Over recent years, there has been a huge growth in digital collections of artwork held by galleries and museums, much of which has been made available online. During 2020, as the majority of society in countries around the world has been locked down in some way or another due to the Covid-19 pandemic, there has been a noticeable increase of online access to a wide range of the visual arts.

The technology has been around for some time, and digital collections held by various bodies have been growing steadily, but the pandemic has forced galleries and museums to adapt – like many other industries – and to shift to an "online first" approach to allow those stuck at home to remain connected to culture.

However, digital collections and the sharing of artworks online give rise to important questions of copyright ownership and potential infringement.

Not a new phenomenon

Prints, copies and casts of artworks have long since been used by collectors, galleries and museums to supplement their collections. Indeed, casts have been taken of classical artworks and ancient archaeology since at least the 1400’s to allow the works to be shared more widely, whether for altruistic or perhaps more selfish reasons. Later, during the 1800’s casts and reliefs were made of well-known European works to allow Victorian Londoners a chance to see the wonders of the Renaissance without needing to go on a Grand Tour. But, more recently, and helped by technological advances such as higher resolution digital photography, 3D cameras, virtual reality and generally faster internet speeds, digital collections are becoming more and more established.

For graphic artworks, these collections fall broadly into two camps. First, galleries and museums are frequently uploading large quantities of archive material to the internet to be viewed at the public's leisure or to be licensed commercially. Second, galleries and exhibitions are turning to virtual reality to provide greater access to works more generally.

These digital collections raise key questions with respect to copyright, including whether the collections/exhibitions can be owned and commercialised, and to what extent they might infringe the rights of the original artists.

Copyright in copies of artwork: Can copyright subsist in the collection/exhibition?

Whether copyright can subsist in an archival version of an artwork is potentially highly important to a museum or gallery. For example, they may wish to commercialise the images by licensing them. In order to do so fully, it helps for there to be an enforceable intellectual property right subsisting in them.

Under English law, which has been influenced to a large extent by the jurisprudence of the Court of Justice of the European Union (CJEU) over the years, the starting position is that an artistic work must be “original” for it to qualify for copyright protection. The traditional English law test set a relatively low threshold, in that the artist’s “skill and labour” was the vital factor. Over the years, however, the test established by the CJEU of whether the work is the “author's own intellectual creation” – i.e. that the artist has made his/her own free and creative choices - has influenced the English approach and applies in this jurisdiction.

Applying these principles to the issue of images of existing artworks, various questions arise. Taking photographs, the key question is often whether a photograph of an already existing artwork can constitute an author's own intellectual creation. Whilst photography can clearly require the photographer to make creative decisions, for example in relation to lighting, position of the subject, shutter speed, camera angle etc., archival images – photographs of 2D artworks in particular leave little room for creativity and could be considered mere "slavish copies" which would not attract protection. Meanwhile, it may be less difficult to prove copyright subsists in relation to a photograph of a 3D object (for example a sculpture). This is because the photographer's own creative choices might be less constrained.

Moving into the realm of virtual reality, this is highly factually dependent and examples range from simple 360° views about a single point, to complex ‘walkthrough’ experiences. However, whilst the basis for this medium is normally a series of photographs stitched together, the end result could potentially be considered to attract copyright, depending on the circumstances.

A different type of online exhibition during this year has been walkthrough films made available online. This poses an interesting point: films do not have the same originality requirement for copyright to subsist. As such, if the underlying exhibition features predominantly out-of-copyright works, a film might be a good solution to increase the chances of creating an asset that can be commercialised fully.

Copyright in copies of old artwork?

It might be questioned how there could possibly be copyright in a reproduction of a very old artwork which is itself out of copyright. Take, for example, an archival photograph of a painting by old master. The fact that the underlying image was not, or is no longer protected by copyright, does not in itself prevent its newer reproduction attracting copyright protection itself, assuming that the “originality” test outlined above can be met. However, the issue of effectively claiming rights in what might be perceived as a work in the public domain has in the past caused some controversy given that, once copyright in artwork has expired, the theory is that the work forms part of the cultural heritage of society.

Indeed the European Commission has recently considered this point to be important enough to legislate, resulting in Article 14 of the 2019 Directive on copyright and related rights in the Digital Single Market (Directive (EU) 2019/790). In short, Article 14 provides that a reproduction of an artwork in which copyright has expired cannot attract copyright protection for itself, unless that reproduction comprises the author's own intellectual creation.

It is questionable to what extent this changes the pre-existing state of the law. As explained above, the “author’s own intellectual creation” requirement already formed part of the general test for protection, although Article 14 provides a statutory basis for it in relation to reproductions of public domain works.

However, in the light of the UK leaving the European Union, the UK Government has confirmed in Parliament that it has no plans to implement the new copyright Directive. This potentially opens the door for the UK to diverge from the EU in this area, although it is likely that to diverge drastically would require a change in the approach to the “originality” test for photographs. It remains to be seen whether an English court would feel it is no longer bound by the CJEU case law in this respect.

Can digital collections infringe the rights of others?

At the outset, in order to infringe copyright, copyright must subsist in the underlying artwork. Consideration should be made of how old the artistic work is to determine whether any copyright is still in term. Copyright in artistic works, for example, generally lasts for 70 years from the end of the calendar year in which the author (i.e. the artist) dies. Therefore, a key question, particularly in relation to older artworks, is whether copyright still remains in force.

To the extent that copyright does still subsist, whether it is infringed is a question of whether a “substantial part” has been taken. Clearly, if a painting or an artwork has been reproduced entirely as part of a digital collection then it is likely to have been copied. However, the position is more challenging in relation to partial or incidental copies.

In the context of making copies of artwork available online, something that is particularly relevant to galleries exhibiting newer artworks is the fact that copyright can be infringed by the communication of the work to the public. This includes the making of the artwork available online to a public that was not taken into account by the artist at the time it was made available to the infringer. In other words, the right given by an artist to hang an artwork in a gallery does not necessarily give the gallery the right to include the artwork online as part of a digital collection and make it available online to the world. Therefore, the risks of infringement are increased in relation to newer artworks that are still subject to copyright protection.

Points to consider:

• Galleries/museums should ensure that all requisite licences are in place in relation to artworks the subject of copyright protection before making them available in digital collections.
• Consider making a film (as there is no requirement for originality) if you wish to protect the exhibition through copyright.
• If it is important to control future use of works made available online, add technical restrictions on the download or copying of materials from digital collections and consider watermarks. Also ensure that website terms and conditions contractually restrict copying or download of the images.