1 Introduction

Cultural heritage (CH) permeates our life. It plays a significant role in revealing and protecting objects, natural and cultural spaces, history and values, and more broadly, the identity of individuals and communities. It also influences economic and social innovation patterns, thus becoming a key topic of scholarly debate and policymaking. Overall, its public and universal nature is beyond doubt, and the need to safeguard this special public dimension should be similarly uncontested.Footnote 1 Within this framework, it is imperative to acknowledge the extraordinary role of cultural heritage institutions (CHIs) in safeguarding and enhancing access to, enjoyment and use of cultural materials by all.Footnote 2 Such awareness is crucial to achieving the full potential of the right to participate in cultural life, encompassing “participation”, “access” and “contribution” to cultural life,Footnote 3 as framed by Art. 27 of the Universal Declaration of Human Rights (UDHR) and Art. 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).Footnote 4

Nevertheless, CH is not an easy concept to address or define. There is copious literature that endeavours to bestow on it as a static contextualisation and portray it as constant as possible.Footnote 5 This interest is not a prerogative of scholarsFootnote 6 and  is often found in the increased attention of policymakers. In the latter context, CH has indeed been attributed many meanings and classifications. Beginning with the broad definitions by UNESCO in its landmark conventions,Footnote 7 CH has been variously classified as natural or cultural, tangible (material) or intangible (immaterial), with each of these distinctions trying to enclose and exhaustively depict one of its many nuances.

A notion of a “common heritage of Europe” is mooted by the Council of Europe in the most recent Framework Convention on the Value of Cultural Heritage for Society (Faro Convention),Footnote 8 which also introduces the concept of heritage community.Footnote 9 Prompting a shared social responsibility towards heritage on the part of the European Union (EU), the notion embraces the broadest scope of CH, with a dynamic and interactive nature intertwined with history and the environment. Within its wide scope, the Faro Convention foresees limitations to the exercise of private rights that may be justified in the public interest. The Convention also promotes a right to CH that includes engagement with the enrichment and enjoyment of heritage, a signal of the health of society and a better quality of life in the community.Footnote 10

Regardless of the specificity of these definitions and classifications,Footnote 11 in the attempt to adopt a more holistic approach to the subjectFootnote 12 and despite the variability that still characterises each given local context,Footnote 13 in this paper digital CH shall be understood as the digital representation of analogue tangible and intangible cultural content, as well as the process of applying digital technology and media to preserve and promote analogue CH, thus leaving the born-digital elements of CH out of the immediate scope.Footnote 14 It is true that the normative context in which CH lives and functions is the result of a complex intersection of different rules and policies, which are all to be considered if we are to understand the breadth and scope of CH’s protection and valorisation – not only CH-specific laws, but also copyright and  other intellectual property rights provisions that apply to CH, data protection, and the wider  human rights framework. All of these bear different concurrent and often competing or conflicting interests.Footnote 15

However, the in-depth appreciation of all the above elements is beyond the scope of this paper. For the present study, the foremost focus of the analysis is therefore on one aspect, namely the copyright acquis, seen as either the major obstacle to or enabler of the ideally open-oriented dimension of digital CH. This binary attitude interestingly echoes the two-fold line of intervention by the EU. On the one hand, in the field of CH as such, it essentially defers to national rules, although still within the broader framework of international law that largely sets the stage for the protection and development of CH. On the other hand, on the grounds of copyright and data protection, whose protection is also articulated at national and supranational levels, it plausibly intervenes with stronger emphasis and regulative actions.

Following these introductory notes, the paper is structured as follows. The Section 2 offers a synthesis of the strategies of the EU, revealed by a growing body of legislative and policy initiatives which in different ways influence the appreciation of digital CH and the prospects of its unconstrained access and reuse. This sets the background for the subsequent analysis in Section 3, which explores the EU and national copyright framework for CH, focusing on exceptions and limitations (E&Ls) to enable access to and use of cultural content. It also touches upon the public domain when discussing the reproduction of public domain works of visual art and the impact of paying for the public domain on access to and use of CH. A fundamental backdrop for the study relates to the still limited harmonisation of the regulatory framework across the EU.

To this extent, two exemplary issues are chosen to illustrate the two main and somewhat conflicting approaches of the EU towards access to and use of CH. Hence, Section 4  focuses on the optional “freedom of panorama” (FoP) exception provided by Art. 5(3)(h) of Directive 2001/29/EC (InfoSoc), which permits the digital reproduction of works located in public spaces.Footnote 16 Section 5 discusses the more recently introduced Art. 14 of Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (CDSMD) as a mandatory rule on the reproduction of works of visual art in the public domain.Footnote 17 This precise choice also responds to the need and opportunity to find a middle analysis ground from the research undertaken in the project from which this paper originates, as the two issues cover the angles of both the end-user and the CHIs or Galleries, Libraries, Archives and Museums (GLAM) perspectives and focus on their impact on public enjoyment of CH.Footnote 18

Similarly, in terms of methodology, the paper builds on the legal mapping undertaken by the reCreating Europe project to provide an overview of selected Member States (MSs): Austria, Germany, Greece, Hungary, Ireland, Italy and Lithuania. The criteria for the selection include the material scope of E&Ls, the intersection with other copyright norms and cultural heritage laws, and case law on the topics of interest. While highlighting differences and similarities in terms of their material scope, permitted acts, and limitations, the work seeks to outline possible intersections between these provisions. For completeness, other copyright-related issues that impact (digital) CH will be mentioned, namely orphan works, out-of-commerce works, and the digital preservation of CH, although not as extensively as the two aforementioned exemplary provisions.

What emerges in the conclusions is the confirmation of the significant impact that cultural heritage-related provisions, within the exemplary context of the copyright rules considered here, can have on the objective of safeguarding and enhancing access to, enjoyment and use of cultural materials by all. Acknowledging the complexity of the regulatory framework, the paper suggests future trajectories for a balanced and meaningful assessment of interests in the context of digital CH, leading to the full realisation of the universal right to participate in cultural life.

