A Berlin court has ruled that digitising paintings that are in the public domain creates new copyrights, even if the intent is to create a faithful image rather than produce an artistic interpretation.

The case was brought by the Reiss Engelhorn Museum (REM) in Mannheim, Germany, against the Wikimedia Foundation and Wikimedia Deutschland—the local German chapter of the global Wikimedia movement—over 17 images of the museum's public domain works of art, which have been uploaded to Wikimedia Commons.

The Wikimedia Foundation and Wikimedia Deutschland argued that the digital versions sought to reproduce the paintings as exactly as possible, which meant that there was no room for new creativity, and thus nothing to be protected by a new copyright. The court disagreed.

In a blog post on the case last year, the Wikimedia Foundation and Wikimedia Deutschland wrote that even if the digitised images were covered by copyright, "we believe that using those rights to prevent sharing of public domain works runs counter to the mission of the Reiss Engelhorn Museum and the City of Mannheim and impoverishes the cultural heritage of people worldwide."

The court ruled against the Wikimedia Foundation and in favour of the Reiss Engelhorn Museum. The German court dismissed the case against Wikimedia Deutschland on the grounds that it was not legally responsible for the files in question, which were held by Wikimedia Commons in the US, which in turn are managed by the Wikimedia Foundation.

The Wikimedia Foundation and Wikimedia Deutschland believe that as far as the US is concerned, digitised versions of public domain images are also in the public domain, and can therefore remain on the Wikimedia Commons servers. However, they note that whether they should be removed or not is a question for the Wikimedia community to decide.

Responding to the judgment, the Wikimedia Foundation and Wikimedia Deutschland wrote: "we are convinced that the court has made an incorrect decision, and not paid attention to the long-term damage this judgment represents to accessing public domain works, particularly in a world in which people increasingly discover and experience culture in a digital form."

The Wikimedia Foundation says that it intends to appeal against the decision, and if necessary will take its case to the country's highest court, the Federal Court of Justice of Germany. Ars has asked the Reiss Engelhorn Museum in Mannheim for a comment on the latest development in this legal battle, but has not yet received any response.

Updated @ 15.35pm BST, June 23: The General-Director of the Reiss Engelhorn Museum, Prof. Dr. Alfried Wieczorek, told Ars why the museum had decided to take legal action: "As far as we are concerned this case is not about harming Wikipedia, or of us fundamentally disagreeing with this project. On the contrary: we have great sympathy for the Wikipedia project, and share with Wikipedia the object of spreading knowledge. But in this case, the question for us is who should decide whether and especially how our holdings should be made available. Even if one supports the free public accessibility of cultural items on Wikipedia, it is difficult for us to comprehend that a single Wikipedia author claims the right to decide on their own to release to everybody the results of work created with public funds on Wikipedia for free and thus also for commercial use."