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.