Appearance
Understanding copyright in a digitised work means separating two distinct questions: what is the status of the original underlying work, and what (if any) new rights were created by the act of digitising it. In most jurisdictions a faithful flat scan of a public-domain 2D work creates no new copyright, so the digital file inherits the original's status. The work to do is mechanical: identify the underlying work, fix its term, then check whether anyone added a protectable layer on top.
Why are there two copyrights to untangle?
Every digitised object carries at least two potential rights layers, and conflating them is the single most common mistake. The first is the underlying work — the manuscript text, the painting, the photograph. The second is any digital surrogate right plus rights in the metadata you generate. A 1890 letter may be long out of copyright, but a 2023 scholarly transcription of it can be freshly protected. Treat each layer separately on a worksheet so you never let one status leak onto the other.
| Layer | Typical right | Term example (UK) |
|---|---|---|
| Underlying literary/artistic work | Copyright | Life + 70 years |
| Faithful 2D reproduction | Usually none | n/a |
| Metadata / transcription | Copyright if original | Life + 70 from creation |
| Whole collection arrangement | Database right | 15 years from completion |
Does digitising create a new copyright?
For a faithful reproduction of a flat, two-dimensional public-domain work, no. The principle in the UK rests on The Reproduction of Works of Art reasoning and the Bridgeman v Corel line: a slavish copy lacks the originality copyright demands. The EU codified this in Article 14 of the 2019 DSM Directive, which says reproductions of public-domain visual art cannot be re-protected. The exceptions to watch are 3D objects and photographs of them, where lighting and angle choices can introduce enough originality to create a new photographic copyright.
How do I work out the term of the underlying work?
Run a short, repeatable checklist for each item:
text
1. Identify the work type (literary, artistic, photographic, sound).
2. Find the author(s) and their death dates.
3. Apply the jurisdiction's term rule (e.g. UK life + 70).
4. Check publication status — unpublished works had special UK rules
under the 1988 Act transitional provisions (2039 rule).
5. Check for anonymous/pseudonymous rules (70 years from publication).
6. Record the result AND the evidence you relied on.The UK "2039 rule" still bites: certain works created before 1989 and unpublished can remain in copyright until 31 December 2039 regardless of how old they are. Flag any pre-1989 unpublished manuscript for this check.
What about database rights and metadata?
Even when every record is public domain, the sui generis database right can protect your substantial investment in collecting and arranging the set for 15 years. This matters when you publish a structured dataset of otherwise-free objects. Conversely, your own original transcriptions and catalogue descriptions attract ordinary copyright, so decide deliberately whether to waive them with CC0 or keep them.
What is the safest default when the status is unclear?
Do not guess optimistically. If you cannot resolve the term, apply a conservative RightsStatements.org value and document why:
yaml
rights_statement: "http://rightsstatements.org/vocab/UND/1.0/"
status: "Copyright Undetermined"
evidence: "Author death date not located; diligent search log attached."
reviewed: 2024-10-12
reviewer: "E. Reed"Recording the evidence converts a vague guess into a defensible, auditable decision you can revisit.
Key Takeaways
- Always split the underlying work from the digital surrogate and metadata — they have independent statuses.
- A faithful 2D scan of a public-domain work usually creates no new copyright (Bridgeman; EU DSM Article 14).
- UK copyright for most works is life + 70 years; photographs and unpublished works have special rules.
- Watch the UK 2039 rule for pre-1989 unpublished manuscripts.
- A 15-year database right can apply even to a collection of public-domain items.
- When status is genuinely unclear, apply a conservative RightsStatements.org value and log your evidence.
- Decide consciously whether to waive your own metadata copyright with CC0.
Frequently Asked Questions
Does scanning an old document create a new copyright?
Generally no. A faithful reproduction of a 2D public-domain work — a flat scan with no creative framing — does not attract a new copyright in the UK, EU or US. The underlying work's status carries through to the digital file.
What does the EU 2019 Copyright Directive Article 14 say about reproductions?
Article 14 states that faithful reproductions of public-domain visual artworks cannot be protected by copyright or related rights, so digitisation alone does not lock those images up. The UK did not transpose Article 14 after Brexit, but UK case law (Bridgeman) reaches a similar outcome for flat copies.
Are there two separate copyrights to check in a digitised work?
Yes. You must separate the copyright in the underlying work (the text, photograph or artwork) from any rights in the digital surrogate or the metadata. Each can have a different status and term.
How long does UK copyright in a literary work last?
For most literary, dramatic, musical and artistic works in the UK, copyright lasts for the life of the author plus 70 years. Sound recordings and broadcasts follow different terms.
Can a database right exist even when the contents are public domain?
Yes. In the UK and EU a sui generis database right can protect a substantial investment in collecting and arranging data for 15 years, independently of the copyright status of the individual records inside it.
What is the safest default when status is unclear?
Apply an In Copyright - Rights-holder Unlocatable or Copyright Undetermined statement from RightsStatements.org, record your evidence, and avoid asserting a confident open licence you cannot defend.