The Nebra Sky Disk and the question of rights on previously unpublished materials
The Nebra Sky Disk is an archaeological sensation and is considered to be the oldest known representation of the sky. It shows a precise representation of the sun, moon and stars, which is dated back to 1600 BC. Since its discovery, it has fascinated people worldwide, not only because of its age, but also because of its cultural and historical value. The Sky Disk has been recognised by UNESCO as a World Documentary Heritage Site and thus belongs to the cultural heritage of all humanity.
A (nearly) public domain work
The Sky Disk itself is a public domain work. This means that it is free of copyright restrictions. In theory, everyone should have access to the oldest representation of the sky and be able to use it.
However, this freedom ends at an unexpected point: the photographs of the sky disk. This is because the state of Saxony-Anhalt, which owns the sky disk, holds new copyright on the photos of the sky disk because it has published, for the first time, a reproduction of this work. The state refers to Section 71 of the German Copyright Act (UrhG). Section 71 UrhG is the German implementation of Art. 4 of the Copyright Term Directive. The regulation concerns works that are in the public domain – such as the Nebra Sky Disk. It allows those who publish or publicly reproduce a work in the public domain for the first time to reinstate copyright protection for a certain period of time. They therefore receive the exclusive right to exploit the work.
According to Section 71 UrhG, the person who publishes a previously unpublished work for the first time receives a so-called ancillary copyright to this edition. It is valid for a period of 25 years from the date of publication. The regulation is intended to create incentives to make historical works accessible and to publish them. However, this makes further reuse more difficult because permission needs to be acquired for others to use the Sky Disk. In the case of the Nebra Sky Disk, it is already questionable whether it was the state of Saxony-Anhalt that first allowed the Sky Disc to be shown in public in 2002. It is highly likely that the Sky Disc was already known to the public before 2002. In any case, the problem with the regulation is that it grants an exclusive right to a work in the public domain.
Photographs of cultural objects as official works
The current situation leads to a contradiction: while the representation of the sky on the disk is in the public domain, images of this artifact may not be distributed without permission.
This practice raises fundamental questions about the protection of photographs of cultural objects. The preservation of cultural objects is a state responsibility, regulated by the Cultural Property Protection Act. In 2015, the Nebra Sky Disk was added to the list of nationally valuable cultural objects. The list includes the photo of the Nebra Sky Disk with the copyright notice Land Sachsen-Anhalt. This makes the photo an official work. Official works, according to Section 5 Abs. 2 UrhG are works that have been published in the official interest for general information, and they are in the public domain. With its inclusion in the directory of national valuable cultural property and the attachment of the reference to the state of Saxony-Anhalt, it becomes clear: the photo of the Nebra sky disk is a work that has been published in the official interest for general information. In any case, the assertion of an exclusive right contradicts the principle of public money for public goods.
In addition to the exclusive right of the state of Saxony-Anhalt, Juraji Liptak, who photographed the Nebra Sky Disk, could also claim protection as a photographic work under Section 2 No. 5 UrhG and as a photograph under Section 72 UrhG. According to current case law, the photograph of the Nebra Sky Disk would enjoy copyright protection as a photographic work in accordance with Section 2 no. 5 UrhG and even as a photograph in accordance with Section 72 UrhG. Of course, the photographic work and the photograph are also subject to different protection periods. According to this, the photo of the sky disk would be in the public domain 70 years after the death of the author. However, this is contradicted by the view expressed here that the photo of the Nebra Sky Disk is a work in the public domain according to Section 5 of the German Copyright Act.
Photographs of photographs of works in the public domain in museums
Is it permissible to take a photo of a photo of the Nebra Sky Disk when it is exhibited in a museum and to upload it online? In 2021, Section 68 UrhG (Art. 14 DSM Directive) was introduced as part of a copyright law reform. According to this, reproductions of visual works in the public domain are not protected by related rights. This means that a photo of a photo of a work in the public domain cannot be protected. The reform also emphasises that works in the public domain should not be excluded from access via additional protection.
The claim to cultural freedom
The discussion also touches on fundamental human rights. Article 27 of the Universal Declaration of Human Rights states that everyone has the right to freely participate in the cultural life of the community. This right includes not only access to cultural goods, but also the opportunity to engage with them and to create works based on them. In the case of the Nebra Sky Disk, this means that not only the artefact itself, but also its photographic representation should be accessible and reusable for everyone. The current handling by the state of Saxony-Anhalt is at odds with the human right to cultural freedom.
Public domain as access to our cultural heritage
In a world where access to information and knowledge is increasingly seen as a human right, the question arises as to whether an artefact that is recognised as a world documentary heritage should really be protected by copyright law. Developments in the EU pose a threat to access to and engagement with cultural goods across borders. One example is Italy, where a law grants the state an exclusive right to reproduce works in the public domain for commercial purposes. It remains to be seen whether greater emphasis will be placed on free access to cultural works in the future.
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