Framing Texts and Images: Critical and Posthumous Editions in the Digital Single Market

Abstract

Although Art. 14 of the Directive on Copyright in the Digital Single Market (CDSM Directive) was introduced mostly to deal with issues connected with non-original photographs of public domain works, it also impacts the protection of posthumous and critical editions. Whenever a work of visual art that belongs in the public domain becomes the object of an edition, Art. 14 CDSM Directive excludes its protection under neighbouring rights. In the case of complex works, embedding original contributions belonging to different genres, Art. 14 CDSM Directive applies only if visual elements are predominant in the given work and as long as it is not possible to exploit the work of visual art without using other contributions embedded in the complex work. At the same time, Art. 14 CDSM Directive indirectly confirms that an edition may be protected by copyright if it is original. The particularly low threshold of originality required makes the presence of copyright quite common in three-dimensional and two-dimensional reproductions of works in the public domain that can qualify as editions. Then, with reference to textual works, the limits of originality are challenged: although there is little doubt that the person preparing a critical edition faces choices, they may not necessarily be free and creative. Editorial interference with the text can be compared to findings made by historians during their research and, as such, remain unprotected by copyright. Such an edition may still be protected within the regime of the neighbouring right in those few member states that decided to implement it. Eventually, as is the case nowadays with many aspects of human activity, the future of IP protection of various editions will become murkier due to the advent of new artificial intelligence technologies. For example, models are already being developed to automate the arduous and difficult process of transcription of manuscripts, as well as to ensure appropriate restoration of works of visual art. In particular, the further rapid development of artificial intelligence may cause the neighbouring rights in editions to become at least partially obsolete if the process of preparation of editions becomes devoid of human input. And this would have an impact on the copyright presence as well.

1 Introduction

Posthumous and critical editions of different kinds of works are the unsung heroes of the humanities and social sciences. Time may damage texts and images¹ which then need to be structurally and substantially restored to be enjoyed by users. Thus, scholars step in to restore these works, according to scientific criteria,² so that the works can “talk” to the public again. In some cases, carriers of works created centuries ago remain undisclosed. Only publication makes them known to the larger public. Sometimes, original carriers exist, but they may be treasured artefacts, unavailable to the general public, or the public may not even be able to “understand” them; as a result, it is necessary to rely on an intermediary source, such as a scientific or critical edition, to become acquainted with a text or an image, a literary or artistic work, or an important historical source.³

This essay studies the interaction between Art. 14 Directive 2019/790⁴ and posthumous and critical editions in both literary works and works of visual art. The protection of editions under various regimes is not new in itself, since in some EU member states it has existed for many decades. Nonetheless, the introduction of Art. 14 CDSM Directive provokes new questions. This provision was introduced to deal mainly with issues connected with non-original photographs of public domain works. However, its wording refers to neighbouring rights. The exact scope of its impact on the protection of editions is not universally accepted, as evidenced by some voices in the literature⁵ and the decisions of some EU member states not to amend national laws to implement Art. 14 CDSM Directive.⁶ Crucially, the distinction between editions of literary works and those of the visual arts gains new importance, as only the latter are covered by the new provision. Finally, one can wonder whether some provisions that deal with critical editions have indirectly been made obsolete by the low originality threshold in EU copyright law.

Section 2 clarifies the somewhat confusing terminology concerning various types of editions, with particular focus on the notions of “posthumous” and “critical” editions. Section 3 discusses the evolution of the legal framework affecting posthumous and critical editions in EU countries. Section 4 focuses on two issues. Firstly, it discusses the major role that Art. 14 CDSM Directive may play as to the protection of editions of works of visual art within the regime of neighbouring rights. Secondly, it examines how the low threshold of originality enables many editions to remain protected via copyright, notwithstanding the room that Art. 14 CDSM Directive should create for the public domain. Section 5 concludes and pinpoints how artificial intelligence could interfere with the topic studied here.

2 Navigating the Terminology

Posthumous editions were traditionally recognised in classical scholarship as first printed editions of certain works, occurring after the death of their author(s). However, within this analysis the concept refers to cases in which a work is first disseminated only after the death of its author and only when the economic rights to it have expired. Thus, with the term “posthumous editions”, this paper refers to the so-called first editions or editiones principes.

