When Copyright Meets Digital Cultural Heritage: Picturing an EU Right to Culture in Freedom of Panorama and Reproduction of Public Domain Art

Abstract

Over the years, there has been an increasing interest in cultural heritage, particularly within the digital context. This has brought to light numerous opportunities and challenges that however require a careful consideration of fundamental rights, such as the public’s entitlement to participation in cultural life, i.e. the right to culture. Preserving the communal aspect of cultural heritage is pivotal in unlocking the full potential of the right to engage in cultural activities. Within the intricate landscape of norms and policies encompassing diverse and often competing interests, the primary focus of this analysis is on the copyright acquis, which may be optimised for the public’s enjoyment of digital culture. This article aims to establish connections between two EU copyright provisions: the Freedom of Panorama (FoP), a discretionary exception under Art. 5(3)(h) of the Directive on the harmonisation of certain aspects of copyright and related rights in the information society (InfoSoc), allowing the reproduction of cultural goods visible from public places, and the reproduction of visual artworks in the public domain under Art. 14 of the Directive on copyright in the digital single market (CDSMD). Through a comparative analysis of how certain Member States have implemented these provisions, this article proposes potential paths for a balanced and thoughtful assessment of the interests related to digital cultural heritage that should lead to advancing the right to culture. While it would be wise to consider a supra-national legislative intervention that mandates the FoP exception, Member States should at the same time uphold the scope of Art. 14 of CDSMD, especially when it might be pre-empted by other regulations, such as those governing cultural heritage. By examining the foundations of these two provisions and seeking their nuanced interpretation, the authors anticipate the coexistence of a vital component of the EU right to culture, while acknowledging that the journey toward its comprehensive realization is far from over.