A Culture of Copyright/Breaking down the law

by Andrea Wallace

2. Breaking down the law

“The question is simple: in a digital age, should images in our public collections be restricted so that museums can earn money for them, or should that be shared as widely as possible as a means of expanding knowledge, stimulating our creative industries and engaging new and more diverse audiences?”

Lord Valerian Freyberg, Question for Short Debate on 12 September 2018, House of Lords

2.1. Introducing the laws

Copyright law impacts an immense number of materials in UK collections, limiting whether and how GLAMs can make materials available online. Most UK GLAMs are incredibly risk averse when managing in-copyright collections and view misinterpreting or ‘breaking’ the law as a risk in itself. Although in-copyright collections are outside the report’s scope, it is important to note these overcautious and deeply situated practices also shape interpretations of laws relevant to public domain collections and the obligations of public bodies. Whether copyright arises during the reproduction of public domain works is an unresolved question of law that impedes access to the public domain and public sector information. Yet, even if rights arise, no law requires GLAMs to claim or enforce them. Interviews revealed a policy to do so brings its own set of consequences related to, and informed by, aspects of funding, costs, enforcement, visibility, reputation and the public mission. As one interviewee put it, “The road between commercialisation and ‘free’ is really difficult to walk morally, politically and legally due to the grey areas around whether rights in reproduction media can be claimed.”

Accordingly, this portion of the research asked: What is the law in the UK? And what conditions have caused this grey area to emerge, expand, stagnate and even roll back progress on open access to UK heritage collections? For this, five areas of law require brief explanation.

Copyright. Copyright law is designed to automatically protect a work upon its creation. This means a creator is not required to register or seek formal approval to enjoy copyright protection. But not everything a creator makes receives protection. A work must be sufficiently ‘original’ to attract copyright, which means a minimum level of creative input must be expended during the work’s making. If so, the copyright generally lasts for the creator’s lifetime and another 70 years after their death.^[1] Once copyright expires, the work belongs to the public domain and anyone can use it for any purpose, and forever; the work cannot be ‘re-protected’ by a new copyright. This means no copyright is infringed, for example, when a GLAM makes a digital surrogate of a public domain work. The real question is whether that digital surrogate is sufficiently original in its own right to attract protection. Copyright can also protect data and datasets where the data itself is creative (e.g., a staff member’s opinion) rather than descriptive (e.g., tombstone data about an object), or where the selection or arrangement of the data in a dataset involves creative input. 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.^[3]

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; and original works for which copyright protection existed but has expired (i.e., out-of-copyright works). With this latter category, we need certain information, like the creator's date of death, to determine whether copyright has expired. Without it, we cannot conclude the work is out-of-copyright and thus in the public domain. These and other uncertainties impact a range of 'orphan works' in collections. 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.

Contract. Contract law can apply where a website's terms of use or copyright policies permit or prohibit certain activities. By accessing and using a website, the user might consent to the terms of use and be contractually bound by them. This too is a legal question that requires litigation on factors that impact whether a valid contract was formed, like notice, consideration and even the reasonableness of the terms. Many GLAMs use website policies to reinforce claims to intellectual property (IP) and prohibit activity beyond what copyright exceptions would permit a user to do.^[4] Such terms are discussed further in Section 4. It is also important to note that GLAMs sign contracts themselves that may restrict what they can do with public domain materials in their collections (e.g., donor or exclusive agreements).

