What are some non-copyright limitations to the public domain?
Our session began with a general introduction to the instruments apart from copyright which might impose limitations on the Public Domain. Such instruments might prevent or restrict engagement with a work or make the engagement subject to certain conditions, such as the consent of the author of the work to reuse it. These restrictions might come from codes of ethics which cultural heritage institutions need to abide by, especially where the work contains sensitive subject matter. They might also come from national cultural heritage laws, where the restriction is not necessarily attached to the copyright in the work but is enforced even when a work is in the Public Domain.
This introduction was followed by an in-depth discussion on Article 14 of Copyright in the Digital Single Market Directive (CDSM) and its implementation, particularly in Italy, Greece and the Netherlands. According to this article, Member States need to provide rules in their national laws which establish that any material resulting from an act of reproduction of a work of visual art, the term of protection of which has expired, will not be subject to copyright or related rights. However, if the material resulting from such an act of reproduction is original, in the sense that it is the author's own intellectual creation, the work can still attract copyright protection. One of the primary goals of this rule is to prevent cultural heritage institutions from asserting copyright in the digital reproductions of cultural heritage works in their collections, which are already in the Public Domain. This means that cultural heritage institutions are expected to respect the Public Domain status of such works by not imposing further restrictions on their digitisation, in order to support ‘the access to and promotion of culture’ (Recital 53 CDSM).
However, certain conditions established in other instruments and going beyond copyright, as observed in some Member States discussed below, diminish the impact of Article 14 and create further obstacles to the safeguarding of the Public Domain.
Article 14 CDSM and the Italian situation
Europeana Copyright Community Steering Group member Deborah de Angelis explained the current situation in Italy with respect to the transposition of Article 14 CDSM into the Italian Copyright Law. She emphasized that the strong protection of cultural heritage in Italy has remained unaffected even after the article´s transposition. Users still need to acquire authorisation from a cultural heritage institution which holds a physical work and pay a concession fee to reproduce digital images of state-owned cultural heritage in the Public Domain, where such reproductions are for commercial use.
Furthermore, in April 2023, minimum fees for the commercial use of digital reproductions of State-owned cultural heritage, including works in the Public Domain, were introduced by the Italian Ministry of Culture. The Decree applies to all state-owned, public cultural heritage institutions and will also impact institutions who have already published digital reproductions of state-owned cultural heritage with Creative Commons licenses to allow further reuse. De Angelis considers this situation to constitute a serious threat to the Public Domain and to artistic expression, as the rules impose considerable limitations to the free circulation and enjoyment of cultural heritage.
Similar problems observed in Greece with Article 14 CDSM
Marina Markellou from the Europeana Copyright Community Steering Group pointed out that the same problem is also observed in Greece, perhaps even in a worse state. Despite a verbatim transposition of Article 14 CDSM to the Greek national law, the limitation under the Greek Cultural Heritage Code still exists. This means that prior permission is needed from the Ministry of Culture of Greece for the reproductions, dissemination and depiction of cultural goods belonging to the State for not only commercial but also non-commercial purposes. Permission is granted upon the payment of a fee to the Hellenic Organization of Cultural Resources Development, which also designates the duration and terms of the permission granted. The lack of a standardised process which is costly, time-consuming and non-transparent is an added difficulty to such an excessive reservation.
Therefore, the provision seems to be in conflict even for the uses of in copyright material falling within the scope of exceptions and limitations to copyright, and creates significant challenges for legitimate re-uses of cultural heritage works.
Success with Article 14 CDSM in the Netherlands
A member of the Europeana Article 14 Task Force, Maarten Zeinstra, was also in our session and explained the status of transposition and implementation of Article 14 in the Netherlands. He clarified that Article 14 CDSM was not transposed to Dutch national laws, as the latter is already in line with the CDSM provision. Despite this, Zeinstra stated that he sometimes observes practices by individual cultural heritage institutions which limit the reuse of works in the Public Domain by, for example, only allowing downloads of works for non-commercial purposes. Luckily however, the Netherlands has no additional restrictions to the Public Domain stemming from cultural heritage codes, unlike the situation in Italy and Greece.
Follow the work of Article 14 Task Force
The fragmented landscape of the implementation and impact of Article 14 CDSM can be confusing to many, and necessitates a joint effort to understand the different applications and work towards safeguarding Public Domain objectives. If you are interested in following the developments at this front, check out the work of Europeana´s Article 14 Task Force!
Find out more and get involved
Did you enjoy reading about these discussions? Then join us in the upcoming Copyright and Policy Office hours! You can see an overview of all upcoming sessions here. Our next session on 12 December will cover cross-border uses: clarifying questions around the applicable jurisdiction when using copyright-protected material.