Copyright protects original works (works that reflect the author’s own intellectual creation), which among other things include literary works, dramatic works, art or films. 

Some creations that do not meet the originality criteria, such as non-original photographs, non-original databases, or the recording of a phonogram, are also entitled to some rights in certain countries, with a shorter duration of protection. They consist of a copyright-type of protection and are called neighbouring and sui generis rights.

Among other things, copyright does not protect:

• Works whose copyright term has expired

• Content that does not meet the originality threshold

• Ideas (copyright only protects their expression)

• Natural artefacts (flowers, rocks, trees, songs of birds)

• Mathematical problems and formulas

• Governmental, legal and/or judicial documentation, under many legislations.

This is important as it means some items that sit in the collections of an archive, library or museum are not subject to copyright protection. There is an 'originality' threshold that needs to be met. This is a rather difficult assessment to make, and the only person who can definitively confirm, from a copyright perspective, whether something is original or not, is a judge. Unfortunately, to be on the safe side, this results in a tendency by cultural heritage institutions to consider most things sufficiently original, and therefore copyright-protected, even though they might not be.

The public domain consists of works that are not protected by copyright. They can enter the public domain after the term of copyright protection has expired, was expressly waived, or if the work was never protected by copyright. 

The general rule in the European Union, as established by the Term Directive, is that a work enters the public domain 70 years after the death of the author, effectively starting on the 1st January of the following year. However, there are exceptions to this rule which make the calculation quite complex. The moment from which the counting starts varies depending for instance on the type of work, if the work was published, if it is anonymous or published under a pseudonym, or depending on the authorship. Terms of protection that are longer than the 70 years after the death of the author can exist in certain countries, as defined in national legislation.

There might also be works contained inside a work whose copyright protection expires at a later stage. 

While determining whether a work is in the public domain can be very complex, there are a few rules and criteria established in the Term Directive that are worth noting:

• For anonymous or pseudonymous works, the term of protection expires 70 years after the work has been lawfully made available to the public.  

• For audiovisual works, the standard term of copyright is 70 years after the death of the last author among the principal director, the authors of the screenplay and dialogue, and the composer of music especially written for the film.

• For works of joint authorship, the term of 70 years is calculated from the death of the last surviving co-author.

• The rights of producers of phonograms expire 50 years after the fixation is made.

European copyright laws have a series of exceptions or limitations to copyright that allow individuals or institutions to use copyright-protected works without needing permission from the rightsholder. In the European Union, most exceptions or limitations are designed to support a specific activity in a specific context, and there is no ‘general’ exception such as ‘fair use’ in the United States. Some exceptions and limitations widely recognised in the European Union cover:

• The making of copies by cultural heritage institutions for preservation purposes

• The publication online of out of commerce or orphan works

• The display of a work in a classroom

• The citation of parts of a work for research purposes 

These, and other exceptions and limitations to copyright, can be essential to support a cultural heritage institution’s activities. It is therefore important that cultural heritage professionals are informed of the possibilities that they offer in their countries. Exceptions and limitations to copyright are not fully harmonised in the European Union, but this resource by the Communia Association for the Public Domain, Open Future and Digital Republic can help you find more information.

If a cultural heritage institution does not own the copyright to the materials at stake, and there is no exception or limitation to copyright for the intended use, the institution will need to identify the rightsholder and obtain permission to use copyright-protected material. 

In order to do that, it is worth noting that:

• The rightsholder may have already transferred certain rights to the cultural heritage institution when the item was acquired.

• It is possible that the author transferred the copyright to someone else, especially if the material was exploited commercially. This is the case, for instance, of the author of a book who transfers rights to a publisher, or the author of a song to a record company. This is the person/institution that can give permission to use the materials.

• It is important to know in advance which permissions are needed. This intended use should be stated in the agreement with the rightsholder. For example, sharing a digital object with an aggregator, or allowing additional uses like education or commercial use. 

• Collecting societies (organisations that collect copyright royalties on behalf of authors) might be in a position where they can give licences to cultural heritage institutions to make collections available online, even if the author is not known or not in the collecting society’s repertoire.

If you cannot identify or locate the rightsholder to obtain permission, or the amount of items is too large to even consider undertaking such a process, consider relying on the out of commerce works provisions, which provide a solution based on a licence and an exception to copyright.

