THJ v Sheridan: A new era for copyright in UK cultural institutions?

Jane Secker
Picture of Douglas McCarthy
Douglas McCarthy – selfie CC BY 4.0

Today’s blog post comes from friend of copyright literacy and previous Icepops Keynote Douglas McCarthy. Douglas is Head of Library Learning Centre at Delft University of Technology as well as a researcher, author and advocate on the topic of open GLAM (galleries, libraries, archives and museums). Here he gives his reflections on the recent UK court case THJ v Sheridan which has been a subject of considerable debate within the UK cultural heritage sector.

[An updated version of this post is available on douglasmccarthy.com]

In late November at the UK Court of Appeal, in the case THJ v Sheridan, 2023, Lord Justice Arnold made a significant ruling on copyright and the threshold of originality. Although the case concerned the copyright protection of graphic user interfaces (GUIs), its impact is likely to be felt in other categories. Let’s examine some of the implications of THJ v Sheridan for copyright policy at UK cultural institutions.

From ‘skill and labour’ to ‘free and creative choices’

Historically, English copyright law had a low bar for originality, defined by ‘sufficient skill, labour, or effort. But this has changed in recent decades. The Court of Justice of the European Union’s (CJEU) jurisprudence has significantly altered the threshold for originality (and the Court’s influence persists in the UK, even after Brexit). As Eleonora Rosati, Professor of Intellectual Property Law at Stockholm University stated in the The IPKat: 

‘The consistent and abundant string of CJEU decisions on originality have clarified that the EU standard of ‘author’s own intellectual creation’ does require more than simple ‘skill, labour of effort’: a work is protectable if it is the result of ‘creative freedom’ and ‘free and creative choices’ and ultimately carries the ‘personal touch’ of the author.’

In his THJ v Sheridan ruling Arnold LJ underlined this position explicitly:

“What is required is that the author was able to express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their personal touch […] This criterion is not satisfied where the content of the work is dictated by technical considerations, rules or other constraints which leave no room for creative freedom.”.

What does this mean for the copyright policies of cultural institutions in the UK?

The overwhelming majority of cultural institutions (such as museums, libraries and archives) in the UK which have digitised out of copyright works in their collections claim new copyright in the resulting digital surrogates. To name but a few, the National Gallery, British Museum, National Portrait Gallery and Victoria & Albert Museum all rely on the outdated ‘skill and labour, or effort’ credo to assert copyright after photographing 2D artworks that are themselves in the public domain.

Amusing image of a Jan Van Eyck portrait and Doug McCarthy surprised it remains in copyright

The National Gallery asserts copyright in a verbatim digital reproduction of ‘The Arnolfini Portrait’, painted nearly 600 years ago by Jan van Eyck, and applies the restrictive licence CC BY-NC-ND 4.0 to the image. Monkey Puppet and Douglas McCarthy react with astonishment. Presentation slide by Douglas McCarthy, 2022.

THJ v Sheridan is just the latest confirmation in case law – stretching back to Infopaq in 2009 (as was pointed out by Arnold LJ) – that the ‘free and creative choices’ threshold of originality is the relevant one for modern UK copyright law. It underscores the falsity of the ‘skill and labour, or effort’ basis on which museums have – and continue to – assert copyright in simple reproductions of 2D public domain works. To quote Professor Rosati again, “Technically, this has been wrong for ten-plus years.”.

What’s going to happen next?

In the wake of THJ v Sheridan, one can easily imagine a flurry of messages flying between worried rights managers at UK museums, asking what the ruling meant and how others might respond. So, how will institutions respond to the ruling and what changes might we see? Without reaching for a crystal ball, I have a few thoughts.

If this ruling finally persuades museums that their copyright assertions are no longer credible, we can expect museum copyright policies to change. Lawyers will be consulted and the Terms of Use of museum websites will have to be updated. All of those ‘© Museum’ statements in image credit lines online may soon quietly vanish.

Arm wrestle meme between copyright status and terms and use

How copyright and contract law intersect. Author’s meme, August 2023

Goodbye copyright law, hello contract law

Would the lack of image copyright make it easier or cheaper to acquire and reproduce images from cultural institutions? Not necessarily. I anticipate that THJ v Sheridan will expedite the shift towards contract law replacing copyright law as a means of controlling access to public domain collections. This model already exists and is, to take one example, practised by Tate Images. It enables Tate to charge fees (on the usual sliding scale of cost, based on the scope and scale of intended reproduction) for the licensing of images without copyright.

Screenshot of the Tate Gallery's guidance on how to caption an artist work.

FAQs page on Tate Images website, accessed January 2024. Note that the suggested credit line for ‘2D Artistic work out of copyright’ does not contain a copyright symbol or claim by Tate.

Using contract law enables Tate to administer its digital images of public domain works on the gallery’s own terms, and to manage and monetise their circulation and reproduction. It seems likely that other museums in the UK will consider adopting this approach in the coming months.

What does it all mean?

In summary, the THJ v Sheridan ruling has profound implications for copyright policies in UK cultural institutions. It marks a shift from the traditional “skill and labour” basis for originality to a new standard that emphasises “free and creative choices.” This change challenges the longstanding practice of claiming copyright in digital surrogates of public domain works. In response, cultural institutions may need to update their copyright policies and consider alternatives, such as contract law, to control access to their collections – should they wish to continue doing so.

UK cultural institutions play a crucial role in safeguarding a vast repository of public domain works. Consequently, the manner in which they grant access to their digitised collections carries substantial importance. Will THJ v Sheridan expedite the implementation of more open and inclusive access policies in museums, or will the current state of affairs remain unchanged? It should be fascinating to watch.

Thanks to Douglas for setting the issues out so clearly and we will be following this topic closely over the coming weeks and month. Please get in touch if you have any further thoughts about the future of licensing in the GLAM sector.

Suggested further reading:

Published by Jane Secker

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