Much has been written about the controversial Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Text with EEA relevance) (the “Directive”) that came into force last year and amends copyright rules in the EU to make them “fit-for-purpose in today’s digital environment.” The European Parliament voted on the Directive on 26 March 2019, which was then adopted by the European Council on 15 April 2019 and was published in the Official Journal on 17 May 2019. EU Member States have until 7 June 2021 to transpose the Directive into national law. According to the EU, the Directive seeks to ensure “the right balance between the interests of all players” in the digital sphere, including “users, creators, authors, press – while putting in place proportionate obligations on online platforms.”
In light of Brexit, it was unclear whether the UK would implement the Directive into national law. In late April, the Minister for Universities, Science and Innovation said that the UK’s implementation of the Directive will be dictated by the outcome of the Brexit process, thereby leaving the possibility of not implementing the Directive. Prime Minster Boris Johnson was firmly against the Directive, as according to him, it is “terrible for the Internet” that will help the “rich and powerful” and the UK “should not apply it.” On January 2020, the UK Government confirmed there were no plans to implement the Directive in the UK. “The deadline for implementing the EU Copyright Directive is 7 June 2021. The United Kingdom will leave the European Union on 31 January 2020 and the Implementation Period will end on 31 December 2020. The Government has committed not to extend the Implementation Period. Therefore, the United Kingdom will not be required to implement the Directive, and the Government has no plans to do so. Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process.”
Protection of Copyrighted Works on Digital Platforms
The most controversial part of the Directive is Article 17 (known as Article 13 before it was passed), pursuant to which commercial digital platforms such as Instagram and YouTube will have to take active measures to prevent copyrighted material from being uploaded on their platforms without the copyright holder’s permission or risk being held liable. The Directive requires digital platforms to seek authorisation from rights holders for instance by concluding a licensing agreement with them prior to making their content available to the public on their platforms and to provide copyright holders appropriate and proportionate remuneration when rights holders license or transfer their exclusive rights for exploitation of their works.
The Directive makes clear, however, that such “cooperation between online content-sharing service providers and rights holders” shall not result in preventing users from freely uploading protected content for the purposes of “quotation, criticism, review” as well as “use for the purpose of caricature, parody or pastiche.” In other words, this Directive does not alter the definition of use that is deemed to be permissible under the current copyright regime (e.g. fair dealing exception in the UK). In addition, under the Directive, online content-sharing service providers are exempted from liability if they demonstrate that they have “made best efforts” to obtain authorisation from rights holders to prevent copyright infringement and if they demonstrate that they have acted “expeditiously” to remove infringing content, after receiving a warning from the owner of the rights. In determining compliance on part of online content-service providers, the Directive requires Member States to consider the audience, size of the service and the resources available to such providers. In the other words, the larger the organisation, the stricter the scrutiny and vice-versa.
Instagram has become an increasingly popular tool to market and sell artworks globally. The use of images of artworks in copyright is allowed for the purpose of sale of the underlying artwork, without permission from the artist. However, infringement issues are likely to arise when users “repost” or “reshare” the artist’s copyrighted images on digital platforms. Some forms of reposting or resharing may squarely fall within the exceptions of criticism, review, parody etc., but others may not. We will need to wait and see how the Directive is implemented and enforced by individual EU Member States. At present, there is discussion and debate about whether digital platforms will now need to introduce expensive filtering mechanisms that screen for infringing content and whether such filtering mechanisms are even possible to create.
Copyright in Faithful Reproductions of Works of Visual Arts in the Public Domain
A less talked about amendment, or rather clarification, contained in the Directive also has important implications for the visual art world. Article 14 of the Directive, Works of visual art in the public domain, provides that there can be no copyright or related rights in faithful reproductions (i.e., slavish copies or exact replicas) of works of visual art that are already in the public domain.
In the UK, like in EU countries and the US, copyright generally subsists in an artistic work such as a photograph or a painting if it is the author’s own intellectual creation. Copyright in artistic works lasts 70 years after the author’s death. After this, the work is no longer copyright protected and is deemed to be in the public domain.
Where a painting is photographed, copyright in the photograph of the painting vests in the photographer of the painting if the photograph is sufficiently “original”. The question is, if the photograph shows the painting exactly as it is, is the photograph itself copyright protected? This is highly relevant, for example in relation to images of artworks in museums’ collections. Museums often charge for images of artworks in their collections, even though copyright in the artwork being reproduced has long expired. If you reproduce the faithful image of an artwork out of copyright created by a museum without the museum’s consent, do you violate the museum’s copyright in the faithful image it has created? Equally, if an auction house or a gallery reproduces the image of an artwork out of copyright and prints that image in one of its catalogues, does the auction house or the gallery infringe the copyright of the photographer whose image it has used?
Article 14 of the Directive seeks to answer that question in the negative. It reads as follows:
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.
As defined by the CJEU, “[i]n order for an intellectual creation to be regarded as an author’s own it must reflect the author’s personality, which is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices” (see, to that effect, judgement of 29 July 2019, Funke Medien NRW, C- 469/17, ECLI:EU:C:2019:623, para. 19; judgment of 1 December 2011, Painer, C-145/10, EU:C:2011:798, paragraphs 87 to 89). In effect, Article 14 seeks to confirm the principle according to which if there is no originality there is no copyright. However and importantly, it creates a presumption that the faithful reproduction of a work of visual art does not carry sufficient originality to warrant copyright protection, and the burden of proof that the reproduction is sufficiently original to attract copyright protection rests with the photographer.
