No additional copyright protection granted to digitized materials

A – Issue at stake

  • While undertaking digitization operations, museums must not only analyse the copyright law regarding the objects to be digitized, but also the copyright law applying to the digital copy of the artwork (which may benefit from a separate copyright, potentially necessitating the rights holder’s consent for future uses).
  • Most digitization operations imply taking photographs of artworks. As such, whether a new copyright is conferred to the digitized image varies largely depending on the copyright situations for photographs in a particular jurisdiction.
    • Some jurisdictions – such as Germany and Austria – provide for a wide protection of all photographs, notwithstanding their degree of originality (the Lichtbildschutz doctrine). This includes photographic reproductions of museums objects.1
    • In other jurisdictions, such as Switzerland (currently), the United Kingdom and the United States, a photograph enjoys copyright protection only if it is “original” or “individual”. Determining whether a particular photographic reproduction of a museum object meets those criteria will require a case by case analysis. It appears however that in many cases, photographs of three-dimensional objects (e.g. a sculpture) have a greater chance of being qualified as original – and thus copyrighted – than photographs of two-dimensional objects (e.g. a photograph or drawing).2
  • This distinction is not productive and should not be maintained. Indeed, while the artist may have decided to create a two-dimensional image, the resulting object is always three-dimensional (at least for non-digital works): every paper, every print, photographic paper or canvas has a spatial extent, and it is easy to allege that the “3-D”-requirement for new copyright is met by photographing not only the artistic image, but its medium. This results in undesirable legal uncertainty for museums.
  • This legal uncertainty further encourages some museums and private companies to attempt to exert tight control over the images published on their websites through restrictions on photography or contractual restrictions upon access and use of the digitized images, a practice that should be avoided.3

B – Clarifications

  • Museums should be encouraged to open their online collections as much as possible while respecting copyright law.
    • They should avoid placing restrictions on the access to and reuse of public domain materials such as digitized images of artworks that are clearly in the public domain (except in Germany, Austria, France and potentially Switzerland, see above). Museums should rather encourage the public to exploit and reuse these images, and find other ways to recoup their digitization costs if needed.
    • In jurisdictions where digitized copies of artworks benefit from copyright, museums should attempt to negotiate the necessary licenses with the initial rights holders (usually photographers) to allow exploitation of these images by the public.
  • Legislators should work towards eliminating the differences, discussed above, in copyright protection (or lack thereof) granted to digitized images of two-dimensional artworks versus digitized images of three-dimensional artworks.