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

• Author: The European Copyright Society
• Pages: 110-114

2020

The European Copyright Society

110

2

Comment of the European Copyright Society

on the Implementation of Art. 14 of the DSM-Directive

2019/790

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.

de/urn:nbn:de:0009-dppl-v3-en8.

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

1

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)

1

into

national law.

2

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.

3

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

works.

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.