Reflecting on Anarchy in the UK: museums and public domain images

Douglas McCarthy is a good friend to Copyright Literacy, recording a podcast with us in 2019, keynoting Icepops in 2022 and contributing to our blog with his article about the THJ v Sheridan case last year. Therefore we were fascinated to see his recent report on some research he has conducted about how major UK cultural heritage institutions manage copyright and licensing for digital surrogates of their public domain collections. The title of this post, Anarchy in the UK, comes from his original article, published on 20 November 2024. However, here we reproduce some of the key findings from his research, interspersed with our own thoughts on this important issue. We urge you to read Doug’s post in full, but have summarised it here. The post is significant because it:

“… delves deeper into how UK cultural institutions assert copyright regarding digital reproductions of public domain works. It use FoI-sourced information from the following institutions: the British Library; the British Museum; the Government Art Collection (Department for Culture, Media and Sport); Imperial War Museums; the National Gallery; National Galleries Scotland; the National Library of Scotland; National Museums Scotland; the National Portrait Gallery; the Natural History Museum; Royal Museums Greenwich; the Science Museum Group; Tate; the Victoria and Albert Museum; and the Wallace Collection.”

The first point of interest was how he conducted the research, using Freedom of Information Requests to each museum or gallery. Using FOI largely compels institutions to reply, or to come up with good reasons as to why they can’t. Personally I’ve never felt entirely comfortable with using FOI for research, relying on the good will of my participants to respond, but I do understand why in some instances researchers feel it is necessary. He posed the following questions of them:

• Does your institution claim copyright in digital images of 2D out-of-copyright visual works (such as prints or photographs) in its collections? If so, on what basis in law are such claims made?
• Has your institution sought or received any legal advice on copyright in its digital images of out of copyright artworks in the last ten years, and in response to the recent THJ v Sheridan case? If so, will you release that advice?

The findings from the study are presented in a table, with the response to the FOI request alongside an excerpt from the relevant website terms and conditions. The footnotes take you to Doug’s references and should work so we’ve reproduced the tables below as these responses highlight the differences in policy between the institutions:

