The digitisation of cultural heritage: originality, derivative works and (non) original photographs

Author: Thomas Margoni (University of Stirling)

The purpose of this paper is to explore the legal consequences of the digitisation of cultural heritage institutions’ archives and in particular to establish whether digitisation processes involve the originality required to trigger new copyright or copyright-related protection.

Frequently, cultural institutions participating in digitisation projects are not fully aware of whether they possess, or could posses, specific rights stemming from the activity of turning their “physical” catalogue into a “digital” one. At the same time, some of these institutions are concerned that allowing an unrestricted reproduction and digitisation of the works in their collections would deprive them of an important source of income. Conversely, in recent EU policy documents it emerged that “obstacles in ensuring that public domain material remains in the public domain after digitisation, mainly in connection with photos and photographers’ rights” are cause of legal uncertainty and market inefficiency.

In the light of these and similar concerns, the paper attempts to clarify and formulate recommendations regarding the copyright and related rights status originating from digitisation projects which, as the European Commission, Member States, cultural institutions and copyright literature report, is a cause of legal uncertainty.

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