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

from the so-what-took-so-long? dept

Fri, Dec 11th 2015 7:39pm — Glyn Moody

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.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, culture, digitization, eu, public domain, uk

21 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 11 Dec 2015 @ 8:33pm

Abolish Copyright
It's ridiculous that some people think that a photocopy should even create a copyright in the first place.
[ link to this | view in thread ]
Suomynona, 12 Dec 2015 @ 1:58am

a photocopy SHOULD create a copyright
So if I take a photocopy of the original copyright law, that means I have a copyright of the photo as well as the readable text, right?

That means I should be able to bring a lawsuit against the government for inappropriately using my copyrighted words, right?
[ link to this | view in thread ]
Anonymous Coward, 12 Dec 2015 @ 4:04am

copyrightable derivative work?
I'd be curious to know if nominally-photoshopped images (lightened/sharpened/etc) or "dodging and burning" negatives would be considered enough of a creative input to turn a public-domain image into a copyrightable derivative work?

No doubt it's a fine line, but the question is, just where is that line?
[ link to this | view in thread ]
jupiterkansas (profile), 12 Dec 2015 @ 7:08am

Re: a photocopy SHOULD create a copyright
Only if they make a copy of your copy of their copy, and if a third party makes a copy of your copy, you can both sue.
[ link to this | view in thread ]
Richard (profile), 12 Dec 2015 @ 9:07am

Re: copyrightable derivative work?
I think the line is in the intention of the person who made the copy. If the intention was to create a new work then there would be a new copyright. ON the other hand if the intention was to create a faithful copy then there is no new copyright. This is the substance of the judge's decision in the Corel case and also in this statement from the UK.
[ link to this | view in thread ]
Anonymous Coward, 12 Dec 2015 @ 11:10am

This article is incorrect. From the article posted over at Arstechnica, over in the E.U., you aren't allowed to take a photo of something you purchased unless you get a license from the holder of the copyright who create that item in the first place. It also places extreme pressure on book publishers who are publishing books on merchandise such as chairs and whatnot.

If you purchase a designer chair and take a photo of it, according to the new law, you will be in violation of copyright law and that you will be required to have a license to take such a photo, even if you purchase that item legally in a store.

http://arstechnica.com/tech-policy/2015/12/you-may-soon-need-a-licence-to-take-photos-of-that- classic-designer-chair-you-bought/
[ link to this | view in thread ]
Glyn Moody, 12 Dec 2015 @ 11:20am

Re:
Well, speaking as the author of that piece, I'd like to point out that the new rules on photos of objects applies to objects still in copyright. Once they are in the public domain, then photos of them will be in the public domain, as this Techdirt piece says.

The bad news is that instead of waiting 25 years after they were first sold, UK citizens now have to wait life plus 70 years after the death of the designer, before that happens.
[ link to this | view in thread ]
Anonymous Coward, 12 Dec 2015 @ 11:23am

Bad news for the monkey.
From the PDF...
" It is also possible that, in instances where a person has arranged equipment and made artistic decisions prior to taking a photo, but wasn’t the one to press the trigger, the person making the arrangements could own the copyright. An example of this could be where a photographer has made the creative choices in setting up a shot, but got an assistant to actually press the trigger"

That would give the copyright to Mr Slater, and leave PETA without a chance.
[ link to this | view in thread ]
Anonymous Coward, 12 Dec 2015 @ 11:29am

Examine Bridgeman v. Corel for U.S.
Note that Bridgeman applies to 3-D works of art.
Therefore, an auctioneer should not have a copyright on an antique needlework sampler, for example.

Bridgeman v. Corel

Batlin involved the defendants' claim to copyright in a plastic reproduction, with minor variations, of a mechanical cast-iron coin bank that had been sold in the United States for many years and that had passed into the public domain. The Court of Appeals affirmed a district court order compelling the defendants to cancel a recordation of copyright in the plastic reproduction on the ground that the reproduction was not "original" within the meaning of the 1909 Copyright Act, holding that the requirement of originality applies to reproductions of works of art. [n35] Only "a distinguishable variation" -- something beyond technical skill -- will render the reproduction original. [n36] In consequence:
...
"Absent a genuine difference between the underlying work of art and the copy of it for which protection is sought, the public interest in promoting progress in the arts -- indeed, the constitutional demand [citation omitted] -- could hardly be served. To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work.

The requisite "distinguishable variation," moreover, is not supplied by a change of medium, as "production of a work of art in a different medium cannot by itself constitute the originality required for copyright protection."
[ link to this | view in thread ]
MadAsASnake (profile), 12 Dec 2015 @ 11:49am

Re: Bad news for the monkey.
No. Slater did not make any creative choices (in his own statements). He does not get copyright and this wouldn't help him. PETA don't have a chance anyway.
[ link to this | view in thread ]
Anonymous Coward, 12 Dec 2015 @ 12:53pm

Re: Re: copyrightable derivative work?
'Restoring' a photograph from a badly-damaged original can require considerable artistic and interpretive skills involved in airbrushing in the missing pieces. So basically it's artwork that's not supposed to be evident as artwork. And therefore not copyrightable, apparently.

