Leading Museums, Museum Leaders

Public Domain policy

Paul Keller, UK Intellectual Property Office: what is in the Public Domain must stay in the Public Domain, Communia, 4 December 2015

It is not often that we find ourselves in agreement with the copyright policy positions of government entities entrusted with maintaining the copyright rules. Given this it is somewhat of a rare find to discover the UK Intelllectual Property Office (IPO) has recently thrown its full weight behind our policy recommendation #5 (‘Digital reproductions of works that are in the Public Domain must also belong to the Public Domain.’). In a recently updated copyright notice on ‘digital images, photographs and the internet’ the IPO provides the following answer to the question ‘Are digitised copies of older images protected by copyright?’

Simply creating a copy of an image won’t result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.

However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because 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.

This clarification is noteworthy because the UK has for a long time believed that digital reproductions of public domain works may be protected by copyright. Many UK cultural heritage institutions claim copyright on public domain images by making the argument that the standard of originality is lower in the UK than it is in the rest of Europe (pointing to the idea that in the UK the determination of originality is based on a ‘sweat of the brow‘ standard, and as a result the mere effort required in making a digital reproduction of a public domain work justifies a copyright claim over the original reproduction).

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Council of Australasian Museum Directors, c/o Ms Daryl Karp, Museum of Australian Democracy at Old Parliament House PO Box 3934 Manuka, Australian Capital Territory 2603 Australia, © CAMD 2021
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