Restorations are initiatives that aim to return a work to its original form by removing blemishes or damage. The legal status of restoration of works has been analysed several times in connection with high-profile cases involving music⁷ or ancient manuscripts.⁸ Virtually every time, the core of the dispute was whether the result of the restoration was original in the sense required by copyright law.⁹ However, the umbrella concept of restoration can be further clarified. Such clarification is needed all the more because while the EU acquis on intellectual property law does not use the term “restoration”, it explicitly mentions “critical editions” and “scientific editions”.¹⁰

The term “critical edition” refers to a work published once criticisms and corrections have been embedded in it.¹¹ An edition can qualify as critical when a work has been restored thanks to the analysis and embedding of data and other components that have been preliminarily selected. The restorers of the work explain the reasons for their choices in a text that is related to the restored work. Many editorial interventions are merged with the restored text, and therefore indistinguishable from it to the average reader. Manuscripts and old prints usually require transliteration and transcription. Although standards and customs exist, neither transliterations nor transcriptions are entirely mechanical (yet?), as both involve making choices about mapping letters or sounds to those used in a modern writing system. Also, sources on which the edition is based can be corrupted or incomplete.

This, in turn, can require introducing corrections.¹² These have traditionally been divided into two groups: emendations and conjectures. Emendations are corrections made when the person preparing the edition is sure about the necessary scope of the intervention and content. Conjectures are based on hypotheses substantiated by research results in the history of the text, the author’s tendencies, and other relevant clues. Their very name conveys uncertainty. However, the border between emendations and conjectures is blurry, so even “certain” emendations can become debatable. Diligent preparation of a critical edition requires significant knowledge and effort. The person who engages in such preparations faces choices that determine the form of the text in the edition. Although the overall goal is to arrive as close to the original as possible, it is often impossible to verify it simply because there is nothing with which to compare the result. The dream of a final, unchanging edition, editio ne varietur,¹³ is thought to be unattainable, and even works that may appear well studied may deserve renewed interest.¹⁴ Thus, the term “critical edition” refers to a very thorough work, implying both emendations and conjectures much more complex than those implied in other kinds of editions. In particular, critical editions are different from diplomatic editions, i.e. mere faithful reproductions of a work. The relationship between the term “critical edition” and “scientific edition” is more complex. The latter could be understood narrowly, as referring to editions containing some limited emendations aimed at easing access to the work by the public.¹⁵ However, according to some views both of these terms are synonyms.

The notion of critical editions seems to have been designed with reference to written texts only. However, the doctrine has expressed that it can also be interpreted broadly enough to cover other kinds of works such as artistic ones. This implies that the legal protection of editions can reasonably be extended to non-literary works too, including works of “visual art”.¹⁶ Thus, the above remarks can apply to restorations of frescos, paintings, mosaics, sculptures, photographs and, broadly speaking, to restored images.

3 The Evolution of the Legal Framework Affecting Posthumous and Critical Editions

The legal framework affecting the protection of posthumous and critical editions can be approached with two milestones in mind, i.e. 1993 and 2019. The former reference is related to Directive 93/98,¹⁷ which harmonised the scope of protection of works published posthumously and partially harmonised the protection of critical and scientific editions. The directive was codified more than 10 years later via Directive 2006/116.¹⁸ The second reference pinpoints the introduction of Art. 14 CDSM Directive.

3.1 The Protection of Editions Until 1993

The legal landscape concerning posthumous editions was quite complex before 1993. For instance, France introduced protection for posthumous works in 1805, and for posthumous theatre-related works in 1806; more precisely, protection was reserved to the activity of disclosure of an unpublished work after the death of its author(s). The French Copyright Act of 1957 maintained this approach and stated that, if the publication took place within the standard term of protection, the rights were conferred to the author’s heirs, while for later publications, the owner of the tangible object embedding the work who initiated the publication became the rightholder.¹⁹ Thus, the term of protection of posthumous works was calculated from the date they were made available to the public.²⁰ In Germany, protection was introduced for the first time in 1901. Two provisions concerned the issue. The now repealed Sec. 64(2) of the German Copyright Act²¹ extended copyright protection for 10 years if the work was published for the first time after 60 years from the author’s death.²² Also, a neighbouring right to first editions (nachgelassene Werke) was introduced in Sec. 71 Copyright Act if the first publication took place after the work entered the public domain. Poland copied the extension rule used in the German statute.²³ In Italy, protection of posthumous editions was initially introduced in 1925 and then confirmed in 1941; it was granted by Art. 31 of the Italian Copyright Act which offered protection to works published within 20 years of the death of the author.²⁴ In the UK, some protection for posthumous works has been granted under common law since the 19th century;²⁵ later, protection was governed by Art. 17 of the UK Copyright Act of 1911. On the other hand, some countries, such as Denmark, Finland, Sweden, and Portugal, provided no specific protection for works published posthumously.²⁶

