{"id":2446,"date":"2020-08-04T11:25:30","date_gmt":"2020-08-04T09:25:30","guid":{"rendered":"http:\/\/blogs.ifla.org\/lpa\/?p=2446"},"modified":"2020-08-04T12:14:57","modified_gmt":"2020-08-04T10:14:57","slug":"what-is-in-the-public-domain-should-stay-in-the-public-domain-article-14-of-the-dsm-directive","status":"publish","type":"post","link":"https:\/\/blogs.ifla.org\/lpa\/2020\/08\/04\/what-is-in-the-public-domain-should-stay-in-the-public-domain-article-14-of-the-dsm-directive\/","title":{"rendered":"“What is in the public domain should stay in the public domain!” – Article 14 of the EU-DSM Directive"},"content":{"rendered":"

by Timotej Kotnik Jesih, Intellectual Property Institute, www.ipi.si<\/a> and Dr. Maja Bogataj Jan\u010di\u010d, Intellectual Property Institute (IPI), www.ipi.si<\/a><\/p>\n

The new Digital Single Market Directive (hereinafter the DSM\u00a0Directive)[1]<\/a> addresses works of visual\u00a0art in\u00a0the public domain in its Article 14, which reads “Member States shall\u00a0provide that,\u00a0when the term of protection of a work of visual art has expired,\u00a0any material resulting from\u00a0an act of reproduction of that work is not subject\u00a0to copyright or related rights, unless the\u00a0material resulting from that act of\u00a0reproduction is original in the sense that it is the author’s\u00a0own intellectual\u00a0creation<\/em>.”<\/p>\n

This article was introduced by the European\u00a0Parliament as an amendment during the\u00a0legislative process with the intention of\u00a0enhancing cultural heritage preservation by relying\u00a0on the legal concept of\u00a0public domain. Its aim is to ensure that works of visual art that are in\u00a0the public\u00a0domain in analogue form remain in the public domain also in digital form, by not\u00a0granting\u00a0copyright protection to faithful reproductions of such works.\u00a0Reproduction of visual works in\u00a0the public domain can, pursuant to Article 14 DSM\u00a0Directive, be granted copyright protection only\u00a0when they fulfil the\u00a0originality threshold themselves. The rationale for this provision is\u00a0explained\u00a0in the DSM Directive’s Recital 53, as “[t<\/em>]he expiry of the term of\u00a0protection of work entails the entry of that work into the public domain”\u00a0and “the circulation of faithful\u00a0reproductions of works in the public domain\u00a0contributes to the access to and promotion of\u00a0culture, and the access to\u00a0cultural heritage<\/em>“, whereas in the digital environment, “the\u00a0protection\u00a0of such reproductions through copyright or related rights is inconsistent with\u00a0the\u00a0expiry of the copyright protection of works<\/em>“.<\/p>\n

Article 14 DSM Directive increases the level of legal security for libraries and other\u00a0cultural heritage institutions (CHIs) when they use public domain works of visual art in cultural heritage preservation\u00a0activities, as\u00a0faithful reproductions of such works sometimes otherwise enjoy protection by related rights, even if they do not meet the copyright-required\u00a0originality threshold. Article 14 enables libraries to be able to make visual\u00a0works from their collections (that are\u00a0in the public domain) available online\u00a0and in a digital format, without the fear of such works having to be taken down. With the good\u00a0implementation in national legal systems, Article 14 will hopefully provide the\u00a0tool for\u00a0libraries to expand and facilitate the access to works in the public\u00a0domain and improve cultural\u00a0heritage preservation across the whole of EU.<\/p>\n

Despite Article 14 being one of the most unambiguous\u00a0provisions in the DSM Directive, there\u00a0is still some leeway for libraries and\u00a0CHIs to try and ensure the best possible implementation\u00a0of this provision.[2]<\/a> While Article 14 explicitly applies only to works of visual arts, there is nothing\u00a0preventing the member states from implementing a broader provision, covering\u00a0any type of\u00a0works. Such implementation would further improve cultural heritage\u00a0preservation, as the\u00a0issue of appropriation of public domain works and protecting\u00a0non-original reproductions is\u00a0certainly not limited only to visual works.<\/p>\n

