Important court ruling on copyright ought to lead to a blossoming of UK open culture – but will it?

There’s a post on the Creative Commons blog with some important news about copyright (in the UK, at least):

In November 2023, the Court of Appeal in THJ v Sheridan offered an important clarification of the originality requirement under UK copyright law, which clears a path for open culture to flourish in the UK.

In setting the copyright originality threshold, the court stated: “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.” Crucially, the court affirmed that “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.”

The post points out that the case is potentially a “game-changer in the UK open culture landscape”:

Because by setting the standard for copyright to arise based on “free and creative choices” it effectively bars copyright claims from being made over faithful reproductions of public domain materials (i.e., materials that are no longer or never were protected by copyright).

This touches on a topic that Walled Culture has written about many times: the fact that many museums and art galleries around the world try to claim copyright on faithful reproductions of artistic creations in their collections that are unequivocally in the public domain. Their argument, such as it is, seems to be that taking a digital photo or making a 3D copy requires such an immense intellectual effort that a new monopoly should be granted on it. It’s really about money, of course.

The Creative Commons post mentions “A Culture of Copyright”, a useful report by Dr Andrea Wallace that looked at how widespread the problem was in the UK. The blog post also refers to a CC Open Culture Platform working group that developed proposals for “technical, legal, and social interventions” to address the problem of “PD BY” (that is, the use of CC-BY licences to share reproductions of public domain works).

Although the group’s idea of adding some kind of courtesy (non-binding) request to all deed pages is interesting and well intentioned, it takes a dangerous step towards compromising the public domain, which is already under constant attack from copyright maximalists. The full and undiluted version of the public domain must be maintained – that’s the supposed bargain of copyright: after being locked down by an (over-long) government-backed intellectual monopoly, works enter the public domain without restriction.

In any case, as an important analysis by Douglas McCarthy points out, just because a UK court has ruled that faithful reproductions of public domain works are in the public domain doesn’t mean that galleries and museums there will gracefully allow us to access to millions of images, and to use them for any purpose. Once people become hooked on the powerful drug of a copyright monopoly, they are very reluctant to give it up. McCarthy explains how some UK cultural institutions are likely to respond:

I anticipate that THJ v Sheridan will accelerate the existing trend towards contract law replacing copyright law as a means of controlling access to public domain collections. If this happens, one shouldn’t assume that access policies will become any more open – the old status quo may simply persist in new form.

Basically, before people can access a Web site with the public domain images of public domain artworks, they are forced to accept terms and conditions that require them to pay for the privilege:

The model of restricted access to digitised public domain works, governed by contract law, has been around for some time. It is, to take one example, practised by Tate Images, enabling Tate to charge fees (on the usual sliding scale of cost, based on the scope and scale of intended reproduction) for licensing images without copyright.

The Tate Gallery should be ashamed of this approach, as should any other public institution that adopts it. In case they have forgotten, they are entrusted with the masterpieces of the past on behalf of the public, which has generally paid for them and their preservation. As such, the public should have free and unrestricted access not just to the works themselves, but also to the public domain reproductions of them. If they refuse to allow this, museums and galleries are not only abandoning their mission, and betraying the trust placed in them, they are thumbing their nose at an important court ruling.

If this shift to contract law becomes common, it will be a further proof that copyright not only harms the public and artists, as Walled Culture the book (free ebook versions) lays out in detail, but also seems to cause those who are obsessed with it to lose their collective minds.

Featured image by Stefan Bellini.

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