2 Digital Cultural Heritage: An Overview of the EU Agenda, Policies and Law

The regulatory framework affecting CH, including and especially its digital form, features the coexistence of heterogeneous norms and standards. At supranational level, numerous instruments are dedicated to safeguarding and promoting CH in all its nuances. The first to come to mind is the far-reaching UNESCO conventions that have, since the 1950s, have shaped individual national approaches and policies towards CH, and that in some cases have also been ratified by the EU.Footnote 19

The EU has indeed maintained a distinctive approach towards the protection and enhancement of CH with its own instruments aimed at supporting the national initiatives of MSs,Footnote 20 the latest being the aforesaid Faro Convention.Footnote 21 Most interestingly for this paper, the Convention considers the interaction between access to (broadly meant as including engagement with) CH and economic progress, against the backdrop of rapid digital developments. Acknowledging the problem of finding a fair balance of interests, which arguably goes beyond the CH sector, it advocates seeking a fair accommodation of the need to grant the greatest possible free access to cultural materials with the need to provide creators or owners with fair rewards.Footnote 22 However, it provides no further guidance on achieving this difficult but essential compromise.

Indeed, any consideration regarding the regulatory framework and, overall, the EU’s strategic plans for the protection and promotion of CH, necessarily implies adopting some premises regarding the EU system of competencies in the matter, which are strictly limited to supporting MSs and their cooperation in pursuing the goal of safeguarding and enhancing CH. This peculiar setting largely depends on the traditional conception of CH as belonging to the national political sphere. Therefore, no specific competencies support the EU agenda, although this does not exclude a solid commitment to oversee and guide MSs in the process. In this sense, the EU could for instance use Art. 6c of the Treaty on the Functioning of the European Union (TFEU) to take actions to support, coordinate and supplement the activities of MSs. Article 167 TFEU also encourages cooperation between MSs and with third countries. Such a pledge is also in line with Art. 3 of the Treaty on European Union (TEU), according to which the EU contributes to the development of the cultures of MSs, and supports the development of a common European CH. Given this limited scope of intervention, the EU measures are still mainly limited to soft law instruments such as communications, recommendations and resolutions, all contributing to the European agenda for culture.Footnote 23 And yet, alongside the aforesaid initiatives that signalled the interest of the Commission and the Committee in influencing and coordinating the national laws on the matter, the EU has shown, over the years, an increased interest in promoting actions that provide concrete support to the safeguarding and valorisation of CH in Europe, mostly through transnational cooperation and research activities.

Despite the aforesaid uncertainties, in theory, the direction delineated by the EU appears established and well-defined. The idea that CH deserves careful attention is also reinforced by the need to ensure that it is given special consideration in the digital framework. To this extent, the EU has been quite proactive in addressing the specific subject of digital CH, especially encouraging MSs to adopt measures to promote digitisation and ensure access to and use of digital cultural material. This was pursued through the adoption of the Recommendations on the digitisation and online accessibility of cultural material and digital preservation of 2006 and 2011.Footnote 24 At the same time, the EU goes beyond digitised cultural material and reinforces its proactiveness with the Recommendation on Common Data Space for the cultural sector of 2021,Footnote 25 which fits in its wider data strategy,Footnote 26 and it has recently set up the common European data space for CH, aimed at expediting digital cultural transformation and promoting the creation and reuse of content in the cultural and creative sectors and which is being deployed by a consortium led by Europeana.Footnote 27

The EU agenda for creating a digital cultural space can be read in tandem with the reforms in the EU copyright acquis. Indeed, it paved the way for the modernisation of EU copyright law, also in parallel with the WIPO-administered internet treaties,Footnote 28 through the formulation of specific provisions targeting the digitisation and online accessibility of CH.Footnote 29 Launched in 2000 with the Lisbon strategy and the eEurope 2002 action plan,Footnote 30 the socio-political discourse concerning the EU’s transition to a knowledge-based economy model has ultimately emphasised “digitisation, online accessibility and digital preservation of Europe’s collective memory,”Footnote 31 comprising in-print materials (books, journals, newspapers), photographs, museum objects, archival documents and audio-visual materials.

Considering all this, the EU has been relatively active in the harmonisation of copyright and the regulation of data that still had a direct or indirect impact on (digital) CH. By exercising its specific competence to boost the EU single market, the Union has adopted several directives aimed at harmonising copyright at both vertical and horizontal levels. On the one hand, these initiatives have, to varying degrees, reinforced the exclusive rights of the copyright holders, and on the other, cautiously expanded the more limited E&Ls to copyright that benefit specific categories of users or the wider public. As far as concerns the latter, the main points of reference are the InfoSoc Directive, which introduced mainly non-mandatory exceptions to the rights of reproduction and communication and making available to the public,Footnote 32 and the CDSMD, which extended the list of E&Ls by adding a number of mandatory ones expressly aimed at making copyright fit for the new digital challenges.Footnote 33 Both instruments contain provisions relevant to (digital) CH, with a specific impact on its access and use practices.

Directive 2012/28/EU (Orphan Works Directive, OWD) is also worth noting, for it facilitates the digitisation, preservation, digital availability and accessibility of works and other subject-matter contained in the collection of CHIs which are essential to the European cultural space yet whose authors cannot be identified or located through a diligent search. Above all, the OWD remains to date the most criticised EU directive for its exceedingly complicated operation resulting in a minimal application,Footnote 34 which, instead of clarifying the regulatory framework, adds further legal uncertainty.Footnote 35

In addition to copyright, the EU exercises specific competence in the field of public sector information, such as with Directive 2003/98/EC (Public Sector Information, PSI) and its subsequent reform. Particularly after 2013, when some cultural entities were included in its material scope, PSI has played a relevant role in mandating that documents within the scope of the Directive, now including cultural data, shall be re-usable with no constraints other than those expressly contemplated. This has been confirmed by the latest Directive 2019/1024, (Open Data Directive, ODD), the recitals of which deliberately address digital CH to reaffirm the principle that public domain material, once digitised, should stay in the public domain, and to emphasise the noteworthy value of digital cultural resources held by CHIs, which, together with their metadata, have a massive potential for innovative re-use.Footnote 36

Within such an articulated framework, the intersection of different rules from CH law, copyright law and data regulation, where the role of each normative element or its primacy over another in the event of conflict, remains unclear. For instance, in some cases, the opportunity afforded by copyright E&Ls may be relatively constrained if not nullified by national rules dedicated to CH. As will be illustrated, this is particularly true regarding the implementation of Art. 14 CDSMD by some Member States, and is also the case with other provisions comprising the broader EU copyright framework.

