research, for criticism, review, quotation, and news reporting, and other purposes.[1] Should online policies and contracts claim overbroad rights that prohibit these uses, the law states such terms cannot be enforced. This is because UK copyright law was revised in 2014 to include contract override provisions that render void or unenforceable any attempts to prohibit by contract certain acts that would otherwise not infringe copyright.[2]
Because of these clear gaps in case law and legislation, the UK Intellectual Property Office and the House of Lords have both directly addressed this issue.
2.2.2. UK Intellectual Property Office 2015 Copyright Notice
The clearest and most current statement of law comes from the UK Intellectual Property Office (IPO). In 2015, the UK IPO published its ‘Copyright Notice: digital images, photographs and the internet’. On page 3, the IPO directly confronts this issue, referencing the above EU standards and opinions of the Court of Justice of the European Union and their effect in UK law:
[A]ccording to established case law, the courts have said that copyright can only subsist in subject matter that is original in the sense it is the author’s own ‘intellectual creation’. Given this criterion, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.[3]
Despite this, the Copyright Notice has had little impact on digitisation practices in the UK, perhaps because it is guidance and non-binding. When it was published, there was much discussion among GLAMs on what impact it would have on commercial licensing. Only one of the 195 UK GLAM policies surveyed referenced the Copyright Notice: that of the Royal Pavilion & Museums Trust, Brighton & Hove.[4]
2.2.3. House of Lords 2018 Debate
Three years later, the House of Lords addressed this issue. Lord Valerian Freyberg posed the following question:
To her Majesty’s Government whether they sanction each National Museum’s interpretation of image copyright law; and if not, what measures are in place to review whether the National Museums are interpreting image copyright law correctly.[5]
The preliminary response focused on operational matters and autonomy rather than addressing the legal question of copyright and accuracy of legal interpretations among national museums:
National museums are bound to provide free, in person, access to the permanent collections as a condition of government Grant-in-aid (GIA) funding and this policy has been a great success. Provided this condition is met, national museums are encouraged to pursue commercial activities, which may include image licensing. Such activities are an important supplement to museums in supporting their objectives to facilitate participation for people of all ages and backgrounds.[6]
The debate on 12 September 2018 also left the legal questions unresolved. No debate of whether the law supported copyright and licensing fees occurred. Instead, it focused on topics like national
- ↑ CDPA 1988, ss. 28-31
- ↑ CDPA 1988, ss. 28-31, 36, 50, 296
- ↑ https://www.gov.uk/government/publications/copyright-notice-digital-images-photographs-and-the-internet/copyright-notice-digital-images-photographs-and-the-internet
- ↑ Discussed in Section 3.4.
- ↑ https://questions-statements.parliament.uk/written-questions/detail/2017-11-06/HL2907
- ↑ https://questions-statements.parliament.uk/written-questions/detail/2017-11-06/HL2907
