1 Access to Artworks in the Public Domain

In the past year, a number of legal developments have accelerated discussions around whether intellectual property rights (IPR) can be claimed in materials produced during the reproduction of public domain works. This article analyses these developments, focusing on the 2018 German Federal Supreme Court decision Museumsfotos,Footnote 1 Art. 14 of the 2019 Copyright and Related Rights in the Digital Single Market Directive (DSM Directive or DSMD),Footnote 2 and relevant provisions of the 2019 Open Data and the Re-use of Public Sector Information Directive (PSI Directive or PSID).Footnote 3

At the heart of this legal question lies an operational tension for cultural heritage institutions. Ensuring that public domain heritage collections are available to copy and reuse facilitates new knowledge generation and produces materials that can invigorate our creative industries.Footnote 4 But digitization and open access requires institutions to take on new obligations, find new funding sources, and acquire new expertise. This increases costs at a time when government funding for the heritage sector continues to steadily decline. A claim to copyright carries its own benefits: the revenue generated from licensing reproduction media might offset these digitization expenses. Moreover, new business models built around new digital media can support day-to-day operational costs. Herein lies the long-standing international legal and ethical debate: are heritage institutions justified in claiming copyright in reproductions of public domain works to generate much needed revenue, or do such restrictive measures conflict with educational missions and the rationale supporting a robust public domain?

While questions around IPR have long dominated this area, this article takes a holistic approach to how access is defined by overlapping legal and policy measures. Indeed, access is (at least) a two-part consideration involving policies around not only access and reuse of the digital collection, but also the material collection. From an institutional perspective, various issues must be considered from the safety of the work onsite to the preservation of its educational context online, and from concerns around digital asset management and revenue generation to the level of open access (or not) desired by the institution. Thus, access to material and digital heritage in the public domain may be defined by more than one parameter. This reality transfers to respective legal questions: access restrictions often engage with multiple parameters in contract, property, or intellectual property law. Viewing the question of IPR in isolation allows us to weigh the legality of a copyright claim, but it ignores other access barriers that might resemble or achieve the same result.

Accordingly, we seek to place recent EU legal developments within their wider practical context. We begin by focusing on IPR at the most basic level: photographic reproductions of two-dimensional artworks. In Sect. 2, we lay out key cases leading up to the 2018 litigation brought by the Reiss Engelhorn Museum in Germany (REM or the Museum) – a decision that not only recognized IPR in photographic reproductions of public domain artworks, but also validated the Museum’s onsite restrictions on visitor photography. Section 3 analyses the wider challenges to access raised by the REM decision (REM Caselaw).Footnote 5 We then consider EU policy around open culture in Sect. 4, as well as the questions posed by the revised DSM and PSI Directives. Finally, Sect. 5 explores potential resistance to legal reform by alleged rightsholders, as well as how transposition might counter resistance while allowing for growth in technological innovation.

In doing so, we take a comprehensive approach to analysing the doctrinal questions underlying copyright in addition to operational issues informing institutions’ policies.Footnote 6 The article reveals that despite the growing legal consensus around protecting the public domain, gaps in law, policy, and practice provide leeway for institutions (and other actors) to maintain the status quo of claiming copyright in reproductions and restricting access via other measures. Institutions are already cash-strapped, and the private sector is heavily invested in the market for reproduction media. Despite the difficulties ahead, we argue the pro-open culture spirit of legal developments should be embraced by Member States during transposition and heritage institutions revising IP policies. We conclude by exploring not only how, but why.

2 International Perspectives on IPR in Photographic Reproductions

To understand the current state of international perspectives, we first consider the historical and global context.Footnote 7 Only a handful of courts have considered this issue with mixed results.Footnote 8 Key decisions include Graves’ Case (UK in 1869),Footnote 9Bridgeman Art Library v. Corel (Bridgeman I and Bridgeman II) (USA in 1998 and 1999),Footnote 10 and Museumsfotos (Germany in 2018).Footnote 11 A related decision concerning portrait photography is Eva-Maria Painer v. Standard Verlags GmbH (CJEU in 2011).Footnote 12 Each decision contains shortcomings when considered against technological advancements.

Perhaps the most significant imperfection is that all four cases litigated outdated reproduction methods. This raises at least two issues. First, photographic technologies have made significant strides since 2011, let alone since 1999 and 1869 – yet we have little guidance around IPR and digital methods of reproduction.Footnote 13 Even the 2018 REM Caselaw decision assessed analogue photography.Footnote 14 Thus, grey areas remain around copyright in reproductions produced by new technologies, from digital scans to photography to 3D data, especially if post-production digital editing occurs.

Second, the three cases about artwork reproductions conflate the layers of reproduction and potential copyrights in the final output.Footnote 15 Because an output may sustain multiple format transfers, or select components of the output, like descriptive metadata or professionally-reconstructed areas, might attract copyright, rights could apply to only certain layers or portions of the output, rather than the image (or raw data) itself.Footnote 16 These rights may be improperly claimed or misstated in the final output.Footnote 17 Below, we analyse the prior caselaw to frame these various drawbacks when applied to contemporary issues.

The issue of copyright in artwork reproductions dates back to a 1869 dispute.Footnote 18 In Graves’ Case, Judge Blackman considered copyright in a photograph of an in-copyright engraving of a painting, and held the reproduction was original.Footnote 19 More than a century later, in 1998, the issue came before a United States District Court in Bridgeman Art Library v. Corel Corp with an opposite outcome. Judge Kaplan considered the originality of a photographic transparency of an artwork with (at least) one important distinction: the underlying works were in the public domain.Footnote 20 Highlighting the antiquity of Graves’ Case and subsequent developments in originality, Judge Kaplan held the photographic reproductions to be non-original under both UKFootnote 21 and USFootnote 22 copyright law because the contested photographs slavishly reproduced the underlying works.Footnote 23

Naturally, copyright advocates have zealously defended Graves’ Case,Footnote 24 while open access advocates have stood staunchly behind the Bridgeman doctrine.Footnote 25 But these cases have limited binding effect. First, while Graves’ Case has not been overturned, scholars contest its application to contemporary originality.Footnote 26 Many posit the in-copyright status of the underlying engraving may have influenced the outcome and question its usefulness against modern technologies.Footnote 27 Second, although the Bridgeman doctrine is widely cited, the decision binds only the Southern District of New York and was (until recently) largely ignored by its cultural institutions.Footnote 28Bridgeman’s greater impact was to stimulate international institutional discussions on open access over the next two decades.