3 A Narrow Overview of the EU Copyright Rules Relevant to Digital Cultural Heritage

With the initiatives commenced in 2005 for the launch of digital libraries,Footnote 37 a significant portion of the EU’s attempts to adjust the existing copyright rules was aimed at eliminating the complications imposed by the so-called “20th century black hole.”Footnote 38 Given that only part of the materials in the collections of CHIs and GLAM was in the public domain,Footnote 39 the majority of E&Ls deliberately addressed these institutions, emphasising the central role of CHIs in preserving and maintaining CH for future generations and facilitating the public’s engagement with and enjoyment of culture. In such a legal landscape, some copyright provisions, e.g. FoP and the reproduction of public domain visual artworks, stand out for their focus on end-users by directly concentrating on the public's access to and use of CH. For this reason, this section spotlights the broader copyright context in which the two said provisions function for both CHIs and end-users, ultimately supporting the idea that their proper implementation may provide a primer for the EU public’s right to access to culture and participate in cultural life.Footnote 40

The InfoSoc Directive plays a pivotal role in the provision of direct public access to CH as such, as it constitutes a cornerstone of the EU copyright acquis and contains the most extensive set of copyright E&Ls. Despite primarily being optional, the bundle of E&Ls encompassed by the Directive either directly or indirectly empowers members of the public by giving them access to and use of in-copyright and digital elements of CH. For instance, Art. 5(2)(a) of the Directive allows the reproduction of works, except for sheet music, on paper or any other similar material through reprographic reproduction techniques, such as photography or photocopying. Similarly, Art. 5(2)(b) permits the reproduction of works on any medium, if it is for private use and does not serve any direct or indirect commercial purpose.Footnote 41

In addition, there are E&Ls dedicated to enabling the participation of members of the public in cultural life by creatively engaging with CH. Besides FoP, which is analysed in detail in section three below, Art. 5(3)(d) InfoSoc allows the quotation of excerpts from a work that has been lawfully made available to the public, provided the quotation is for the purpose of criticism or review.Footnote 42 Along the same line, Art. 5(3)(k) helps foster creativity by allowing the public to use an in-copyright work to produce a parody, pastiche, or caricature. Lastly, Art. 5(3)(i) provides for the inclusion by anyone of a work or object of related rights in other material, if this use is not intended for the faithful reproduction of such works or other subject-matter but constitutes an “incidental” use of such.

To reinforce the public’s access to CH, the InfoSoc Directive also pays special attention to the role of CHIs and includes several E&Ls addressed to these institutions that are indirectly but indeed crucial to making CH more accessible to members of society. For instance, Art. 5(2)(c) InfoSoc contains a broadly worded provision allowing CHIs to reproduce works, unless for direct or indirect economic or commercial purposes. While this provision applies mainly to the preservation and indexing practices of CHIs, as they do not have an external aspect (e.g. making available to the public), Art. 5(3)(n) InfoSoc provides the legal basis for public access to works and other subject-matter not subject to purchase or licensing terms, for research and private study purposes; however, this use must be at the dedicated terminals on the premises of such publicly accessible institutions.Footnote 43

This latter group of E&Ls seems to have informed the EU’s approach in setting up new categories of copyright rules, given that the Directives that followed InfoSoc (with the sole exception of the Marrakesh Directive) focus mainly on CHIs or other public entities that play an intermediary role in the public’s engagement with CH. Following this trend, Directive 2006/115/ECFootnote 44 (Rental Directive) contains a provision that does not explicitly mention CHIs but encourages MSs to provide for a legal regulation enabling the public lending of works and other subject-matter, along with corresponding remuneration for the authors and rightsholders.Footnote 45 The OWDFootnote 46 introduces copyright rules primarily addressed to CHIs, given their ability to reproduce and disseminate cultural content. Dedicated to promoting access to works and other subject-matter whose authors cannot be identified or located,Footnote 47 it enables CHIs to open their permanent collections to the public simply by enabling them to reproduce and make available to the public certain types of works, such as books, journals, newspapers, magazines and other similar writings, cinematographic works and phonograms, as well as works and other subject-matter embedded or incorporated in any of these works or phonograms.Footnote 48 However, the OWD was doomed ab initio and, having become the object of widespread criticism, remains largely unapplied.Footnote 49

Enhancing access to works no longer in commercial circulation has also been on the EU’s cultural and copyright agenda. Initially consolidated in a non-binding resolution agreed upon with CHIs,Footnote 50 the pressing issue of out-of-commerce works is encompassed by CDSMD.Footnote 51 Article 8(1) CDSMD is dedicated to the extended collective licensing mechanism. It envisions a non-exhaustive licence to be concluded between collective management organisations (CMOs) and CHIs to allow the latter to reproduce, distribute, communicate or make available to the public out-of-commerce works and other subject-matter permanently in their collections, however only for non-commercial purposes. Article 8(2) CDSMD then introduces a mandatory exception to help CHIs achieve the same end without a licence agreement. The same provision requires the attribution of the author or any other identifiable rightsholders while permitting the disclosure of out-of-commerce works on non-commercial websites.

The regulations on out-of-commerce works are not the only E&Ls included in the CDSMD that target the accessibility of CH under copyright protection. In particular, Art. 6 CDSMD, once again addressed to CHIs, provides for a mandatory exception permitting the reproduction, including digitisation, of works and other subject-matter contained in these institutions’ permanent collections. While remaining within the boundaries previously set by Art. 5(2)(c) InfoSoc, this provision no longer requires a non-commercial intent. Neither does it adopt a technologically neutral language, but opens up the possibility of digital reproduction and preservation, although only for the internal use of the institutions concerned.

Compared to the EU copyright rules concerning the in-copyright elements of CH, those dealing with the CH in the public domain constitute a more limited legislative attempt, which enhances the discretion of MSs to build a legal framework shaped according to national cultural policies and priorities.