Alternatively, consider relying on the orphan works exception. This exception to copyright requires conducting a diligent search before you can rely on it to make the work available online. It is worth noting, however, that the experience of many cultural heritage institutions when relying on this exception has been rather unfruitful. 

The last remaining option, that some cultural heritage institutions make use of, is taking a risk-managed approach, after carefully examining the risks and considering aspects such as whether the work was ever commercially available, its age, type or the intended use. You can get more information about risk-management in this webinar by Naomi Korn, and in the second presentation of this webinar by Fred Saunderson.

From a legal perspective, there might be data protection or privacy concerns that challenge the sharing of the digital object online.

There can also be contractual limitations. For example, it is quite common that funding for digitisation comes with a number of conditions. A cultural heritage institution may have agreed that the publication or reuse of the digital reproduction is limited to certain circumstances.  The person or institution that conducts the digitisation efforts, such as a photographer, may also have rights that need to be cleared, ideally via an agreement through which all rights are transferred to the cultural heritage institution. These various additional aspects need to be addressed in order to make the digital object available online.

Last but not least, there might be ethical considerations. Copyright protection may have expired, but a cultural heritage institution should still consider whether sharing certain digital objects online and encouraging their reuse can lead to negative consequences for certain individuals or communities. You can read more about the balance between opening up and ethics in this set of recommendations by Creative Commons.

Many institutions distinguish between rights to the content and rights to the digital object (see the image below). However, when you share data in the data space, we encourage you to treat them as one to make it easy for users to assess if they can use what they see. This means choosing one rights statement that applies to both the content and the digital object. 

Open

An item from the collection (a sculpture of a female figure) vs. a digitisation of that item (PDM, Title: Nud de femeie, Institution: Institutul Național al Patrimoniului, Country: Romania)

The simplest way to ensure the rights information of the physical object and the digital object coincides is to not claim additional rights that may result from the digitisation of content. This is something that we particularly encourage you to do for works in the public domain. 

In any case, rights on the reproduction of a public domain work can only be legally claimed in a few circumstances:

• Digitisation processes (e.g. scanning, taking photographs of 2D and 3D objects) can only trigger copyright protection if the digitised replica meets the European Union standard of originality, which requires that the work is the “author’s own intellectual creation.” If the reproduction (the digital copy) can be considered a new original work in its own right, the person behind the digitisation of the object obtains full copyright protection. In most cases, digital objects created through digitisation will not meet the required originality threshold and will not qualify for any form of protection based on copyright. 

• Copyright-related rights to non-original photography are recognised in some member states, and these could potentially apply to digital reproductions of physical items. However, article 14 of the Copyright in the Digital Single Market Directive has established that it is no longer possible to claim such rights on digital reproductions of works of visual arts that entered the public domain.

If you still differentiate between two layers, for instance because a photographer digitised sculptures in a way that makes their photographs original, here is what you should consider to choose a rights statement that accurately reflects both the content and the digital object: 

• If the content is protected by copyright, but the digital reproduction is not, the rights statement should communicate the in-copyright status (through a Creative Commons licence, or an In Copyright Rights Statement).

• If the content is not protected by copyright, but the digital reproduction is (and you wish to claim the rights), the rights statement should communicate the in-copyright status (through a Creative Commons licence, or an In Copyright Rights Statement).

• If neither the content nor the digital reproduction are protected by copyright, the rights statement should communicate the out-of-copyright status (through the Public Domain Mark or an Out of Copyright Rights Statement).

Start by determining whether an item is in copyright or in the public domain - this alone narrows your options. Use a Creative Commons licence, CC0 or one of the In Copyright Rights Statements if the item is in copyright; use the Public Domain Mark or an Out of Copyright Rights Statement if it is in the public domain.

Remember that a Creative Commons licence or CC0 can only be applied if you have cleared all the rights and have the rightsholder's agreement.

Then establish whether any legal or contractual restrictions apply beyond copyright. This will tell you whether you need the No Copyright - Other Known Legal Restrictions, or the No Copyright - Non Commercial Use Only Rights Statement. For instance, was the object digitised through a partnership with a private actor and does the agreement forbid commercial reuse? When using these rights statements, data providers should supply additional information, as outlined in the additional requirements.