By Kristi Grabovari, LL.M. in Intellectual Property and Legal Intern at HSS IPM

“Each painting teaches you something”

Paintings can highlight the interplay between cultural treasures and copyright law. This article explores how the principles of copyright extend to the digital ecosystem and the intricacies and challenges this convergence presents.

This month, the world celebrated the 230th anniversary of The Louvre, the museum that inspired the above quote by painter Edgar Degas. The Louvre opened as a museum on August 10, 1793, coinciding with France’s establishment of the French Literary and Artistic Property Act on July 19 of the same year. This Act, notable for its author-centric approach, covered paintings and laid the foundation for the country’s evolving copyright landscape.

Da Vinci Code snippet, Dan Brown (2003) – Chapter 4

This statement about The Louvre from “The da Vinci Code” was and is, of course, untrue. Museums invest in comprehensive surveillance systems for many reasons,[1] but relevantly to this article, it has been argued that museums prohibit photography to prevent the violation of copyright laws. Visitors could, in fact, potentially violate copyright laws by shooting and disseminating the museum’s artwork, but a pivotal question emerges: who’s copyright would they be infringing? Museum artworks are not always in copyright, but rather likely may be in the public domain. The reason behind this is the old age of classical art pieces, which were largely created before copyright existed and shortly after it was codified by the Statute of Anne (1710); therefore, many of their authors did not enjoy copyright protection.

This question became more complex as digital reproduction of public domain works – called “digital surrogates” [2] – gained momentum. In the case of the Reiss Engelhorn Museum’s legal battle[3] (hereinafter “rem case”), the German Federal Court of Justice ruled against the defendant (Wikimedia Commons), who had digitally disseminated images of public domain artworks, for copyright violation – not of the original works – but of the digitized versions of these works.

The “rem case” fuelled the discourse on permitted and non-permitted use of digital surrogates, but it was not entirely unprecedented. The Bridgeman–Corel verdict [4] was issued by the US District Court for the Southern District of NY in 1999, where the court had asserted that reproductions lacked originality. These two remain the only court disputes on the issue of digital surrogates, but they left the matter unclear by taking completely opposite stances. Whereas a third dispute, National Portrait Gallery v Wikimedia Foundation[5], that could have delved further into applicable law, did not make it to court and remains unresolved.

This litigation underscored the significance of digital surrogates, and the debate over their copyright status ignited. GLAM[6] institutions invest money and skills in the creation of digital surrogates and in some countries, they may attract neighbouring rights as reproductive works of photography.[7] Neighbouring rights (or related rights), significantly not-harmonized across the world, grant an exclusive right for works that are not creative in themselves but are connected with the original works (such as non-original photographs).[8] The outcome is a protection very similar to copyright, albeit for a shorter term.

The “rem case” raised questions about the assessment of the originality criteria in reproductive works that need little to no creative effort. Applying the rem reasoning would mean that access is free to all the artworks of the public domain but not to their digital surrogates. On the other hand, proponents of open access were concerned about this approach further shrinking the public domain and paving the way for ever-lasting copyright restrictions.

The verdict in the “rem case” prompted a series of legal and regulatory responses. The European Council, amidst drafting the Digital Single Market Directive [9], added Article 14 to prevent similar conflicts. Article 14 explicitly stated that “reproductions of public domain works within the realm of visual arts would not be granted copyright unless they constituted the author’s creative expression.” This rekindled the essence of the Infopaq standard of originality[10] and emphasized the boundaries of copyright in the realm of reproductive photography. Whether Article 14 of the DSM Directive is successful in its approach remains to be seen.

The proliferation of digital surrogates ignited broader questions encompassing cultural heritage, digital era originality, dissemination versus access, and challenges versus opportunities. Notably, The Louvre itself embarked on digitizing an astonishing 490,000 works, echoing the ongoing transformation of art in the digital realm. [11]

As we celebrate The Louvre’s 230-year legacy, it is evident that the convergence of artistic heritage and copyright law has ignited complex dialogues. The interplay between these topics promotes legal discussions on issues including digital surrogates, the boundaries of copyright in the public domain, and the preservation of cultural heritage in the digital era. This raises poignant inquiries – can exclusive rights be claimed for the reproduction of works made by creators that never enjoyed copyright during their lifetimes? The dialogue continues, marking the intriguing union of art, history, and legal intricacies that persist through time, in parallel with the ongoing shift from analogue to digital.

[3] Reiss Engelhorn Museum v Wikimedia Commons – BGH I ZR 104/2017 Museumfotos (2018).
[4] Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)
[5] Navarrete, T. and Villaespesa, E. (2021), “Image-based information: paintings in Wikipedia”, Journal of Documentation, Vol. 77 No. 2, pp. 359-380.  < file:///C:/Users/User/Downloads/FINAL-Paintings-in-Wikipedia.pdf >
[6] Galleries, Libraries, Archives, and Museums
[7] Thomas Margoni, ‘The Digitisation of Cultural Heritage: Originality, Derivative Works and (Non) Original Photographs’ (Social Science Research Network 2014).
[8] Lucie Guibault and Andreas Wiebe, Safe to Open: Study on the Protection of Research Data and Recommendations for Access and Usage (2013) 21.
[9] Council Directive 2019/790 of 17 April 2019 on Copyright and Related Rights in the Digital Single Market and Amending Directives 96/9/EC and 3001/29/EC OJ L 130/92’.
[10] Case C-5/08 Infopaq International A/S v Danske Dagblades Forening (2009) I–06569

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