4. Public facing policies & GLAMs interpreting UK law
“Are digitised copies of older images protected by copyright?
Simply creating a copy of an image won’t result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.
However, according to established case law, the courts have said that copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criterion, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.”
Note: This section discusses data on 63 GLAMs selected from the UK GLAM Sample.
Websites were reviewed to locate any terms of use, ethical, copyright and/or open access policy applying to reuse of digital surrogates of public domain works. An assortment of policies with clear statements on rights and reuse are included in the final sample.[1] GLAMs in affiliated groups are represented by the umbrella policy for the organisation (e.g., National Museums Liverpool, Birmingham Museums Trust, Tyne & Wear Archives & Museums). This eliminated redundancy in policy inclusions and reduced the overall number in the final sample. The policies are included in full in Appendix 2. UK GLAM Policies on copyright and open access.
This portion of the research asked: How are UK GLAMs interpreting laws and shaping public access to digital media generated around public domain works? The discussion below quotes heavily from public facing policies.
4.1. Introducing inconsistency and inflexibility
Public facing policies can provide insight into internal operations, such as how an organisation views and values its digital collections and interprets various laws and obligations to the public.
Law, itself, is deeply situated in a culture of ‘it depends’. Lawyers are trained to anticipate risk and insulate clients from liability, rather than to advocate for an approach seen by a client (and entire sector) as carrying risk and adverse to interests. Legal advice is perceived to be expensive and therefore inaccessible to many GLAMs. As a result, GLAMs often rely on one another for interpreting and applying law. Ultimately, these and other factors shape the policies that reveal both consistencies and inconsistencies across UK GLAM practices and inflexibilities around risk, rights management and collections reuse.
- ↑ Not included in the sample are UK GLAMs are without online digital collections and UK GLAMs with digital collections online but without a copyright policy, or with an unclear copyright policy.