In the EU, discussions turn to a 2011 CJEU decision involving portrait photography. In Eva Marie Painer v. Standard VerlagsGmbH, the CJEU considered whether portrait photography could satisfy the EU originality standard of the “author’s own intellectual creation” (AOIC).Footnote 29 Arguments against had advanced that the work’s predetermined subject matter (i.e. the person featured) rendered any remaining choices insufficient to warrant protection. The CJEU disagreed, reasoning the freedom available to make “free and creative choices” could occur during various stages of production:Footnote 30 preparation, when the photographer chooses the background, subject’s pose, and lighting;Footnote 31 capture, when the photographer might choose the framing, angle of view, and atmosphere created;Footnote 32 or printing, when the photographer might select the desired image and apply a range of developing techniques or editing software.Footnote 33 Through these choices, “the author of the portrait photograph can stamp the work created with his ‘personal touch.’”Footnote 34

Although it does not address our specific question, the 2011 CJEU Painer opinion preserves the possibility for decisions to attract copyright during artwork reproduction. Like portraits, the subjects of reproductions are also predetermined, but cannot be excluded on this basis alone or because any remaining choices are limited. Still, the photographer’s personal touch must be imprinted on the work.Footnote 35

Seven years later, in 2018, the Federal Supreme Court in Germany considered this spectrum of choices against photographic reproductions of public domain paintings made in 1992. The REM had launched a wave of actions against defendants who used reproductions made available on Wikimedia Commons. The Federal Supreme Court held although the REM’s photographic reproductions were not original under the harmonised EU standard, they did attract a related EU protection for non-original “other photographs” transposed in the German Copyright Act.Footnote 36

While REM Caselaw provides some copyright clarity, it leaves open other questions around property law and persuasive impact on other jurisdictions.Footnote 37 The Court’s validation of visitor photography bans adds a layer when considering access obligations of public institutions and the complex nature of exclusion, both onsite and online. Consequently, these key cases guide the international debate, with each imperfect in its own way.

Recent EU legislation seeks to clarify the necessary IPR status for reproduction media. Published on 17 April 2019, Art. 14 of the DSM Directive states that no new rights can be claimed in material generated during acts of reproduction unless the author’s own intellectual creation standard is met.Footnote 38 Article 14 is designed to put an end to owners making improper claims in reproduction media of public domain artworks, but there are some important limitations.Footnote 39 And whether IPR arises is only one link in the access chain. As discussed above, other measures may shape how access is extended to digital and material public domain works, like onsite photography bans, website terms and conditions (T&Cs), and contractual arrangements with third parties.Footnote 40 This is why ambiguities in national laws and gaps in the 2019 PSI Directive must also be considered.Footnote 41

Against this backdrop, Sect. 3 explores the legal uncertainties illustrated by REM Caselaw – especially the effect of dual restrictions on access to public domain works.

3 REM Caselaw and the Two-Part Problem

The conflict began in 2015 when the REM (represented by the city of Mannheim) brought suit against the Wikimedia Foundation and Wikimedia Deutschland for hosting 37 photographic reproductions of artworks in the Museum’s collection (Table 1).Footnote 42 Seventeen images had been taken in 1992 by an REM photographer and printed in an exhibition catalogue. Wikipedia user and editor Andreas Praefcke scanned and uploaded these images to Wikimedia Commons, along with 20 of his own photographic reproductions made during a 2007 visit. All images had been marked public domain and were downloaded and reused by various users. For this, REM brought a separate claim against Andreas Praefcke.Footnote 43 Due to the case’s importance for Wikimedia and its users, the German chapter provided Praefcke’s defence.Footnote 44 At the same time, REM filed proceedings against other users who downloaded the images and used them online.Footnote 45

Table 1 REM Caselaw

The REM was successful in almost every proceeding except in the Local Court of Nürnberg (REM I), which denied protection based on a teleological interpretation. In other words, protecting photographic reproductions and photography bans would undermine public freedom, install perpetual copyright, and eliminate reuse of the public domain.Footnote 46REM IV(c) invalidated this reasoning.Footnote 47 Both REM III and REM IV went as far as the Federal Supreme Court.

3.1 Main Proceeding: REM IV(c) Against Andreas Praefcke

Two issues were of importance in REM IV(c). The first concerns the copyright status of the 17 Museum photographs made in 1992 (Fig. 1, following pages). German copyright law distinguishes between the protection of “original” photographs as Sec. 2(1) No. 5 Copyright Act works (the Art. 6 AOIC standard) and Sec. 72 “simple light” photographs lacking originality (the Art. 6 “other photographs” protection).Footnote 48 Rather than the full copyright term of “life plus seventy years,” Sec. 72 works are protected for 50 years after publication.Footnote 49 This protection also encompasses “products manufactured in a similar manner to photographs,”Footnote 50 such as 3D models made by photogrammetry.

