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domain following digitisation.[1] After years of inconsistent GLAM approaches, the EU formalised this principle in the 2019 Copyright in the Digital Single Market Directive.[2] Article 14 confronts the longstanding practice of claiming rights in non-original reproduction media, but is limited to “works of visual art in the public domain.” Despite not extending to all works in the public domain, Article 14 broadly applies to everyone, from GLAMs to commercial photo libraries to the general public. It also applies to “any material resulting from an act of reproduction”, such as metadata, software code, raw 3D scans and 2D photography, as well as future media formats and technologies. Also in 2019, the EU expanded obligations for public sector bodies to create and publish data on the principle of “open by design and default” via the Open Data Directive, a recast of the Public Sector Information Directives.[3] The Commission adopted a policy of CC BY 4.0 for all original materials and CC0 1.0 for raw data, metadata, and other comparable documents to support reuse by the general public to the widest degree.[4] The Commission is currently revisiting how the 2011 Recommendation can further the digital transformation of the cultural sector[5], accompanied by a new 2021 Recommendation on a common European data space for cultural heritage.[6] These developments communicate a clear EU consensus and growing momentum to protect its robust public domain, break down access barriers to cultural collections and to provide GLAMs and the public with the technical infrastructures to support digital transformation and boost the European economy.

2.4. The potential for resolution on the copyright question

Legal developments abroad that support a robust public domain may have no effect in UK law, but they will undoubtedly impact user behaviour in the UK, and globally. As US and EU GLAMs increasingly publish collections to the public domain, user groups, research activities and reuse interest (both general and commercial) will increasingly shift to these digital markets. This reality poses risks to the digital relevance of UK collections and how heritage collections can boost the UK economy, particularly if the question of copyright goes unresolved in the UK.

2.4.1. Legal resolution is unlikely

Government resolution in the near future seems unlikely. The UK lacks plans to implement a strategy equivalent to the 2019 EU Directives that support legal clarity around the reuse of digital collections in the public domain.[7] Moreover, Brexit resulted in the withdrawal of existing copyright exceptions available to UK GLAMs, and without new provisions in place to reduce risk or insulate them.[8]

Judicial resolution also seems unlikely, which would require a GLAM institution to enforce copyright against a user in court. However, this would be risky because: (1) the claim to copyright is weak; (2) website terms also remain questionable; and (3) procedural rules place court costs and counsel fees on the shoulder of the loser. Success on the matter is low, while the risks of enforcement are high: a GLAM could be saddled with an unfavourable precedent in addition to an expensive bill. To be fair,

  1. ↑ https://op.europa.eu/en/publication-detail/-/publication/510c5e78-3ec5-4f7a-a9ef-e4b5f044b1d0/language-en
  2. ↑ https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX%3A32019L0790&from=EN
  3. ↑ https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019L1024&from=EN
  4. ↑ https://ec.europa.eu/transparency/documents-register/detail?ref=C(2019)1655&lang=en
  5. ↑ https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/11837-Evaluation-of-theRecommendation-on-digitisation-and-online-accessibility-of-cultural-material-and-digital-preservation/public-consultation_en
  6. ↑ https://digitallibrary.cultura.gov.it/wp-content/uploads/2021/11/C_2021_7953_1_EN_ACT_part1_v5_YLDLDJUfeiMyrMtRT5F0sz2MGmc_80911.pdf
  7. ↑ Or to secure to GLAMs new copyright exceptions around in-copyright and out-of-commerce collections, which is outside the scope of this report but worth mentioning. https://questions-statements.parliament.uk/writtenquestions/detail/2020-01-16/4371
  8. ↑ e.g., Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works (27 October 2012) OJ L 299/5
A Culture of Copyright
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