The Directive unifies a seemingly fragmented position across EU Member States by making it clear that there can be no copyright protection in faithful reproductions of works of visual arts that are already in the public domain. This means if you take a photograph of a painting by Caravaggio, capturing its true likeness without transforming the original, then pursuant to the Directive your photograph would not enjoy copyright protection since the original work (i.e. the painting) is already in the public domain.
The preamble (Para. 53) of the Directive provides that “faithful reproductions” of works in the public domain contribute to the access and promotion of culture and heritage, and the protection of such reproductions is inconsistent with the expiry of the copyright protection of works. The preamble acknowledges the fragmentated position between various national copyright laws in Europe governing the protection of reproduction of visual arts in the public domain and the need for consistency.
Will Article 14 curtail “the reproduction fee hustle”?
The preamble (Para. 53) of the Directive concludes with an important exception, “all of that should not prevent cultural heritage institutions from selling reproductions, such as postcards.” Charging visitors who buy postcards in the museum’s shop is a longstanding practice that is unlikely to change. Charging academics for the use of images in the museum’s collection is considerably more controversial.
Museums merrily charge hundreds of pounds each second a painting is seen. But such charges are little more than a hustle. Museums talk threateningly about ‘copyright’. . . Far worse is the fact that academics and students are obliged to pay, too, severely restricting research and publications. Such fees are a pernicious tax on scholarship. It’s a scandal that our publicly owned art is monetised in this way. Some institutions even charge to use lecture images. For an academic to use a single image from the Tate in a single, free lecture, the fee is £20. A whole lecture could cost hundreds of pounds.
Once the Directive is implemented, museums in the EU will no longer be able to claim copyright infringement where academics reproduce the museum’s own faithful reproductions of works of visual art in the museum’s collection, unless the museum can show that the image it has created is original in the sense that it is the author’s own intellectual creation.
What are “works of visual art”?
Article 14 only covers “works of visual art”: this is not a defined term. Further, EU Directives do not contain a binding, autonomous list of categories to be considered as “works” or “works of visual art”. Unfortunately, the language and structure of international Conventions – to which the CJEU often refers when interpreting provisions of EU copyright law – do not help, since rather than using the term “visual art”, Article 2 (1) of the Revised Berne Convention lists different objects which fall into this category (“works of drawing, painting, architecture, sculpture, engraving and lithography”). In addition, “photographic works” are listed in the Berne Convention as a separate category of works, as are “works of applied art”, “maps”, “sketches” and “three- dimensional works relative to … architecture“. If anything, the Berne Convention suggests that the term “works of visual art” should not be construed too narrowly.
Some may argue that the emphasis should be on the “faithfulness” of the reproduction as suggested by Recital 53. If so, Article 14 would also apply to faithful – in other words, non-creative – reproductions of public domain photographic works, design works (works of applied art) and maps. Others may argue that a difference ought to be made between the faithful reproduction of a two-dimensional work, as opposed to a tri-dimensional work such as a sculpture. Whilst a work of sculpture is typically treated as a “work of visual art”, it might be more easily argued that the two-dimensional reproduction of a sculpture is “original in the sense that it is the author’s own intellectual creation”. It remains to be seen how EU Members States implement the Directive and if they seek to define “works of visual art”.
In the UK, there is little and inconsistent authority on the issue of whether a photograph that is a faithful reproduction of a painting should enjoy copyright protection. The leading case, Graves’ Case (1869) LR 4 QB 715, is dated. In the Graves’ Case, Justice Blackburn held that a photograph of an engraving of a painting was an “original photograph” and therefore protected under the Fine Act Copyright Act of 1862. However, many have questioned Graves’ applicability given the changes in technology (it is easier to take photographs now than it was in the 1800s) and the law. See Interlego AG v Tyco Industries, Inc., 1988 3 ALL ER 949 in which the court held that skill, labour or judgement merely cannot confer originality and a change in medium (from painting to a photograph) without any other changes was not creative enough to warrant copyright protection. In a more recent case, Antiquesportfolio.com v. Rodney Fitch, it was held that copyright subsists in simple photographs of three-dimensional objects because the taking of such photographs involves judgment – that is positioning of the object, the angle from which the picture is taken, the lighting, and the focus.
In a 2014 report, the UK Intellectual Property Office took the position that digitised copies of older images are unlikely to be considered “original”, since there will “generally be minimal scope for a creator to exercise free and creative choices”, when the aim is simply to make a faithful reproduction of an existing work.
Clarity is needed in the UK, via parliament or the courts, as to whether faithful reproductions of artworks in the public domain warrant copyright protection.
Given that the more controversial elements of the Copyright Directive such as the requirement for online content-sharing service providers to obtain an authorisation from the rightholders in order to communicate their works to the public, were supported by the British creative industries and, in the main, by the British government, the Prime Minister’s comment that the Directive will help the “rich and powerful” is, not unusually for the Prime Minister, somewhat misplaced. In fact, the Directive helps protect copyright held by visual artists, songwriters and musicians, while the losers are the American mega-companies like Google, Apple and Facebook (who ardently opposed the Directive). The Prime Minister seems to take the view that copyright protection is ‘terrible for the Internet’. For now, copyright remains probably the strongest protection afforded to artists. It is a matter of concern that the Prime Minister should so publicly side with the American giants like YouTube and Google, at the expense of the creative industries.
By Pierre Valentin and Azmina Jasani
 https://www.consilium.europa.eu/en/press/press-releases/2019/04/15/eu-adjusts-copyright-rules-to-the-digital-age/ OR https://eeas.europa.eu/headquarters/headquarters-homepage/61073/eu-adjusts-copyright-rules-digital-age_en
 Bendor Grovenor, The reproduction fee hustle, The Art Newspaper, 20 Nov. 2017, available at https://www.theartnewspaper.com/blog/the-reproduction-fee-hustle.