At the end of the term of protection of critical and scientific editions, national solutions were also provided at first. A neighbouring right to critical and scientific editions was explicitly introduced under the German Copyright Act in 1965,²⁷ once its conceptual foundations were laid out in earlier scholarship and case law.²⁸ Protection equivalent to copyright was granted for editions that resulted from a scholarly activity and differed significantly from previously known editions. Initially, it lasted for 10 years after the preparation of the edition or after its publication if it occurred during the initial 10-year period. At the same time, national case law shows that copyright protection of critical editions was recognised in different countries at the European level. To name a few examples: in 1990, the Court of Appeal (Kammergericht) in Berlin ruled that a critical edition of Arthur Schopenhauer’s philosophical works was protected by copyright. The court credited the editor with the modernisation of the spelling and punctuation, correcting some translations, removing errors that appeared in original prints and putting Schopenhauer’s writing in the correct order. The crucial part of the court’s arguments rested on the observation that the editor was forced to rely on his knowledge of Schopenhauer’s philosophy when he made conjectures and emendations.²⁹ In 1993, the Warsaw Court of Appeal in Poland treated an edition of the epic poem “Pan Tadeusz” as a derivative work. However, it appears from the justification of the judgment that the status of the edition was not strongly contested by either party.³⁰ In Italy, before the transposition of Art. 5 of the Term Directive, no protection was foreseen for critical editions, since the case law and most of the commentators tended to exclude their protection under copyright.³¹

3.2 The Term Directive of 1993

3.2.1 The Impact of the Term Directive on Posthumous Editions

The Term Directive of 1993 forced the member states to abandon term extensions provided for posthumous works. According to its Art. 4, member states are obliged to grant protection equivalent to the author’s economic rights to anyone who, for the first time, lawfully published or lawfully communicated a previously unpublished work to the public.³² Such publication or communication must generally occur after the expiry of the general period of protection. The same applies to works that have never been protected by copyright.³³ The protection does not depend on the genre or character of the work in question, and thus applies to literary, artistic and all other kinds of works. It lasts for 25 years from the time when the work was “first lawfully published or lawfully communicated to the public”.

The relative scarcity of national cases involving the right described in Art. 4 of the Term Directive might discourage paying attention to it. However, the few disputes that arose involved cultural objects of vast significance. Two German cases may illustrate this point: one concerning rediscovered sheet music containing a musical composition of one of the operas by Antonio Vivaldi,³⁴ another involving the Nebra Sky Disc,³⁵ one of the oldest known depictions of the night sky, which entered the UNESCO Memory of the World registry in 2013 and was described as “one of the most important archaeological finds of the past century”.³⁶ And also, according to the provision referred to here, no creative input or significant investment is needed to effectively re-monopolise such a public-domain object. That alone justifies further interest and discussion of the right in question with the new Art. 14 of the CDSM Directive, which will be discussed in the following paragraphs.

3.2.2 The Impact of the Term Directive on Critical Editions

Article 5 of the Term Directive allows the member state to protect critical and scientific publications of works that have come into the public domain for up to 30 years after the first lawful publication. Very few member states decided to exercise the option to introduce such a right, which contributed to increasing “disharmonisation”³⁷ at the European Union level. This group includes Estonia,³⁸ Germany,³⁹ Italy,⁴⁰ Poland,⁴¹ Portugal⁴² and Slovenia.⁴³ National provisions are not identical though. As an example, Italian law protects critical editions, while it does not protect scientific or diplomatic editions.⁴⁴ In comparison, German law only uses the term “scientific edition”, but it is interpreted as an umbrella term, covering both the scientific and critical editions mentioned in Art. 5 of the Term Directive.⁴⁵ Polish law refers either to “critical and scientific editions” or to “critical or scientific editions”, which provokes questions about the relationship between these terms.⁴⁶

Moreover, there are subtle differences between the prerequisites for protection. Most importantly, only editions that differ substantially from those known previously are protected in Germany⁴⁷ and Slovenia.⁴⁸ In other national provisions this requirement is not explicitly mentioned, although some scholars argue that it should apply nonetheless.⁴⁹ However, the common denominator is that, in order to be protected, the edition must be a result of diligent academic activity.⁵⁰ The introduction of local rules transposing Art. 5 of the Term Directive does not take away all the room for copyright. Firstly, copyright is still available for original editions as an alternative to the neighbouring right discussed here (such as in Italy⁵¹ or Poland⁵²). Secondly, it is the unique form of protection for editions in countries that did not transpose this provision by introducing a neighbouring right, such as France.⁵³

