Revisiting Access to Cultural Heritage in the Public Domain: EU and International Developments
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Revisiting Access to Cultural Heritage in the Public Domain: EU and International Developments Andrea Wallace . Ellen Euler
The Author(s) 2020
Abstract In the past year, a number of legal developments have accelerated discussions around whether intellectual property rights can be claimed in materials generated during the reproduction of public domain works. This article analyses those developments, focusing on the 2018 German Federal Supreme Court decision Museumsfotos, Art. 14 of the 2019 Copyright and Related Rights in the Digital Single Market Directive, and relevant provisions of the 2019 Open Data and the Reuse of Public Sector Information Directive. It reveals that despite the growing consensus for protecting the public domain, there is a lack of practical guidance throughout the EU in legislation, jurisprudence, and literature on what reproduction media might attract new intellectual property rights, from scans to photography to 3D data. This leaves ample room for copyright to be claimed in reproduction materials produced by new technologies. Moreover, owners remain able to impose other restrictive measures around public domain works and data, like onsite photography bans, website terms and conditions, and exclusive arrangements with third parties. This article maps out these various legal gaps. It argues the pro-open culture spirit of the EU Directives should be embraced and provides guidance for Member States and heritage institutions around national implementation. Keywords Copyright Public domain Cultural heritage organisations Open access DSM Directive PSI Directive
A. Wallace (&) Senior Lecturer in Law, Law School, University of Exeter, Exeter, UK e-mail: [email protected] E. Euler Professor of Information Science for Open Access and Open Data, University of Applied Science Potsdam, Potsdam, Germany e-mail: [email protected]
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A. Wallace, E. Euler
1 Access to Artworks in the Public Domain In the past year, a number of legal developments have accelerated discussions around whether intellectual property rights (IPR) can be claimed in materials produced during the reproduction of public domain works. This article analyses these developments, focusing on the 2018 German Federal Supreme Court decision Museumsfotos,1 Art. 14 of the 2019 Copyright and Related Rights in the Digital Single Market Directive (DSM Directive or DSMD),2 and relevant provisions of the 2019 Open Data and the Re-use of Public Sector Information Directive (PSI Directive or PSID).3 At the heart of this legal question lies an operational tension for cultural heritage institutions. Ensuring that public domain heritage collections are available to copy and reuse facilitates new knowledge generation and produces materials that can invigorate our creative industries.4 But digitization and open access requires institutions to take on new obligations, find new funding sources, and acquire new expertise. This increases costs at a time when government funding for the heritage sector continues to steadily decline.
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