Fig. 1
figure 1

Screenshots of pages 3–20 from REM III(a)

The REM argued its photographs were sufficiently original. While the lower courts in REM IIIV evaluated protection under Sec. 72 Copyright Act,Footnote 51 only REM III(a) evaluated whether Sec. 2(2) Copyright Act creativity was met.Footnote 52 There, the Regional Court of Berlin determined the Museum’s reproductions fell short because the photographer’s freedom was limited to a technically-clean implementation of the task of producing a faithful representation,Footnote 53 which satisfied only the minimum level of “personal intellectual achievement” recognised Sec. 72 Copyright Act.Footnote 54 On appeal, the Federal Supreme Court similarly reasoned such photographs constitute a “dimension shifting” of the source work to a different format (i.e. analogue to digital conversion).Footnote 55 Although made with a purpose akin to copying,Footnote 56 the Court held the ability to select the location, distance, angle, exposure, and cropping were technical choices warranting Sec. 72 Copyright Act protection.Footnote 57 The Federal Supreme Court reasoned this right prevails even when the photographer operates within a reduced scope of decisions dictated by technical settings or other limitations via the technology used.Footnote 58 Consequently, photographic reproductions of paintings in Germany are neither copies nor original works, but something in between.Footnote 59 The result is that using photographic reproductions without permission violates Sec. 72(1) Copyright Act.

The second issue concerns the 20 photographs taken personally by Praefcke in 2007. Onsite, the Museum clearly banned visitor photography, as indicated by a pictograph with a crossed-out camera on visitor regulation signs. At issue was whether Praefcke’s photographs breached the visitation contract supported by the Museum’s ownership of the artworks and rights in rem. Praefcke’s defence relied on tensions between the German Civil Code (BGB) and fundamental rights guaranteed by constitutional law. This required the Federal Supreme Court to weigh Praefcke’s constitutional rights against the Museum’s own right to restrict access to its immovable and movable property.

Previous Supreme Court decisions have considered whether it is an unlawful impairment of property to make and exploit photographs of works without an owner’s consent.Footnote 60 These cases turned on the relationship between the physical ownership rights and the right to prevent the exploitation of photographs of that property. For immovable works, the Court held owners may regulate who enters their property and under what conditions.Footnote 61 For movable works, like paintings, no Federal Supreme Court decision exists.Footnote 62 The Court in REM IV(c) avoided this issue by granting injunctive relief via the photography ban, which required an examination of the ban’s conditions.Footnote 63 The Court reasoned the Museum had a legitimate interest in regulating visitor behaviour.Footnote 64 This included photography prohibitions, which serve to protect artworks and visitors’ privacy, to facilitate the proper running of the museum, and to honour other general obligations to lenders and the public.Footnote 65

Praefcke argued the Museum’s purpose must be interpreted in accordance with his constitutional rights, specifically the freedom of information in Art. 5(1) Basic Law and the social obligations of property ownership in Art. 14(2) Basic Law.Footnote 66 Under this interpretation, heritage institutions must permit photography for private, scientific, and educational purposes.Footnote 67 The Federal Supreme Court disagreed and held no fundamental rights were impaired. Instead, the Court found any public interest in not being prohibited from taking photographs in institutions falls outside those protections and, at most, might implicate the general freedom of action in Art. 2(1) Basic Law.Footnote 68 Still, the Court found the Museum’s ban complied with Art. 2(1) Basic Law because it was proportional to concerns around the artworks’ protection and institutional operations, and because individual permits were granted.Footnote 69

3.2 Post-REM Caselaw Considerations

At first glance, the REM Caselaw should be welcomed: it clarifies that photographic reproductions are not original. However, they are subject to the lesser protection, which raises cross-border reuse issues in Member States without “other photographs” protections. The effect of the second outcome is to vest absolute rights with institutions to decide whether to reproduce and communicate (or not) public domain artworks in public collections.

Questions also arise around the PSI Directive and documents made in the performance of a public task.Footnote 70 The REM’s General-Director specifically relied on the PSID when saying institutions are “expressly entitled to digitise cultural holdings and determine whether copyright results,” and charges are authorised by the “obvious” legislative intent that “cultural institutions themselves should contribute to recouping the immense costs of digitizing their holdings.”Footnote 71 The REM is not concerned with only licensing benefits.Footnote 72 Like many others,Footnote 73 the Museum feels it holds a moral obligation to control how works are used to protect art and its history from derogatory treatment.Footnote 74 This exposes an underlying stewardship tension: institutions use copyright (and related rights) to maintain interpretive sovereignty and prevent subjective misuse, for example, on “unsuitable merchandising articles.”Footnote 75 While owners may disapprove of certain reuses, no legal grounds exist to support such prohibitions.

As discussed in Sect. 2, the technologies must also be considered. The Museum’s images were made using analogue photography methods of 1992.Footnote 76 Praefcke used combination of scanning and computer software to make the images available online. Consequently, we have multiple technologies involved during the capture, manipulation, storage, and dissemination of the artworks. It is possible that copyright might arise at some point, namely during post-production image manipulation. But it remains unclear in which layer of the reproduction (and for whom) copyright might subsist.

This example illustrates how owners could resist the purpose of Art. 14 DSMD through multiple measures. Until recently, visitor regulations prohibited onsite photography, but the policy has since changed to permit photography for personal use only.Footnote 77 However, no policy exists online regarding copyright in digital material. Most images are of special exhibitions – works that typically are not owned by a museum – and clearly display copyright notifications.Footnote 78 Even if Art. 14 prevents owners from enforcing the rights claimed in photographic reproductions, no part of the law includes positive obligations to allow onsite photography or release digital reproductions. In reality, owners are legally entitled to ban onsite photography, hold reproductions close, and license and restrict reuse through contract-based agreements and website T&Cs.Footnote 79 In effect, the REM Caselaw carries the potential to render Art. 14 DSMD empty of its promise. We now examine gaps in legal developments that might facilitate this approach.

4 EU Developments and Wider Effects

Recent EU measures intend to remedy legal uncertainty and carry a legislative and political history in support of open culture. Section 4 squares Art. 14 DSMD with relevant provisions from the 2006 Copyright Term Directive (CTD) and the 2019 PSID to ascertain how treatment of reproduction media might proceed.