Directive 2006/116/ECFootnote 52 (Term Directive) constitutes the main legal instrument in this context; even though it does not necessarily “regulate”, it contours certain aspects of the limits of the public domain. Given its overarching aims and objectives, it clearly expresses an interest in longer terms of copyright protection and related rights compared to those set by the WIPO-administered treaties.Footnote 53 Thus, it contributes to achieving a smoothly functioning single marketFootnote 54 by harmonising the term of protection for copyright and related rights to performances, phonograms, first fixations of film and broadcasts, while also standardising the calculation of the term of protection as such.Footnote 55 However, it must also be acknowledged that the Directive introduces certain regulations that risk shrinking the public domain, as it enables the revival of copyright in previously unpublished works that are in the public domain as well as critical and scientific publications of works in the public domain, for 25 and 30 years respectively from the time the work was first lawfully published or lawfully communicated to the public.Footnote 56

Further, Directive 2009/24/ECFootnote 57 (Software Directive) implicitly adds to the public domain, as Art. 1(2) of the Directive excludes from copyright protection the ideas and principles that underlie the elements of a computer program, including those that underlie the interfaces of the software. Most recently, Art. 14 CDSMD, which will be critically assessed under section four of this paper, introduces another EU provision that expressly addresses the public domain. However, it only relates to a minimal aspect of it.

As a final remark on the assessment of the public domain in the EU legal context, it is also worth noting that for the time being the national laws of five MSs provide for a paying public domain scheme.Footnote 58 The features of these schemes vary from country to country, thus imposing certain further complications on end-users’ unrestricted reuse of cultural content already allocated to the public domain.Footnote 59

In the absence of any concrete supranational intervention to contour the regulations on the intersecting borders of the public space and public domain, Art. 5(3)(h) InfoSoc and Art. 14 CDSMD constitute the key legislative tools to improve public engagement with CH, particularly through digital platforms, because not only are both provisions products of the EU’s digital agenda, they are also addressed to the end-users of cultural content. For this reason, the remainder of this paper investigates the interplay of, first, the in-copyright elements of CH and FoP, and then, the out-of-copyright features of CH and Art. 14 CDSMD, critically analysing their potential to facilitate public access to CH in public spaces and the public domain.

Both provisions reveal the potential for an increasing right to culture in the context of digital CH. However, to attain this goal, they should be construed and applied with the broadmindedness that has been praised here, which also implies taking account of their systematic application in the broader legal framework. First, to the extent they target cultural heritage, both dispositions can be impacted by CH laws that may frustrate the objective of enhancing access and use, which would suggest specific normative interventions to overcome potential conflicts. Second, the interplay of these provisions with other legal domains, such as data regulation, must be taken into consideration, especially for drawing the limits of the publicly accessible space as well as the public domain. Third, FoP and the reproduction of public domain art should be interpreted in the broadest way possible to guarantee that the objectives they pursue are satisfied.

4 Freedom of Panorama

FoP is a long-standing element in the European copyright tradition. FoP, or Panoramafreiheit, was articulated and first used as a legal concept in the 1990s in the Swiss legal context; nevertheless, the origins of FoP as a legal reality can be traced back to the early stages of German copyright discourse.Footnote 60 It was first introduced into German copyright law in 1840 by the proclamation issued by the Kingdom of BavariaFootnote 61 and ratified by the Kunsturhebergesetz of 1876 (KUG 1876).Footnote 62 Against this backdrop, FoP can be acknowledged as an archetypal legislative  endevour to strike a balance between the authors’ copyright and the interests of the public at large, given that it was a response to the advances in mechanical reproduction enabled by technology such as industrial printing presses, photography and lithography.Footnote 63 Indeed, according to Sec. 6(2) KUG 1876, FoP constitutes an exception to the copyright of authors whose works of fine art are permanently located in public places.Footnote 64 This provision was aimed at enabling the reproduction of works as such, without the authorisation and remuneration of the author, except for the cases in which the reproduced work is in the same form as the original.Footnote 65

FoP as a copyright exception spread beyond the borders of the German Empire and was transplanted into the laws of several other European countries.Footnote 66 Despite this recognition, it was not included in the Berne Convention for the Protection of Literary and Artistic Works of 1886 (Berne).Footnote 67 Nor was Art. 9(2) Berne sufficient for the signatory States to adopt copyright E&Ls corresponding to that of Panoramafreiheit.Footnote 68 The situation was exacerbated with the gradual advance of digital technologies and widespread cultural content through the internet since these events have led to the national courts employing the three-step test to limit FoP and thus end-users’ participation in digital culture by generating and sharing digital content. Indeed, in the notorious Wikimedia case,Footnote 69 the Swedish Supreme Court applied the three-step test to rule that the exploitation of images of visual works in outdoor public spaces through online content-sharing platforms does not fall under FoP – even if the act does not have an economic return.Footnote 70 These circumstances show that end-users, as succinctly explained by Felix Reda, seem to have no option but to determine whether a publicly located work is copyright protected and to have sound knowledge of licensing systems, especially if they want to enjoy their fundamental cultural rights and freedoms.Footnote 71 As is evident from the Wikimedia case, the lack of a uniform approach in recognising and adopting an FoP exception, which would also take account of the particularities of the digital era, fails to prevent the legal liability of these stakeholders as well as online sharing platforms for copyright infringement, and even less does it secure for end-users freedom of expression and participation in cultural life, especially in the digitised world.Footnote 72

Despite the prevailing silence of the primary IP treaties on FoP, at the time being most of the EU MSs provide for an E&L to copyright to guarantee FoP. This pan-European recognition of FoP has been achieved mainly by the EU harmonisation endeavours, which paved the way for the consolidation of FoP in the InfoSoc Directive. FoP was encapsulated in Art. 5(3)(h) Infosoc, which is formulated as one of the optional E&Ls to the copyright it encompasses. This provision encourages the MSs to adopt legal regulations facilitating the “use of works, such as works of architecture or sculpture, made to be located permanently in public spaces,”Footnote 73 by introducing exceptions to the author’s exclusive right to reproduction and right of communication to the public.Footnote 74 For this provision, an exception to the author’s right to reproduction is to be understood as any act of reproduction that would lead to “direct or indirect, temporary or permanent reproduction by any means and in any form”Footnote 75 and which would copy the work in whole or part.Footnote 76 Similarly, the exception to the right of communication to the public shall be perceived in its broadest sense, including communication by “wire or wireless means, including those that may allow the members of the public to access the work from a place and at a time individually chosen by them.”Footnote 77

