Revisiting Access to Cultural Heritage in the Public Domain: EU and International Developments

In the past year, a number of legal developments have accelerated discussions around whether intellectual property rights can be claimed in materials generated during the reproduction of public domain works. This article analyses those developments, focusing on the 2018 German Federal Supreme Court decision Museumsfotos, Article 14 of the 2019 Copyright and Related Rights in the Digital Single Market Directive, and relevant provisions of the 2019 Open Data and the Re-use of Public Sector Information Directive. It reveals that despite the growing consensus for protecting the public domain, there is a lack of practical guidance throughout the EU in legislation, jurisprudence, and literature on what reproduction media might attract new intellectual property rights, from scans to photography to 3D data. This leaves ample room for copyright to be claimed in reproduction materials produced by new technologies. Moreover, owners remain able to impose other restrictive measures around public domain works and data, like onsite photography bans, website terms and conditions, and exclusive arrangements with third parties. This article maps out these various legal gaps. It argues the pro-open culture spirit of the EU Directives should be embraced and provides guidance for Member States and heritage institutions around national implementation.