Visual art works in the public domain (Article 14 of Directive 2019/790)

For the first time in the European Union (EU), Article 14 of Directive 2019/790 grants a positive status to public domain with reference to works of visual art. Any material resulting from acts of reproduction of a work of visual art in the public do- main is not subject to copyright or related rights, unless such material is original, in the sense that it is the author’s own creation. The provision’s purpose is to prevent copyright-fraud, which has been practiced by museums and other owners. Avoid this practice is especially important in the digital market. Article 14 is clarificatory and codifies the concept of originality according to the Court of Justice settled case law. The provision also aims to avoid divergent approaches across the EU, which lead to uncertainty that affects cross-border dissemination of works of art in the public do- main. The transposition of this provision should be minimalistic. Article 14 does not define what are works of visual art and does not determine the consequences of the infringement of the provision. Articles 2 and Recital 13 do not contain an exhaustive list of what should be considered a Cultural Heritage Institution. All these issues create doubts about the effectiveness of Article 14. Our purpose is to analyze Article 14 of Directive 2019/790 and the issues it raises.