“…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 (sic), 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”

(Crown copyright. Extract reproduced under the Open Government Licence)

It is interesting that this reinforces the point that in the case of a straight forward digital image of a work of art which is itself out of copyright it is unlikley that the digital image will be protected by copyright under EU law. It is likely to fail the originality test. It is not uncommon for art galleries to claim copyright protection for the digital images of works in their collections which can be found on their websites. The 1709 Blog recently mentioned copyright challenges to Wikimedia from various art galleries on this very issue, the  re-use of digital images of works of art which are themselves in the public domain.