Moral rights. Sitting alongside copyright are moral rights, which are the noneconomic rights that protect the personal and reputational value of a work to its creator. In the UK, these are limited to the rights of attribution and integrity and interpreted narrowly, as discussed in Section 4. Moral rights expire upon the expiration of copyright. This means no moral rights exist in public domain works.[1]
Public domain. Any works or materials that are not sufficiently original belong to the public domain upon creation. The public domain is an imaginary space that includes a range of other materials: information that copyright law excludes from its protection, like numbers, facts or short phrases; original works made before copyright existed, like the Mona Lisa; and original works for which copyright protection existed but has expired (i.e., out-of-copyright works). With this latter category, we need certain information, like the creator's date of death, to determine whether copyright has expired. Without it, we cannot conclude the work is out-of-copyright and thus in the public domain. These and other uncertainties impact a range of 'orphan works' in collections. Legal grey areas around 'originality' also produce uncertainties on the rights status of reproduction media and collections data. Consequently, immense amounts of heritage materials sit in public domain purgatory. The important point to remember here is that not everything is automatically protected by copyright or sui generis rights upon creation. In other words, all materials are by default in the public domain unless the legal conditions are met to justify copyright protection.
Contract. Contract law can apply where a website's terms of use or copyright policies permit or prohibit certain activities. By accessing and using a website, the user might consent to the terms of use and be contractually bound by them. This too is a legal question that requires litigation on factors that impact whether a valid contract was formed, like notice, consideration and even the reasonableness of the terms. Many GLAMs use website policies to reinforce claims to intellectual property (IP) and prohibit activity beyond what copyright exceptions would permit a user to do.[2] Such terms are discussed further in Section 4. It is also important to note that GLAMs sign contracts themselves that may restrict what they can do with public domain materials in their collections (e.g., donor or exclusive agreements).
Obligations for public bodies. Freedom of information laws, like the Freedom of Information Act 2000 and Re-Use of the Public Sector Information (RPSI) Regulation 2015, secure the public with rights to access and reuse types of information produced by public authorities as part of their public task.[3] How a public body (or Act of Parliament[4]) defines the public task determines which documents and information fall within its scope. These laws acknowledge the costs associated with supplying that information and permit charging reasonable fees under certain circumstances. GLAMs can charge more for reuse where the organisation holds IP rights in the document, and/or is required to generate revenue to cover a substantial part of the costs relating to their public task documents required to perform the public task. Despite such exceptions, public bodies must be transparent with their fee models (including reprographic and permissions fees) and apply standard fees across reuse types. This means, for a request to put a high-resolution image of a painting on a luxury bag for commercial resale in stores worldwide, the National Gallery must charge the same fee
- ↑ This applies only to the UK. The situation is different in different jurisdictions.
- ↑ In some cases, such terms could be argued to violate the Fraud Act 2006, specifically the section 2 offence of fraud by false representation. See Ronan Deazley and Robert Sullivan (2011) 'Copyright, Licences, and Statutory Fraud, Journal of Media Law 3(2): 287-303
- ↑ Freedom of Information Act 2000, c. 36; Re-use of the Public Sector Information Regulation 2015 No. 1415
- ↑ e.g., The Museums and Galleries Act 1992, c. 44