But then what if a high-quality original were to later turn up, showing that the restoration was significantly different from the original (such as assuming that a one-armed man had a second arm in the area of the photo that was destroyed by mold)? Would significant errors in restoration automatically quality it as a derivative work (thus copyrightable) when a good restoration job would have been uncopyrightable, leaving the photo in public domain? Or are all intended restorations - regardless of their degree of inaccuracy or severe artistic liberty - not copyrightable purely due to original (stated) intent of the art? It's an interesting question.
[ link to this | view in thread ]
tqk (profile), 12 Dec 2015 @ 1:01pm

How can Public Domain even become copyrighted?
"Public Domain" means in the domain of the public and not "burdened" by copyright. Why do we even need to talk about this case giving credence to someone who's trying to steal something from the public domain, making it copyrighted by them? There should be no question as to what's going on here. That person is wrong if they think they can misappropriate and lock up something against the wishes of the public, its rightful owners.

"Public Domain" means fuck off and don't even try it. They should be charged with attempted theft for it.
[ link to this | view in thread ]
Anonymous Coward, 12 Dec 2015 @ 1:19pm

Re: Re: Re: copyrightable derivative work?
The sad and ridiculous part is that copy protection lasts so long that such a question is relevant and that the ip holder and the government bear absolutely no legal burden or requirements on ensuring that protected works enter the public domain in good condition. It is society that bears the burden and costs of complying with and enforcing copy protection laws, no burden is placed on copy protection holders.

The government should at least require that all works get submitted to the library of Congress (or foreign equivalent) for preservation and release once it enters the public domain before granting any copy protection privileges.
[ link to this | view in thread ]
Anonymous Coward, 12 Dec 2015 @ 3:30pm

Re:
Its correct. The UK is just making sure nothing remains in the public domain...
[ link to this | view in thread ]
Anonymous Coward, 12 Dec 2015 @ 6:50pm

Re: Bad news for the monkey.
It is also possible that, in instances where a person has arranged equipment and made artistic decisions prior to taking a photo, but wasn’t the one to press the trigger, the person making the arrangements could own the copyright.

I make artistic decisions and arrange how I look every morning after I get up. Therefore I would own the copyright on any photo made of my appearance. Security camera operators better get a license from me before recording my image. Ditto for cops with body cams. I ain't cheap, either.
[ link to this | view in thread ]
David (profile), 12 Dec 2015 @ 8:11pm

Arstechnica says something different.
How does the article connect to this one from Arstechnica?

Are they both valid or ... what? UK law is so weird. Not that the US is any better, just a weird I understand. Not universally like however. Let's be clear about that.

http://arstechnica.com/tech-policy/2015/12/you-may-soon-need-a-licence-to-take-photos-of-that-c lassic-designer-chair-you-bought/
[ link to this | view in thread ]
Joseph Joyce, 13 Dec 2015 @ 9:47am

What about someone like Richard Prince?
If this is the case then how can someone like Richard Prince take nothing more than a screenshot of someone else's instagram pics and resell that without permission or payment to the original photographer? I realize that we are not talking about public domain images in this case, but if anything that makes it even more ridiculous that he can get away with this.

http://www.theverge.com/2015/5/30/8691257/richard-prince-instagram-photos-copyright-law-fair-use
[ link to this | view in thread ]
Anonymous Coward, 13 Dec 2015 @ 11:57am

The European Union is quickly becoming known as the second coming of Nazi Germany. If the EU were trying to isolate themselves from the rest of the world, then those fascist pigs are going a damn good job at it.
[ link to this | view in thread ]
Glyn Moody, 13 Dec 2015 @ 2:09pm

Re: Arstechnica says something different.
See my reply to a similar comment earlier.
[ link to this | view in thread ]
Copyright Peep, 16 Dec 2015 @ 8:07pm

Pity us Down Under; we have no exceptions for orphaned works, photos of public domain works MAY be under copyright (refer to photographer for advice on what they want to claim) and unless you're seriously critiquing, reviewing or using something for parody or satire, you can't use anything unless you have permission/licensing. The last time our rules changed, MySpace was cool, Facebook didn't exist and YouTube was some American thing no one had really heard about yet :(
[ link to this | view in thread ]
Anarres (profile), 15 Jul 2016 @ 9:54am

Re: Re: Re: copyrightable derivative work?
I would argue that all intended restorations, regardless of inaccuracies, should not be copyrightable.

It's precisely this point that the copyright estoppel doctrine addresses in US: when you claim to have tried hard to discover facts, realities, to picture something existent outside your imaginary, you cannot come back later and claim it wasn't real and have copyright over it.
[ link to this | view in thread ]