Although Art. 5(3)(h) InfoSoc comprises a broadly formulated legal provision, this exception is subject to the general restrictions imposed on all of the E&Ls provided by the Directive. Indeed, Art. 5(5) InfoSoc, by codifying the three-step test of the Berne Convention,Footnote 78 requires that all E&Ls to copyright (and to related rights) encapsulated within the Directive comply with this test. Aimed at balancing the private interests of the author against the public’s interest in using the copyrighted work (or other protected subject-matter), Art. 5(5) requires MSs to apply the E&Ls, including FoP, “only in certain special cases which do not conflict with a normal exploitation of the work (…) and [which] do not unreasonably prejudice the legitimate interests of the rightsholder.”Footnote 79 Except for the three-step test, Art. 5(3)(h) InfoSoc does not impose any additional restrictions on the scope of FoP. Instead, it leaves a margin of discretion to the MSs, which allows account to be taken of their unique national cultural priorities. Nevertheless, it can be argued that such a wide margin of discretion constitutes not only the major strength but also the major weakness of this legal regulation for two reasons.

First, the optional character of the vast majority of the E&Ls, including that of FoP, casts a shadow on the overarching harmonisation goal of the InfoSoc Directive as well as the integration of FoP into the pan-European copyright tradition, given the dissonant reactions it triggered among MSs.Footnote 80 When the InfoSoc Directive was adopted by the EU in 2001, many Member States had no legal regulations corresponding to that of FoP.Footnote 81 Nevertheless, it would be delusional to think that these States transposed the FoP exception within a short period. On the contrary, FoP is a relatively new legal trend, as exemplified by Belgium and France which adopted this exception in 2016, while Luxembourg waited until 2021 to do so.Footnote 82 As of today, Italy is the sole country whose legislature has refrained from adopting any legal regulation to transpose FoP into its national legal landscape.Footnote 83 That said, the Italian Copyright Act lacks any explicit provision enabling end users to enjoy FoP and freely reproduce works and share such copies of works installed in publicly accessible spaces in Italy.Footnote 84

Second, the margin left to the national legislatures for setting the scope of FoP may have facilitated the adaptation of Art. 5(3)(h) InfoSoc to national cultural policies.Footnote 85 However, it also paved the way for a distorted “panorama” of EU-wide regulations. Whereas a cohort of MSs adopted the EU rule verbatim,Footnote 86 others expanded or restricted the scope of the original rule. In fact, a comparative analysis of the national copyright laws of the MSs reveals that each element of the EU rule has been a matter of fragmentation across the EU.Footnote 87


Beneficiaries. Article 5(3)(h) InfoSoc adopts a neutral language in setting the scope of the FoP exception and does not specify its beneficiaries. Neither does it deprive potential beneficiaries of the enjoyment of this exception. While the majority of the MSs have embraced the same approach,Footnote 88 Greece stands out, with Art. 26 of Law 2121/1993 (Greek law) providing this exception only for the “mass media”.Footnote 89 Thus, the Greek reading of the FoP exception appears to be more of a right to which media outlets are entitled, rather than constituting a copyright exception that benefits the public.


Subject-matter. The EU rule draws the limits of the FoP exception simply by referring to works, without an exhaustive list or the exclusion of specific categories of works. Although the provision explicitly refers to creations of architecture and sculpture, this reference is exemplary; thus, it by no means limits the scope of the subject-matter of the FoP exception. While Germany follows this approach, with Sec. 59 of Gesetz über Urheberrecht und verwandte Schutzrechte (German law) referring to “works” without any further specifications,Footnote 90 other MSs, including Lithuania,Footnote 91 have opted to narrow down the scope of this exception by adopting the examples in the EU provision as a benchmark for setting the subject-matter of the aforesaid provision. Austria and Ireland slightly expanded their scope. The Austrian exception encompasses works of architecture and fine art.Footnote 92 In contrast, the Irish exception in Sec. 93 of the Copyright and Related Rights Act (Irish law) covers works of architecture, artistic works, and sculptures, including models thereof. Compared to these, the Greek law and the HungarianFootnote 93 exception provide a broader yet still predetermined scope, for they both extend their scope to works of architecture, artistic works, and works of applied art, while the Irish law includes photographs and images in addition.

We should also consider the role the national courts play in interpreting FoP since, regardless of the Greek legislature’s approach in setting the scope of the subject-matter as such, the Athens Court of First Instance has ruled that FoP does not apply to works that are not visible unless special equipment (e.g. special lenses, drones, etc.) is used or unless an extra effort (e.g. jumping over a fence, etc.) is required to capture the work.Footnote 94


Permitted acts. The InfoSoc Directive identifies and allows two specific acts: reproduction and communication to the public. While embracing the broadest definitions of these acts, it does not provide any further guidelines for implementing this exception. Nevertheless, the margin of discretion left to the MSs is revealed in two opposing ways.

Most MSs have tended to extend the permitted acts beyond these two rights. Hungarian law has the broadest formulation in this sense, for it allows reproduction and other uses, while Austrian law permits a wide spectrum of acts: reproduction, distribution and broadcasting, as well as the public display of works by optical means. Relatively narrower in scope, the Irish law facilitates the reproduction, distribution and broadcasting of works; German law enables reproduction, making available to the public and distribution. Nevertheless, some Member States have the same set of permitted acts or exempt certain ways of conducting the permitted acts. Regarding the first group, Lithuanian law, with an originalist reading of the EU provision, allows only reproduction and communication to the public. Despite preceding the EU legislation, the Greek law can also be mentioned here, for it allows reproduction and dissemination. Regarding the second group, the Austrian and Lithuanian laws strictly prohibit the reproduction of works of architecture and sculptures in the same form as the original work. German law is also a special case, as it prohibits the reproduction of a work on a building.


Public space. The unclarity of the term “public space” for the overarching goal of the FoP exception constitutes another reason for the divergent interpretation and implementation of Art. 5(3)(h) InfoSoc. The national implementation strategies of the MSs can be clustered under three groups: First, the Austrian, Greek, and Lithuanian laws have adopted the same terminology and integrated “public spaces” as a general concept into their national laws. Second, the German law provides a non-exhaustive and exemplary list of “public spaces”, including but not limited to “public paths, roads”. Third, the German and Hungarian laws differentiate works located in outdoor spaces from those located indoors and allow only the former to be subject to FoP, while others, also as in German law, draw a line between exterior and interior spaces of the same work of architecture and permit FoP to apply merely to external spaces. Amongst the laws of this latter group, Irish law has the most flexible formulation, referring to “public spaces and other premises open to the public,”Footnote 95 without adopting any other paradigm. Finally, Lithuanian law notably excludes museums and exhibitions from the public spaces intended for this exception.