Does your institution claim copyright in digital images of 2D out-of-copyright visual works (such as prints or photographs) in its collections? If so, on what basis in law are such claims made?
British Museum	Yes
FoI response: ‘Yes. The Copyright, Designs and Patents Act 1988.’ Website Terms and Conditions: ‘All the content on our website is protected by internationally recognised laws of copyright and intellectual property. The British Museum can decide under what terms to release the content for which we own the copyright.’3
Department of Culture, Media and Sport	No
FoI response: ‘The Government Art Collection does not assert copyright over 2D out-of-copyright images.’ Website Terms and Conditions: ‘Copyright of images: Images of works of art on this site are not covered by the Open Government Licence. If you wish to reproduce any of the works of art featured on this site, please contact the Government Art Collection, to supply you with an image of the work and grant the appropriate reproduction rights.’4
Imperial War Museums	No
FoI response: ‘IWM does not assert copyright in its surrogate images of Crown copyright expired works, but we continue to supply high resolution copies of these under licence. Museums can charge for the use of images, and do so under multiple legal frameworks, whether that be Charity law, pre-Brexit EU legislations or current UK legislation governing National collections. The framework for that is laid down in Re-use of Public Sector Information (PSI) Regulations and our contract terms. The direct and indirect costs of producing an asset can be recouped through licensing or service fees regardless of its copyright status. IWM is not claiming copyright in the linked image.’5 Website Terms and Conditions: ‘IWM’s websites are copyright of Imperial War Museums (© IWM), whilst the copyright in the material which is hosted on IWM’s websites belongs to IWM as well as other third parties.’
National Galleries Scotland	No
FoI response: ‘NGS does not claim copyright on digital images of artworks that are out of copyright. All images on our website of works that are out of copyright have the caption Creative Commons CC by NC and no additional copyright line.’ Website Terms and Conditions: ‘‘Images of works where copyright has expired or where a copyright holder has agreed to release the image are available for you to use under the terms of the CC-BY-NC 3.0 Licence.’6
National Gallery	Declined to say
FoI response: ‘This is not a question for FOIA; this is asking the Gallery to give an opinion on a position rather than seeking information the Gallery holds.’ (See below for discussion of this reply.) Website Terms and Conditions: ‘All copyright, trade marks, design rights, patents and other intellectual property rights contained in the Website and all content available on the Website shall remain the property of the National Gallery or its licensors. All such rights are reserved.’7
National Library of Scotland	No
FoI response: ‘The Library does not claim copyright in digital images of 2D out-of-copyright works in our collections anymore. The Library recognises that there is no legal basis for claiming fresh copyright in digitisations. This means we do not try to enforce control over the re-use of out of copyright materials.’ Website Terms and Conditions: ‘Works that are not in copyright: Public Domain Mark – This statement means the work is not protected by copyright. You may re-use the work as you please, without further permission, including for commercial purposes. No Copyright – Contractual Restrictions – This statement means the work is not protected by copyright, but there are contractual restrictions that limit how you may re-use it.’8
National Museums Scotland	Yes
FoI response: ‘Yes, National Museums Scotland claims copyright of the digital image of 2D out-of-copyright works. The approach used by National Museums Scotland is based on our interpretation of copyright law.  Since the ruling was made we have taken advice from a recognised expert in our sector9, and undertaken peer consultation with other leading museums and galleries.’ Website Terms and Conditions: ‘All images and other content on nms.ac.uk are copyright National Museums Scotland, unless otherwise stated. Where images and other content have copyright belonging to other individuals or organisations, this is clearly stated on our website.’10
National Portrait Gallery	Yes
FoI response: ‘We are not aware of any legislation nor case law in the UK to date, that clearly states that any images of works in the National Portrait Gallery would not qualify for copyright protection. UK legislation on copyright is governed by the Copyright, Designs and Patents Act 1988. The Gallery has also taken on board BAPLA’s [British Association of Picture Libraries and Agencies] clarification regarding the interpretation of new case law, most specifically THJ vs Sheridan, which asserts that the case simply highlights the complex question of what qualifies as ‘original’ under copyright law.’ Website Terms and Conditions: ‘The National Portrait Gallery owns, generates and makes use of a range of items protected by IPR legislation. You may access, download and/or print contents for non-commercial research and private study purposes.’11
Natural History Museum	No
FoI response: ‘The Natural History Museum does not claim copyright in digital images of 2D out-of-copyright works in its collections. The example you have highlighted of copyright assertion in items from the Endeavour voyage is from our legacy webpages, the collections on which were first published on our website before this decision was taken and carry out of date metadata.  Unfortunately, some similarly affected content remains online with legacy copyright information. We intend to update this.’ Website Terms and Conditions: ‘Intellectual Property: The NHM or its licensors or contributors own the copyright and all other intellectual property rights in the Marks and Information on the Website.’12
Royal Museums Greenwich	Yes
FoI response: ‘Under UK copyright law, (CDPA 1989), the museum claims copyright in the digital assets created by our professional photographic studio. This process requires skill, knowledge, judgement, creativity and labour, significant time and expertise which are needed to create an original digital asset. We are not producing slavish copies but creating new original artistic works by investing intellectual creativity in the act of production of the asset.’ (See below for analysis of this reply.) Website Terms and Conditions: ‘All images and information provided by RMG Images or downloaded from the website are the property and/or copyright of NMM (unless stated otherwise). The moral rights of NMM and its authors of works represented on this site have been asserted.’13
Science Museum Group	No
FoI response: ‘SMG is not actively asserting copyright where applicable (such as in the case of the examples provided). Captions for these images [on the SMG website] are legacy data. Our statement on intellectual property is published on our website: Website Terms and Conditions: ‘All copyright, trade marks, design rights, patents and other intellectual property rights (registered or unregistered) in and on the Websites are owned by the Science Museum Group or are included with the permission of the owner of the rights as specified wherever possible.’14
Tate	No
FoI response: ‘Tate’s position is that it does not claim copyright, as defined under the Copyright, Designs and Patents Act 1988, in its digital images which solely portray 2D out-of-copyright works in its collection.’ Website Terms and Conditions: ‘All copyright, trade marks, design rights, patents and other intellectual property rights (registered and unregistered) in and on tate.org.uk and all content (including all applications) located on the site shall remain vested in Tate or its licensors (which includes other users). You may not copy, reproduce, republish, disassemble, decompile, reverse engineer, download, post, broadcast, transmit, make available to the public, or otherwise use tate.org.uk content in any way except for your own personal, non-commercial use. In certain prescribed circumstances, you may adapt, alter or create a derivative work from any tate.org.uk content for your own personal, non-commercial use, with the prior written permission of Tate which will be indicated against the relevant tate.org.uk content.’15
Victoria and Albert Museum	Yes
FoI response: ’The V&A claims copyright in digital images of 2D out-of-copyright works in its collections where those images are original for the purposes of copyright law.’ Website Terms and Conditions: ‘Please note that the intellectual property rights in all ‘Content’ (including images, editorial or descriptive text, footage or any other media) featured within the ‘Websites’ (www.vam.ac.uk, and all sub-domains) and selected social media platforms, is owned by the ‘V&A’ (the Board of Trustees of the Victoria and Albert Museum) and other copyright owners as specified wherever possible.’16
British Library	Unable to respond in time
FoI response: n/a Website Terms and Conditions: ‘The audio, video, text, images, or other material made available on the Website by the Library are either protected by the copyright of third parties, are the copyright of the British Library Board, or are materials which are in the public domain or made available under a Creative Commons licence. Where content is marked as public domain, the Library believes it to be in the public domain in most territories and is unaware of any current copyright restrictions on the content either because the term of copyright has expired in most countries, or because after reasonable efforts no evidence has been found that copyright restrictions apply. You are free to use this material as you wish, but please note that the Library does not warrant that use of the content will not infringe on the rights of third parties.’17
Wallace Collection	Did not respond
FoI response: n/a Website Terms and Conditions: ‘Copyrighted material on this website is available for non-commercial and educational purposes under a Creative Commons CC-BY-NC-ND 4.0 (Unported) licence. The following acts are not permitted in respect of any of the content featured on the Wallace Collection’s website:  Reproduction of website content for commercial purposes, or any rental, leasing or lending of content obtained or derived from the website.’18

