Research

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

Type: Working Paper
Author
Thomas Margoni
Description
This paper approaches the question of originality in photographic reproductions of two-dimensional and three-dimensional public domain works by analyzing the legal thresholds for originality, recognised protections for derivative works, and protections for photographs and non-original photographs among various jurisdictions.
Date
2014-12-03
Abstract
The abstract provided by the author(s) of this work is as follows:

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.

As the European Commission and many MS reported, copyright and in particular "photographers rights" are cause of legal uncertainty during digitisation processes. A major role in this legally uncertain field is played by the standard of originality which is one of the main requirements for copyright protection. Only when a subject matter achieves the requested level of originality, it can be considered a work of authorship. Therefore, a first key issue analysed in this study is whether – and under which conditions – digitisation activities can be considered to be original enough as to constitute works (usually a photographic work) in their own right. A second element of uncertainty is connected with the type of work eventually created by acts of digitisation. If the process of digitisation of a (protected) work can be considered authorial, then the resulting work will be a derivative composed by two works: the original work digitally reproduced and the – probably – photographic work reproducing it. Finally, a third element of uncertainty is found in the protection afforded to "other photographs" by the last sentence of Art. 6 Term Directive and implemented in a handful of European countries.

Accordingly, the paper is structured as follows: Part I is dedicated to the analysis of copyright law key concepts such as the originality standard, the definition of derivative works and the forms of protection available in cases of digital (or film-based) representations of objects (photographs). The second part of the study is devoted to a survey of a selection of EU Member States in an attempt to verify how the general concepts identified in Part I are applied by national legislatures and courts. The selected countries are Germany, France, Spain, Italy, Poland, the Netherlands and the UK. The country analysis fulfils a double function: on the one hand it provides a specific overview of the national implementation of the solutions found at international and EU level. On the other hand, it constitutes the only possible approach in order to analyse the protection afforded by some MS to those "other photographs" (also called non original photographs or mere/simple photographs) provided for by the last sentence of Art. 6 Copyright Term Directive. Part III presents some conclusions and recommendations for cultural heritage institutions and for legislatures.

Publisher
Social Science Research Network (SSRN)
Institution
Institute for Information Law, University of Amsterdam
Jurisdiction
Germany, France, United Kingdom, The Netherlands, Not Listed, Not Listed, Not Listed, European Union
Language
ENG
Size
595 KB, 70 pp.
Copyright Information
In Copyright
Rights and Reuse
CC BY-SA 4.0
Cortex Citation:
Thomas Margoni, “The digitisation of cultural heritage: originality, derivative works and (non) original photographs,” Copyright Cortex, accessed November 21, 2017, https://copyrightcortex.org/research/the-digitisation-of-cultural-heritage-originality-derivative-works-non-original-photographs.