Obligations for public bodies. Freedom of information laws, like the Freedom of Information Act 2000 and Re-Use of the Public Sector Information (RPSI) Regulation 2015, secure the public with rights to access and reuse types of information produced by public authorities as part of their public task.^[5] How a public body (or Act of Parliament^[6]) defines the public task determines which documents and information fall within its scope. These laws acknowledge the costs associated with supplying that information and permit charging reasonable fees under certain circumstances. GLAMs can charge more for reuse where the organisation holds IP rights in the document, and/or is required to generate revenue to cover a substantial part of the costs relating to their public task documents required to perform the public task. Despite such exceptions, public bodies must be transparent with their fee models (including reprographic and permissions fees) and apply standard fees across reuse types. This means, for a request to put a high-resolution image of a painting on a luxury bag for commercial resale in stores worldwide, the National Gallery must charge the same fee to a member of the public as it charges Louis Vuitton and Jeff Koons.^[7]

Privacy and data protection. Finally, laws protect personal or sensitive information related to living individuals and prohibit reuse that would be incompatible with data protection laws, like the General Data Protection Regulation (GDPR) and Data Protection Act 2018.^[8] 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. This can impact a range of materials and data related to donors, rightsholders, archives, photographs, metadata, or other information identifying living individuals.

Introducing the layers. When it comes to interpreting these laws, assessing any rights in materials is not always straightforward. Layers of composite media can involve different rights and rightsholders depending on Crown copyright, moral rights, photographers (e.g., employees versus freelance), third party partnerships, staff members who author information or users who contribute data, including a balance of rights in the data or information and corresponding obligations to provide or restrict access to them.

The figure 3 diagram shows how layers of (potential) rights may arise in collections media, starting with a 2D or 3D work of art or cultural object and following it through various processes of digitisation, information and collections management.

This summary has been simplified to frame the issues raised by the literature review and interview participants when digitising and managing public domain collections.

Figure 3. Layers of rights relevant to copyright and other rights assessments^[9]

Andrea Wallace, CC BY 4.0

2.2. Legal climate in the United Kingdom

Patchwork guidance on how these legal areas intersect leaves room for individualised interpretations by UK GLAMs. In general, this has resulted in a sector-wide approach that resists compliance with UK law.

2.2.1. Legislation and case law on whether rights arise in reproduction media

The Copyright Designs and Patents Act 1988 requires a work to be ‘original’ to attract protection.^[10] Those arguing that photographic reproductions are sufficiently original rely on a case from 1869 that considered copyright in a photograph reproduction of an engraving.^[11] The judge held that the photographic reproduction was original and could be protected. But two factors are important: first, the engraving itself was in-copyright and the claimant enforcing rights in the photograph held the rights in the engraving; and second, reproduction technologies and case law have come a long way since 1869. Without overruling this opinion, later courts have consistently held that skill, labour and/or judgment (i.e., creativity) must be expressed during a work’s creation to attract protection.^[12] The creative input must be substantial, or at least not trivial—but no matter how much skill or labour is required, copying a work per se cannot make the new work original.^[13] 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.^[15] It is worth noting that these cases were decided prior to the EU harmonisation of copyright in 2006, which has been argued to require a higher level of creativity to attract copyright protection under the ‘author’s own intellectual creation’ standard.^[16] While the UK is no longer an EU member, its courts have held there is “no difference in substance” between UK standards and EU standards where originality in photographs is concerned.^[17]

As discussed, data requires creative input in its creation, selection or arrangement to attract copyright in the dataset. In addition, sui generis rights can protect a database, but the data itself can be too descriptive or so basic that no protection extends to the individual data components included in the dataset or database. This raises questions around which rights might arise, be enforced, and how, around collections data published online.

Finally, there are provisions of UK copyright law that provide ‘fair dealing’ exceptions for users, like making a temporary copy for private study or use, text and data analysis for non-commercial research, for criticism, review, quotation, and news reporting, and other purposes.^[18] Should online policies and contracts claim overbroad rights that prohibit these uses, the law states such terms cannot be enforced. This is because UK copyright law was revised in 2014 to include contract override provisions that render void or unenforceable any attempts to prohibit by contract certain acts that would otherwise not infringe copyright.^[19]

Because of these clear gaps in case law and legislation, the UK Intellectual Property Office and the House of Lords have both directly addressed this issue.