Table taken from McCarthy, D. (2024). Anarchy in the UK. Zenodo. https://doi.org/10.5281/zenodo.14192608 CC BY 4.0

In discussing these findings, Douglas then highlights the inconsistencies in approach saying:

The responses highlight significant inconsistencies in how UK cultural institutions interpret and apply copyright law, even though they operate within the same legal framework. Organisations are managing straightforward digital images of public domain works in entirely different ways: some assert copyright over their digital reproductions, others releasing them openly, accepting their public domain status. Among institutions that claim copyright, the justifications provided were equally varied, with some citing legal statutes and others invoking outdated principles such as the “skill, labour, and judgement” argument.

He goes on to highlight how these inconsistencies look in practice, using the example of a Hogarth image from 1761 which The Victoria and Albert Museum claims copyright in its digital surrogate whilst the Government Art Collection does not claim copyright in its image. This was actually something Doug talked about in his joint keynote with Andrea Wallace at Icepops 2022, and expanded upon with Andrea this week in Sydney, using different Hogarth images as a case in point, where numerous different versions of the same image appear online with different copyright statements on them.

He then discusses the legal basis for claiming copyright in public domain works, citing the UK’s Intellectual Property Office advice issued in 2014, regarding digital images and the threshold of originality required for copyright to subsist under UK law:

‘Copyright can only subsist in subject matter that involves the author’s own “intellectual creation.” A straightforward copy of a public domain work does not meet this standard, as it lacks the originality required for copyright protection.’¹⁹