These lines suggest that aside from some concerns about disharmonisation alone, the protection of posthumous and critical editions introduced by the Term Directive does not seem to have attracted any particular attention in the doctrine over the last three decades. However, the importance of certain provisions should also be analysed qualitatively, and again, the (admittedly few) cases concerning posthumous and critical editions, decided in the EU member states over the past few decades, involved significant objects of cultural heritage. Twenty-six years after the introduction of the rights discussed here, the European legislature elaborated a provision in the CDSM Directive that aims at fostering room for the public domain (supposedly), i.e. Art. 14. This new provision may raise some questions as to the systematic interpretation of the protection of posthumous and critical editions. So, it becomes essential to take an in-depth look at the interface between Art. 14 CDSM Directive, neighbouring rights and copyright on the editions studied here.

4 The Influence of Art. 14 CDSM Directive on Different Kinds of Editions

4.1 The Directive on Copyright in the Digital Single Market of 2019

According to Art. 14 of the CDSM Directive:

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.

One of the primary goals of Art. 14 is to reduce legal uncertainty among users of public domain works.⁵⁴ Concretely, it aims to limit the protection of reproduction of works of visual art that are in the public domain,⁵⁵ to the extent that contractual provisions do not derogate from it. Works of visual art⁵⁶ include at least some works mentioned in the Berne Convention under Art. 2(1),⁵⁷ but also in Annex 3 of Directive 2012/28/EU.⁵⁸ This means that all works that can be enjoyed via sight are covered by Art. 14, thus including graphic works, drawings, paintings, sculptures, designs, and photographs, but also audio-visual works and so on.⁵⁹ The public domain is composed of the set of information that can be used indiscriminately. This term is regularly addressed from a copyright perspective, and only recently – thanks to the attention raised by the same Art. 14 – has a more holistic approach been pointed out, and reference is also made to other legal instruments, such as rules on cultural heritage,⁶⁰ contractual provisions⁶¹ and other IPRs. The issues raised by Art. 14 are related to the scope of application of the public domain. Some remarks as to the contours that Art. 14 consolidates have been addressed by the doctrine recently,⁶² but the literature shows that the inconsistency of the public domain has already been confirmed.⁶³ In particular, not only contractual measures – which can easily derogate from Art. 14 – but also some national cultural heritage provisions that impose payment of a fee for exploiting any cultural good, including those embedding works of (visual) art that are in the public domain under a control-based approach, such as the Italian and the Greek ones, could substantially negate the impact of Art. 14.⁶⁴

Member states transposed it in slightly different ways. Some countries copied and pasted it. This is the case of Art. 72 of the Spanish implementation.⁶⁵ The same solution was adopted by Italy, which introduced a new Art. 32^quater into the Italian Copyright Act;⁶⁶ however, it is worth noting that this new rule also refers to principles on the exploitation of cultural goods, on which a few remarks will be shared below. Other countries, such as France,⁶⁷ Belgium,⁶⁸ Ireland, the Netherlands, and Slovenia, did not transpose Art. 14 because they considered the current legal framework to be already compliant with the newly introduced rule. At this stage, Poland does not plan to implement it either.⁶⁹ In Germany, Sec. 68 Copyright Act states that reproductions of public domain works cannot be protected by the related rights of Parts 2 and 3 of the same text, while it does not mention copyright. All this leads to some discretion left in the hands of national courts – and consequently some divergence in the interpretation of the principle. More precisely, it is expected that this divergence will be connected to the interpretation of the notion of originality.

Neighbouring rights covering literary works are not affected by Art. 14 CDSM Directive. With reference to the works of visual art, the most intuitive connection between Art. 14 and neighbouring rights concerns the protection of non-creative photographs of works of visual art.⁷⁰ However, it is a common opinion that other neighbouring rights are also connected to reproductions of visual art and could therefore fall under Art. 14 CDSM Directive.⁷¹ Among these connections, it is possible to count those with Arts. 4 and 5 of the Term Directive. At the same time, neither of these rights was in the focus of the discussion that preceded the adoption of Art. 14 CDSM Directive.⁷²

One more remark is necessary here. Some qualify the right under Art. 4 Term Directive not as a neighbouring (related) right, but as another specific regime.⁷³ Consequently, it could be argued that the right to posthumous editions should be excluded from this discussion, because Art. 14 CDSM Directive only specifically rejects protection under “copyright or related rights”.⁷⁴ We believe that Art. 14 CDSM Directive remains relevant regardless of the exact nature of the right to posthumous editions. Whether it is a neighbouring right or not, it remains an exclusive intellectual property right envisioned to cover public domain objects, i.e. exactly the type of right to which Art. 14 CDSM Directive was supposed to apply.

