Print of view of the Osaka Imperial University campus in the Nakanoshima Ward (cropped) by Akamatsu Rinsaku.

The Post-DSM Copyright Report: Public Domain and cultural heritage rights

This is the third entry to a series of blog posts highlighting the positive and negative trends in national copyright policy following the DSM implementation. With the implementation process finalised in 26 out of 27 Member States, we’re comparing the national implementations to understand the impact of our proposals, identify areas of convergence and divergence, and evaluate how those affect the position of users and the Public Domain. Previously, we presented our analysis on research rights and education rights. Today, we share the results of our study on the implementation of the Public Domain (PD) safeguard in Article 14, together with some highlights from our partial scanning of the legal landscape for cultural heritage rights.

Background

Article 14 of the DSM Directive regulates the legal status of reproductions of public domain works of visual art. This provision requires Member States to exclude faithful reproductions of those works from the scope of protection of copyright and related rights, ensuring that they cannot be taken out of the Public Domain. This is the first EU legislative intervention aimed at protecting the Public Domain from misappropriation, and targets the practice of museums in claiming exclusive rights over materials resulting from digitizations of public domain works in their collections.

Articles 6 and 8, by contrast, grant certain rights to cultural heritage institutions (such as museums, libraries and archives) over their collections. Article 6 introduces a mandatory exception to copyright, authorising cultural heritage institutions to take copies of works in their collections for preservation purposes. Article 8 puts in place a licensing mechanism and a fallback exception (applicable when there is no representative collective management organisation to issue licences for certain uses and categories of works), intended to allow cultural heritage institutions to digitise and make out-of-commerce works in their collections available online.

Most MS introduced the PD safeguard

Article 14 is directed towards Member States that afford exclusive rights protection to non-original photographs. While a photograph that does not fulfil the originality criteria cannot be protected under EU copyright law, a small number of Member States use the policy space available to them under Article 6 of the Term Directive (which allows Member States to protect “other photographs” at the national level) and grant related rights over photographs that do not qualify as photographic works.

Whereas only seven Member States (out of the 26 analysed) have a double system of protection of photographs, a total of seventeen Member States ended up transposing Article 14:

  • Protects non-original photographs, implements Article 14: AT, DK, FI, DE, IT, ES, SE
  • Protects only original photographs, implements Article 14: BG, HR, CY, EE, GR, LV, LT, MT, PT, RO
  • Protects only original photographs, does not implement Article 14: BE, CZ, FR, HU, IE, LU, NL, SK, SL

In Member States that do not grant protection to non-original photographs, the scope of application of Article 14 appears to be very limited, as nearly all the materials resulting from faithful reproductions of works of visual arts are already free from related rights. Indeed, digitizations of works of visual arts in the Public Domain are typically made through non-original photography or by other means that do not give rise to related rights protection (e.g. scanning). Sure enough, where film is the means chosen to capture the work of visual art, the materials resulting from the reproduction can also give rise to related rights (the rights of the film producer), but in those cases chances are that the resulting material also consists of an original work protected by copyright, in which case Article 14 no longer applies.

In that sense, it is understandable that so many national governments decided not to implement Article 14. The Public Domain safeguard only deals with a specific category of works (works of visual art). Abstaining from transposing this provision, as it is, avoids bringing into those legal systems unnecessary ambiguity, stemming from the fact that faithful reproductions of all categories of works are excluded from copyright and related rights, but only those pertaining to a specific category of works are expressly protected against appropriation and only insofar as those works have already fallen into the Public Domain.

A few MS made a narrow implementation of the PD safeguard

Having said that, in some Member States (e.g. Bulgaria, Greece, Italy, Portugal, Slovenia and Spain), cultural heritage laws impose a similar type of exclusive rights over cultural heritage images held in their national collections. Therefore, in some Member States, asserting the right to use faithful reproductions of public domain works of visual arts might turn out to be more important due to the exclusivity claimed by cultural heritage laws than to the rights granted by copyright laws.

Although the DSM Directive does not expressly solve this conflict of legal regimes, it is clear that the European lawmaker wanted to free all materials resulting from faithful reproductions of works of visual arts in the Public Domain from any form of exclusivity, in order to enable the full enjoyment of those works by the general public. In this context, the Italian implementation of Article 14 is particularly controversial: It dictates that the protection imposed by cultural heritage laws prevails over the Public Domain safeguard. To add insult to injury, the Italian courts have recently issued a number of rulings asserting personality rights to cultural heritage based on Italian civil law.

The inadequate implementation of Article 14 in Italy raises many concerns, but it is far from being the only case where a Member State has decided to narrow down the Public Domain safeguard. As pointed out by Europeana, four Member States (Austria, Denmark, Finland and Spain) apply the safeguard only to works of fine arts. Furthermore, there are also divergent approaches as to the application in time of this provision, some more restrictive than others.

A few MS narrowed down the out-of-commerce works exception

With Europeana and cultural heritage institutions leading the copyright advocacy efforts concerning their activities, it has not been COMMUNIA’s top priority to track down the implementation of Article 6 and 8. Nonetheless, we could not avoid noticing some problematic interpretations of the latter.

In Portugal, some of the policy choices made by the national government when implementing Article 8 clearly do not comply with the requirements of the Directive. First of all, the exception for the use of out-of-commerce works and other subject matter provided for in Article 8(2) only applies to materials published, communicated to the public or made available to the public prior to 1 January 1980. This means that, at any given point in time, the pool of out-of-commerce materials that can be used under the exception is forever limited to those materials that have been published or made available before 1980. Secondly, this cut off date only applies to the fallback exception in Article 8(2) – it does not serve to determine which materials can be licensed by collective management organisations under the licensing mechanism in Article 8(1).

In Italy, the scope of the exception in Article 8(2) has also been limited in a way that does not  seem to comply with the Directive. Here, the exception only applies to two categories of materials, software and databases. Apparently, the Italian government has come to the conclusion that, at the time of the implementation, there were sufficiently representative collective management organisations for all other categories of out-of-commerce materials. Even if that was the case, which is very unlikely, the lawmaker should have accounted for future changes in the CMOs landscape in Italy and fully implemented the fallback exception.

Conclusion

Overall, the transpositions of Article 8 and Article 14 across the EU seem to satisfy the requirements of the DSM Directive. However, the errors identified in a few transpositions are relevant enough for the Commission to initiate infringement proceedings against those countries.

As an organisation dedicated to defend the Public Domain, COMMUNIA is particularly apprehensive that the implementation of the Public Domain safeguard only had the intended effect in some of the targeted Member States. The fact that a few national governments decided to narrow down the scope of provision causes significant concerns. The scope of Article 14 is already quite circumscribed: it applies only to works of visual arts in the Public Domain. Restricting this category even further, to cover only works of fine arts, is revealing of the resistance that some Member States have to embrace the Public Domain. Even more telling is the Italian exclusion of national cultural heritage altogether from the scope of protection of this safeguard.

Italy has shown us clearly that the Public Domain can be appropriated not only by copyright owners, but also by national governments and institutions. That the EU copyright policies can be so easily overridden by cultural heritage and civil laws should raise some eyebrows in Brussels. While only the courts in Luxembourg can provide definitive guidance on the application of Article 14, there is certainly room for the EU lawmaker to step forward and solve the conflicts stemming from the overlaps between EU copyright laws and local civil and cultural heritage laws. Again, a Digital Knowledge Act for Europe could go a long way in lifting all legal restrictions to the enjoyment of our shared cultural heritage.

King Charles II of England addresses members of the Estates General, 1660, Theodor Matham, after Jacob Toorenvliet, 1660
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