“Sweat of the brow” copyright was a legal confection created from whole cloth to support institutional enclosure of the public domain. It claimed that no originality is required to gain copyright as long as you have worked sufficiently hard to reproduce an out-of-copyright work, such as taking a competent photograph of an old painting. The legal cases cited to support it had to be egregiously misread in order to do so, and when an American court was faced with the only serious attempt to argue it, they threw it out. And they did so while taking English law into account.
That hasn’t stopped museums in the UK from insisting that it’s real and that anyone who publishes a faithful two-dimensional reproduction of an out-of-copyright work owes them money and should feel bad for stealing their property. This makes for an interesting case study in the institutional psychology of value and property claims in the Thatcherite era of the UK, which stretches from 1979 to the present. But it still doesn’t make sweat of the brow copyright a thing.
The risk to challenging sweat of the brow copyright in court was always that the judge would decide that it was real just because the right sort of chaps seemed to be making a fuss in favour of it. Fortunately, an English court has finally ruled against it. This is wonderful news and a rare example of de facto enclosure being rolled back de jure. Museums lose nothing they actually owned, and the public and all the individuals that make it up get something back that should never have been taken from them. It’s a small win, but one that has been a long time coming and has huge symbolic and practical value for free culture.
Goodbye, sweat of the brow copyright, I never believed in you, but I learnt a lot from you despite yourself.