Photographing the Public Domain – EU to remove copyright protection from public domain art images

Copyright expert Simon Stokes explores the EU’s recent announcement that images of works of art in the public domain will no longer be protected by copyright.

Background

There has been much coverage of the EU’s controversial new Copyright in the Digital Single Market Directive which appears likely to come into effect and be formally adopted shortly – Member States will then have two years to implement it into national law.  Much discussion has been on its controversial proposals to tackle the use of copyright material by platforms such as YouTube and the so called “value gap” in order to ensure rights holders are paid fairly for the dissemination of their works by platforms.

Yet the Directive does more than just address platforms.  It contains a whole raft of changes to copyright law.  One aspect that has recently emerged is the inclusion of provisions that will effectively remove copyright protection from what the Directive calls “faithful reproductions of works in the public domain.”  In a nutshell art photographic or similar images – say of old master paintings or other original works of art long out of copyright will no longer be protected by copyright, assuming copyright even existed in the images in question (which can certainly be debated).

The copyright treatment of images of public domain art works has generated controversy with a recent campaign in the UK for cultural heritage institutions to give free access to such images.

Copyright in art images

Traditionally in UK law there are two copyrights in a photograph/digital image of a painting or sculpture – the photographic copyright in the image (typically owned by the photographer as “author”) and the copyright in the original work of art owned by the artist or their estate (assuming the artist is alive or died within 70 years – the copyright term is life plus 70 years).

This traditional view has been challenged in recent years by arguments that a faithful reproduction of an artistic work is not “original” enough to warrant copyright protection.  The current position following a raft of recent European case law is that originality requires a work to be the author’s own intellectual creation.  In the context of photographs one case talks of copyright in a photograph requiring free and creative choices and the author’s personal touch if it is to be original in the sense of being the author’s own intellectual creation.  It can certainly be argued that a photograph of a work of art which is intended to faithfully reproduce an underlying artistic work lacks the free and creative choices now required by copyright law albeit that a lot of skill and labour is still required – it is difficult to see how such an image can be said to bear the photographer’s “personal touch.”  Having said that such an approach goes against long standing UK authorities but the weight of European case law is now strongly against such authorities.

The UK Intellectual Property Office in 2014 also came to a similar view in its Copyright Notice: digital images, photographs and the internet Copyright Notice Number: 1/2014 (Updated: November 2015) which noted “there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.”

The Directive

The EU in the new Directive goes one step further.  First it is assumed in a recital to the Directive that faithful reproductions of public domain art works ought not to be to protected at all because “In the field of visual arts, the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture (or access to cultural heritage). In the digital environment, the protection of these reproductions through copyright or related rights is inconsistent with the expiry of the copyright protection of works.”

Second the Directive contains the following provision which seeks to harmonise this area across the EU: Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work shall not be subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation.

The effect of this provision is to ensure that across the EU fine art images of works of art in the public domain will only be protected if they are the photographer’s “own intellectual creation.”  Whilst in one sense this is merely a restatement of the existing EU copyright law in this area in another it goes beyond it by requiring all member state laws comply.  Also most importantly in light of the recital and the intent of the Directive any future argument in the EU that fine art images which seek to be faithful reproductions of the original work underlying them should be protected by copyright seems doomed to failure.

In light of the Directive and the clear line of European cases those operating in the EU fine art picture libraries (including in museums/art galleries) of “faithful reproductions” of fine art works are going to have to revisit how they licence and control reproductions of their images given that copyright protection will now clearly be removed from them under the Directive, even assuming in light of current law there was any copyright in them in the first place.  Those using such images are in the happy position of having copyright law effectively removed – the European Commission in its February 2019 Press Release on the new provisions noted that users “will be completely free to share copies of paintings, sculptures and other works of art in the public domain with full legal certainty.”

The UK and Brexit

What of the UK?  It should be noted that the “own intellectual creation” originality test is unlikely to change post Brexit, as the European cases underpinning the Directive will remain part of our law.  However so far this test has not been applied to fine art images by the courts and one can still see picture libraries and galleries making arguments about the skill, labour and judgement required to create fine art images if challenged.  Set against this are the European authorities noted earlier and the UK IPO Guidance.

However even if the Directive does not become part of UK law post Brexit (and this is uncertain) if adopted the Directive must surely be of additional authority and will encourage the free circulation of public domain art images on the Internet and beyond, in the EU and elsewhere.  Curiously the relevant recital to the Directive notes that the Directive is not intended to prevent cultural heritage institutions from selling reproductions, such as postcards.  This hardly needs stating – but anyone else who lawfully acquires the same image can under the Directive copy it free of charge too.

Perhaps the Directive will make cultural heritage institutions more protective of access to and photography of their works or perhaps Governments might decide that if such images are now clearly in the public domain those who invest time, effort and money in producing such images ought to get some financial support?  But in the current financial climate this seems unlikely.  In the meantime picture libraries whether public or private will need to explore whether contractual licences and digital rights management (along with database right) can go some way towards preserving a degree of control and much needed revenue to fund their digitisation efforts in light of what is a clear message from the EU on this area.