Framing Texts and Images: Critical and Posthumous Editions in the Digital Single Market

Although Art. 14 of the Directive on Copyright in the Digital Single Market (CDSM Directive) was introduced mostly to deal with issues connected with non-original photographs of public domain works, it also impacts the protection of posthumous and critical editions. Whenever a work of visual art that belongs in the public domain becomes the object of an edition, Art. 14 CDSM Directive excludes its protection under neighbouring rights. In the case of complex works, embedding original contributions belonging to different genres, Art. 14 CDSM Directive applies only if visual elements are predominant in the given work and as long as it is not possible to exploit the work of visual art without using other contributions embedded in the complex work. At the same time, Art. 14 CDSM Directive indirectly confirms that an edition may be protected by copyright if it is original. The particularly low threshold of originality required makes the presence of copyright quite common in three-dimensional and two-dimensional reproductions of works in the public domain that can qualify as editions. Then, with reference to textual works, the limits of originality are challenged: although there is little doubt that the person preparing a critical edition faces choices, they may not necessarily be free and creative. Editorial interference with the text can be compared to findings made by historians during their research and, as such, remain unprotected by copyright. Such an edition may still be protected within the regime of the neighbouring right in those few member states that decided to implement it. Eventually, as is the case nowadays with many aspects of human activity, the future of IP protection of various editions will become murkier due to the advent of new artificial intelligence technologies. For example, models are already being developed to automate the arduous and difficult process of transcription of manuscripts, as well as to ensure appropriate restoration of works of visual art. In particular, the further rapid development of artificial intelligence may cause the neighbouring rights in editions to become at least partially obsolete if the process of preparation of editions becomes devoid of human input. And this would have an impact on the copyright presence as well.