4.2 Works of Visual Art and Editions, and Art. 14 CDSM Directive

Both literary works and works of visual art could be objects of posthumous editions. The Nebra Sky Disc case⁷⁵ provides an excellent example of an edition of a work of enormous cultural importance which can be undisputedly qualified as belonging to the visual arts. Any painting or fresco still covered by dust in Pompeii or Paphos, once published, could be considered as a posthumous edition as well. The connection between works of visual art and critical editions may look a little less obvious at first glance. However, the literature has shown that it is possible to consider the restoration of works – including works of visual art – as critical or scientific editions.⁷⁶

The Term Directive does not explicitly mention the purpose of the right to posthumous editions mentioned in its Art. 4. However, according to the opinio communis, this form of protection was introduced to incentivise efforts to make works available.⁷⁷ This sentiment persists, as evidenced by the opinion expressed by Paul Torremans, according to whom Art. 14 CDSM Directive should not apply to works published or communicated for the first time once already in the public domain,⁷⁸ because it would affect the incentive provided by the neighbouring right and have a detrimental impact on the divulgation of unpublished works.

In line with this opinion, it is true that disclosure via the posthumous edition can have an impact on the moral right of disclosure in countries where this has a moral-right nature, such as in France⁷⁹ or Poland.⁸⁰ However, it is worth considering that some works of visual art may have been created earlier than the introduction of copyright, and therefore moral rights may not be at stake. In addition, even though this would complicate the ability to divulgate the so far unpublished works of visual art, and might affect the number of cases in court, it does not seem a sufficient legal reason for preventing Art. 14 CDSM Directive from applying.

On the other hand, it is possible to state at first glance that the interference of Art. 14 CDSM Directive with works of visual art published for the first time when already in the public domain would introduce an unjustified discriminatory treatment compared to works of a different nature. However, Art. 4 Term Directive was originally introduced before the digital advent and therefore when the chances of publishing works of visual art were more limited. Now, with the explosion of digital technology, the costs of publishing or communicating a work to the public for the first time can be negligible which, if anything, reduces the rationale behind Art. 4 Term Directive.⁸¹ Also, thanks to the increasing demand for visual works, the costs for affording a new publication may be more easily justified by the revenues generated by subsequent exploitation, and the general affordance-related costs are completely different. Thus, a different treatment between works subject to the protection of posthumous editions and visual works not subject to it because of Art. 14 CDSM Directive may be more easily justified.

Finally, a general argument favouring the interference of Art. 14 CDSM Directive with posthumous editions may be advanced. It is questionable whether the incentive underpinning the exclusive right to posthumous editions is still suitable in the data-sharing era, since it was introduced in a timeframe whose main feature was the culture of control. Moreover, neither Art. 14 CDSM Directive nor any other provision of the CDSM Directive suggests that edition rights should not be affected. To the contrary, the Term Directive is not expressly mentioned in Art. 1(2) CDSM Directive among those directives remaining untouched by the new provisions.

The question may arise, however, with reference to editions of works that are complex and embed works of visual art as well as works of another nature, such as printed or online literary works with illustrations. Does Art. 14 CDSM Directive apply to parts of these mixed, complex works that belong to the visual arts and are separable from the whole, or are such works not covered by Art. 14 CDSM Directive at all? In such a case, it seems reasonable to let works of visual art that are separable from the literary work fall under Art. 14 CDSM Directive. As an example, any printed book on art history is a literary work that contains photographs, i.e. works of visual art. In this case, Art. 14 CDSM Directive applies to works of visual art, i.e. photographs, and does not cover literary works, i.e. the printed book.

The principle remains the same as for complex works, embedding original contributions of a different nature and genre. Article 14 CDSM Directive applies to works of visual art, thus also to those embedded in the complex work. Challenges appear when it is hard to split contributions, since it may be difficult to exploit the work of visual art without using works of another nature at the same time. Concretely, those who want to re-use the complex work may fail to respect the neighbouring rights existing in the literary works, or may forego use of the entire work, discouraged by the presence of such protection on only one part of the work. Moreover, in some cases, the same visual artefact can appear on its own or as part of a larger whole. Consequently, when used separately it would be covered by Art. 14 CDSM Directive as a work of visual art, but would be beyond its scope as part of a hybrid work. It is difficult to rationally explain such different treatments of the same work. Still, a strict interpretation of rules may need to prevail considering that Art. 14 CDSM Directive was introduced when these kinds of work were already well known by the legislature. Thus, only works of visual art fall under its scope.