4.1 EU Policy in Support of Open Culture

Article 14 DSMD is a culmination of EU policy promoting open culture as early as 2002.Footnote 80 Since then, the European Commission has consistently underscored that public domain materials should remain in the public domain once digitised via various official documents and initiatives. These include: funding OpenGLAM (Galleries, Libraries, Archives, and Museums);Footnote 81 the Communication of 11 August 2008;Footnote 82 the launch of Europeana (2008);Footnote 83 the Europeana Public Domain Charter (2010);Footnote 84 and the Recommendation of 27 October 2011.Footnote 85 Moreover, in 2019, the Commission announced in the adoption of two Creative Commons licences for all publications: CC BY 4.0 for all content, and CC0 (Public Domain Dedication) for all raw data, metadata, and other comparable documents.Footnote 86

Despite the Commission’s consistent pro-open stance, reports on the 2011 Recommendation’s implementation noted numerous obstacles to the release of materials.Footnote 87 These included the fear of losing control, the use of public domain material to generate income, and technical issues,Footnote 88 stressing that open collections were still “more the exception than the rule.”Footnote 89 The most recent report signals a positive trend, but emphasised institutions continue to prohibit reuse for commercial purposes against the need to confront this persisting mindset around loss of income and control.Footnote 90

These reports and other official policy documents consistently highlight the need for greater legal clarity around IPR in digitised material, including metadata and photographers’ rights as paramount to harmonising access conditions around public domain materials.Footnote 91 The 2019 DSMD framework thus aims to improve certainty in this area.Footnote 92 Below, we map out gaps in the framework that might undermine harmonisation goals and pro-open culture objectives.

4.2 Article 14 DSMD and IPR in Reproduction Media

The revised framework for IPR in reproduction materials achieves minimum harmonisation on a narrow subject matter, giving Member States broad discretion during transposition. The full text reads:

Article 14

Works of visual art in the public domain

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 is not 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.Footnote 93

Article 14 broadly encompasses any material resulting from an act of reproduction. This includes not only photographic reproductions, but other outputs like 3D scanning, as well as any component parts, such as metadata or software. It also applies to anyone reproducing a work of visual art, including the general public and commercial organisations. Open access advocates have therefore embraced Art. 14 for formalising ongoing efforts to protect the public domain from privatisation.

Article 14 is narrow in other regards. Crucially, Art. 14 applies to only “works of visual art.” Excluded are acts of reproduction around other public domain works, like textbooks, sheet music, film, maps, scientific or other technical drawings. The Directive neither defines “visual art” nor illustrates what reproduction media might qualify for copyright (or not) – only that the materials must satisfy the AOIC threshold. This latter ambiguity is also a strength. Rather than reduce Art. 14’s effect to, for example, exclusively two-dimensional reproductions of two-dimensional works, the text envisions technological progress and mandates that only sufficiently original works should be protected.Footnote 94

In this way, Art. 14’s formalisation of the AOIC standard is consistent with EU copyright doctrine, rather than disruptive.Footnote 95 The Directive accepts that copyright might arise and supports exploiting IPR meeting that threshold.Footnote 96 The onus therefore remains on makers to evaluate whether an output carries a personal imprint or qualifies for unencumbered release.

Article 14’s specific effect will be to remove reproduction media of “works of visual art” in the public domain from the scope of national laws with Art. 6 CTD “other photographs” protections.Footnote 97 This is an important development. The application of this provision to reproduction media contradicts the Commission’s agenda on protecting the public domain and enhancing the digital single market.Footnote 98 Rather than harmonise the IPR standard, Art. 6 CTD enables a system of mutually-exclusive protections incompatible with the rationale underlying the expiration of copyright and a work’s transfer to the public domain.Footnote 99 Article 14 therefore remedies this fragmentation – but only for reproduction media of “works of visual art” in the public domain in European States subject to the DSMD.Footnote 100

We must now wait to see how transposition proceeds – and, namely, whether Member States transpose verbatim, extend the provision to cover all public domain works, or take no action at all.Footnote 101 Variations in the text’s transposition could reintroduce issues to cross-border exchange. National laws might control what constitutes a “work of visual art” differently among Member States. For example, in the UK, this might translate to “artistic works” as defined by national legislation and case law.Footnote 102 In Germany, visual art will encompass only works premised upon aesthetic expression with no functional purpose (excluding works of architecture or applied art).Footnote 103 Differences in national categorisations may subsequently undermine harmonisation aims. Moreover, imagine that Germany’s transposition aligns with Art. 14’s text, while the Netherlands extends its scope to “works in the public domain.” In Germany, a photographic reproduction of an out-of-copyright map (i.e. not a work of visual art) could receive Sec. 72 Copyright Act protection; in the Netherlands, the same reproduction could remain in the public domain. Users will need to assess IPR based on information such as the location of the host institution or the work itself when digitised.

This critique extends to differences in 3D technologies. 3D models made by scans likely fail to attract copyright protection; by contrast, 3D models made by photogrammetry likely satisfy copyright.Footnote 104 This is because Member States generally recognise copyright in photographic reproductions of 3D works, the process by which photogrammetry proceeds.Footnote 105 Because there is no consistent EU-wide treatment around semi-automated digitisation processes, owners may opt for photogrammetry over scanning to secure a copyright in the 3D model.Footnote 106

Uncertainty also remains with copyright arising during post-production editing. As discussed, courts have been silent on creative scope using computer software to edit and enhance a digital file. Accordingly, owners might distinguish past cases focused on analogue photography from contemporary reproductions made with new technologies.

