2024 started with publication of a seminal judicial decision confirming that UK copyright law’s originality test – for creating a copyright-protected new artwork – requires the expression of personal creativity by the author; and that this has been so for the past 14 years.
Copyright protection for new works is given to artists by most countries worldwide, it follows their subscription to the foremost requirement of the Berne Convention for the Protection of Literary and Artistic Works (Berne): that new copyright work must be the creation of its author. Berne leaves signatory countries free to enact their own requisite level of creativity, and most have accepted that a new work will not be copyright-protected unless it is ‘original’. Hence, there is a so-called legal ‘originality test’ that courts apply to each case on its own facts.
The EU (Withdrawal) Agreement, signed by the UK in 2020, provided that EU legislation and EU court judgments, applicable in UK law pre-Brexit, continue to apply post-Brexit. Under EU law new artworks are copyright-protected originals if they are the author’s own intellectual creation, and ‘no other criteria shall be applied to determine their eligibility for that protection’.
In 2009 the EU Court of Justice (CJEU) ruled – in its Infopaq case involving literature – that ‘the author’s own intellectual creation’ means that ‘the person in question has exercised expressive and creative choices in producing the work’. In 2012 the CJEU – in its Painer case involving photographs – amplified its 2009 ruling by holding that an intellectual creation is the author’s own ‘if it reflects the author’s personality … if the author was able to express creative abilities in the production of the work by making free and creative choices.’
Those two CJEU rulings have been at odds with the traditional interpretation of creative originality by UK copyright courts. In the UK originality has, for over a century of court rulings, meant that a new copyright work must not have been slavishly copied from another author’s pre-existing work, but did not mean that the new work was required to be the ‘expression of original or inventive thought’ so long as the author expended more than negligible or trivial ‘independent skill and labour and judgement’. And so, for the past decade or so, UK copyright courts have faced the difficulty of reconciling two differing approaches to originality: the CJEU’s requirement of ‘personal intellectual creation’; and the UK’s need for sufficient ‘independent skill and labour and judgement’.
In 2011, for example, the UK Court of Appeal, in a case involving website literature, decided: ‘Although the [CJEU] refers to an ‘intellectual creation’ it does so in the context … which clearly relates such creation to the question of origin, not novelty or merit. Accordingly, I do not understand the decision of the [CJEU] in Infopaq to have qualified the longstanding test established [by the UK courts since 1916].’ Conversely, for example, in 2013 the UK Court of Appeal, in acase involving computer programming, considered that ‘If the [Infopaq ruling] has changed the traditional [UK] test, it seems to me that it has raised rather than lowered the hurdle to obtaining copyright protection’.
Judicial dissonance between the EU and UK originality tests continued until, towards the end of 2023, the UK Court of Appeal, in a case involving graphic displays, authoritatively clarified that the EU approach established in Infopaq since 2009 applied in UK law. The heart of the court’s reasoning is that UK copyright law ‘must, so far as possible, be interpreted in accordance with [EU legislation] as interpreted prior to [Brexit] by the Court of Justice of the European Union. In [Infopaq] the Court of Justice held that copyright … is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation. The Court of Justice has elaborated upon the requirement that the work be its author’s own intellectual creation in a number of subsequent judgments. 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.’
This recent UK Court of Appeal judgment authoritatively resolves a controversy that has bedevilled UK copyright lawyers for decades: whether a photograph of a two-dimensional image, which has no copyright, creates a new copyright in the photograph. One school of legal opinion has traditionally maintained that such a photograph passes the UK’s creative originality test, by virtue of the photographer’s exercise of sufficient (not negligible or trivial) ‘independent skill and labour and judgement’. The opposite school opines that there can never be legal originality in a photograph that slavishly re-creates an image authored by someone else, because the higher the quality of the photographic reproduction the closer it is to the original and therefore is less original itself. The UK Court of Appeal’s clear judgment embraces the CJEU’s originality test, and thereby validates the contention that photographs of non-copyright two-dimensional images do no create new copyrights.
Do the following national institutions own copyright in their online digital images of paintings in their collections: the Louvre’s Mona Lisa, 1503/6, by Leonardo da Vinci; the Prado’s Las Meninas, 1656, by Diego Velazquez; the Rijksmuseum’s The Night Watch, 1642, by Rembrandt van Rijn; the USA’s National Gallery of Art’s Girl with a Red Hat, 1665/9, by Johannes Vermeer; London’s National Gallery’s Sunflowers, 1888, by Vincent Van Gogh; London’s National Portrait Gallery’s Horatio Nelson, 1797, by Lemuel Francis Abbott; Tate Britain’s Ophelia, 1851/2, by John Everett Millais?
None of those paintings is copyright-protected because the original artist’s copyright has expired, and therefore the works are in the so-called public domain; but what about the galleries’ photographic reproductions? The EU and UK based institutions are governed by EU/UK copyright law, which is highly likely to judge such digital images as not being the personal intellectual creations of their authors (the photographers), and therefore not legally original and copyright-protected (US federal copyright law decided similarly in 1999). That being so, the online platforms of most such public-facing institutions do not assert their copyright ownership of digital images of non-copyright paintings in their collections; but instead rely on contractual terms and conditions, including fee payment in some cases, for access to downloads of such images, delivering an important revenue stream for public-sector museums.
© Henry Lydiate 2024