12

Article 14 only covers „works of visual art“. This gives rise to a question as to the extent to which Article 14 also applies to the reproduction of public domain design works, works of architecture and maps, which are also listed as works of visual arts in some Member States, but are listed in separate categories of copyrighted works in other Member States.

13

This question cannot easily be answered, since firstly, the EU Directives do not contain a binding, autonomous list of categories to be considered as “works”. Secondly, the language and systematic structure of international Conventions – to which the CJEU often refers when interpreting provisions of EU copyright law – does not help much, since rather than using the term “visual art”, Article 2 (1) of the Revised Berne Convention lists different objects which fall into this category (“works of drawing, painting, architecture, sculpture, engraving and lithography”). In addition, “photographic works” are listed in the Berne Convention as a separate category of works, as are “works of applied art”, “maps”, “sketches” and “three-dimensional works relative to … architecture“. If anything, the Berne Convention indicates that the term “works of visual art” should not be construed too narrowly.

14

Moreover, an understanding of “works of visual art” in a narrow sense would exclude copyrighted photographic works, technical drawings, and maps from the application of Article 14. The consequence of such a narrow understanding of the notion of ”works of visual art” would be that exclusive related rights under national law could still attach to faithful reproductions of public domain photographs, old maps and the like. However, such a result would not be in line with the purpose of Article 14, as explained in Recital 53, which emphasises access to and promotion of culture, and access to cultural heritage.

15

Rather than adopting such a narrow understanding of “works of visual art”, the ECS supports a broader understanding, which focuses on the “faithfulness” of the reproduction laid down in Recital 53. According to such understanding, Article 14 would also apply to faithful – in other words, non-creative – reproductions of public domain photographic works, design works (works of applied art) and maps. To conclude otherwise would grant greater derivative protection to such works than to works of visual arts.

16

Another question is which rights are affected by the operation of Article 14. This question gives rise to two remarks.

17

First, the reference to “copyright” as a right to which faithful reproductions of works in the public domain shall not be subject, is somewhat misleading, since according to Article 14 copyright does come into existence for reproductions of public domain works which constitute the author’s own intellectual creation. Therefore, unless a Member State grants, under its national law, copyright protection to works which are not an intellectual creation of its authors, Article 14 mainly, if not exclusively affects “related rights”.

18

Second, the most important of such related rights, at least as regards visual reproductions of copyright-protected works, is the related right in non-original photographs – and eventually non-original film stills – provided for by some Member States’ national laws (such as, e.g., in § 72 of the German Copyright Act). Moreover, copies protected by related rights for previously unpublished works as well as critical and scientific publications (Articles 4 and 5 of Directive 2006/116) are also affected by Article 14 of the DSM-Directive. In addition, according to its wording, Article 14 might also apply to other related rights granted by national laws, even if these rights are not (yet) harmonized by EU law, such as, e.g., the rights to non-original audiovisual recordings. Therefore, such rights, when they exist in national law, should likewise not apply to faithful reproductions.

19

A question of prime importance is to know what is to be understood by “reproductions” which are not “the author’s own intellectual creation”, since it is only those non-original reproductions to which, according to Article 14, no new rights shall apply.

20

In the literature, it is often suggested that a line should be drawn between reproductions of 2D-works and reproductions of 3D-works (i.e., the reproductions which are supposed to be the author’s own intellectual creation). However, whereas it is true that reprographic photography of 2D-works is in most, if not all cases non-original, reproductions of 3D-works may or may not be the result of their authors’ own intellectual creation.

21

The ECS therefore supports an understanding of the term “reproduction” deriving from Recital 53’s reference to “faithful” reproduction. In other words, Article 14 should also cover faithful reproductions of 3D objects (e.g. by plaster casts, 3D-reproductions and prints) which are in the public domain, provided their purpose is merely to reproduce the original object in question faithfully and not to transform it in any creative way.

22

The formulation „…when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work …” may give rise to two conflicting readings.

23

According to one reading, “when” would mark a point in time from which onwards reproductions newly made would not give rise to any new rights, whereas existing rights with regard to reproductions made before that point in time would continue to exist. Such an understanding would have the practical consequence that, even after the expiry of the term of protection of the work reproduced, users would have to inquire whether or not the reproduction was made before that date or thereafter.

24

According to another reading, however, the “when” marks the point in time after which any reproductions covered by Article 14 shall not be subject to exclusive rights, irrespective of the fact whether they have been made before or after the expiry of the term of protection of the work that has been reproduced. In other words, according to this understanding, the “when” refers to the time when the reproduction is being used rather than when it was made. This understanding appears to be more in line with the contribution to the access to and promotion of culture, and the access to cultural heritage described as the aim of Article 14 in Recital 53, even if it might involve a cutting back of already vested rights.

