There are at long last indications that UK copyright law is moving in the direction of the WMF and Commons policy [1] that "faithful copies of public domain works are themselves in the public domain" - in other words that faithful photographic reproductions of old, out of copyright artworks such as paintings do not create an enforceable new copyright for the photographer. The UK Intellectual Property Office has recently updated its copyright advice notice [2] to include the following:

Are digitised copies of older images protected by copyright?

''Simply creating a copy of an image won't result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.''

''However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author's own 'intellectual creation'. Given this criteria, 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.''

This official advice from a UK Government agency is useful as it recommends a strikingly different approach from the one that has been taken over many years by the UK courts, namely that a new copyright can very easily be created merely by the 'skill and labour' involved in taking any sort of photograph (the copyright practitioner's text, Copinger & Skone James, says that "in terms of what is original for the purpose of determining whether copyright subsists in a photograph, the requirement of originality is low and may be satisfied by little more than the opportunistic pointing of the camera and the pressing of the shutter button.")

Although the IPO advice is not binding on the UK courts, it will be of useful persuasive value. It's interesting that the official view being taken is that the European Court of Justice has effectively replaced the very low bar of "Was sufficient skill and labour applied?" with the higher one of "Is it the author's own intellectual creation?''. The 2009 CJEU decision in Infopaq [3] is gaining traction.

Communia have published a blog post  [4] that is worth reading.

Michael Maggs

Chair, Wikimedia UK


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