This guide aims to familiarise readers with Article 14 of the DSM Directive, which regulates the legal status of reproductions of public domain works of visual art. The guide was authored by Paul Keller, Teresa Nobre and Dimitar Dimitrov. It represents the views of Wikimedia and Communia on the implementation of that provision.
For a summary of this guide please see the TL;DR version of this guide:
TL;DR Article 14: Works of visual art in the public domain
Article 14 is one of the very few unambiguously good provisions of the new EU Copyright Directive. The Article is intended to ensure that reproductions of Public Domain works of visual art cannot be protected by exclusive rights, and as a result be taken out of the public domain. It is the first time that an EU law tries to protect the public domain.
This legislative intervention comes in response to the relatively widespread practice of museums in claiming exclusive rights of digital reproductions of public domain works that they have in their collections and which they make available to the public. In practice this has already led to Spanish Museums claiming copyright over paintings by Dutch masters who have been dead for 350 years, and German museums suing Wikipedia for hosting reproductions of public domain works as part of Wikimedia Commons.
In many Member States the legislator will not see the need to take action on this Article, as national laws and jurisprudence may not foresee any protection on faithful reproductions of works in the public domain. If there is established consensus that faithful reproductions of copyrighted materials are not protected and anyone can freely use them, that’s the best solution. If, however, the legal status is inconclusive or there have been court ruling making the situation confusing, we can still argue that including a positive provision would help digitisation of cultural heritage.
While at first glance it seems counterintuitive that a museum should be able to control the rights for artworks of long dead artists, such claims do have a basis in existing law. In general, for a work to be protected under copyright it needs to show “the author’s own intellectual creation.” However, there is another category of copyright-like rights (also called “Related Rights”) that exist in a number of EU Member States. These schemes grant exclusive rights to the creators of photographic works that do not meet the Originality criterion necessary to receive copyright protection (see this 2015 study by Thomas Margoni for more details). Related rights arise even when a reproduction is nothing more than an exact photographic copy of a work. Where copyright protects original artworks, these related rights protect simple copies.
As museums have started to make works in their collections available online, the practice of relying on related rights to restrict the re-use of Non-original reproductions of public domain works has become controversial. Both the Public Domain Manifesto and the Europeana Public Domain Charter demanded that what is in the public domain in analogue form must stay in the public domain in digital form. While the overall majority of museums have always acted in the spirit of expanding the public domain, and have made reproductions of public domain works available without any restrictions on re-use, a small number of museums from Member States that allow the protection of non-original reproductions of public domain works continue to claim rights over such reproductions.
From the perspective of users trying to identify the copyright status of these reproductions of public domain works, this fragmented legal landscape was difficult to grasp. If works by the same creator could be protected by copyright-like rights in one Member State but could be in the public domain in another, there was no legal certainty when using the reproductions online and across borders. Harmonizing the copyright status of these reproductions in every EU country was, thus, necessary to safeguard the users right to enjoy the works of visual arts that have fallen into the public domain.