The issue of copyright is a contentious one, particularly in the modern era of digital productions and reproductions. In what follows, I offer briefly a couple of thoughts which have occurred to me during my recent endeavour to get to grips with copyright law in Ireland as it applies to the digitisation of cultural heritage artefacts. Foremost in my thoughts have been the implications for copyright of public engagement projects involving photogrammetry and structure in motion software. In the absence of legislation dealing specifically with digital works, I have followed the examples of others in examining the current legislation as it applies to photographic materials (Weinberg, 3-6; Margoni, 26-50).
The primary legislation governing copyright in Ireland is the Copyright and Related Rights Act 2000-2007 (CRRA 2000). Section 2(1) CRRA classifies a photograph as an ‘artistic work’. As such, photographs must be original in order to attract copyright protection. Traditionally, for originality to be considered present it was required that an artistic work display a modest level of skill, labour and effort on behalf of the author and that it should not be copied from another source. However, a recent report aimed at improving national copyright law recommended that the development of the statutory definition of ‘originality’ should be left to the case-law of the Court of Justice of the European Union (EJC) (Department of Jobs, Enterprise and Innovation, 33-4). Under EU law the required originality standard is that the work being protected is the ‘author’s own intellectual creation’. The author’s own intellectual creation is present when the author can make free and creative choices and put their own person stamp in the work. Consequently, ‘labour, skill and effort’, no matter the amount, do not necessarily result in originality. The EU originality standard further specifies that in instances where an expression is governed by technical or functional rules or a specific goal, no originality can be present (Margoni, 14-16).
Community Engagement Projects
In recent years, a number of heritage projects within Ireland have actively sought to engage the public in the production of 3D records and visualisations (see below for a list of references). In doing so, they have highlighted the affordability, accessibility and, perhaps most importantly, the simplicity of new recording technologies. For example, the coordinator of the Roscommon3D and Galway3D citizen science projects, states that ‘there is very little skill invovled [sic] as most of the work is done by a computer’ (Dempsey, 3).
In attempting to establish whether or not the individual digitised objects created by these community based projects would acquire copyright protection, an application of the EU originality test would more than likely produce a negative result. Firstly, the author (defined here as the photographer) cannot exercise free and creative choice. These projects specify photographic subjects and the success of the subsequent three dimensional visualisation is dependent on the accuracy of the photographs, that is to say that the photographs must be taken according to a predefined set of rules. Secondly, an author might argue that processing legitimises their claim to originality as the EJC left a certain degree of ambiguity in this respect in the Painer case. However, by highlighting the lack of human input required by the technology, community based 3D modelling projects have negated this ambiguity. In my view, the individual digitised objects created for these projects would fail in a copyright claim as they appear to fall short of the requisite originality standard in every respect.
- Eva-Maria Painer v Standard Verlags GmbH and Others (C-145/10, judgment of the Court (Third Chamber) of 1 December 2011). www.eur-lex.europa.eu/legalcontent/EN/TXT/qid=1411377135817&uri=CELEX:62010CJ0145. Accessed 3 Oct. 2016.
- Copyright and Related Rights Acts 2000 to 2007. www.irishstatutebook.ie/eli/2000/act/28/enacted/en/print#sec18. Accessed 3 Oct. 2016.
- Directive 2001/29/EC of the European Parliament and of the Council, of 22 May 2001, on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society. www.eur-lex.europa.eu/legal-content/EN/TXT/?qid=1411376705214&uri=CELEX:02001L0029-20010622. Accessed 3 Oct. 2016.
- Department of Jobs, Enterprise and Innovation. Modernising Copyright: A Report Prepared by the Copyright Review Committee for the Department of Jobs Enterprise and Innovation. Dublin, 2013, www.djei.ie/en/Publications/Publication-files/CRC-Report.pdf. Accessed 10 Oct. 2016.
- Dempsey, Gary. “Visualizing Heritage”, Roscommon County Council, n.d., www.roscommoncoco.ie/en/Services/Heritage/Roscommon-3D/Visualizing-Heritage-3D-Heritage-Services.pdf. Accessed 16 Oct. 2016.
- Margoni, Thomas. “The Digitisation of Cultural Heritage: Originality, Derivative Works and (non) Original Photographs”. Institute for Information Law, University of Amsterdam, Dec. 2014, www.ivir.nl/publicaties/download/1507. Accessed 3 Oct. 2016.
- Weinberg, Micheal. “3D Scanning: A World without Copyright.” Shapeways, May 2016, www.shapeways.com/wordpress/wp-content/uploads/2016/05/white-paper-3d-scanning-world-without-copyright.pdf. Accessed 3 Oct. 2016.
3D Public Engagement Projects:
- Ogham in 3D. Dublin Institute of Advanced Studies, 2016, www.ogham.celt.dias.ie/menu.php?lang=en. Accessed 16 Oct. 2016.
- Corca Dhuibhne 3D. Músaem Chorca Dhuibhne, 2016, www.corcadhuibhne3d.ie/. Accessed 16 Oct. 2016.
- Roscommon3D. Roscommon County Council, 2016, www.roscommoncoco.ie/en/Services/Heritage/Roscommon-3D/. Accessed 16 Oct, 2016.
- Galway3D, www.sketchfab.com/galway3d. Accessed 16 Oct, 2016.
- Wicklow Rock Art Project, School of Archaeology, University College Dublin, 2012, www.wicklowrockartproject.com/. Accessed 16 Oct, 2016.
- Cronin, Charles. “Possession is 99% of the Law: 3D Printing, Public Domain Cultural Artefacts & Copyright.” Minnesota Journal of Law, Science and Technology, vol. 17, no. 2, 2016, pp. 709-36, www.scholarship.law.umn.edu/cgi/viewcontent.cgi?article =1411&context=mjlst. Accessed 9 Oct. 2016.
- Jeffrey, Stuart. “Challenging Heritage Visualisation: Beauty, Aura and Democratisation.” Open Archaeology, vol. 1, 2015, pp. 144-52, www.radar.gsa.ac.uk/3761/1/opar-2015-0008.pdf. Accessed 14 Oct. 2016.
- Law Society of Ireland. Submission in Respect of Copyright Innovation, a Consultation Paper Prepared by the Copyright Review Committee for the Department of Jobs, Enterprise and Innovation. Dublin, 2012, www.djei.ie/en/Consultations/Consultations-files/Intellectual-Property-Law-Committee-of-the-Law-Society-of-Ireland.pdf. Accessed 10 Oct. 2016.
- Logue, Fred. “Monkey See, Monkey Do.” Law Society Gazette, Oct 2014, pp. 27-9, www.lawsociety.ie/Documents/Gazette/Gazette%202014/October2014.pdf. Accessed 3 Oct. 2016.