"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 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.
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."
