Should physical artefacts remain in the Public Domain in the digital world?

Digitisation of cultural heritage is one of the greatest challenges of our time, while promising to bring a wealth of information and knowledge to everyone. From a legal point of view, however, it is not always clear whether acts of digitisation create additional forms of protection, such as through copyright or similar rights. This is a particularly compelling issue in the case of shared cultural heritage because if digitisation processes can trigger additional forms of protection, then there is danger that works which are in the Public Domain in the physical world will become no longer freely available in the digital one.

New academic research presented at the European Policy for Intellectual Property (EPIP 2015) conference in Glasgow, organized by CREATe (Research Councils UK Copyright Centre), seeks to determine whether, under EU copyright law, acts of digitisation of cultural heritage give rise to additional copyright or related rights or whether what is in the Public Domain in the physical world should remain in the Public Domain in the digital world as well.

The study, written by Dr. Thomas Margoni, demonstrates that under EU copyright law the answer to these questions is far from clear and the law in this specific area is not yet settled. Reasons for this situation can be found in the tension between the limited competences of the EU in regulating copyright law and the expansive interpretation recently embraced by the European Court of Justice (ECJ) in key copyright areas such as originality. This lack of harmonisation is partially confirmed by the case law of national Supreme Courts which on occasion have offered opposite answers to very similar questions, thereby creating a significant threat to the smooth functioning of the common digital market in the specific area of digitisation of cultural heritage.

The paper found that the factor of “dimension shifting” may be decisive in determining whether the digitisation of a work of art, for instance by way of photography, can be considered original in its own right. The ECJ concept of originality, defined as the author’s own intellectual creation, operates only when the author is able to make free and creative choices and to put his or her personal stamp on the work. According to this principle, whether photographing a two dimensional work (e.g. a painting) or a three dimensional work (e.g. a statue), the shape of the object being digitised would not be a factor. However, the state of current digitising technology suggests that moving from one dimension to another may indeed be an important factor.

Current digitisation projects, commonly based on digital photography techniques, are almost exclusively two dimensional: the act of turning a two dimensional work of art into its two dimensional digital representation allows for very few choices by the “digitiser” or photographer. As a matter of fact, the objective (and the result if the digitisation project is successful) is to represent reality as closely as possible, limiting or eliminating any possible discretion (i.e. free and creative choices or the personal stamp of the author) from the final result. The same, however, does not necessarily hold true in cases of digitisation of three dimensional objects. Since the digital representation of these three dimensional objects will be in two dimensions, the “digitiser” or the photographer may find themselves in the situation of having to decide how to stage the object for optimal digitisation, which side of the object should be reproduced, form which angle and other similar aspects. These types of decisions could, in specific cases, accrue to those free and creative choices through which an author puts his or her personal stamp on a work and accordingly makes the digital representation a work of authorship in its own right.

The effects of the “other photographs” provision on the common digital market

The study analyses in detail the effects that the last sentence of Article 6 of the Copyright Term Directive has on law in Member States. As it is known, Art. 6 Term Directive harmonised the originality requirement for photographic works, but left to Member States the option to protect the not better defined category of “other” photographs. This opportunity was taken, or maintained, in 9 countries (Germany, Austria, Spain, Italy, Denmark, Finland, Sweden, plus Norway and Iceland).

Dr. Margoni’s study shows that the EU legislature did not offer any guidance or harmonising pointers to Member States that embraced the opportunity to protect “other photographs”. This lead to a situation where a number of European countries afforded protection only to original photographs, while others opted for a double layered system which protects original photographs by copyright and “other photographs” by a related right. Consequently, photographs that are not original can still be protected in some, but not all, European Member States.

Additionally, this related right – differently from other EU regulated related rights – is completely left to the discretion of Member States and therefore requisites, scope of protection and duration vary from country to country. This choice of legislative policy, which already attracted criticisms at the time of drafting, is nowadays even less acceptable due to the dis-harmonising effects that it creates on the common (digital) market. Accordingly, the study concludes that a new legislative intervention is needed in this field. The EU legal framework should offer precise and clear indications regarding the scope, structure and temporal extension of the related right. Alternatively, if the maintenance of the protection for “other photographs” should not find proper justification any longer, the EU legislature should consider repealing it.


Notes for editors: ‘The Digitisation of Cultural Heritage: originality, derivative works and (non) original photographs’ by Thomas Margoni is a paper presented at the European Policy for Intellectual Property (EPIP) Conference, University of Glasgow, 2-3 September 2015. For more information visit:

Dr. Thomas Margoni is Assistant Professor of Intellectual Property Law, School of Law, University of Stirling.

For further information contact Thomas Margoni (email: or the CREATe PR team (email:

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