DSM Directive Series #3: How far does Article 14 go?

DSM-fatigue also for @CultureDoug's Pushka

As IPKat readers know, a few days ago the European Parliament adopted the latest version of the draft Directive on Copyright in the Digital Single Market ('DSM Directive'). In a few days' time, the Council will cast the last vote on it and, after that, it will be published on the EU Official Journal. Individual Member States will then have 24 months to transpose this new piece of EU legislation into their own laws.

The IPKat is now running a DSM Directive Series [previous episodes, here and here], to address a number of points raised by the provisions contained in the directive. 

Today I would like to address a provision, Article 14, that was not present in the original proposal, and was inserted quite late in the legislative process. It relates to "Works of visual art in the public domain":

Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author's own intellectual creation.

The rationale of this provision is explained in Recital 53:

... In the field of visual arts, the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture, and the access to cultural heritage. In the digital environment, the protection of such reproductions through copyright or related rights is inconsistent with the expiry of the copyright protection of works. In addition, differences between the national copyright laws governing the protection of such reproductions give rise to legal uncertainty and affect the cross-border dissemination of works of visual arts in the public domain. Certain reproductions of works of visual arts in the public domain should, therefore, not be protected by copyright or related rights. All of that should not prevent cultural heritage institutions from selling reproductions, such as postcards.

Three questions may arise - inter alia - in relation to Article 14. The first is whether, insofar as copyright is concerned, this provision represents a change in the law or, instead, a mere clarification thereof. The second is whether this provisions provides any broader teachings as regards copyright subsistence. The third is what relationship there is between Article 14 and Article 6 in the Term Directive.

Article 14: a change or a clarification?

This blog has discussed on a number of occasions, eg here, whether the concept of originality as mandated by the Court of Justice of the European Union (CJEU) in Infopaq and its progeny allows Member States to protect - by means of copyright - verbatim reproductions of public domain artworks.

The answer appears to be in the negative: to satisfy the required originality it is necessary that a work be its 'author's own intellectual creation', as resulting from 'free and creative choices' so that the 'personal touch' of the author is visible in the creative result [see here for a recent application in the Netherlands].

In this sense, therefore, Article 14 is a clarification - rather than a change - in the law as it already exists or - rather, as it has been developed by the CJEU. A simple reproduction of a work in the public domain is not sufficient to create a new copyright. 

Hence, copyright notices like those below will - hopefully - disappear:

Broader teachings: a codification of CJEU case law on originality

The provision is also important because it somewhat codifies CJEU case law on originality. In fact , Article 14 relates the standard of originality required for copyright protection to the concept of 'author's own intellectual creation' in relation to 'any material resulting from an act of reproduction' (emphasis added).

So far, there has been a formal harmonization of the standard of originality only for computer programs, databases, and photographs. In its landmark Infopaq decision, the CJEU de facto harmonized this requirement for copyright protection and made the 'author's own intellectual creation' threshold applicable also to works falling within the scope of the InfoSoc Directive.

Article 14 of the DSM Directive - though within the (limited) remit of reproductions of works of visual art - appears to assume that, under EU copyright, protection only arises when a work  - 'a material' - is sufficiently original in the sense clarified by the CJEU.

This is in any case a welcome clarification, especially for those Member States (like the UK) that have traditionally envisaged a lower standard of protection, ie 'sufficient skill, labour or effort', and whose courts have showed a certain resistance towards the embracing the CJEU-mandated concept of originality

Relationship with Term Directive

The Term Directive is a piece of EU legislation that the DSM Directive neither leaves unaffected (see Article 1 and Recital 4), nor does it amend explicitly (see Article 24).

Article 6 of the Term Directive so provides:

Photographs which are original in the sense that they are the author's own intellectual creation shall be protected in accordance with Article 1. No other criteria shall be applied to determine their eligibility for protection. Member States may provide for the protection of other photographs.

This provision explicitly allows EU Member States to protect both original photographs (by means of copyright) and sub-original photographs (by means of related rights; recently this blog reported on the German Federal Court of Justice's decision concerning protection of digitzed images of works in the public domain: here and here).

With the introduction of Article 14 of the DSM Directive, the question that arises is whether and to what extent the possibility made available by the Term Directive of related rights in sub-original photographs has been affected by this new provision.

It would appear that a related right (if any) recognized by a certain Member State is due to become unavailable insofar as the photograph at issue is of a work of visual art in the public domain, but it might not go beyond that.

So, for instance, the Italian Copyright Act recognizes a 20-year right over simple photographs. With the implementation in Italy of the DSM Directive, something like my dinner:

might continue enjoying protection for the next 20 years (as the photograph is not, arguably, of a work of art), while this:

would be outside the scope of the right (to be noted that, already now, the Galleria degli Uffizi - unlike, eg, the National Portrait Gallery or Musée d'Orsay - does not claim to hold any copyright over the digitized image of this masterpiece by Botticelli).

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The IPKat's DSM Directive Series

• DSM Directive Series #1: Do Member States have to transpose the value gap provision and does the YouTube referral matter?
• DSM Directive Series #2: Is the press publishers' right waivable?