2.2.2. UK Intellectual Property Office 2015 Copyright Notice

The clearest and most current statement of law comes from the UK Intellectual Property Office (IPO). In 2015, the UK IPO published its ‘Copyright Notice: digital images, photographs and the internet’. On page 3, the IPO directly confronts this issue, referencing the above EU standards and opinions of the Court of Justice of the European Union and their effect in UK law:

[A]ccording to established case law, the courts have said that copyright can only subsist in subject matter that is original in the sense it is the author’s own ‘intellectual creation’. 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. Only one of the 195 UK GLAM policies surveyed referenced the Copyright Notice: that of the Royal Pavilion & Museums Trust, Brighton & Hove.^[21]

2.2.3. House of Lords 2018 Debate

Three years later, the House of Lords addressed this issue. Lord Valerian Freyberg posed the following question:

To her Majesty’s Government whether they sanction each National Museum’s interpretation of image copyright law; and if not, what measures are in place to review whether the National Museums are interpreting image copyright law correctly.^[22]

The preliminary response focused on operational matters and autonomy rather than addressing the legal question of copyright and accuracy of legal interpretations among national museums:

National museums are bound to provide free, in person, access to the permanent collections as a condition of government Grant-in-aid (GIA) funding and this policy has been a great success. Provided this condition is met, national museums are encouraged to pursue commercial activities, which may include image licensing. Such activities are an important supplement to museums in supporting their objectives to facilitate participation for people of all ages and backgrounds.^[23]

The debate on 12 September 2018 also left the legal questions unresolved. No debate of whether the law supported copyright and licensing fees occurred. Instead, it focused on topics like national museums’ abilities to recover costs, their funding positions and how they respond to operational demands.^[24] These concerns, no matter how pressing, cannot justify licensing fees and business models built upon copyright where no copyright arises in reproduction media.

2.2.4. Intersection with obligations on public bodies

National collections belong to the public and fall under various Acts of Parliament, like the Museums and Galleries Act 1992,^[25] the National Heritage Act 1983^[26] and/or GLAM-specific legislation like the British Museum Act 1963^[27] or National Library of Scotland Act 1925.^[28] GLAMs hold collections in trust for the public. Whether reproduction media generated around publicly-owned collections in the public domain also belong to the public and/or must be provided free of charge depends on how a GLAM (or an Act of Parliament) defines its public task and which documents fall within it, in addition to how a GLAM interprets copyright law.^[29] Section 4 details examples of public tasks that make distinctions between digital surrogates and other reproduction media, including between low and high resolution images for the purposes of performing the task versus the purposes of commercialisation.^[30]

Many national, regional and local GLAMs frame open access as balancing income generation against “free access” or “giving collections away for free” as mutually exclusive approaches. However, more than one participant mentioned the weight that national voices carry as clear holdouts on the copyright question, preventing an overall shift forward for the UK GLAM sector. Reasons for this are discussed in Section 2.4.

2.2.5. Funders and open licensing requirements

Major funders of national and international projects have adopted open licensing requirements at increasing rates, like the Bill and Melinda Gates Foundation, the Hewlett Foundation and the Arcadia Fund. Initiatives like Plan S and the new UKRI policy require publicly funded projects to publish research articles, monographs and the underlying data in open access so it may be accessed, shared and reused.^[31] In the UK, two major funders operate open licensing requirements as a condition of funding.

In September 2020, The National Lottery Heritage Fund adopted a broad policy extending to all project outputs. The Heritage Fund’s open licensing requirement aligns with the UK IPO guidance and new EU laws discussed below.^[32] Projects funded after 16 September 2020 are required to publish original materials using the CC BY licence (Creative Commons Attribution 4.0 International) and dedicate all code, metadata and similar materials to the public domain using the CC0 tool (Creative Commons 1.0 Universal Public Domain Dedication♀). The guidelines state 2D and 3D photographic reproductions and scans of public domain works are not ‘original’ and must be published using the CC0 public domain dedication. The requirement applies only to media generated by and through the funding; it does not retroactively apply to projects beginning prior to September 2020 or to pre-existing media that is incorporated into a project.