25

Consequently, ECS supports a reading of Article 14 which exempts all use acts undertaken regarding faithful, non-original reproductions after the term of the work reproduced has expired, irrespective of the date on which the reproduction in question was made.

26

Because, if understood as just explained in point IV, Article 14 cuts back on already existing rights from the DSM-Directive’s implementation deadline, any implementation should contain a corresponding transitional provision.

27

This provision should make clear that beginning with the implementation date, Article 14 also applies to the use of reproductions which were made before the implementation date.

28

It shall only briefly be mentioned that it may be reasonable to understand the reference to “digital environment” in Recital 53 as not limiting the application of Article 14 to digital use acts. The need to use reproductions in order to promote access to works and to cultural heritage exists, and can be satisfied, not only by digital but also by analogue reproductions.

29

Finally, in the view of ECS, it might be advisable for national legislatures implementing Article 14 to ensure that the “access to and promotion of culture, and the access to cultural heritage” aimed at according to Recital 53 is not unduly undermined.

30

Firstly, given that no rights can attach to faithful reproductions of once copyright-protected works that have fallen into the public domain, the same result should also, a fortiori, apply where the objects reproduced were never protected by copyright at all, such as works of visual art created before copyright could apply to them or even before the modern copyright laws were enacted (e.g., antique artefacts).

31

Secondly, from the point of view of access to material in the public domain, it might seem appropriate to extend the application of Article 14 DSM-Directive to other works than works of visual arts, such as documents, manuscripts and sheet music. Of course, courts might still find that faithful reproductions of such works are not original in the sense of being their authors’ own intellectual creations. However, it would seem justified and advisable to include these works in the course of national implementation of Article 14 DSM-Directive, in order to avoid the misleading information given by a ©-notice which is often affixed to such faithful – and hence not protected – reproductions of public domain works that are not visual.

32

Thirdly, when implementing Article 14, the national legislature might be well advised to adopt language to the effect that the freedom provided for by Article 14 cannot be eliminated by reference to a property right unlimited in time in the object that has faithfully been reproduced. The effect of such regulation would, of course, only affect the use of reproductions which are already freely available and would not give the person making the reproduction a right of access to the physical object to be reproduced vis-à-vis the owner of the respective object.

33

At any rate, national provisions that would curtail the freedom recognized in Article 14 endanger the effectiveness of harmonized EU law and are impermissible in light of the obligation to safeguard the effet utile of Union law.

Drafter:

Prof. Thomas Dreier

Director, Institute for Information and Economic Law, Karlsruhe Institute of Technology (KIT), Germany

Signatories:

Prof. Valérie-Laure Benabou, Professor, Aix- Marseille Université (AMU), France

Prof. Lionel Bently, Professor, University of Cambridge, United Kingdom Estelle Derclaye

Prof. Séverine Dusollier, Professor, School of Law, Sciences Po, Paris, France

Prof. Christophe Geiger, Professor of Law and Director of the Research Department of the Centre d’Études Internationales de la PropriétéIntellectuelle (CEIPI), University of Strasbourg, France Jonathan Griffiths

Prof. Reto Hilty, Director, Max Planck Institute for Innovation and Competition, Munich, Germany

Prof. P. Bernt Hugenholtz, Director, Institute for Information Law, University of Amsterdam, Netherlands

Prof. Marie-Christine Janssens, Professor of Intellectual Property Law, University of Leuven, Belgium

Prof. Martin Kretschmer, Professor of Intellectual Property Law, University of Glasgow; and Director, CREATe, United Kingdom

Prof. Axel Metzger, Professor of Civil and Intellectual Property Law, Humboldt- Universität Berlin

Prof. Alexander Peukert, Goethe-Universität Frankfurt am Main, Germany

Prof. Thomas Riis, Professor, Centre for Information and Innovation Law, University of Copenhagen, Denmark

Prof. Ole-Andreas Rognstad, Professor of Law, Department of Private Law, University of Oslo, Norway

Prof. Martin Senftleben, Director, Institute for Information Law (IViR), University of Amsterdam, The Netherlands

Prof. Alain Strowel, Professor, UCLouvain and Université Saint-Louis, Belgium

Prof. Tatiana Synodinou, Professor, University of Cyprus

Prof. Raquel Xalabarder, Chair of Intellectual Property, Universitat Oberta de Catalunya, Barcelona, Spain