Some guidance on this has been issued in the UK. In November 2015, the Intellectual Property Office published a (non-binding) Copyright Notice that suggested copyright might arise if “specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.”Footnote 107 It goes on to cite the CJEU and the AOIC standard’s legal effect in UK law, reasoning it is unlikely that a retouched digital reproduction can be considered original as “there will generally be minimal scope for a creator to exercise free and creative choices if their aim is to make a faithful reproduction of an existing work.”Footnote 108 This would suggest basic digital manipulation – processed individually or in automated batches – to enhance colour, remove unwanted shadows, and so on, fails to satisfy the AOIC standard.

Copyright in photographic reproductions has also been discussed at national level. In September 2018, the House of Lords debated whether the question of copyright should be left with institutions or whether the government should intervene.Footnote 109 Similar to the REM General-Director’s comments, arguments conflated the issues by framing the decisions to claim copyright and license images as “operational matters,” or internal policy decisions to be taken by institutions.Footnote 110 Yet decisions to employ copyright-based business models are not operational matters if the law does not support copyright. Indeed, this is the legal interpretation increasingly held among UK scholars.Footnote 111

The UK has since announced there are no immediate plans to implement the 2019 DSM and PSI Directives.Footnote 112 Even so, they could have an informal impact on institutional IPR management as other institutions increasingly embrace open access and UK institutions act to compete digitally online.Footnote 113

While Art. 14 envisions wider access, national transposition must clarify areas to provide legal certainty for IPR and the cross-border exchange of reproduction media.

4.3 Impact of the PSI Directive on Article 14 DSMD Goals

Setting copyright aside, owners may use other measures to restrict access to Art. 14 reproduction materials. Viewing this wider context enables us to understand the potential limits of Art. 14 DSMD.

Published on 20 June 2019, the Directive on Open Data and the Re-use of Public Sector InformationFootnote 114 replaces the 2003 PSI Directive as amended in 2013 to encompass public heritage institutions.Footnote 115 According to the 2013 Directive, restoring the reuse of cultural and associated materials to its innovative potential was an impetus for bringing public heritage institutions within its scope.Footnote 116 The 2019 PSID repeats these aims,Footnote 117 framing information generated during a public task as “important primary material” for digital innovation.Footnote 118

The PSID is concerned with the economic aspects of reuse, rather than access to information.Footnote 119 The 2019 PSID highlights the “considerable differences” among Member States “which constitute barriers to bringing about the full economic potential of that key document resource.”Footnote 120 Consequently, Member States must encourage public sector bodies to produce and disseminate data based on the “principle of ‘open by design and by default’”Footnote 121 and are authorised to “go beyond the minimum requirements set out” to ensure access and reuse of all PSID documents.Footnote 122 At the same time, the PSID includes several exceptions and privileges for cultural heritage institutions that conflict with Art. 14 DSMD.

First, Art. 1(2)(c) states PSID provisions do not apply to “documents for which third parties hold intellectual property rights.”Footnote 123 Based on the uncertainties discussed, copyright might be claimed in the reproduction media made by third parties (like museum photographers). It is also unclear whether this extends to all copyrights initially created by third parties, even if they grant or assign rights to the cultural heritage institution.Footnote 124 If so, there is an argument that such rights will exclude the documents from the PSID and national IP law will apply.Footnote 125

The requirement to make information not only available, but also reusable for commercial or non-commercial purposes is another key element.Footnote 126 Here, an important distinction must be made regarding commercial and non-commercial purposes versus commercial or non-commercial purposes.Footnote 127 Article 3 of the English version adopts the latter use, which generates uncertainty around whether commercial use must be embraced by public sector bodies, both with regards to original and non-original materials.Footnote 128 Prohibiting commercial use could contradict the Directive’s stated goals and EU policy, perpetuating barriers to the reuse of public sector and publicly funded information.Footnote 129 In the German version, the text reads commercial and non-commercial purposes, which introduces inconsistency to harmonisation goals.

Institutions are not without recourse when it comes to costs and revenue generation. Article 6 exempts institutions from providing documents for freeFootnote 130 and permits setting fees above marginal costs to support operations.Footnote 131 These charges must be practical and reasonable and cannot exceed “the cost of collection, production, reproduction, dissemination, data storage, preservation and rights clearance … with a reasonable return on investment” (ROI).Footnote 132 Ideally, this will translate to more transparent service-based fees to recoup costs associated with the production, management, and provision of digital media, instead of opaque licensing fees to commercially exploit (invalid) IPR.

But Recital 38 suggests otherwise. For guidance on calculating a reasonable ROI, it recommends looking to the private sector.Footnote 133 This raises a number of issues. First, this is already common practice,Footnote 134 which installs in the public sector fee-modelling systems built upon creating monopolies over a scarce product to turn a commercial profit. Following implementation of Art. 14 DSMD, such systems are improper for non-original documents made with public funds during the performance of a public task. Second, the private sector is not bound by the PSID. Requests regarding fee calculations will likely go unanswered or lack the necessary information to satisfy transparency as envisioned by the Directive. Third, for documents in which copyright is valid, the Directive obligates institutions to “exercise their copyright in a way that facilitates re-use.”Footnote 135 Current licensing practices impede reuse.Footnote 136 For instance, fees calculated using the British Museum Online Price CalculatorFootnote 137 range from £25Footnote 138 to £1,107,Footnote 139 putting reuse out-of-range for many users, especially where multiple licences are required.Footnote 140 The lower-quality images released under the Museum’s CC BY-NC-SA 4.0 license are unsuitable for many meaningful reuse purposes.