The Wellcome Collection maintains an open access policy for funded research that primarily addresses scientific research data, academic publications, software and code, and other scholarly outputs.^[33] Wellcome also specifically prohibits spending funding on image fees and directs users to GLAMs with high quality images that can be downloaded and reused for free. In addition to Wellcome Images, these include the National Gallery of Art, J. Paul Getty Institute and Yale Center for British Art, which are located in the United States.^[34] Compliance guidance on any digitised archival images produced by the funding notifies users they should expect Wellcome to “exercise sufficient control over [any rights] to ensure that our public engagement aims are met”.^[35] With respect to its own digitised public domain collections, Wellcome releases images as CC0 and CC BY.^[36]

2.3. 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. More consistent authority in these jurisdictions correlates to greater open GLAM participation overall, and especially approaches that publish content to the public domain, at higher qualities and in greater volumes.

2.3.1. United States

The prevailing opinion in the United States is that no new rights arise in faithful reproductions of both 2D and 3D works. This is informed by federal case law from 1998, 1999, 2008 and 2016.^[38] This premise has been increasingly embraced by US GLAMs, many of whom were early advocates for open access to cultural collections.

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. One exception to this is the Smithsonian Institution, which as a group of public institutions receives around two-thirds of annual funding from public sources. In the US, the Smithsonian has contributed the largest volume of open collections to date, totalling 3,942,729 CC0 assets at the time of this writing.^[39]

2.3.2. European Union

The European Union has supported more than a decade of legislation and policies with similar aims. A 2011 Recommendation on the digitisation and online accessibility of cultural material and digital preservation promoted the principle that public domain materials should remain in the public domain following digitisation.^[40] After years of inconsistent GLAM approaches, the EU formalised this principle in the 2019 Copyright in the Digital Single Market Directive.^[41] Article 14 confronts the longstanding practice of claiming rights in non-original reproduction media, but is limited to “works of visual art in the public domain.” Despite not extending to all works in the public domain, Article 14 broadly applies to everyone, from GLAMs to commercial photo libraries to the general public. It also applies to “any material resulting from an act of reproduction”, such as metadata, software code, raw 3D scans and 2D photography, as well as future media formats and technologies. Also in 2019, the EU expanded obligations for public sector bodies to create and publish data on the principle of “open by design and default” via the Open Data Directive, a recast of the Public Sector Information Directives.^[42] The Commission adopted a policy of CC BY 4.0 for all original materials and CC0 1.0 for raw data, metadata, and other comparable documents to support reuse by the general public to the widest degree.^[43] The Commission is currently revisiting how the 2011 Recommendation can further the digital transformation of the cultural sector^[44], accompanied by a new 2021 Recommendation on a common European data space for cultural heritage.^[45] These developments communicate a clear EU consensus and growing momentum to protect its robust public domain, break down access barriers to cultural collections and to provide GLAMs and the public with the technical infrastructures to support digital transformation and boost the European economy.

2.4. The potential for resolution on the copyright question

Legal developments abroad that support a robust public domain may have no effect in UK law, but they will undoubtedly impact user behaviour in the UK, and globally. As US and EU GLAMs increasingly publish collections to the public domain, user groups, research activities and reuse interest (both general and commercial) will increasingly shift to these digital markets. This reality poses risks to the digital relevance of UK collections and how heritage collections can boost the UK economy, particularly if the question of copyright goes unresolved in the UK.

2.4.1. Legal resolution is unlikely

Government resolution in the near future seems unlikely. The UK lacks plans to implement a strategy equivalent to the 2019 EU Directives that support legal clarity around the reuse of digital collections in the public domain.^[46] Moreover, Brexit resulted in the withdrawal of existing copyright exceptions available to UK GLAMs, and without new provisions in place to reduce risk or insulate them.^[47]

Judicial resolution also seems unlikely, which would require a GLAM institution to enforce copyright against a user in court. However, this would be risky because: (1) the claim to copyright is weak; (2) website terms also remain questionable; and (3) procedural rules place court costs and counsel fees on the shoulder of the loser. 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. In 2009, the National Portrait Gallery did exactly this in a letter to Wikipedia editor Derek Coetzee, which is now publicly available online.^[48] It is much cheaper (and usually less public) to resolve disputes this way. The nature of the UK legal system thus presents deterrents to judicial resolution.

