Comment of the European Copyright Society on the Implementation of Art. 14 of the DSM-Directive 2019/790

Author:The European Copyright Society
The European Copyright Society
Comment of the European Copyright Society
on the Implementation of Art. 14 of the DSM-Directive
by The European Copyright Society
© 2020 European Copyright S ociety
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obta ined at http://nbn-resolving.
Recommended citation: Th e European Copyright Society, Comment of the EC S on Art. 14 DSM-D, 11 (2020) JIPITEC 122 para 1.
A. Executive Summary
The European Copyright Society (ECS) was founded in
January 2012 with the aim of creating a platform for
critical and independent scholarly thinking on European
Copyright Law. Its members are renowned scholars and
academics from various countries of the European Union,
seeking to promote their views of the overall public interest.
The Society is not funded, nor has been instructed, by any
particular stakeholders. This ECS Comment concerns the
implementation of Article 14 of the Directive on Copyright
in the Digital Single Market (DSM Directive or DSMD)
national law.
Article 14 of the DSM-Directive obliges member States
to limit the exclusive rights to faithful reproductions
of copyrighted works of visual art that have fallen
into the public domain. Any material resulting from
an act of reproduction of a public domain work shall
not be subject to related rights, unless said material
is original in the sense that it is the author’s own
intellectual creation.
Article 14 is motivated by the fact that “in the eld of
visual arts, the circulation of faithful reproductions
of works in the public domain contributes to the
access to and promotion of culture, and the access
to cultural heritage”. Moreover, “in the digital
environment, the protection of such reproductions
1 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, Ofcial Journal of the European
Communities 2019 L 130, 92.
through copyright or related rights is inconsistent
with the expiry of the copyright protection of
works”. The provision undertakes to correct a
German court decision which granted a related
right to non-original reproductions of public domain
4 Article 14 raises a number of questions.
To begin with, the formulation “works of visual
art” in Article 14 raises the question as to the
extent to which Article 14 also applies to the
reproduction of public domain design works,
works of architecture and maps. It is submitted
for discussion that the term should be widely
understood to cover all works that can be
visually perceived.
Moreover, it is submitted that the effect of
Article 14 should not be limited to non-original
photographs, but that other related rights
which may be found in some member States’
national legislation.
In addition, ECS supports an understanding
of the term “reproduction” as “faithful”
reproduction (see Recital 53), so that not only
2D, but also faithful 3D-scans of public domain
visual works would not give rise to a new
exclusive right.

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