There are at long last indications that UK copyright law is moving in
the direction of the WMF and Commons policy  that "faithful copies of
public domain works are themselves in the public domain" - in other
words that faithful photographic reproductions of old, out of copyright
artworks such as paintings do not create an enforceable new copyright
for the photographer. The UK Intellectual Property Office has recently
updated its copyright advice notice  to include the following:
Are digitised copies of older images protected by copyright?
''Simply creating a copy of an image won't result in a new copyright in
the new item. However, there is a degree of uncertainty regarding
whether copyright can exist in digitised copies of older images for
which copyright has expired. Some people argue that a new copyright may
arise in such copies if specialist skills have been used to optimise
detail, and/or the original image has been touched up to remove
blemishes, stains or creases.''
''However, according to the Court of Justice of the European Union which
has effect in UK law, copyright can only subsist in subject matter that
is original in the sense that it is the author's own 'intellectual
creation'. Given this criteria, it seems unlikely that what is merely a
retouched, digitised image of an older work can be considered as
'original'. This is because there will generally be minimal scope for a
creator to exercise free and creative choices if their aim is simply to
make a faithful reproduction of an existing work.''
This official advice from a UK Government agency is useful as it
recommends a strikingly different approach from the one that has been
taken over many years by the UK courts, namely that a new copyright can
very easily be created merely by the 'skill and labour' involved in
taking any sort of photograph (the copyright practitioner's text,
Copinger & Skone James, says that "in terms of what is original for the
purpose of determining whether copyright subsists in a photograph, the
requirement of originality is low and may be satisfied by little more
than the opportunistic pointing of the camera and the pressing of the
Although the IPO advice is not binding on the UK courts, it will be of
useful persuasive value. It's interesting that the official view being
taken is that the European Court of Justice has effectively replaced the
very low bar of "Was sufficient skill and labour applied?" with the
higher one of "Is it the author's own intellectual creation?''. The
2009 CJEU decision in Infopaq  is gaining traction.
Communia have published a blog post  that is worth reading.
Chair, Wikimedia UK