Scanned public domain works: what's the position in Europe now?

"As an avid reader of the 1709 Blog, I was wondering if perhaps you could spend some time on an analysis of the copyright status of Newton's notebooks", writes  Dutch IT lawyer Arnoud Engelfriet (who incidentally blogs in Dutch at http://blog.iusmentis.com/).  Arnoud continues: "Recently Cambridge released scans of Sir Isaac Newton's notebooks at http://cudl.lib.cam.ac.uk/collections/newton -- but with a notice stating 'Zooming image© Cambridge University Library, All rights reserved' at the bottom of the scan, e.g. at
http://cudl.lib.cam.ac.uk/view/MS-ADD-03996/. Can under English law such a copyright claim be made, where the scan appears to be a purely functional reproduction without intellectual activity by the scanning person? I would be grateful for any insights you could provide".


My immediate thought was that not only Cambridge University Library but numerous other institutions have asserted copyright in similarly-created works. Bridgeman Art Library's assertion of copyright in photographically reproduced images was litigated in the US, where the court, having considered English law on the subject, refused summary dismissal of the plaintiff's action but subsequently rejected Bridgeman's claim (there's a handy note on the background and litigation of Bridgeman's claim here).

I wondered whether, following recent Court of Justice rulings on copyright in Infopaq, Premier League and
Painer, the fact that the accurate scanning of public domain works is not the result of the author's own intellectual creation would lead to the conclusion that, under modern European copyright doctrine, there would be no copyright in the scans. Arnoud seems to be thinking along the same lines, it now appearing that the Court of Justice's approach is dispensing with the old notion of categories of protected works and replacing them with a more general concept: that of the author's own original creation.


Arnoud agrees with me that no harm would be caused by throwing this issue open to readers of this blog, in case we've missed something obvious or they have some valuable insights to add.