The exceptions in Art. 12 “Exclusive Arrangements” raise additional concerns. The Directive recognises the importance of private partnerships and the need to grant exclusive rights, noting “a certain period of exclusivity might be necessary” to recoup investment.Footnote 141 Recital 49 recommends it should “be limited to as short a time as possible in order to comply with the principle that public domain material should stay in the public domain once it is digitised.”Footnote 142 repeating the previous Commission positions on access to the public domain.Footnote 143 Article 12(3) suggests a period no longer than ten years, subject to review, and requires arrangements to be transparent and made public.Footnote 144 Institutions must receive free copies of the digital resources, which require publication upon the agreement’s expiration.Footnote 145

This provision is initially promising. According to the text, exclusive arrangements must be limited to the right to digitise cultural resources.Footnote 146 Photographic reproductions and other non-original outputs produced during exclusive arrangements should not be encumbered by improper IPR claims. Yet it is unlikely that commercial image agencies, like Bridgeman Images, will desist with efforts to protect revenue sources.Footnote 147 Ten years is also a long time in terms of technological advancement. Consider cultural heritage digitised in 2009 released today for public consumption. Many key technical standards, resolutions, formats, and software have moved on since 2009. In the same manner, the primary materials subject to Art. 12 agreements may be outdated for contemporary innovation purposes in ten years.

Even without IPR, access remains a separate issue. Article 14(4) exempts institutions from making high-value datasets available free of charge.Footnote 148 This reinforces incentives to release lower-quality datasets while commercialising high-value datasets. No obligation exists to make raw data available to the general public, who might edit or repurpose the output (and attract copyright) on their own.

Institutions remain able to merchandise and offer products for sale that incorporate documents subject to the PSI Directive. Recital 53 DSMD expressly reassures the sector that Art. 14 “should not prevent cultural heritage institutions from selling reproductions, such as postcards.”Footnote 149 Read together, the revised PSI and DSM Directives require Member States to place heritage institutions on equal footing with other sectors to contribute to economic growth and job creation. Rather than sustaining a monopoly around the exclusive exploitation of reproduction media, the Directives envision an even playing field.

4.4 Wider Effects on Cross-Border Exchange in the Digital Single Market

A few points remain regarding contract overreach, the dissemination of works of visual art, and Art. 17 DSMD.

First, while Recital 53 DSMD stresses that differences among national protections affect the cross-border exchange of reproductions of public domain artworks,Footnote 150 IPR is not the only issue to consider. Onsite and online, T&Cs can restrict use beyond what copyright would normally recognise. Accordingly, owners remain able to restrict access and reuse of public domain materials through rights based in contract and property law.

To some extent, the DSM Directive protects user rights from overreach. Article 7(1) renders unenforceable certain contractual provisions contrary to Arts. 3 (“Text and data mining for the purpose of scientific research”), 5 (“Use of works and other subject matter in digital and cross-border teaching activities”), and 6 (“Preservation of cultural heritage”).Footnote 151 Previous drafts included Art. 14 (then Art. 5(1a)) within the scope of Art. 7 (then Art. 5(1b)).Footnote 152 The final text does not.Footnote 153 Despite this, Art. 7 protects the reuse of reproduction media subject to IPR claims from overreach for purposes such as text and data mining, teaching activities, and cultural heritage preservation.Footnote 154 Yet in countries with contract overreach formalised in copyright law, institutions already broadly prohibit reuse within website T&Cs, including around online content in the public domain.Footnote 155

The PSI Directive aims to minimise such activity. Recital 44 discourages setting conditions or restrictions while recognising some parameters may be justified in the public interest, such as when documents include personal data or should acknowledge the source.Footnote 156 In such cases, conditions should be “objective, proportionate and non-discriminatory” and limited to the greatest possible extent.Footnote 157

Questions arise around the enforceability of T&Cs under contract law and property law.Footnote 158 Outcomes are highly contextual, dependent upon the relevant legal framework, specific terms, and alleged violations.Footnote 159 Moreover, terms may be difficult to enforce, especially against third parties not bound by the contract. Legal certainty therefore may erode as images circulate (and re-circulate) online.

To this point, Art. 14 should positively impact the circulation of photographic reproductions of visual artworks in the public domain. Faithful digital reproductions already exist online often in multiples under various copyright claims.Footnote 160 In the EU, IPR can be assessed according to the source work captured, rather than any transparent claims asserted by the reproducer.

Finally, concerns arise with the Art. 17 DSMD “upload filter” regulation of photographic reproductions.Footnote 161 Artificial Intelligence (AI) is ill-equipped to assess whether a reproduction meets the AOIC threshold, let alone whether rights exist in the underlying work.Footnote 162 Where competing rights are claimed in similar reproductions, how might the upload filter navigate these claims? Embedded metadata can help, but that information must be accurate and machine readable. Given that copyright-free data (or robust exceptions) are needed to train AI,Footnote 163 institutions might play a leading role in developing and releasing datasets to stimulate innovation in AI.Footnote 164 This highlights the importance of the 2019 DSM and PSI Directives’ implementation in this area.

Whether the combined impact will lead to greater transparency and fair competition in the internal market remains to be seen. We now examine transposition challenges and highlight areas of focus for implementation.

5 The Case for National Transposition

Despite how the EU legislation is transposed, Art. 14 will serve as a catalyst for open access. Section 5 maps out the potential for resistance and recommendations for national transposition and heritage institutions.

5.1 The Potential for Resistance to Article 14 DSMD

The text of Art. 14 is clear: no new rights unless the work satisfies the AOIC standard. But the question of what is legally sufficient to attract copyright may remain unresolved. This uncertainty has numerous consequences.

First, many actors have consistently advocated that decisions made during reproduction meet the AOIC standard.Footnote 165 Article 14 presents no impediment for these actors; thus, the practice of making IPR claims in reproduction media will likely persist.Footnote 166 This is especially true considering no negative consequences await those who continue to claim copyright, or what scholar Jason Mazzone coined as “copyfraud.”Footnote 167

Second, as discussed in Sects. 2 and 3, case law provides imperfect guidance even for faithful photographic reproductions. REM Caselaw is binding only in Germany. Other jurisdictions remain free to disagree with or distinguish from the case. Copyright claims could continue under the premise the AOIC standard is met while owners neglect enforcement to avoid outcomes negating copyright in reproduction media.Footnote 168 Aside from the REM, institutions seem unwilling to risk the reputational damage of a lawsuit; thus, the legal question of copyright will likely persist.

