As discussed in two previous IAL blog posts (here and here), the current outbreak of Coronavirus has had a substantial impact on the art world. One of the more positive sides to the story is how the present restrictions in movement have encouraged museums and galleries to scale up their presence online, giving individuals the ability to access culture from the comfort of their own homes.

According to a study by the Network of European Museum Organisations, around 90% of museums in Europe are currently closed. However, this same study notes the hugely diverse approaches that European museums have taken to adapt to the present circumstances. One of the most common digital initiatives is the virtual tour. For example, the Museo Nacional Thyssen-Bornemisza in Spain has launched a ‘Virtual Visit’ to its Rembrandt exhibition, which had to be cancelled due to the pandemic. In the UK, a virtual visitor can wander through the collections of the British Museum in the world’s largest indoor space on Google Street View.

The British Museum has been using digital platforms since 2015, when it first collaborated with Google Arts & Culture. However, according to Apollo Magazine, the project is not complete. Over the course of the next few weeks, the British Museum will be relaunching its online collection, which contains 4 million objects. The date of this relaunch was brought forward, presumably so that better digital services are available to viewers at home. The impact of the Coronavirus pandemic on the online museum is starkly demonstrated by the fact that, as noted by Apollo Magazine, the Courtauld Gallery’s virtual tour was visited just under 9,000 times in 2019. In contrast, it was visited 14,600 times in March 2020.

Making museum content available online is clearly beneficial, even more so in current times. However, these new initiatives must take account of any legal restrictions which might prevent their success and perhaps the most obvious of these is the law of copyright. Principally, any copyright owned by artists or artists’ estates must be considered before sharing their work online. Perhaps more complicated, however, is the application of copyright law to works which are in the public domain.

Many objects in museum collections may be in the public domain. This means that they fall outside the copyright regime and can be freely disseminated online. However, as is often the case with copyright law, matters are not quite so simple. Across the world, different approaches to the issue of digitising public domain works have arisen. In the infamous Bridgeman decision in the United States (Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)), it was held that reproductions of public domain works were not protected under copyright because they lacked sufficient originality. However, in both the UK and Europe, different standards of originality apply.

Originality in the UK requires that the work “originate” from the author and be a product of “skill, labour and judgment”. As is evident from a quick dive into the digital collections of the British Museum, copyright is still being claimed in digital reproductions of public domain artefacts. See, for example, this image of an ancient Egyptian artefact. This is an object which itself is clearly a public domain work, owing to its antiquity, but the digital image has been labelled © The Trustees of the British Museum.

The situation in the EU is different. Firstly, the EU has a different standard of originality from both the UK and the US, requiring a work to be the “author’s own intellectual creation”. This standard was established in the Eva-Maria Painer case (2011) and the Infopaq case (2009). However, as in the UK, the specific question of copyright in public domain works has never been determined by the Court of Justice of the European Union (CJEU). Nonetheless, the recent EU Directive on copyright and related rights in the Digital Single Market contains a provision which might shed light on the copyright status of digitised public domain works.

Article 14 of the Directive provides 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.”

This would suggest that copyright in digital exhibitions and reproductions of museum content online during the pandemic cannot attract fresh copyright protections at EU level unless they are shown to constitute the “author’s own intellectual creation”. One might well ask then, what makes a reproduction of a Breughel the Elder painting in the collection of the Kunsthistorisches Museum Wien, and in which copyright is asserted, the “author’s own intellectual creation”?

The impact of EU copyright principles in the UK is now more up in the air than ever. The UK Government has stated that it will not be implementing the above-mentioned EU Directive, which is due to be implemented by June 2021, since its position has been that the Brexit transition period will come to an end on 31 December 2020. However, it is becoming possible that the UK will not be ready to depart from the EU at the end of 2020 because of the disruption in talks caused by the pandemic. This raises questions about the Government’s position on the implementation of this Directive so that going forward, it is not certain what impact these EU legal provisions will have in the UK.

Why does all this matter? Firstly, museums need to know how they can protect the digital images and ‘tours’ which they have spent time and money creating. Secondly, individuals need to know how they can use the information being shared online. Interestingly, in a recent EU judgment, the CJEU began to speak of users of copyrighted works having their own rights, rather than focussing principally on the rights of the author. Users need to know whether they can reproduce and edit digital images of museum objects which appear to be freely accessible online.

This is especially the case because certain museum initiatives, aimed at encouraging engagement at a time where physical access is impossible, are actively promoting user participation in digital content. For example, the Rijksmuseum in Amsterdam has created a playful Instagram account ‘Between Art and Quarantine’, which encourages users to recreate a piece of artwork at home. Based on this, the J. Paul Getty Museum in Los Angeles sent out an “invitation to use digitized and downloadable artworks from Getty’s online collection”. These initiatives demonstrate the fantastic creativity which can arise when museums are willing and able to provide access to their digital content online. Clarity on the application of copyright law would ensure that this is not impeded in any way.

For more information on copyright in reproductions of works of art see Simon Stokes’ article in our Art, Antiquity & Law journal (Vol V, Issue 1, 2000) and Emily Gould and Alexander Herman’s article also in our journal (Volume XXII, Issue 2, 2017).

Look out for the next issue of Art, Antiquity & Law (Vol XXV, Issue 1, 2020) which will contain two articles on 3D reproductions, museums and copyright law by Amelia Bell and Charlotte Dunn.