As a last remark on the disparate approaches to defining “public spaces”, it is essential once more to acknowledge the role national courts play in interpreting legal concepts and rules. Indeed, the Austrian Supreme Court has issued a ruling that applies FoP to the reproduction not only of a building’s exterior but also of its interior – along with elements therein, such as the staircase, courtyard, halls and rooms, doors and furniture.Footnote 96 The Court requires, however, that these internal elements of the work of architecture be reproduced and communicated to the public by clarifying their connection to the building itself, to highlight that such elements are integral parts of the architectural work.Footnote 97 In contrast to the positive approach of the Austrian judiciary, the German courts have held that FoP does not apply to works situated in public parks, given that these publicly accessible open spaces are owned by specific national foundations, which takes them out of the “public space” indicated in the German law.Footnote 98


Intended use or other conditions of applicability. There are other distinct features in the national implementation strategies of MSs, which not only significantly depart from the EU provision but also lead to further inconsistency across the national copyright laws. For instance, Austrian law mainly indicates that the reproduction of a painting or a work of graphic art permanently located in a public space does not fall under FoP. With an alternate approach, Lithuanian law has adopted several additional criteria for the applicability of FoP. It requires the permitted acts to be conducted for non-commercial purposes, the source of the work and the name of the author to be indicated unless this proves impossible, and, most significantly, it stipulates that the act of reproduction shall not lead to the slavish copying of the work – in other words, the reproduced work shall not be the main element of the reproduction, as was the case in the “original” FOP rule enshrined in Sec. 6(2) of KUG 1876.


Compliance with the three-step test. Notably, MSs, in line with their general attitude towards the three-step test, have embraced disparate methods in subjecting their FoP to this test. For instance, Greek and Lithuanian laws require compliance with the three-step test, whereas Austrian, German, Hungarian and Irish laws do not. Besides the discrepancies amongst the national copyright laws of MSs regarding the three-step test requirement, it is also debatable whether the FoP use of works for commercial purposes without the consent of or the payment of a fair remuneration to the author is consistent with the spirit of the three-step test.Footnote 99 On that note, and recalling the decision of the Swedish Supreme Court in the Wikimedia case, it should be emphasised that, unfortunately, unclarity persists regarding the applicability of the technology-neutral yet originally offline FoP to the reproduction and communication to the public of copyright content in the online realm.

The comparative assessment of the national implementation of Art. 5(3)(h) InfoSoc exposes three major and intertwined outcomes. First, the optional character of the exception for FoP, combined with the broad formulation of Art. 5(3)(h), opens the gates to competing interpretations of the EU rule, which has created disparate legal regulations at national level. Second, the language of the national FoP provisions which stem from or predate the InfoSoc Directive not only results in disparate treatment of the same end-users or uses in different jurisdictions but also blurs the cross-border and online applicability and hence the efficacy of the FoP exception, especially in the absence of a pan-European recognition and enforceability of this specific legal regulation. Third, the absence of a uniform legal position across Europe leaves end-users with a high level of legal uncertainty regarding the reuse of cultural content.Footnote 100

While such a legal setting justifies the calls for legal reform, or at least the EU’s immediate legislative intervention, which would clear these obstacles and equip the EU copyright acquis with tools to respond to the needs of the digital era, it also evokes the Reda reportFootnote 101 and the promotion of a mandatory exception for FoP it contains.Footnote 102 Further, the attitudes of Lithuanian law and the German court in interpreting “publicly accessible places” highlight the need for legal certainty in drawing the borders of spaces as such, which are subject to overlapping yet clashing legal frameworks. These approaches indeed have the potential to further complicate the end-users’ perception of where the public space, in which the in-copyright elements of CH are available, ends and where the public domain starts. This issue is becoming essential, especially after the adoption of Art. 14 CDSMD, which deals with the out-of-copyright elements of CH allocated to the public domain.

5 Use of Works of Visual Art in the Public Domain

In the process of the copyright reform of 2019, Art. 14 CDSMD was deemed to play a central role in the enrichment of digital CH. By excluding from copyright or related rights any material stemming from the reproduction of works of visual art in the public domain unless it was original, it was acclaimed as a pioneering norm that explicitly mentioned the public domain and the long-awaited tool to facilitate and empower access to CH, freeing it from copyright constraints. Its scope increased notably in the context of digitisation, the most common means of reproduction today in the long-term strategy for digital transformation in CH; however, it should not be read as limited to digital reproduction.

Overall, a broader reading of Art. 14 CDSMD is advocated with respect to several elements of the provision, entailing a careful consideration of what underpins it. In its literal interpretation, the provision clarifies the copyright status of non-original reproductions of public domain works by delimiting the areas of copyright and related rights to visual artworks no longer subject to protection.Footnote 103 However, the scope of the provision can be appreciated only under the guidance of Recital 53, which accentuates the contribution to “the access to and promotion of culture, and the access to cultural heritage” by faithful reproductions of public domain works of visual arts. Recital 53 should constantly guide the interpretation of Art. 14 and its national implementation. It sheds light on the clear exclusion of copyright and related rights in the case of a faithful reproduction, and yet warns against legal uncertainty, especially in the instances of cross-border activities, while not preventing CHIs from marketing the reproduction.

The consensus it received, especially from CH stakeholders and public domain ambassadors,Footnote 104 was also accompanied by some reservationsFootnote 105 primarily related to the legal text of the EU provision and its national implementation. Since the earliest discussion preceding the formal enactment of the final version of the CDSMD, most concerns focused on its ambiguous language, the complex link with the originality threshold, the difficulty of determining a public domain status and the concurrence of additional regulatory tools such as other legal domains, technology or CH practices that circumvent the copyright ban.

