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2 minutes to read Posted on Tuesday January 21, 2020

portrait of Andrea Wallace

Andrea Wallace

Lecturer in Law , University of Exeter

portrait of Ariadna Matas

Ariadna Matas

Junior Policy Advisor , Europeana Foundation

Keeping digitised works in the public domain: how the copyright directive makes it a reality

The principle that works in the public domain should remain in the public domain once digitised, which Europeana has defended for almost ten years, was recently incorporated into European law. In this post, we interview Dr. Andrea Wallace, Lecturer in Law at the University of Exeter, about the importance of this provision for the cultural heritage sector and her research on Article 14.

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For several years, Europeana – through its policies, standards, and communications – has advocated against the practice of institutions using Creative Commons licences on digital copies or surrogates of a work, when the original is out of copyright and they are neither the creators nor rightsholders. Our Public Domain Charter establishes that in order to achieve a healthy and thriving public domain, digitising a public domain work should not take it back to being protected and non-reusable. There is a danger of undermining the public domain, a central principle in copyright law.

After working to raise awareness on the issue, Europeana celebrates the adoption of Article 14 of the Copyright in the Digital Single Market Directive. This provision establishes that works of visual arts in the public domain shall remain in the public domain once digitised, unless the digitisation is original enough that it can attract copyright protection. All 28 member states will have to adopt it and make it national law (by June 2021). Andrea Wallace, together with Ellen Euler, has been researching the Article and its implications. 

What issue is Article 14 trying to address?

Article 14 confronts the long-standing practice of claiming a copyright in non-original reproductions of public domain works. To attract protection, a work has to be sufficiently 'original' under copyright law. For a while now, there has been a lack of binding legal authority on whether reproductions of public domain works, like photographs of public domain paintings, are original enough to attract their own copyright. 

Because of this, cultural heritage institutions, picture library agencies, and other owners have been able to build business models around claiming copyright in public domain reproductions and charging the public a fee to use the images. But this has the effect of excluding the public from accessing out-of-copyright artworks, and it contradicts the rationale underlying the expiration of copyright and a work passing into the public domain. The public domain should be available for everyone to use for whatever purpose: to make new cultural goods, generate new knowledge, and so on. 

What is the scope of article 14? Does it apply to any type of work, and to any format of digitisation?

Article 14 applies to only 'works of visual art' in the public domain. The Directive doesn’t define what a work of visual art is, so we’ll need to look to national law for clarification on that in each member state. Many scholars, open access advocates, Europeana and the wider public hope member states will transpose Article 14 broadly to encompass all public domain works. Otherwise, the materials resulting from an act of reproduction of a book, scientific drawing, sheet music, manuscript, map, or other important public domain works will fall outside the scope of Article 14. It also doesn’t apply to every work of visual art - only those for which copyright has expired. This means in-copyright artwork reproductions are not affected by Article 14. 

In general, Article 14 is drafted pretty broadly - it anticipates that technologies and media will inevitably change. This is a strength, considering it applies to 'any material resulting from an act of reproduction'. For example, that might include metadata, software code, raw data from 3D scans or digital photography, as well as any materials produced via future technologies, regardless of the format. 

Does it mean that GLAMs can no longer protect, via copyright and related rights, the digitisations they make of works of visual arts in the public domain?

Contrary to popular belief… no. It’s not an outright cancellation of copyright. What the text does say, is that only the materials that do meet the EU copyright threshold will be protected. No more related rights protections; only copyright protections. The argument by picture library agencies and many cultural heritage institutions has always been that faithful reproductions of public domain works do meet that threshold. It will be interesting to see if these claims persist after national transposition, or whether owners will finally answer the public’s call to release reproduction materials to the public domain. There is a possibility that some may resist the purpose of Article 14, whether by continuing to claim copyright or by limiting access to reproduction materials in other ways, like via restrictive website terms or by not making the data available at all. 

What are the main conclusions of your research? 

In addition to the grey area around  Article 14 already discussed, Ellen and I also argue that there are other ways that copyright claims - or copyright-like restrictions - might persist even after national transposition. A few examples include onsite visitor photography bans, restrictive website terms and conditions, and other gaps provided by the 2019 Public Sector Information Directive. Our paper is currently under review, but we hope to make it publicly available soon. 

Anything you would recommend to cultural heritage institutions?

We would recommend that institutions embrace the pro-open culture spirit of the EU Directive and get excited about the potential that widespread open access carries (taking, of course, other appropriate licensing considerations into account). In fact, institutions could begin revising intellectual property rights policies now, rather than waiting for national transposition of the 2019 DSM Directive. The Open GLAM survey that Douglas McCarthy and I manage has a column that links to open access policies in use by each institution. It’s a great place to start exploring what other GLAMs are doing. 

Open access can seem overwhelming. But there are a number of online platforms (and eager volunteer communities) available to aid institutions in releasing content, like Wikimedia Commons or GitHub. We recommend releasing high-quality datasets under a Creative Commons CC0 licence and letting the online community get to remixing and reusing. 

The momentum for Open GLAM is already there and growing. Article 14 will serve as an important catalyst for adopting open access policies and it will help those already working internally to garner more support in releasing digital collections online. This is what we’re most looking forward to! We should all be eagerly awaiting the inevitable digital innovation and new knowledge generation that will result from greater access to the public domain.

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