Andrea Wallace

“ If not, sui generis rights can protect the contents of a database where there is a substantial investment in obtaining, verifying or presenting the data (but no creative input) . [2]
Moral rights. Sitting alongside copyright are moral rights, which are the noneconomic rights that protect the personal and reputational value of a work to its creator. In the UK, these are limited to the rights of attribution and integrity and interpreted narrowly, as discussed in Section 4. Moral rights expire upon the expiration of copyright. This means no moral rights exist in public domain works. ”

“ As data controllers and public authorities, GLAMs must guard against disclosing information that has been derived from personal data and process it to ensure individuals cannot be identified. These laws must be balanced against others promoting public access and reuse. For example, an out-of-copyright document digitised by scan as part of the public task may contain personal or sensitive information that requires redaction or prevents the GLAM from disclosing or supplying the information, even though the digital surrogate is in the public domain. ”

“ Success on the matter is low, while the risks of enforcement are high: a GLAM could be saddled with an unfavourable precedent in addition to an expensive bill. To be fair, any type of legal process, even mediation, is more than most GLAMs can afford despite whether the parties proceed to trial where the rule on a loser bearing costs would apply. But because these factors prevent access to or use of courts to settle the matter, GLAMs resort to using cease-and-desist notices of infringement. ”

“ These doctrinal developments suggest 2D reproductions of 2D works do not attract a new copyright, no matter the amount of skill and labour involved in their production.
Copyright is more likely to arise when a 3D work is photographed (but not scanned, which is akin to copying per se) . [14] Protection, however, is not based on the format transfer from 3D to 2D alone. Courts require an examination of the object’s positioning, the angle of the photograph, and other elements like lighting, background and focus to determine whether creative input is expended. ”

“ Legal grey areas around 'originality' also produce uncertainties on the rights status of reproduction media and collections data. Consequently, immense amounts of heritage materials sit in public domain purgatory. The important point to remember here is that not everything is automatically protected by copyright or sui generis rights upon creation. In other words, all materials are by default in the public domain unless the legal conditions are met to justify copyright protection. ”

“ Recent data suggests these sources of limited income are shrinking with each GLAM’s shift to open access. In other words, licensing images of public domain works is neither a present nor future revenue scheme with any potential for growth. UK GLAMs must operate within a global marketplace for image licensing where high-resolution images are increasingly released by other GLAMs to the public domain for any reuse. ”

“ Given this criterion, 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. [20]
Despite this, the Copyright Notice has had little impact on digitisation practices in the UK, perhaps because it is guidance and non-binding. When it was published, there was much discussion among GLAMs on what impact it would have on commercial licensing. ”

“ Public domain. Any works or materials that are not sufficiently original belong to the public domain upon creation. The public domain is an imaginary space that includes a range of other materials: information that copyright law excludes from its protection, like numbers, facts or short phrases; original works made before copyright existed, like the Mona Lisa ”

“ Many US GLAMs continue, however, to claim copyright in reproduction media. Even so, the United States has the strongest national showing of open GLAM participation and the use of public domain tools, rather than open licences, as discussed in Section 3.2 and Appendix 3.
US GLAMs rely on government funding sources, the private sector and earned income, which differs from the public funding models in place to support UK and EU GLAMs. Few US GLAMs are considered public institutions for this reason. ”

“ Legal climate in the United States and European Union
Based on the overlap in laws and the distribution of open GLAM instances, [37] the United States and European Union (and its Member States) provide relatable relevant peers to the United Kingdom. ”