When author’s right on a statue in the public domain “resurrect”
The “Neues Museum” in Berlin keeps amongst its collection of ancient Egypt works a more than 3000 years old bust of Nefertiti, the wife of pharaoh Amenophis IV. Recently, the museum has scanned the statue with the help of 3D technology and recreated a digital copy. This replica was then made available under the terms of Creative Commons BY-NC-SA licence. This means that the rights have to be attributed to the museum, the work can be used for non-commercial purposes only and that it has to be shared under the same licence. Is this permitted?
Creative Commons explained that ownership of rights on the work is a prerequisite for the use of their licences. If the work is in the public domain, licences cannot be used or rather they are not effective. In such cases, dedication to the public domain is more adequate.
There is no doubt that the statue is in the public domain as copyright on the work never existed (the first copyright act originates from 1710). What is questionable is whether there can exist rights on the 3D replica of the work. Member states of the European Union have, until recently, regulated this question very differently. German courts have recognised some neighbouring rights on the reproductions of the work in the public domain when the standard of individuality was not met. Such a regulation is no longer consistent with the EU law. Article 14 of the Directive on Copyright in the Digital Single Market provides that non-original reproductions of works in the public domain cannot be protected by copyright or neighbouring rights. The legality of controversial practices of institutions, that are supposed to safeguard cultural heritage and not claim ownership over it, is just a matter of time.
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