Yes, The EU Copyright Directive Does Have A Few Good Ideas -- But They Need To Be Implemented Properly

from the here's-the-next-battle dept

Techdirt's reporting on the EU's disastrous Copyright Directive concentrated on its three worst aspects: Article 13 (upload filters -- now renumbered as Article 17), Article 11 (ancillary copyright for press publications, now Article 15) and Article 3 (text and data mining). But there are some other sections, less well known, which could actually help to improve copyright law in the EU. One of them is Article 14, which concerns "Works of visual art in the public domain":

Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author's own intellectual creation.

The problem being addressed here is one Techdirt has written about before. For example, back in 2015, a German museum sued the Wikimedia Foundation for displaying 17 images of the museum's public domain works of art. Even though the works of art were unequivocally in the public domain, the museum claimed that the photographs were new creations, and therefore covered by copyright. Article 14 aims to clarify that once an object is in the public domain any reproduction of that object is also in the public domain. It's hardly a huge concession, but it's better than nothing.

Since it is a directive, the EU's new copyright law has to be implemented in national legislation by each of the EU's member states individually. The overall intent of Article 14 may be clear enough, but the exact details of its transposition into national law matter, as a post on the Communia site emphasizes. For example, it notes that Article 14 is a minimum harmonization measure, and EU governments are therefore able to make changes to their laws that go further than what is required by the Copyright Directive, in order to simplify its application:

While the scope of Article 14 is limited to "works of visual art" and to such works for which "the term of protection has expired", Member States would be well-advised exclude all non-original reproductions of copyrighted works from eligibility for any form of related rights protection. This would provide increased legal clarity as it would remove the need to find an unambiguous definition of the "visual arts." Also, it would avoid the need to introduce complicated rules regarding the application in time, such as what happens to related rights that were created before the term of protection of the underlying work expired.

Similarly, Communia says that national lawmakers must ensure that three-dimensional reproductions of three-dimensional works -- for example 3D models of sculptures created via 3D scans or similar technologies -- are excluded from related rights protections. It also wants the new laws in every EU country to "enshrine the fundamental principle that mere copies of existing artworks should not be subject to copyright or related rights."

Beyond the specificities of Article 14, there is an important general point here. The text of EU's copyright directive may contain some really bad things, but they, too, must be implemented through national legislation. That means there is still an opportunity to soften the worst aspects of things like Article 13/17 and Article 11/15 by tweaking the exact wording of the national laws to minimize their harm. It's an avenue in addition to legal challenges that can be brought to strike down bad ideas like upload filters. Even if the EU Copyright Directive text has now been agreed, the fight over its implementation is only just beginning.

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Filed Under: copyright, eu, eu copyright directive, implementation, public domain, reproductions