There was unanimous consensus among interview participants that no GLAMs previously had or planned to enforce copyright claims beyond a cease-and-desist. Notices primarily pertain to egregious reuses or infringement of in-copyright collections. Many noted they lacked resources (and staffing) to issue notices.

2.4.2. Voluntary resolution is unlikely

Few GLAMs employ policies that align with the UK IPO’s Copyright Notice. The majority position is to make copyright claims despite the IPO authority. Moreover, despite two decades of data indicating that licensing incurs losses, GLAMs continue to operate such services.^[49]

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. As one participant commented, “You can’t compete with free.”

As early as 2002, studies by Simon Tanner and Marylin Deegan reported the majority of institutions were funnelling income back into running the service, which operated at a greater cost than it brought in.^[50] Subsequent studies across libraries, archives and special collections have reinforced these findings.^[51] During the House of Lords debate, Lord Freyberg raised this and other publicly available UK data showing that between 2013-2017:

• Government Art Collection operated at a loss, except for a profit of £180 made in 2017.
• National Gallery received between £121,014 (2013) and £107,847 (2015) for all image licensing* operated through the National Gallery Company. From 2016, the Gallery received a flat income of £100,000 per year based on licensing its image collection to the National Gallery Company on an annual basis. As a private entity, the National Gallery Company is not subject to the Freedom of Information Act 2000.
• National Galleries Scotland received between £8,543 (2013) and £19,720 (2016) in profit.
• National Portrait Gallery brought in between £225,001 (2014) and £114,137 (2017) in profit for all image licensing*, while spending between £216,161 (2014) and £245,941 (2017) in total costs related to all departmental work. Notably, the 3,300 high-resolution images uploaded in 2009 by user Derek Coetzee to Wikimedia Commons remain online more than a decade later. Rather than damaging their profitability, the National Portrait Gallery reported 36 of the top 50 selling images from 2010-2015 came from these.^[52]
• Royal Museums Greenwich received between £88,000 (2014) and £146,000 (2017) in profit.
• Sir John Soane’s Museum made approximately £5,000 each year. Annual costs to run the licensing service are around £4,450 per annum.
• Tate data relates to income from photographs of public domain artworks, rather than profit, and ranges from £191,316 (2014) to £161,535 (2016).
• Victoria & Albert Museum made between £75,000 (2014) and £166,000 (2017) in profit for all image licensing*, while spending between £122,000 (2015) and £201,000 (2018) in salaries and overheads.
• Wallace Collection brought in between £6,000 and £10,000 after accounting for direct costs (mainly staff) but no indirect overheads.^[53]

* Income data includes all image licensing, rather than only images of public domain artworks.

Collections data and metadata are also perceived to carry commercial licensing value, particularly with archival materials around family and local histories, data held by regimental museums, and comparable materials value to platforms like Ancestry.com^[54] and FindMyPast.^[55]

The 2015 Striking the Balance report noted it was “difficult to identify detailed information about the commercial return” from licensing because of “a common reluctance to report relatively low direct revenues, often attributable to a fear that management will perceive the activity as not worth it (and hence it may put jobs at risk)”.^[56] Interviews revealed one instance of a job reduction among GLAMs that dedicate collections to the public domain. However, the position itself was not tied to generating revenue and instead was focused on tasks like asset management, online publication and managing volunteers who contributed to data management and publishing collections. Another instance of restructuring revealed the GLAM was able to point to their CC0 policy to make the case for why a job was no longer needed and transferred the person to a different role. Some felt advocating for open access can put an individual’s job at risk where assertions are not given around staff reassignment.

