The EU should pass legislation that will end the practice whereby museums claim copyright over reproductions of works that are in the public domain. Currently, museums in a number of Member States can claim rights over photographic reproductions of public domain works by relying on neighbouring rights protecting unoriginal photography.
In the majority of EU Member States faithful reproductions (e.g. non-original photographs or scans) of public domain works are not protected by copyright, because by definition such reproductions lack the originality required to attract copyright protection. However, a number of countries recognise some form of exclusive rights over these copies. This means that the same photograph of a work of art may be protected by copyright-like rights in one country and be in the public domain in another. Understanding the copyright status of digital copies of public domain works is thus difficult and oftentimes confusing.
As public institutions, museums should focus on making their collections broadly available to the public, and not on limiting how users can interact with our shared cultural heritage. The copyright reform provides the EU legislator with the opportunity to harmonise the relevant legislation by making it clear that non-original reproductions of works in the public domain shall not be protected by copyright or neighbouring rights in any EU country.
During the trilogue negotiations there has been substantial progress on this issue. The negotiators have agreed to add a new article to the text of the directive that would require Member States to ensure that reproductions of visual artwork in the public domain "shall not be subject to copyright or related rights" unless they are "original in the sense that [the reproduction] is the author's own intellectual creation." While somewhat curiously limited to works of visual arts, this clause would put an end to the practice whereby museums attempt to claim rights over public domain works within their collections. If adopted this will be a substantial win for the public domain in Europe.
While the term of copyright protection is harmonized at the EU level since 1993 to last until 70 years after the death of the author, there are currently no provisions in EU law that defend the right of the public to freely use and reuse works that are no longer protected by copyright. As a result, in a number of Member States such as Germany or Spain–where neighbouring rights protect materials that do not meet the level of originality required for being protected by copyright (such as non-original photographs and scans)– museums have been able to claim exclusivity and legally withheld from the public domain substantial numbers of digital reproductions of works no longer protected by copyright. In other countries like the UK where no similar neighbouring rights exist, museums have tried to devise legal arguments to claim equal rights in such reproductions.
The Commission's original proposal for the DSM Directive did not contain any provisions related to this issue.
The Council's negotiation mandate did not address this issue. In the European Parliament a number of MEPs from across the political spectrum introduced amendments to Article 5 intended to protect digital copies of public domain works from appropriation. During the discussions in the JURI committee the substance of these amendments was significantly watered down. The text adopted by the the European Parliament in September 2018 would have required Member States to ensure that "reproduction of material in the public domain shall not be subject to copyright or related rights" only when the "reproduction is a faithful reproduction for purposes of preservation of the original material." Although somewhat nonsensical (how does one establish the purpose for which a reproduction has been made after the fact by looking at the reproduction?) this language provided the basis for the much better language agreed on in the trilogue.
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