Third, owners can continue imposing conditions via website terms or photography bans. In fact, use of secondary restriction measures could rise, like installing paywalls, releasing low-quality datasets, removing online collections, or revising T&Cs to be more restrictive. Owners might opt to use new technologies and editing software over basic reproduction methods to justify copyright. Claims that free and creative choices render the output a “certain reproduction”Footnote 169 under the AOIC standard may be made and fortified in online T&Cs.Footnote 170 Even service-fee-based systems might restrict reuse through contractual terms.Footnote 171 Sustained by contract and property law, these measures could subvert years of EU policy and the legislative intent underlying Art. 14.

Finally, the PSI Directive contains gaps that national implementation must fill, namely with exemptions in Art. 12 and Art. 14(4) around exclusive arrangements and releasing high-value datasets free of charge.Footnote 172 Given that artwork reproductions comprise a significant source of revenue, there are major incentives for commercial picture agencies to resist Art. 14. Bridgeman I and II had no impact on the company’s practices: Bridgeman Images continues to claim copyright and sign exclusive licensing arrangements worldwide.Footnote 173 Just before publication of the DSM Directive, Bridgeman signed an agreement with the Italian Ministry of Culture to become the exclusive international picture agency for all 439 state-owned museumsFootnote 174 and another with the British Library to manage all commercial and editorial licensing in the UK.Footnote 175

Lawmakers should be wary of attempts to block reform at national levels. Image organisations like CEPIC (Centre of the Picture Agency),Footnote 176 BAPLA (British Association of Picture Libraries and Agencies),Footnote 177 and SNAPIG (Syndicat des Agences d’Illustration Photographiques)Footnote 178 lobbied strongly for IPR in the Directive’s text. During its development, CEPIC published a press release expressing “extreme disappointment” at the “closed doors” development of Art. 14 with “no evidence as to the advantage to the larger public.”Footnote 179 CEPIC’s efforts met with success in Switzerland in June 2019: after six years of lobbying, Switzerland will protect photographs irrespective of their “individual design.”Footnote 180

Open access poses a threat to these business models. CEPIC and SNAPIG have publicly decried the movement, fearing “the direct and social repercussions of such upheavals would be particularly penalizing for the ecosystem of photographic agencies all over Europe.”Footnote 181 In France, the CGT-Culture Union issued a similar statement condemning open access as “an organized plunder of the images of our patrimony for purely private and commercial uses.”Footnote 182 While organisations may need to innovate, such alleged doom is unwarranted. Any decline in profit should reflect on inflexible or outdated business models rather than serve as evidence previous systems of exclusivity were necessary for sustainable digitisation. If commercial agencies with deep pockets and sophisticated technologies are successful in shaping attitudes around IPR and open access, the widespread benefits envisioned by the Directives may be reduced to collateral damage.Footnote 183

By contrast, two counter examples of innovation (via exclusive and non-exclusive arrangements) illustrate the greater potential of commercial partnerships. First, a Van Gogh Museum and Fujifilm Belgium collaboration developed an innovative technique that combines a 3D scan with high-resolution images to produce (and sell) 3D-printed reproductions of Van Gogh paintings.Footnote 184 A second collaboration between ING, Microsoft, and the Tu Delft and Mauritshuis Museums called The Next Rembrandt used digital technologies to analyse Rembrandt’s paintings across four centuries; AI then generated a new 3D-printed Rembrandt painting.Footnote 185 In addition to the basic and complex outputs, the IPR developed from these partnerships includes new patented technologies, branding, and software for commercial exploitation.

What seems particularly unjust is when an institution reuses its public domain collection for innovative commercial projects and restricts access by claiming IPR and charging for use of basic outputs, like raw data and high-resolution photographic reproductions, and imposes photography bans.Footnote 186 In effect, the public becomes excluded from any meaningful innovation around the public domain. From an economic perspective, the public has paid to access the work during the copyright term, and for its preservation, reproduction(s), and continued maintenance by institutions. From a legal perspective, the public has paid for copyright development, consultation, and reform at international, EU, and national levels. It seems unfair that the public must pay to reuse non-original reproduction media of public domain works stewarded and digitised with public funds – and – to potentially foot that steward’s bill when suing a user to secure exclusive rights to make, authorise, and commercialise reproductions of public domain artworks. Yet this is the exact scenario that played out in REM Caselaw.Footnote 187 The following section highlights the necessary areas of focus to deter burdens around reuse of the public domain.

5.2 Recommendations and Areas of Focus

While the economic and more practical aspects will require national deliberation, Member States should acknowledge that the legal framework is currently stacked to incentivise exploiting public domain materials, rather than ensuring that open access is achieved. One obvious path towards rebalance is to increase government funding to support long-term digitization and open access goals, and, in the process, to establish positive obligations to release raw and non-original data.Footnote 188 But institutions also have an important role to play. Below, we lay out a number of recommendations for Member States and heritage institutions.

5.2.1 Member States

Member States should broadly counter any resistance by providing the necessary legal teeth and transposing a public right to enforcement of Art. 14. This could be achieved via PSID provisions. Recitals 41–42 and Art. 4 envision an impartial process with means of redress to review negative decisions regarding access or high fees.Footnote 189 This process could also assess the appropriateness of IPR. Member States should therefore dedicate resources and agency to a public review body to ensure the legislative intent behind the DSM and PSI Directives is realised.

