UK Throws A Copyright Crumb: Confirms That Digitized Copies Of Public Domain Images Are In The Public Domain

A couple of weeks ago, Techdirt wrote about a German museum suing Wikimedia over photos of public domain objects that were in its collection. We mentioned there was a related situation in the UK, where the National Portrait Gallery in London had threatened a Wikimedia developer for using photos of objects that were clearly in the public domain. Mike pointed out that in the US, the Bridgeman v. Corel case established that photographs of public domain images do not carry any copyright, since they do not add any new expression. In a rare bit of good news, noted by Communia, the UK Intelllectual Property Office has just announced officially that it takes the same view (pdf):

Simply creating a copy of an image won't result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.

However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author's own 'intellectual creation'. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as 'original'. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.

As that makes clear, even with this latest statement, there is still a measure of uncertainty as to what constitutes an "original" work in this context. Moreover, it's pretty ridiculous that it has taken until 2015 for the UK to accept something as basic and simple as the fact that digitized copies of public domain images remain in the public domain. But as Communia points out, it could be worse:

While the IPO's position supports our conviction that what is in the public domain must stay in the public domain, it is of limited use in countries such as Germany or Spain where institutions can claim exclusive rights over unoriginal reproductions. Remedying this situation requires a further harmonisation of the EU copyright rules -- as proposed by the European parliament earlier this summer when it adopted the Reda report.

We won't know what the European Commission will propose in this area until spring next year. Let's hope it takes note of the UK's new position.

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