Robert Rohde wrote:
There are serious legal disagreements about this, but people have argued for some time that the UK is perhaps the purest example of a "sweat of the brow" state with respect to their copyright law. In other words, the prevailing view of many has been that UK law rewards an author's effort irrespective of creativity (neither "creative" nor "creativity" appear in the UK statute at all).
There has never been a good test case, but serious people have opined that Bridgeman v. Corel (the US case establishing PD-Art for photographs of PD works) would have been decided the opposite way in UK courts. In other words, there have been opinions that the effort involved in creating high quality photographs is by itself sufficient to embue that photograph with copyright protection in the UK even if the work being photographed is PD. However, though there is no statutory requirement for creativity, there is one for originality. Hence, most of the arguments in the UK hence turn on whether such a photograph would qualify as "orginal" or not. Some people believe that merely moving the image into a new medium is sufficiently novel to qualify for protection, while others dispute this. Again, there isn't a lot of guidance on this point.
As repugnant as the conclusion might be, it is entirely possible that the NPG could win this case under UK law and establish that photographs of PD works are definitively not PD in the UK. It's not a sure thing, and comptent legal representation would no doubt make an important case out of it, but my reading of the commentaries in this area would such suggest that a victory by the NPG is entirely possible (and perhaps more likely than not) assuming the issue is decided based solely on UK copyright laws.
One should never be cocky about winning these things. Once engaged the defence needs to be carefully crafted. There is always uncertainty when a provision in the law has not been tested in the courts.
We also need to consider that NPG raised three areas of law: copyright, database rights and contract. If all of them are raised in a lawsuit all need to be addressed. Discussion so far has been limited to copyright. Contract raises the question of what distinguishes a contract from terms of usage that must be sought on another page of the site. The database rights claim may be the difficult one to overcome, though I note there that all the cited law is from regulations rather than statutes. Copyright is a child of statutes; mere regulations may not expand these rights unless the statute provides clear authority to do so.
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