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Patchwork guidance on how these legal areas intersect leaves room for individualised interpretations by UK GLAMs. In general, this has resulted in a sector-wide approach that resists compliance with UK law.

The Copyright Designs and Patents Act 1988 requires a work to be ‘original’ to attract protection. Those arguing that photographic reproductions are sufficiently original rely on a case from 1869 that considered copyright in a photograph reproduction of an engraving. The judge held that the photographic reproduction was original and could be protected. But two factors are important: first, the engraving itself was in-copyright and the claimant enforcing rights in the photograph held the rights in the engraving; and second, reproduction technologies and case law have come a long way since 1869. Without overruling this opinion, later courts have consistently held that skill, labour and/or judgment (i.e., creativity) must be expressed during a work’s creation to attract protection. The creative input must be substantial, or at least not trivial—but no matter how much skill or labour is required, copying a work per se cannot make the new work original. These doctrinal developments suggest 2D reproductions of 2D works do not attract a new copyright, no matter the amount of skill and labour involved in their production.

Copyright is more likely to arise when a 3D work is photographed (but not scanned, which is akin to copying per se). Protection, however, is not based on the format transfer from 3D to 2D alone. Courts require an examination of the object’s positioning, the angle of the photograph, and other elements like lighting, background and focus to determine whether creative input is expended. It is worth noting that these cases were decided prior to the EU harmonisation of copyright in 2006, which has been argued to require a higher level of creativity to attract copyright protection under the ‘author’s own intellectual creation’ standard. While the UK is no longer an EU member, its courts have held there is “no difference in substance” between UK standards and EU standards where originality in photographs is concerned.

As discussed, data requires creative input in its creation, selection or arrangement to attract copyright in the dataset. In addition, sui generis rights can protect a database, but the data itself can be too descriptive or so basic that no protection extends to the individual data components included in the dataset or database. This raises questions around which rights might arise, be enforced, and how, around collections data published online.

Finally, there are provisions of UK copyright law that provide ‘fair dealing’ exceptions for users, like making a temporary copy for private study or use, text and data analysis for non-commercial

A Culture of Copyright