Public domain and the internet

Posted on: May 24, 2017 by

A number of issues arise when we use images of artistic works online. Here, I am referring to copyright and to the specific treatment of images of older works that may – or may not – have fallen into the public domain. Of course, once copyright has expired in a work, that work will enter the public domain (with only two rather unexpected exceptions to this rule, at least in the UK: here and here). The question of how we may use old works still protected by copyright arises again and again. The reason is that so much depends upon the country in which one is located.

Pablo Picasso, Absinthe Drinker (1901-2), which is protected by copyright in the EU, but not in the US. (Note I am using this low res version of the image on this particular website, which is UK based, as an example of fair dealing under UK law for the purposes of criticism and review. Meaning that, even though I recognise that this image is protected by copyright here, the use I am making would be permitted under the UK’s Copyright, Designs and Patents Act 1988.)

For example, if a gallery in Edinburgh wants to digitise a work by Pablo Picasso, it would have to get permission from the Picasso estate. This is fairly clear. Picasso died in 1973 and, in the European Union, his paintings will be protected until 70 years from the end of his year of death, so to the end of 2043. This is thanks to a European Directive from the 1990s that harmonised copyright duration throughout the EU. As the UK remains part of the EU – at least until 2019 – even though the work came from a Spanish national working in France, the same rules as to duration will apply across the EU.*

A problem arises if, for example, someone uses a Picasso work in a country with a different set of copyright duration rules. Like the United States. While the US has a similar general rule to that existing in the EU (namely that an artistic work will be protected until 70 years following the death of the artist), this length does not always apply to older works, which are subjected to other rather byzantine rules in the US. One strange anomaly is that works published before 1923, even works originating in a European country, are in the public domain in the US. Don’t believe me, see here.

So if a gallery in Cincinnati, Ohio were looking to digitise a work by Picasso (along the lines of the hypothetical gallery in Edinburgh), if the work had been published prior to 1923, then any use thereof within the US cannot be controlled by the Picasso estate. For an example of this, consider the Wikipedia page on the artist. There you will see a number of images of his works on the page uploaded by Wikipedia users (presumably) without permission from the Picasso estate. And these works were all first published before 1923. Anything from after that date is notably absence from the site. We get The Absinthe Drinker (1901-2; see left) and Pierrot (1918), but we don’t get any of his late works. That’s because the policy followed by the foundation which runs Wikipedia bases itself on US law, even if the works are by an artist from another country.

A strange situation sets in. Pre-1923 works by Picasso are placed on the English language Wikipedia page because it is alleged that US law should apply to these images. But anything from after 1923, in copyright within both the EU and the US, is not. To say nothing of the differences between the images that appear (or do not) on different language versions of the same Wikipedia page. See the noticeable absence of any two-dimensional Picasso works on the French page, for example.

All very confusing, especially for those looking to make use of such works online. While there is no simple answer, the first rule of thumb should be to ask if the particular images you are trying to use are still in copyright in your own country. If they are, it’s probably going to require permission from the copyright owner(s), or else some reliance upon the copyright exceptions that exist in your country. But even those exceptions can change depending on the jurisdiction. We are nowhere near a ‘universal rule’ on copyright duration. Use of an image is always going to remain at the risk of the user, and will depend upon how well he/she can navigate the different regimes.

And so the deceptive matter of copyright duration will continue to be the source of much confusion and frustration – the world over. This is one of the reasons why we have always considered the problem during our Diploma in Intellectual Property and Collections (DipIPC) course, which we have been running for four years now. For those working in collections, this is an especially important consideration because putting an image up online may seem like an easy enterprise, at least practically speaking, but the different copyright rules around the world tend to have a way of slowing things down. So we work on investigating practical solutions.

The next intake for this course will be 12-14 June 2017 in London, but spots are almost full. So if you are interested in these issues, it may be worth booking yourself in.

*Note that, as a result of some peculiarities of Spanish law, some Spanish works are potentially protected for longer than 70 years after the death of the author.