How does a recent landmark ruling change museums’ understanding of copyright? - Museums Association

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How does a recent landmark ruling change museums’ understanding of copyright?

Naomi Korn and Sean Waterman explain what a ruling on out-of-copyright items means for the sector
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Naomi Korn
Naomi Korn, CEO, Naomi Korn Associates
Sean Waterman
Head of Intellectual Property, Naomi Korn Associates

Copyright and licensing remain a challenging issues for many museums as they strive to balance several sometimes competing drivers such as extending access to their collections, navigating the digital space, complying with funders' requirements and exploring potential commercial opportunities.  

The subsequent push to embrace the picture library business to support their long-term resilience has resulted in many museums licensing out images of their collection items on the basis that the digital images of their works, including public domain artworks, qualify as ‘original’ copyright works, insofar as they result from the considerable skill, labour and effort of their photographers.  

However, the interpretation that images of collection items, particularly those of out-of-copyright 2D items, hold copyright, is increasingly legally dubious, particularly following a landmark legal case – THJ v Sheridan (2023). 

Interestingly, although the THJ v Sheridan case was not directly related to photographs of out of copyright 2D artworks, it does have implications regarding how any such cases in the UK would be judged in the future if they went to court, and is therefore of relevance to museums who assert copyright in images of their out-of-copyright items. 

Specifically, in the THJ v Sheridan case, Lord Justice Arnold cited Court of Justice of the EU case law in how the Copyright, Design and Patents Act 1988 should be interpreted for copyright to arise:  

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“What is required is that the author was able to express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their personal touch. This criterion is not satisfied where the content of the work is dictated by technical considerations, rules or other constraints which leave no room for creative freedom.”

1. How does this ruling change museums’ understanding of copyright?  

Rather than providing a new understanding of copyright, the THJ v Sheridan ruling reinforces a longer-term shift in how a work is defined as ‘original’ and therefore might qualify for copyright protection under UK law.  

This is because over time and in harmonisation with EU copyright law, the UK already had moved away from its relatively low bar of a ‘skill and labour’ test for originality.

This shift originated from a European Court of Justice ruling in a case called the Infopaq case back in 2009 and influenced subsequent rulings in copyright cases across the EU, including the UK and after Brexit, in the UK itself. 

In terms of museum practice, and given the shift from copyright protection being dependent on the degree of ‘skill and labour’ involved in the production of a work to the exercising of ‘free and creative choices’, it is unlikely that a court of law in the UK would support assertions of a new copyright arising in museum images that are direct copies of 2D artworks.  

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2. How will museums have to change their guidance on using images from their collections? 

Following the THJ v Sheridan ruling and the publicity that it has attracted, it will be hard for museums to continue to assert copyright ownership in their images of 2D artworks, particularly those in the public domain. Crucially, this change does not affect any copyright that may subsist in the collection items themselves.  

This ruling may prompt some museums to reassess the terms under which their images may be used.  

There are various options to consider. Some may decide to follow the example of Birmingham Museum and Art Gallery and make high-resolution images of 2D public domain artworks available online under a Creative Commons Public Domain Dedication (CC0 1.0).  

Others may decide to rely on contract law and continue to charge fees for the access to and use of their high-resolution images, particularly if the revenue stream from this activity is significant. On a day-to-day basis, the terms of use and charging fees to access and use high-resolution images under contract law rather than copyright law, is very similar to the terms of image licences agreements using copyright law. 

At any rate, with competing pressures to provide access to their online collections and commercialisation, museums will need to weigh up how and under what terms they provide access to, and reuse of their collections images.  

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For example, they might carve out the protection of specific income generation streams by restricting access to high resolution images and making lower resolution images available for free, under licences such as Creative Commons licences.  

Such decisions may be influenced by funders’ requirements, such as those of the National Lottery Heritage Fund who require digital outputs using their funding, to be made available under a Creative Commons Attribution licence (CC BY 4.0), and if these are of images of out-of-copyright works, under a Creative Commons Public Domain Dedication (CC0 1.0).  

Whatever they decide, museums will need to ensure that they amend their internal guidance and procedures for staff and communicate this externally. Changes that would need to follow on from this will include the following: 

  • Update appropriate staff, volunteers and trustees. 
  • Review and change any appropriate internal policies. 
  • Amend collections management records. 
  • Replace the © symbol associated with the crediting of such images with alternatives including “courtesy of” of “images from the collection of”. 
  • Revise their licensing terms and conditions and associated documentation associated with external usage. 
3. Will this ruling make it easier for people to use images of art from museums? 

Not necessarily. This will depend on the strategic position that museums take regarding the terms under which they chose to make their collection images available. The ruling confirms it is unlikely a museum would be successful in resorting to legal action for copyright infringement over the unauthorised use of its images of public domain 2D artworks as they would not qualify for copyright protection. However, museums can enforce their legal position through civil law remedies associated with breach of contract. 

4. If this new copyright bar has been in place since 2009, then have museums been wrongly charging people to use their images? 

Whilst some museums have not adjusted to the shift in how originality is judged and continue to assert copyright ownership in their images of 2D public domain artworks, this is not true for all museums.

Rather than changing things in itself, this ruling reaffirms an existing position, and provides museums with the opportunity to reassess how and under what terms they provide access to their images as a broader reflection of their balancing of their strategic objectives. 

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