I was once told this joke about how a Catholic priest was asked by his junior to relook at the ancient manuscripts, where he found the word celibate was actually celebrate! My EU law tutor always said primary legislation overrules secondary legislation, so I will look at the primary legislation on intellectual property.
Article 36 of the EU Treaty states that there can be restrictions the protect property of an industrial and commercial character in individual Member States. This is used as a legal base for laws on intellectual property, such as copyright.
Considering this for a moment would suggest for something to be considered intellectual property it would have to be for commercial or industrial purposes. Therefore it could be argued that photographs taken by family members of relatives for personal use are not of a commercial or industrial character so cannot be copyrighted.
Also, consider the term, ‘intellectual property’ itself. The term would seem to suggest that an element of creativity and craftsmanship went into the creation of such property. This would again suggest that a photograph taken with an amateur camera where the person taking the photograph had no special commercial or industrial training also does not carry any copyright. Perhaps if the creator was to combine the photograph with text, it would then become an intellectual/creative work and would carry copyright if it was for commercial or industrial purposes, but not on its own.
At some point I will look at the EU Treaty article that gives rise to Data Protection, to see whether it is possible for those featured in photographs taken commercially to have the rights to use them, but that is for another day.