However, at this point it’s worthwhile considering why institutions might want to claim copyright in digitised images of older works. The following Association for Cultural Enterprises blog post written by Anthony Misquitta, General Counsel at the V&A, sets out the rationale for why some institutions believe their digitisation activities meet the threshold of creative expression needed to attract copyright protection. They note that libraries, museums and galleries invest significantly in the time, resources and equipment to make high quality digitised images. Cultural heritage institutions don’t undertake digitisation of these images simply to profit from them – they do so because their mission is to make their collections available to the biggest audience they can. However, they are faced with the need to try to recoup some of the costs of digitisation, as well as preserving and making their collections available on the premises of the institution (in the UK access to our cultural heritage institutions is often free at the point of access). In the UK where there is chronic underfunding of public libraries and archives, I’m aware that one way of bringing in revenue is through charging for the reproduction of historical images. Sometimes this is a reproduction charge, but sometimes copyright is stated as the reason for this. In Anthony’s post he states that either of these positions are justifiable. How profitable charging actually is in practice is something that Doug discussed in his July 2024 article Balancing access and income – the dilemma of museum image licensing.

Doug’s article goes on to consider the response to the second question, about whether institutions have sought legal advice following the THJ v Sheridan case, which some commentators believed might end this practice of charging for reproductions of out of copyright images. Here the responses are interesting, with four institutions saying they had sought legal advice but all declining to share that advice, citing Section 42 of the FOI legislation which exempts information protected by legal professional privilege. This all points to a rather messy situation where there are significant differences of opinion on this topic and a number of cultural institutions who have a different interpretation of the law to the UK government. We noted with interest one of the responses that Doug received to his FOI request said it was not in the general public interest to share their legal advice on the copyright status of public domain images, because they have “have seen no evidence that this subject is of concern to a wide sector of the public.”

So does this actually matter? For us at Copyright Literacy, the troubling issue is that these inconsistencies in policies (or the anarchy that Doug alludes to) may play a part in causing or compounding ‘copyright confusion’ and potentially contributing to copyright anxiety, that we have been studying recently. Our research suggests that this is a considerable concern to some communities of scholars who interact with collections in institutions. In addition smaller museums and galleries often follow the policies and practices of larger national institutions, so seeing these inconsistencies isn’t always very helpful. As a trustee for a local civic society, I know the pressures on small cultural heritage institutions, and recently was advising volunteers about whether we could or should charge members of the public to download high resolution digitised images of the local town, which I know from their age, are in the public domain, but which we have digitised at some expense. It’s a dilemma.

Doug ends his piece with the following concluding remarks:

The responses of the surveyed cultural institutions outlined in this article reveal a patchwork of  inconsistent approaches to copyright as it pertains to digital surrogates of public domain collections. Five of the surveyed organisations claim copyright in such works, seven claim they do not. Of those seven, only two were confirmed as having website policies that accept and state the public domain status of such images. All operate under the same legal framework and all are funded by either the Department of Culture, Media and Sport, or the Scottish Government.

For institutions entrusted with public heritage and supported by public funds, this confusing and fragmented approach restricts access to important public collections. A unified and transparent approach to copyright would benefit not only the institutions themselves but also their audiences, especially potential reusers of digital collections who wish to incorporate them in educational, creative and commercial projects.

A good starting point would be aligning with the guidance of the Intellectual Property Office, and embracing transparency around policy positions. A collaborative effort among UK cultural institutions to develop consistent copyright policies would ensure clarity around access and reuse for all users. These steps would help to ensure that digital images of public domain works become fully accessible and reusable, in accordance with the prevailing law and the institutions’ public mandate. By embracing this opportunity for reform, UK cultural organisations can reaffirm their role as sources of accessible heritage in the digital age.

I encourage you to read Doug’s article in full and review the copyright policies of your own institution when it comes to the sharing of digitised copies of public domain works. For my own part I have suggested my local history organisation might dip their toe in the water by releasing a sample of images onto Wikimedia Commons with a public domain mark and then track the usage. I’m grateful to Dr Andrea Wallace, at the University of Exeter and GLAM E-Lab, for offering us an opportunity to do this. Charging for copyright permission has rarely brought in any significant income in our case. I’ve also suggested we review our policies to avoid putting copyright notices on content which is in the public domain, but I do understand the complexities and tensions of these issues. But the one thing I am clear about is that continuing to claim copyright in public domain images is unhelpful and at the very least (in the immortal words of the Fat Controller from Thomas the Tank Engine) causes ‘confusion and delay.‘