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Court ruling on copyright law has ‘significant implications for UK cultural institutions’ – Douglas McCarthy reports

Author’s remix of detail of Four judges in heavy wigs, 1758. Etching by William Hogarth. Source: Wellcome Collection, Public Domain Mark

PAN reader and cultural heritage specialist Douglas McCarthy, has written about how a recent Court of Appeal ruling on originality in copyright law, in the case THJ v Sheridan, may influence how museum picture libraries manage their public domain collections. He explains the context of the ruling and considers how it might influence their IP policies and licensing practice.

Late last November at the Court of Appeal in London, Lord Justice Arnold made a significant ruling on copyright and the threshold of originality in UK law, in the case THJ v Sheridan. Although the case concerned the copyright protection of graphical user interfaces (GUIs), its impact is likely to be felt in other categories.

From ‘skill and labour’ to ‘free and creative choices’

Historically, English copyright law had a low bar for originality, defined by ‘sufficient skill, labour, or effort’. But this has changed in recent decades. The Court of Justice of the European Union’s (CJEU) jurisprudence has significantly altered the threshold for originality, and the Court’s influence persists in the UK, even after Brexit.

As Eleonora Rosati, Professor of Intellectual Property Law at Stockholm University, stated in the The IPKat: “The consistent and abundant string of CJEU decisions on originality have clarified that the EU standard of ‘author’s own intellectual creation’ does require more than simple ‘skill, labour of effort’: a work is protectable if it is the result of ‘creative freedom’ and ‘free and creative choices’ and ultimately carries the ‘personal touch’ of the author.”

Arnold LJ underlined this standard explicitly in his THJ v Sheridan ruling: “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 […] 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.”

What does this mean for the copyright policies of cultural institutions in the UK?

The overwhelming majority of galleries, libraries, archives and museums in the UK which have digitised out of copyright works in their collections claim copyright in the resulting digital surrogates. …read the full article on Doug’s blog page

• Dr. Bendor Grosvenor (@arthistorynews) on Twitter X posted: Image fees – more good news: Tate will start removing Creative Commons licences from their non-copyright artworks online. This means that potentially thousands of images of some of the greatest British art will finally be clearly in the public domain, and free to re-use. View the thread.
• Read more about Doug on PAN

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