The opacity of its semantics is especially to be found in the reference to the concepts of reproduction and visual arts without any further elucidation on their meaning. On the one hand, it must be clear (as logical and desirable) that reproduction can be both digital and analogous. On the other hand, the lack of an explanation of the latter carries the risk of intensifying the current fragmentation of copyright subject-matters.Footnote 106 It seems indeed wise and in line with the underlying goal of the provision to interpret the category of visual arts in the broadest sense.

The trouble with originality lies in ascertaining the minimum standard that should in any case exclude copyright protection in the plain act of reproduction. Nevertheless, it could also easily lead to alter or modify the work in a way that the resulting material is claimed to be an “author’s own intellectual creation”. Furthermore, by providing that the non-original reproduction of works of visual art in the public domain is not subject to copyright or related rights,Footnote 107 Art. 14 excludes copyright protection and an unfortunate application of neighbouring or copyright-related rights to public domain works of visual arts.Footnote 108 However, the relationship with Art. 6 Term Directive remains to be expressly determined.

With respect to the difficulties in determining whether a work falls in the public domain, Art. 14 CDSMD sketches an explicit mention of the public domain for the very first time. Traditionally, the concept of the public domain has been construed to identify contents not subject to copyright in the first place, either because they exceed the material scope of copyright or because the legitimate rightsholders have waived their rights, but it also covers contents no longer copyright protected following expiry of their copyright term. In principle, no copyright applies to the public domain, although this is only partially accurate. First, moral rights may still apply to public domain works. Second, copyright boundaries may be superseded by neighbouring rights or sui generis rights. Third, copyright may wrongly apply to public domain works, resulting in the disdained practices of “private encroachment” and “copyright fraud”,Footnote 109 which clash with the ideal recommendation that what is in the public domain should remain there and should  not be subject to other exclusive rights, e.g. following  analogue-digital conversion.Footnote 110

Lastly, other rules may supersede copyright prescription, eroding the impact of Art. 14 CDSMD. This could be the case of CH laws (as will be seen, the Italian transposition is exemplary in this regard), or the use of technology, as with machine learning and non-fungible tokens (NFTs) that intermingle with both in-copyright and out-of-copyright content, or the pursuit of stakeholders’ practices, which the provision does not address or inhibit.

Many of these considerations had already been discussed in case law preceding Art. 14 CDSMD, from the notorious US controversy of Bridgeman Art (1998) to the more recent German Museumsfotos (2018).Footnote 111 The former, introducing the principle that an exact photographic reproduction of public domain images does not attract copyright protection, is considered a milestone decision for its influence on developing open cultural strategies including those pursued by the “Open GLAM movement”.Footnote 112 The latter decision, while rejecting copyright protection for photographic reproduction of works of visual art for not meeting the originality standard, conceded that they might attract copyright-related protection as non-original photographs,Footnote 113 was one of the motivations for enacting Art. 14 CDSMD.Footnote 114 In between, the EU Court of Justice has not ruled out the possibility that a portrait photograph could meet the threshold of revealing the author’s own intellectual creation and thus enjoy copyright protection.Footnote 115 Indeed, it can be expected that the provision will be tested and challenged in court due to the uncertainty of the abovementioned elements, as its diversified national implementation seems to suggest.Footnote 116 Overall, considering the implementation process, national courts should have interpreted the provision so as to favour the widest dissemination and even re-use of CH.Footnote 117

Transposition in national law reveals at least four main approaches, as follows: A first group of MSs, such as Hungary, did not explicitly enact a new provision or amendments to copyright law but rather relied on the interpretation of existing rules on the term of protection and originality, the combined reading of which safeguards works in the public domain unless what is created through their reproduction is original.Footnote 118 A second cluster of countries such as Austria amended their copyright provisions on photographs to deny protection through related rights to the reproduction of works of visual art in the public domain.Footnote 119 A third group of MSs, comprising Germany, GreeceFootnote 120 and Italy,Footnote 121 followed the letter of Art. 14 CDSMD and introduced a specific norm but did not change the existing provisions on non-original photographs. A fourth approach, such as that of Lithuania,Footnote 122 featured an amendment of the general provisions regarding the subsistence of copyright, adding further elements limiting copyright.

Each country shows some peculiarities, which can be discussed by considering the following aspects:


Beneficiaries. Article 14 CDSMD does not specify who is the target of the provision. Unlike the sibling Art. 6 CDSMD, which is only applicable to CHIs, the right can be exercised by anyone if the other conditions apply. None of the countries considered specifies a beneficiary of the provision, thus the flexibility that Art. 14 CDSMD provides would allow anyone to use non-original reproductions of works of visual art in the public domain.


Subject-matter. The provision applies only to visual artworks in the public domain. In this regard, it may defer to the specific characterisation of visual art in the specific MS. However, while Germany, Italy and Lithuania essentially replicate the notion of works of visual art, the Hungarian approach enables a broader interpretation of “work”. Of particular interest is Austria, which, in contrast, specifies that the work is of fine art.


Act of reproduction and purposes. Article 14 CDSMD can ultimately be seen as safeguarding acts of reproduction of works of visual art in the public domain but without specifying further whether such reproduction should be digital or analogue. Interestingly, what is additionally provided is the restriction to specific purposes that the reproduction should address. This is precisely the case with the Greek provision (Art. 31A), which, at paragraph 2, provides a specific safeguard of the limitations on the access, reproduction and dissemination of cultural heritage images imposed under the Greek Code for the protection of cultural heritage (Law 4858/2021).Footnote 123 The same consequences arise from the Italian provision (Art. 32quater of Law 633/1941), which essentially limits the scope of the provision by upholding the potential application of the Italian law on the protection of cultural goods that restricts the reproduction of cultural property.Footnote 124 Indeed, the inadequacy of the Italian implementation has already been tested. Even without explicitly mentioning the link with copyright law, recent case law has shown the fragile nature of the transposed provision,Footnote 125 which is likely to be overwhelmed by the CH regulation’s strict approach.Footnote 126


Originality. The reproduction of public domain works that meet the originality threshold for copyright protection is excluded from the scope of the provision; thus no doubts arise as to the non-application of the provision if the material resulting from the act of reproduction is original, but only Lithuania specifies, repeating the diction of the CJEU, that original means an intellectual work of the author (who reproduced the work). Beyond the EU definition of originality as elucidated by the CJEU, resorting to national norms is, therefore, unavoidable when ascertaining the originality standard; and this is where any controversy will essentially and mostly arise.

