it should no longer be possible to rely on such protection for reproductions of works of visual arts in the public domain as established in the Copyright in the Digital Single Market Directive.

The format of this page was updated on 27 October 2020 and additional information about copyright protection and the public domain added.