In Slovenia, the DSM Directive implementation\u00a0process started in March 2020 when the Ministry of Economic\u00a0Development and Technology (hereinafter the Ministry) invited interested stakeholders to convene and conduct a public debate. After the COVID-19 pandemic prevented\u00a0any in-person consultations, the Ministry called upon interested stakeholders to\u00a0provide 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\u00a0a\u00a0second 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.<\/p>\n

Many public interest institutions in Slovenia participated in this process: research institutions, educational institutions, NGOs and CHIs. Several libraries and CHIs\u00a0across Slovenia submitted their comments addressing also the Article 14.[3]<\/a> In their submissions, they emphasised Art 14’s importance as\u00a0a public\u00a0domain safeguard and called for implementation that encompasses all types of\u00a0works,<\/strong>\u00a0not only those of visual art, and that would ensure that copyright protection\u00a0is not\u00a0granted to faithful reproductions notwithstanding whether they were made\u00a0before or after the\u00a0original work was already in public domain.<\/p>\n

Stakeholders have not disputed such position on Article 14\u00a0implementation so far, which may showcases that in Slovenia there\u00a0is a high level of awareness of importance of public\u00a0domain works for cultural\u00a0heritage preservation and that broad\u00a0implementation of Article 14 is\u00a0desirable and necessary in order for libraries and other CHIs to\u00a0perform their\u00a0cultural heritage preservation functions adequately. While it remains to be\u00a0seen\u00a0which route the Slovenian legislator, which usually provides for an expansive and strong protection of stakeholders, will take when implementing Article 14\u00a0CDSM Directive, the\u00a0early signs are encouraging for libraries and other CHIs,\u00a0and they can reasonably expect to\u00a0be able to rely on works in public domain in\u00a0a broadest possible way.<\/p>\n

[1]<\/a> 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<\/a>; last visite July 2020;<\/p>\n

[2]<\/a> see also Communia Guidelines:\u00a0https:\/\/www.notion.so\/Article-14-Works-of-visual-art-in-the-public-domain-eb1d5900a10e4bf4b99d7e91b4649c86<\/a> and Transposing the\u00a0Directive on Copyright in the Digital Single Market: A Guide for Libraries\u00a0and\u00a0Library Associations\u00a0(LIBER):\u00a0https:\/\/zenodo.org\/record\/3552203#.Xx_hjy2B3OR<\/a>, last visited July 2020<\/p>\n

[3]<\/a> Positions of stakeholders are available here (in Slovenian)https:\/\/www.gov.si\/novice\/2020-06-05-prenos-direktiv-s-podrocja-avtorskega-prava\/<\/a>, last visited in July 2020;<\/p>\n","protected":false},"excerpt":{"rendered":"

by Timotej Kotnik Jesih, Intellectual Property Institute, www.ipi.si and Dr. Maja Bogataj Jan\u010di\u010d, Intellectual Property Institute (IPI), www.ipi.si The new Digital Single Market Directive (hereinafter the DSM\u00a0Directive)[1] addresses works of visual\u00a0art in\u00a0the public domain in its Article 14, which reads “Member States shall\u00a0provide that,\u00a0when the term of protection of a work of visual art has […]<\/p>\n","protected":false},"author":1041,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[26589,11,9409,11303,26882,26647,192,26560],"class_list":["post-2446","post","type-post","status-publish","format-standard","hentry","category-general","tag-copyright4libraries","tag-copyright","tag-cultural-heritage","tag-digital-preservation","tag-eu-dsm","tag-library-advocacy","tag-open-access","tag-sustainable-development-goals"],"_links":{"self":[{"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/posts\/2446","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/users\/1041"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/comments?post=2446"}],"version-history":[{"count":4,"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/posts\/2446\/revisions"}],"predecessor-version":[{"id":2464,"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/posts\/2446\/revisions\/2464"}],"wp:attachment":[{"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/media?parent=2446"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/categories?post=2446"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/tags?post=2446"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}