However, in some cases textual and visual elements can be inseparably mixed. In these cases, it seems reasonable to take the approach that the CJEU developed in cases concerning complex works. In two cases, the CJEU had to decide which of the competing copyright regimes should be applied to a complex work, consisting of computer programs and other elements, such as text, graphics and sounds. In a case concerning video games, the CJEU noted that video games “constitute complex matter comprising not only a computer program but also graphic and sound elements” and are, as a whole, protected “in the context of the system established by Directive 2001/29”.⁸² In another case concerning e-books,⁸³ the CJEU referred to the opinion of AG Szpunar, who emphasised that an e-book is protected “because of its content, that is to say, the literary work which it contains”.⁸⁴ In each of these cases, the CJEU essentially picked one predominant type of work and applied the regime dictated by this type to the entire work. It did not attempt to split the work into separate parts (e.g. computer program and text), each governed by its proper regime. To maintain consistency, the same approach could be taken to Art. 14 CDSM Directive. It would then be necessary to exclude protection under neighbouring rights only if visual elements are predominant in the given work, and as long as it is not possible to exploit the work of visual art without using other contributions embedded in the complex work.

In short, the scope of application of Art. 14 CDSM to an edition of a complex work depends on the separability of the visual and textual elements. As an example of a practical application of the approach proposed above, a posthumous edition of a previously unpublished illuminated manuscript would arguably fall within the scope of Art. 14 CDSM Directive.

4.3 Art. 14 CDSM Directive and Copyright

While the well-described issue of lowering the threshold for copyright protection⁸⁵ does not affect posthumous editions, it prompts the question of whether the development of CJEU jurisprudence has rendered the related right to scientific or critical editions entirely irrelevant. Article 14 CDSM Directive states that reproductions of works of visual art can enjoy protection when they are original. This rule expresses a position on what has to remain in the public domain, without however solving the issue related to the scope of application of originality. As a consequence, the impact of Art. 14 CDSM Directive has to be assessed with reference to the presence of originality.

It is tempting to conclude that critical editions “are very likely to pass the originality threshold”.⁸⁶ However, such a heuristic may be treacherous and lead to overprotection. Crucially, CJEU case law provides several arguments suggesting that the status of editions from a copyright perspective is more complex. In particular, the situation may not be identical in the case of editions of literary works and editions of works of visual art.

4.3.1 Copyright Protection of Critical Editions of Literary Works

Critical editions of literary works are not homogeneous objects. Some of their elements, such as prolegomena (introductory essays) and commentaries in footnotes, can be easily detached from the body of the edited work. It is hardly debatable that such texts are protected by copyright as scientific works. Editions may also contain critical apparatus which represents the history of such text, including variants discarded in the process of preparing the edition in the form of footnotes and standardised abbreviations.⁸⁷ Depending on the complexity of the apparatus and the diligence in following standards, critical apparatus in a given edition may also be protected by copyright. However, while invaluable for researchers, it can also be easily detached from the text itself. More controversies appear with regard to elements that become merged with the text of the edited work. As mentioned earlier, these include transcriptions, transliterations and, most importantly, emendations and conjectures which are amendments in the text, introduced by editors with a varying magnitude of certainty about whether they truly correspond to the original authorial intention.⁸⁸

There is no doubt that the person preparing the edition faces choices. They decide to adopt a particular convention when making a transcription or transliteration. When introducing emendations or conjectures, they choose between competing variants based on different sources. However, it is questionable whether the choices that arise here are sufficiently free and creative. In the cases of transcription and transliteration, the decision may come down to referring to and faithfully following one of the existing standards, which may require substantial skill and effort, but essentially precludes creativity. In the case of emendation and conjecture, there is more room for interpretation, yet the range of choices is still restricted in quantity and quality.

The quantitative restrictions are caused by the availability of only a few possible wordings. The qualitative limitations, in turn, are related to the fact that each of such wordings may be more or less substantiated by research conducted by the editor.⁸⁹ In other words, for the edition to be critical or scientific, the editors are not expected to conjure words and phrases unsubstantiated by the source material they were able to gather and analyse. Thus, editorial interference with the text is comparable to findings made by historians in the course of their research.⁹⁰ The “historical finding” amounts to showing that placing a particular phrase or word in the text makes it closer to the original authorial intention. It is a piece of information derived from research, which is best presented when directly introduced into the text. This leads straight to the formula adopted by the CJEU, according to which copyright protection does not arise when information and expression become indissociable.⁹¹

This conclusion does not depend on whether the claim put forth by the editor is accurate.⁹² Such findings do not change their essence even if they are proved wrong, become outdated or abandoned as the discipline develops. Although the CJEU has not yet had the opportunity to comment on the protection of scientific (or historical) findings, the warning that monopolising ideas would be detrimental to technical progress and industrial development⁹³ applies equally to social progress which would be endangered as a result of monopolisation of the results of philological and historical research.

