About Article 14
The 2019 Copyright in the Digital Single Market (CDSM) Directive includes Article 14, a provision that safeguards the public domain status of works of visual arts. In particular, it defends the principle that public domain works should remain in the public domain when digitised. Importantly, the provision applies to any material resulting from an act of reproduction, not just photographs.
“Article 14 – 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.”
In practice, Article 14’s wording provides flexibility during national implementation in ways that may impact the success of the essential and mandatory principle it defends. For example, article 14 applies to ‘works of visual art’, rather than all creative works and only after ‘the term of protection of a work of visual art has expired.’
This raises many questions. What should happen to reproductions of public domain works that fall outside the customary meaning of ‘visual art,’ like crafts or antiquities? What should happen to reproductions of works never protected by copyright, like artworks by Leonardo da Vinci and other Renaissance artists? Is Article 14 retroactive or will it only apply to reproductions made after the date of national implementation? And finally, how might Article 14 impact related rights other than those recognised for non-original photography, for example those of audiovisual producers?
A narrow reading of Article 14 is that only the countries in the European Union and the European Economic Area with related rights for non-original photographs are required to revise national laws to eliminate such protections. To understand the wider implications, our Task Force is following what national implementation looks like in each member state.
Going beyond the literal meaning of Article 14
Some countries have revised legislation to go beyond what Article 14 requires. In these countries, copyright law now provides greater safeguards to the public domain in the spirit of Article 14.
Sweden’s revised provision on related rights excludes new protections for photographs of all ‘works of art’ for which copyright no longer applies, rather than only works of visual art. Article 49 of the Swedish Copyright Act technically applies only to photographic images or comparable reproduction technologies. The government has however clarified that, to the extent a non-original reproduction act or technology falls outside the category of ‘photographic images,’ the copyright act does not offer any protection for the performance or materials produced by it.
Germany also takes a broader view. Section 68 of the German Copyright Act excludes ‘reproductions of visual artworks in the public domain’ from being protected by the related rights recognised for photographic works and products manufactured in a similar manner to photographs (such as 3D scans and other reproduction media). The provision is retroactive by applying to reproductions of visual artworks from the moment of copyright expiry in the source work, even if its reproduction was made prior to that copyright’s expiry.
Taking a narrow approach to implementation
Other countries have adopted a narrow view of Article 14. Austria, Denmark and Spain revised related rights provisions to apply only to works of fine arts for which copyright has expired. Both Denmark and Spain implemented the provision verbatim, and after the implementation deadline, to avoid being penalised for their significantly delayed transposition. Both countries plan to revisit and potentially revise their legislation to be broader at a later date.
In some cases, the transposition may be too narrow. Section 49a of the Copyright Act in Finland now precludes from related rights protections ‘a photograph of a work of fine art whose protection period has expired.’ It is unclear how courts should interpret the text in light of the wider range of materials produced during reproduction, such as data, metadata or other media beyond a ‘photograph.’ The provision only applies to photographs made after the date of 3 April 2023.
But is national implementation needed?
Because Article 14 seemed to target the use of related rights for non-original photography, some countries without such rights have not reformed national laws.
Belgium has not transposed the provision, explaining that no separate provision is necessary since Belgian copyright law already requires these materials to be the ‘author’s own intellectual creation’ to be protected by a new copyright. The concern was that including a new provision could introduce confusion and ambiguity to copyright law, since the threshold already applies to all categories of works rather than only works of visual art. Other countries declining transposition include France, Hungary, Luxembourg, the Netherlands, Poland and Slovakia.
In contrast, Croatia transposed Article 14 by including its full text in Article 18 on ‘Unprotected creations.’ During the consultation process, the cultural heritage sector asked to include the text ‘work of art’ rather than ‘work of visual art,’ but the proposal was not accepted. Even so, its inclusion sends a clear message on the importance of safeguarding the public domain. Similar transpositions have occurred in Estonia, Latvia, Portugal and Romania.
Limitations on cultural heritage that go beyond copyright
Copyright, however, is just one type of limitation that can restrict the use of reproductions of public domain materials.
Italy and Greece have cultural heritage laws that restrict the use of publicly-owned cultural heritage for certain purposes without permission and the payment of a fee. This means that a reproduction will be in the public domain, but the work that it depicts remains subject to a different right that restricts its use.
Lastly, moral rights or contractual conditions may also apply to the work depicted in ways that impact the reproduction’s use or availability.
Next steps
We will shortly publish an overview with information we have gathered on various countries. We are missing information from Cyprus, Lithuania and Iceland, so if you have any, please reach out to [email protected]. You can also join the Europeana Network Association Copyright Community to stay up to date with developments in this area.
Further reading
For more information on this topic, here are some additional resources that you might find useful:
A recent journal article ‘Surrogate Intellectual Property Rights in the Cultural Sector’ by Andrea Wallace
The Communia Association Eurovision page and the DSM Directive implementation portal page dedicated to Article 14.
The news post ‘Is the Public Domain under threat in Italy?’ by Deborah de Angelis
The upcoming Public Domain Day 2024 event on 7 March 2024, in person in Brussels and online.
A special thanks to members of the Article 14 Task Force who collaborated on the research and data collection necessary for this post.