Transposition must also clarify textual gaps. First, Member States should clearly outline the non-original status of faithful photographic reproductions and transpose the text to apply to all public domain works, rather than only “works of visual art” in the public domain. Communia recently published guidelines for two possible scenarios: implementing the text as is, or going beyond the narrow scope of Art. 14.Footnote 190 This guidance, in combination with ours, would help secure greater access to all public domain reproduction media. Second, when addressing the reuse of PSI documents and DSM reproduction media, transposition should eliminate ambiguities around “non-commercial or commercial use” by transposing texts as “non-commercial and commercial use.” Third, transposition should safeguard Art. 14 by formalising contract override provisions that render void any overbroad rights claimed in T&Cs. In doing so, Member States should reinforce the aims of Recital 44 and Art. 8 PSID to ensure any necessary restrictions are “objective, proportionate and non-discriminatory” to the greatest extent. Finally, related to this, Member States should clarify that photography bans cannot be misused to prevent the reproduction of public domain works for reasons other than legitimate interests, such as protecting the artworks and visitors’ privacy or to facilitate the proper running of the institution.

EU legislation is designed to establish efficient measures for access to public domain heritage and reuse of non-original reproduction materials. Member States can informally encourage this in various ways, such as by following the Commission’s lead on open data and adopting CC0 and CC BY at national levels.Footnote 191 At the least, Member States should promote open-compliant policiesFootnote 192 and expressly discourage burdens like high fees and obstructive technical measures (e.g. watermarks or low-quality data).Footnote 193

Member States can also support institutions redesigning fee-models to reflect charges for service rather than content in line with the PSI Directive. While ROI may be important to fund future initiatives, the PSID mandates charges must be made reasonable and transparent.Footnote 194 Accordingly, transposition should formally require transparency around fees and ROI calculation. This would bring at least two benefits. First, publication will aid other institutions budgeting for digitisation and introduce competitive prices to those charged by closed private-sector business models.Footnote 195 And, second, publication will help educate the public (and the government) about the costs associated with maintaining a digital collection.

5.2.2 Cultural Heritage Institutions

Regardless of how transposition proceeds, open access is likely inevitable for the cultural sector.Footnote 196 Institutions should begin revising IPR policies rather waiting for DSMD and PSID consolidation. Should national legislation carry ambiguities, institutions could mitigate legal uncertainty by proactively adopting CC0 and CC BY to facilitate innovation and the cross-border exchange of public domain cultural heritage.

Institutions are ideally placed to champion the open movement and enrich the commons with freely-licensed materials.Footnote 197 This requires strengthening efforts to digitise collections and modernise open business models. One way is by assessing a project’s components for its IPR value and releasing non-original and more basic outputs. At the very least, open-compliant licenses should be adopted to allow commercial reuse in line with the Commission’s 2011 Recommendation and the PSID. Another way is to adopt service-fee-based models, which are more transparent and transfer costs to consumers during new digitisation. Institutions should explore fairer business models designed for users rather than commercial markets, and publish these new fee-models online.Footnote 198

Technical aspects must also be considered. Despite the Art. 14(4) PSID exemption to make high-value datasets available free of charge, PSI documents and reproduction media should be released as machine-readable, high-quality data whenever possible. Making materials available with rich metadata and rights information enables innovative engagement and keeps cultural materials living in our collective cultural memory.Footnote 199 This should include reducing technical burdens via open application programming interfaces (API) in standardised formats, as well as being transparent about how outputs are generated.Footnote 200

A number of online platforms and cultural data aggregators exist to release content. Institutions might use systems developed by others, like Europeana,Footnote 201 Wikimedia Commons,Footnote 202 or GitHubFootnote 203 to structure and host materials to avoid the expense of creating new platforms. This savings could extend to involving the public in digitization. Setting aside legitimate concerns around privacy and cultural sensitivity, institutions should allow visitor reproductions and cease treating photography requests as competition.Footnote 204 Outcomes shared from these initiatives can help other institutions attempting to tackle digitization and allow for the cross-pollination of knowledge and expertise among the parties involved.

Finally, it is worth noting the PSID itself can be used as a tool for Art. 14 DSMD enforcement. Individuals inside and outside of the EU have successfully obtained reproduction media from German, UK, and French institutions through freedom of information requests.Footnote 205

Despite the unsettled state of the law, the open access movement has gained momentum in the GLAM sector, with a number of institutions taking proactive steps to release reproduction media for public reuse.Footnote 206 Adopting such policies has enabled institutions to redirect labour to other operations,Footnote 207 reach new audiences globally,Footnote 208 and critically examine other questions arising around digitisation.Footnote 209 Yet, to many, the steps toward openly sharing reproduction media are still seen as radical and controversial.Footnote 210 The challenge is therefore for legal and cultural sectors to close these gaps together. Otherwise, the benefits envisioned by the DSM and PSI Directives will be compromised by sustained efforts to privatize cultural heritage materials through improper IPR claims.Footnote 211

6 Conclusion

Despite recent EU developments, the risk remains that a combination of property, contract, and (improper) IPR claims can be used to exclude the public from accessing and using both material and digital cultural heritage in the public domain. Advancements in reproduction technologies have significantly reduced the scope and latitude of individual decisions necessary to produce faithful reproductions of cultural heritage. Processes can be dictated by technical factors, such as the reproduction method, technology, or technique used, as well as by industry standards, institutional policies, and best practices. What once required creative skills, is now a more straightforward and technical process. The more digitization proceeds under these pre-determined technical conditions, the less the possibility for the reproduction to diverge from a given set of parameters and attract new IPR.

Legal frameworks have yet to account for this change. Accordingly, a number of ambiguities must be confronted to ensure important primary materials are made available for digital innovation and knowledge generation. First, lawmakers must transpose Art. 14 of the DSM Directive to broadly encompass all public domain works and clearly discourage claiming IPR in non-original, basic reproduction media. Second, during transposition of the PSI Directive, lawmakers must close the gaps that enable cultural heritage institutions to reserve reproduction media for their own private commercialization purposes and limit public access and reuse via overbroad policies. Finally, lawmakers must consider the REM Caselaw decision and discourage ancillary restrictive measures by introducing positive obligations to extend appropriate access and by establishing a public right to enforcement of Art. 14 DSMD via the PSID.