In practice, the line between diligent academic effort of the editors and their acting as a “co-author in disguise” may be fine. Cases are known when a work was left unfinished by the original author, and the editors ended up finishing it, based not only on rigorous analysis of the existing sources but also on their intuition.⁹⁴ That being said, the current originality standard does not allow the adoption of a general heuristic, according to which copyright protection extends, as a rule, to a scientific or critical edition of a literary work. Despite the low originality threshold in EU copyright law, the neighbouring right under Art. 5 of the Term Directive should not be discounted as a basis for protection, at least for those parts of editions that become merged with the text, such as transcriptions, transliterations, emendations and conjectures.

4.3.2 Copyright Protection of Critical Editions of Visual Art Works

Article 14 CDSM Directive is aimed at closing the debate on the protection of faithful reproductions of works of visual art in the public domain. However, it does not utterly close the door to protection, since it leaves room for copyright when reproductions are original. The debate is not new and is reminiscent of that raised by the famous Bridgeman cases.⁹⁵ The former paragraphs have already illustrated the low threshold of originality required to acquire copyright protection. As a consequence, it seems that many reproductions of works of visual art in the public domain can still enjoy copyright, considering that many jurisdictions are very generous in recognising originality in the reproduction of works. This paper has also already mentioned that restored works of visual art can be considered as editions and therefore treated in the same way as critical editions of literary works. Many of the remarks already developed in the former paragraph to determine the originality of editions of literary works can reasonably apply to works of visual art too.

Consequently, copyright can also cover critical editions in which choices have been made for restoration purposes and have been implemented in restored works of visual art. Sometimes, the restoration of a work does not occur on the original sample, but on its reproduction. For instance, reproduction of an undamaged work could contain information on the original (and actually lost) status of such a work. Reproductions of works of visual art can be two-dimensional or three-dimensional. Three-dimensional reproductions may also be static or animated. Article 14 CDSM Directive may affect two-dimensional reproductions of two-dimensional works quite easily, since it is not difficult to demonstrate the intention of being faithful and merely reproducing a work in another format for functional purposes and without any elaboration. As for two-dimensional reproductions of three-dimensional works, three-dimensional reproductions of both bi-dimensional and three-dimensional works are more likely original, since more room is left to discretion when reproducing them.

Now, when the original reproduction of an undisclosed work is available for the first time, this can qualify as an editio princeps. For instance, if a three-dimensional static reproductions of undisclosed treasures in Pompeii are made available, they can bring some cultural material to light for the first time; thus, they can be considered as original editio princeps, and enjoy protection because of their originality. Also, bi-dimensional and three-dimensional reproductions of works cannot only reproduce them, but also add information as if the reproduction was a restoration; therefore, they may qualify as an original critical edition and can thus enjoy copyright protection because of their original character. In other words, older reproductions of two-dimensional works of visual art may more easily fall into the public domain than static or dynamic three-dimensional reproductions (as the change in the format increases the space for originality⁹⁶), or than any reproduction embedding additional information on the reproduced work (which can be considered as restored).

Three-dimensional reproductions of works of visual art (also in the public domain) are of particular importance for projects such as augmented⁹⁷ or virtual reality related to cultural goods, which could typically be interpreted as critical editions of ancient works that may not be accessible to the public. The example of the use of three-dimensional reproductions to bring part of the still-covered Pompeii or Paphos sites to the public has just been made; and this could be complemented by information on the context of the “released” cultural material. One of the justifications of copyright for these original reproductions is that exclusive rights may be perceived as an incentive to investment, and therefore encourage digitisation in a three-dimensional format of cultural material that would potentially remain unavailable to the public. However, the intrinsic reason for each critical edition is to share material that risked being lost; and it is important to recall that policy actions and other provisions for preventing the loss of information related to cultural material that is part of cultural heritage may be considered as a sufficient incentive to prevention and sharing.⁹⁸ From this perspective, it is essential to remember that IPRs, including copyright (affecting original editions), have been designed to foster creativity, but when looking at the evolution of copyright, an unbalanced focus on protection and not very much on its limits has largely been demonstrated by the literature.

