“What is in the public domain should stay in the public domain!” – Article 14 of the EU-DSM Directive

by Timotej Kotnik Jesih, Intellectual Property Institute, www.ipi.si and Dr. Maja Bogataj Jančič, Intellectual Property Institute (IPI), www.ipi.si

The new Digital Single Market Directive (hereinafter the DSM Directive)[1] addresses works of visual art in the public domain in its Article 14, which reads “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.”

This article was introduced by the European Parliament as an amendment during the legislative process with the intention of enhancing cultural heritage preservation by relying on the legal concept of public domain. Its aim is to ensure that works of visual art that are in the public domain in analogue form remain in the public domain also in digital form, by not granting copyright protection to faithful reproductions of such works. Reproduction of visual works in the public domain can, pursuant to Article 14 DSM Directive, be granted copyright protection only when they fulfil the originality threshold themselves. The rationale for this provision is explained in the DSM Directive’s Recital 53, as “[t]he expiry of the term of protection of work entails the entry of that work into the public domain” and “the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture, and the access to cultural heritage“, whereas in the digital environment, “the protection of such reproductions through copyright or related rights is inconsistent with the expiry of the copyright protection of works“.

Article 14 DSM Directive increases the level of legal security for libraries and other cultural heritage institutions (CHIs) when they use public domain works of visual art in cultural heritage preservation activities, as faithful reproductions of such works sometimes otherwise enjoy protection by related rights, even if they do not meet the copyright-required originality threshold. Article 14 enables libraries to be able to make visual works from their collections (that are in the public domain) available online and in a digital format, without the fear of such works having to be taken down. With the good implementation in national legal systems, Article 14 will hopefully provide the tool for libraries to expand and facilitate the access to works in the public domain and improve cultural heritage preservation across the whole of EU.

Despite Article 14 being one of the most unambiguous provisions in the DSM Directive, there is still some leeway for libraries and CHIs to try and ensure the best possible implementation of this provision.[2] While Article 14 explicitly applies only to works of visual arts, there is nothing preventing the member states from implementing a broader provision, covering any type of works. Such implementation would further improve cultural heritage preservation, as the issue of appropriation of public domain works and protecting non-original reproductions is certainly not limited only to visual works.

In Slovenia, the DSM Directive implementation process started in March 2020 when the Ministry of Economic Development and Technology (hereinafter the Ministry) invited interested stakeholders to convene and conduct a public debate. After the COVID-19 pandemic prevented any in-person consultations, the Ministry called upon interested stakeholders to provide written submissions on how to best implement the DSM Directive in Slovenian legal order by April 30, 2020, which were then published online and all stakeholders were invited to submit a second round of comments by 30 June 2020. We are now waiting for the publication of second-round comments and publication of the first draft of the legislative proposal.

Many public interest institutions in Slovenia participated in this process: research institutions, educational institutions, NGOs and CHIs. Several libraries and CHIs across Slovenia submitted their comments addressing also the Article 14.[3] In their submissions, they emphasised Art 14’s importance as a public domain safeguard and called for implementation that encompasses all types of works, not only those of visual art, and that would ensure that copyright protection is not granted to faithful reproductions notwithstanding whether they were made before or after the original work was already in public domain.

Stakeholders have not disputed such position on Article 14 implementation so far, which may showcases that in Slovenia there is a high level of awareness of importance of public domain works for cultural heritage preservation and that broad implementation of Article 14 is desirable and necessary in order for libraries and other CHIs to perform their cultural heritage preservation functions adequately. While it remains to be seen which route the Slovenian legislator, which usually provides for an expansive and strong protection of stakeholders, will take when implementing Article 14 CDSM Directive, the early signs are encouraging for libraries and other CHIs, and they can reasonably expect to be able to rely on works in public domain in a broadest possible way.

[1] 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, https://eur-lex.europa.eu/eli/dir/2019/790/oj; last visite July 2020;

[2] see also Communia Guidelines: https://www.notion.so/Article-14-Works-of-visual-art-in-the-public-domain-eb1d5900a10e4bf4b99d7e91b4649c86 and Transposing the Directive on Copyright in the Digital Single Market: A Guide for Libraries and Library Associations (LIBER): https://zenodo.org/record/3552203#.Xx_hjy2B3OR, last visited July 2020

[3] Positions of stakeholders are available here (in Slovenian)https://www.gov.si/novice/2020-06-05-prenos-direktiv-s-podrocja-avtorskega-prava/, last visited in July 2020;

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