Therefore, determining the conditions of the applicability of Art. 14 CDSMD is crucial, which is a common issue to all national implementations. However,  and this specifically applies to two of the countries considered here, i.e. Greece and Italy, other  additional limitations, even if provided under other legal domains, will eventually disrupt the difficult road towards enacting this important EU provision. The circumstance that, implementing Art. 14 CDSMD, the two MSs have expressly safeguarded the application of their national cultural heritage norms wilfully knowing that it may prevent the application of the EU rule, leads to a dangerous conflict. Passed as a protective measure for the potentially endangered cultural property of the nation, it risks to instead achieve the boomerang effect of overriding and nullifying the attempt to boost access to culture, thus critically undermining the right to culture.

6 Conclusions and Future Trajectories

Despite the range of conventional notions of CH and the prolificacy of EU cultural policies, defining CH is challenging, given its variability across contexts, communities and countries. The complex relationship between CH and copyright does not help; nor does it liaise with other pieces of regulation, such as data protection. This is further exacerbated by the typical two-fold line of EU intervention: in the field of CH as such, it lets international conventions and national rules set the stage for its protection and development, while in the context of copyright and data protection, which also affect CH,  it intervenes more powerfully with specific regulatory actions.

However, it is plausibly evident that CH has attracted an increased interest in its digital frame over the years. The promises of the digital and post-digital era are the new chimaera for both CHIs and end-users. A domain full of opportunities and challenges that should prompt us to reflect on fundamental rights, and here the first thought is on the right to culture.

For several reasons, there is scope within the current EU copyright system to optimise the conditions for the public’s enjoyment of digital culture.

First, the E&Ls designed to facilitate access to and use of cultural content are addressed to CHIs or end-users, but rarely simultaneously to both. Consequently, end-users wishing, for example, to use orphan works and out-of-commerce works, have no option but to trust the digitisation and dissemination plans and efforts of CHIs. Besides, the Study on the Application of the Orphan Works Directive published by the Commission, elaborating on the OWD’s actual impact and efficacy, should not be disregarded, for it consolidates the quite limited catalysis of the OWD in enhancing access to orphan works.Footnote 127

Second, although accepting the hardship in, if not impossibility of, having a holistic approach to the interplay of copyright with CH, the current EU copyright regime focuses on disparate fragments of CH; thus, it offers piecemeal regulations rather than an all-encompassing regulation on at least the in-copyright elements therein, which could instead be pursued.

Third, the uses permitted by these EU rules are inconsistent, as they change in parallel to the overarching policy goals of a specific exception or limitation. Along the same lines, not all the E&Ls provided for CHIs enable the dissemination of reproduced content, as with the preservation of CH in Art. 6 CDSMD. Besides, the language of the pre-CDSMD E&Ls does not clarify compliance with such uses on digital platforms.

Fourth, the variety and quantity of subject-matters allocated to the public domain by MSs, especially in the absence of a supranational norm, create several national public domains containing different elements, rather than feeding into a global public domain.

Finally, while the existence of a paying public domain scheme is already sufficient to impede the free use of out-of-copyright works,Footnote 128 the discrepancies amongst the national laws of MSs on the public domain, combined with their differential regulation within the national copyright laws of MSs, may reasonably cause additional complications for end-users.

This paper is intended to connect the points of the two chosen copyright rules: FoP, as the non-mandatory exception under Art. 5(3)(h) InfoSoc for the reproduction of copyright-protected works located permanently  in public places; and the reproduction of public domain visual art according to Art. 14 CDSMD. The former can also be understood as a more general concept, suggesting a right to enjoy access to intellectual creations in the public space. The latter, representing the first provision to address the public domain, guarantees a right to enjoy such works free from copyright barriers. The two provisions, despite their different purposes and scope, bridge the first and the last EU copyright directives, with the overall aim of partially overcoming various copyright barriers that impede access to works that present a public dimension, and promoting the enhancement of CH despite the inevitable fragmentation that still characterises their national implementation. Since copyright law does not operate in a vacuum, it is arguably and strongly recommended that special attention be paid to the synergies of copyright law with CH laws as well as other laws that articulate, concern or regulate “publicly accessible places”, mainly to prevent national legal regulations or interpretations of CHIs which would clash with the most recent definition of the concept in Art. 2(3) CDSMD, or of public spaces, which would lead to the restriction of the actual space where the members of society may enjoy their aforementioned fundamental rights.

Similarly, vis-à-vis the reproduction of public domain visual art, it is advisable to prefer the broadest (and most logical) construction both of the act of reproduction to include any analogue or digital form, and the widest definition of visual artworks so as to have as many works as possible defined as public domain works. When assessing the putative originality of the reproduction, it also becomes essential to constantly keep in mind that according to the basic principles of copyright, a plain and straightforward reproduction cannot be the author’s own intellectual creation in the light of the hints in Recital 53 CDSMD, which expressly aims at securing the entire access to and promotion of culture and CH.

The implementation of the two EU provisions by MSs has yielded a highly fragmented pan-European approach rather than safeguarding legal clarity and certainty in the public’s right to culture and freedom of expression. Considering that the comparative analysis herein reveals only a glimpse of the broader (and more fractured) context, the national implementation strategies of MSs in transposing them deserve a closer look and, especially for the FoP exception, a supranational legislative intervention to make it mandatory is therefore highly advisable. Regarding Art. 14 CDSMD, national courts should be vigilant to ensure that the scope of the provision is not diminished or nullified, particularly when the application of the rule is concretely pre-empted by other regulations, e.g.  CH laws. To this end, they might also want to refer to the Court of Justice of the European Union.

As far as concerns the outcome of the analysis, it is precisely by focusing on what underpins the two provisions and by searching for a well-reflected reading that it is possible to foresee the shared subsistence of an essential piece of the EU right to culture, at least in its application in the context of (digital) CH. It is true and wise to remember that even in this constellation, it should not be limited to the digital environment. Nevertheless, overall, the current focus on the digitisation and digital transformation of CHIs may even benefit such conclusions. Either way, what is imperative is to remember that the right to culture still has a long way to go. Safeguarding and enhancing the access to, enjoyment and use of cultural materials by all, using a sound FoP and the uncompromising reproduction of public domain visual art, is just the beginning.