In addition, the “challenging economic and policy environment” noted by the report has since grown more dire with COVID-19 and government pressures to self-generate revenue.^[57] The choice to forgo licensing revenue, however small, is made more difficult by pressures from legislators and Governments to generate income, no matter the business model.^[58] This is discussed further in Section 5. However, an obligation or need to generate income, or the ability to demonstrate profits from licensing, cannot be exchanged for the legal conditions necessary for a valid copyright to arise. As discussed above, works must be sufficiently original for copyright to subsist. Only then are copyright licensing fees and business models justified and legal.

Together, the above conditions indicate it is unlikely that resolution on this issue will come from legal or voluntary actions.

 

---

1. This is true of most copyright terms. However, GLAMs deal with other works sometimes subject to different, or longer, terms. It can be difficult to know when the work falls in or out of copyright, and mistakes are easy to make.
2. ‘Sui generis’ translates to “of its own kind”. These neighbouring rights are distinct from copyright and arise in materials, like databases, to protect the investment in compiling and making the database.
3. This applies only to the UK. The situation is different in different jurisdictions.
4. In some cases, such terms could be argued to violate the Fraud Act 2006, specifically the section 2 offence of fraud by false representation. See Ronan Deazley and Robert Sullivan (2011) 'Copyright, Licences, and Statutory Fraud, Journal of Media Law 3(2): 287-303
5. Freedom of Information Act 2000, c. 36; Re-use of the Public Sector Information Regulation 2015 No. 1415
6. e.g., The Museums and Galleries Act 1992, c. 44
7. https://hk.louisvuitton.com/eng-hk/stories/masterscampaign2#
8. Data Protection Act 2018, c. 12
9. Figures: https://doi.org/10.5281/zenodo.6242179
10. Copyright Designs and Patents Act (CDPA) 1988, c. 48, s. 1(1)
11. Graves’ Case [1869] LR 4 QB 715
12. Ladbroke v William Hill [1964] 1 All ER 465
13. Interlego AG v Tyco Industries [1989] AC 217; The Reject Shop Plc v Robert Manners [1995] FSR 870
14. This statement refers to a photograph of a discrete object (e.g., a sculpture). More complicated assessments are necessary with complex digitisation processes and cultural heritage, such as 3D reconstruction or photogrammetry of cultural heritage sites. Distinctions might be made between raw data and the composite media and/or impacted if the process ingests or incorporates already existing intellectual property and rights protected media.
15. Antiquesportfolio.com plc v Rodney Fitch & Co Ltd [2001] FSR 345
16. https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:372:0012:0018:EN:PDF
17. Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC; Eva-Maria Painer v Standard VerlagsGmbH and Others, Case C-145/10
18. CDPA 1988, ss. 28-31
19. CDPA 1988, ss. 28-31, 36, 50, 296
20. https://www.gov.uk/government/publications/copyright-notice-digital-images-photographs-and-the-internet/copyright-notice-digital-images-photographs-and-the-internet
21. Discussed in Section 3.4.
22. https://questions-statements.parliament.uk/written-questions/detail/2017-11-06/HL2907
23. https://questions-statements.parliament.uk/written-questions/detail/2017-11-06/HL2907
24. https://parliamentlive.tv/event/index/abdab600-79f4-4962-aaf6-1d9b76c5d442?in=16:47:35, transcript on file with the author
25. GLAMs include: British Library, British Museum, Imperial War Museum, National Gallery, National Galleries Scotland, National Library of Scotland, National Maritime Museum, National Museums of Scotland, National Portrait Gallery, Natural History Museum, Science Museum, Tate Gallery, Victoria & Albert Museum and the Wallace Collection. Museums and Galleries Act 1992, c. 44