In addition, it is important to consider that cultural materials should not be covered by exclusive rights systematically, in order to avoid discouraging any re-use initiatives, which are essential to boost creativity and innovation, and to appropriately support some fundamental freedoms, such as the freedom of expression and that of conducting a business. As a consequence, an interpretation that does not favour an overly invasive presence of copyright on such editions – and therefore on editions of material in the public domain – could be better aligned with the purpose of sharing information, which underpins part of the protection on posthumous and critical editions, and is fostered by the current technological facilities.

However, such an interpretation to limit the presence of copyright on bi-dimensional and three-dimensional reproductions qualifying as editions would suggest proceeding according to one of the following alternative ways. The first option could be to raise the threshold of originality, although this does not seem to be the trend followed by the CJEU, at least at the current stage, as illustrated in the former paragraphs. The second alternative option could be to add additional access requirements next to originality, but this option also goes in an opposite direction compared to the CJEU case law on design in particular.⁹⁹ A different way to address the issue could be to tackle it from the perspective of evidence of originality, and thus impose stricter rules in court to prove originality of a work. This path would impose higher costs for starting a legal action, thus potentially discouraging litigation on the matter and might be viable, but it would not necessarily lead to a harmonised framework, since evidence is ruled upon at the national level. Eventually, a last alternative to circumvent the excessive presence of copyright only concerns three-dimensional reproductions that can qualify as critical editions; the idea is to qualify them not as works of art, but as engineering projects, which are protectable in specific ways under some national laws.¹⁰⁰ This last option would imply a clear policy action by courts which, for the time being, does not seem to be the case.

At the time in which this paper is written, it is possible to witness an emerging use of AI tools in different fields. At this stage, it seems that AI-generated output that does not reflect the author’s mental work is not protectable by copyright.¹⁰¹ This means that when there is room for the author’s mental work to be reflected in the output, copyright can apply.¹⁰² Therefore, a case-by-case analysis is needed to understand the exact conditions under which AI performs in a specific case. Among others, AI tools for restoration purposes exist and their use will probably increase in the upcoming months and years.¹⁰³ Should the use of AI also be authorised for digitising cultural heritage that remains hidden into a three-dimensional format, or for restoring works via digital technology,¹⁰⁴ the issue of originality may only be partially solved, while it may raise other questions as to ownership that only future case law or regulation will be able to clarify.

5 Conclusion

Although Art. 14 CDSM Directive was introduced mostly to deal with issues connected with non-original photographs of public domain works, it also impacts the protection of posthumous editions (Art. 4 Term Directive) and critical editions (Art. 5 Term Directive). Whenever a work of visual art that belongs in the public domain becomes the object of an edition, Art. 14 CDSM Directive excludes its protection under neighbouring rights. In the case of complex works, embedding original contributions belonging to a different genre (for example, text and illustrations), this paper submits that Art. 14 CDSM Directive applies only if visual elements are predominant in the given work, and as long as it is not possible to exploit the work of visual art without using another contribution embedded in the complex work.

At the same time, Art. 14 CDSM Directive indirectly confirms that an edition may be protected by copyright. However, this analysis argues that, despite the fact that the threshold for originality as defined by the CJEU is low, the neighbouring right to critical editions has not been rendered completely obsolete. The limits of originality are challenged in the case of critical editions of textual works. Although there is little doubt that the person preparing a critical edition faces choices, they may not necessarily be free and creative. Editorial interference with the text can be compared to findings made by historians in the course of their research and, as such, remain unprotected by copyright. Such an edition may still be protected under the regime of the neighbouring right from Art. 5 Term Directive in those few member states that decided to implement it. In the case of editions of works of visual art, three-dimensional reproductions and two-dimensional reproductions of three-dimensional works may easily enjoy copyright protection, in particular (but not only) when they add information on the work they reproduce and unless courts decide to qualify them as material protectable via different sets of rights in the future.

Eventually, as is the case nowadays with many aspects of human activity, the future of IP protection of various editions is becoming murkier due to the advent of new AI technologies. For example, models are already being developed to automate the arduous and difficult process of transcription of manuscripts,¹⁰⁵ as well as to restore old pictures and to elaborate three-dimensional printing models. In particular, the further rapid development of AI may yet cause the neighbouring rights and copyright for editions to become at least partially obsolete if the process of preparation of editions becomes devoid of human input. However, we are not there yet and it seems that questions will not cease to concern the protection of (AI-generated) editions in the upcoming future.