Rights created during digitisation (non-original photographs)

This is an (edited) archived version of research published on outofcopyright.eu. View a full version on archive.org.

Cultural Heritage Institutions such as museums, libraries and archives can digitise collections that are either in the public domain (copyright has expired or is waived by a CC0 public domain dedication) or protected by copyright or related rights. The legal status after digitisation is ambiguous and depends on several factors. The digitised version of works that were previously in the public domain, are sometimes denied free use by the public as they are protected by copyright.

Digitisation processes can be fully automated, require human intervention in operating scanning or digitising devices, or demand substantial facilitation by a person. The first scenario, fully automated digitisation, is most commonly used for the digitisation of two-dimensional objects such as texts and images. The second scenario, semi-automated digitisation, can be employed for the digitisation of texts, images and objects. The third scenario, human-operated digitisation, is mainly employed to digitise three-dimensional objects. Digitisation of 2D items usually requires few to no creative choices, while digitisation of 3D objects is generally performed by a person and generally comes with creative choices, such as the angle or the light.

The output of the digitisation is almost always a (2D) digital representation of the original. In the passage from a 2D original to a 2D digital representation, all the details present in the former can be represented in the latter. The quality is purely a matter of technical ability.

This situation is different in the case of an original that is a 3D object. In the passage from the 3D original to the 2D digital representation a certain number of details, angles, perspectives will be lost, as only 2 of 3 dimensions are reproduced. In choosing which details, angles, aspects and perspectives should be reproduced, the operator can apply not only technical knowledge but, in some circumstances, also make free and creative choices.

When digitising, we advise sticking to the following guidelines (these are only guidelines and proper legal assessment should be sought for specific cases):

  1. Check out the public domain charter: “What is in the public domain in the analog form should remain in the public domain in the digital form.”
  2. No exclusive rights can be claimed over reproductions that came about through fully automated digitisation.
  3. No exclusive rights can usually be claimed over reproductions through semi-automated digitisation of texts and images (2D objects). However, digitisation of 3D objects at times comes with technical skill or creative choices. In countries that recognise non-original photographs (Germany, Austria, Spain, Italy, Denmark, Sweden, Norway and Finland and Iceland), a related right can (under certain circumstances) be claimed. Protection will be determined on a case-by-case basis, taking into account the specifics of that work.
  4. There is a possibility to claim copyright for a certain period of time over a digitised work that came about through personal and creative choices operated by a person (e.g. a photographer taking different shots in different light conditions and angles, regulating exposure, post-processing, editing the image, etc).

Copyright can only arise when at least a minimal amount of originality is present. This is the case both for new works or for works that are derived from another work. The digitised version can be seen as a mere reproduction of the underlying work, or as a creation of an independent work, a derivative work, or as a material to be covered by a related right.


Originality is the essential requirement for copyright protection: only works that show the required amount of originality attract protection for a limited number of time.

EU integration has led to harmonisation of many fields of law across all member states. In accordance with the current state of EU law (as interpreted by the European Court of Justice) in the field of copyright a work is original if:

  1. It is the author’s own intellectual creation. This standard applies to all subject matter covered by EU copyright directives (possible exception in the case of registered design rights).
  2. The intellectual creation reflects the author’s own personality. This means that the author exercised free and creative choices and put a personal stamp on the work.
  3. Originality is not present when an expression is determined by technical or functional rules, such as when there is only one way to express an idea, or the expression is predetermined by a specific goal or constrained by narrow rules which leave no space to free and creative choices.
  4. As long as an author is able to make free and creative choices and therewith put a personal stamp this will suffice to reach the required level of originality. However, skill and labour, even in significant amounts, are not conducive to these free and creative choices and therefore do not lead to the creation of a work.

Although there is increasing harmonisation throughout the EU, the precise determination of originality remains a matter for national courts.

Derivative Works

In general, a derivative work is a work that is based on a pre-existing underlying work. As such, they constitute secondary, instead of primary, work. Not all modifications make up for a derivative work, only those modifications that bring an autonomous authorial contribution, i.e.  constitute an “intellectual creation.”

Photographs and non-original photographs

All EU Member States recognise protection to photographic works for a limited amount of time (usually 70 years), if the photograph is proved to be the author’s own intellectual creation (as required by the Term Directive). Non-original photographs are works manufactured employing photographic or similar techniques, without reaching the personal intellectual creation standard. Protection of non-original photographs is not based on the personality of the author that is stamped in the work, but simply the technical ability and know-how or a “minimum of intellectual input”. Different from other “special” forms of protection, the regulation of non-original photographs is completely left to Member States individually (see Art. 6 Term Directive).

Countries that implement a specific related right that protects non original photographs include Germany, Austria, Spain, Italy, Denmark, Sweden and Finland. The term of protection is always shorter than original photographs and varies from 15 to 50 years from the production of the photo, depending on the regulations of the country.

You can find an executive summary of the research by Thomas Margoni from the Institute of Information Law here.

Click here for the full paper.