26. National Heritage Act 1983, c. 47
27. British Museum Act 1963, c. 24
28. National Library of Scotland Act 1925, c. 73
29. The Re-use of Public Sector Information Regulations 2015, No. 1415
30. Discussed in Section 4.2.9.
31. https://www.coalition-s.org; https://www.ukri.org/our-work/supporting-healthy-research-and-innovation-culture/open-research/open-access-policies-review/
32. https://www.heritagefund.org.uk/good-practice-guidance/digital-guide-working-open-licences
33. https://wellcome.org/grant-funding/guidance/open-access-guidance/open-access-policy
34. https://wellcome.org/grant-funding/guidance/open-access-guidance/complying-with-our-open-access-policy
35. https://wellcome.org/grant-funding/guidance/intellectual-property-guidance/intellectual-property-policy
36. Discussed in Section 3 and 4.
37. Discussed in Section 3.
38. Bridgeman Art Library, Ltd v Corel Corp, 25 F. Supp. 2D 421 (S.D.N.Y. 1998); Bridgeman Art Library, Ltd v Corel Corp, 36 F. Supp. 2d 191 (S.D.N.Y. 1999); Meshwerks, Inc v Toyota Motor Sales USA, Inc, 528 F.3d 1258 (10th Cir. 2008); President and Fellows of Harvard College v Steve Elmore, No. CIV 15-00472-RB/KK, 19 (D.N.M. 2016).
39. https://collections.si.edu/search/results.htm?q=&media.CC0=true
40. https://op.europa.eu/en/publication-detail/-/publication/510c5e78-3ec5-4f7a-a9ef-e4b5f044b1d0/language-en
41. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX%3A32019L0790&from=EN
42. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019L1024&from=EN
43. https://ec.europa.eu/transparency/documents-register/detail?ref=C(2019)1655&lang=en
44. https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/11837-Evaluation-of-theRecommendation-on-digitisation-and-online-accessibility-of-cultural-material-and-digital-preservation/public-consultation_en
45. https://digitallibrary.cultura.gov.it/wp-content/uploads/2021/11/C_2021_7953_1_EN_ACT_part1_v5_YLDLDJUfeiMyrMtRT5F0sz2MGmc_80911.pdf
46. Or to secure to GLAMs new copyright exceptions around in-copyright and out-of-commerce collections, which is outside the scope of this report but worth mentioning. https://questions-statements.parliament.uk/writtenquestions/detail/2020-01-16/4371
47. e.g., Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works (27 October 2012) OJ L 299/5
48. https://commons.wikimedia.org/wiki/User:Dcoetzee/NPG_legal_threat
49. See Section 1.
50. https://kclpure.kcl.ac.uk/portal/en/publications/exploring-charging-models-for-digital-cultural-heritage-in-europe(5f0e70c0-8753-4d71bbf9-881dfa5352a9)/export.html, p 1; https://kclpure.kcl.ac.uk/portal/en/publications/reproduction-charging-models--rights-policy-fordigital-images-in-american-art-museums(95d04077-f8ec-4094-b8c1-d585c6b16d9b).html, p 40
51. See: https://meridian.allenpress.com/american-archivist/article/74/2/522/24193/Copyfraud-or-LegitimateConcerns-Controlling; https://www.clir.org/pubs/reports/pub157/; https://pro.europeana.eu/post/making-impacton-a-small-budget; https://rbm.acrl.org/index.php/rbm/article/view/435; https://journals.sub.uni-hamburg.de/hjk/ article/view/1191; https://www.scienceopen.com/document?vid=72172cf4-9b91-46cc-a494-bf95694a8610
52. https://www.whatdotheyknow.com/request/nmdc_report_striking_the_balance_4
53. https://www.whatdotheyknow.com/user/richard_stephens_2#foi_requests
54. https://www.ancestry.com/
55. https://www.findmypast.com
56. https://www.nationalmuseums.org.uk/media/documents/publications/striking_the_balance.pdf, p. 30
57. https://www.nationalmuseums.org.uk/media/documents/publications/striking_the_balance.pdf, p. 4
58. https://www.theartnewspaper.com/comment/dcms-leaked-letter-museums