museums, libraries, archives

This page considers intellectual property issues for curatorial institutions in the digital environment.

It covers -

• introduction
• accessibility
• statutory deposit
• digitisation
• electronic publishing
• reprographic rights
• exhibition rights

It is supplemented by profiles on digital archiving and on legal deposit.

     accessibility 

Copyright protection in Australia for print and electronic publications does not involve registration with IP Australia (in contrast to patents, trademarks and designs) or a copyright office. 

The Copyright Act (and some state legislation) requires publishers to deposit copies of print material in specified libraries; the National Library has a useful guide to those requirements. The NLA is exploring long term access to websites through its PANDORA harvesting and storage initiative, which aims to enable use many years hence of such essential publications as Grilled Pterodactyl ezine.

Overseas there is increasing concern about intellectual property aspects of large-scale archiving projects such as the US-based Internet Archive, which claims to be building snapshots of the entire web. The NLA and some institutions seek the permission of site owners before copying web pages for their collections; the Internet Archive simply captures the data and apparently relies on fair dealing provisions in US copyright law and the expectation that owners who don't want their pages captured in future will tweak the code to instruct spiders that the document is not to be indexed/copied.

We have explored some of the issues in a more detailed profile on archiving the net.

     statutory deposit 

Statutory Deposit - aka Legal Deposit (Dépôt Légal) or Mandatory Deposit - obliges publishers to deposit copies of publications in one or more libraries in the nation of publication.

That obligation is generally embodied in the particular country's national library or copyright legislation. It has been an accepted in most nations for at least a century - and indeed was the centrepiece of what would now be regarded as the national information policy.

The rationale is that there is a public good in community access, through particular institutions, to print publications. Publishers and authors gain protection under copyright law for their intellectual property. In return the state is able to provide citizens with access to those publications in a way that does not serve as a fundamental disincentive to investment or disrespect the author's moral rights.

Statutory deposit has sometimes been associated with national copyright registration regimes (eg protection of works was dependent on each work being formally registered as part of deposit with an institution such as the US Library of Congress).

It has provided a basis for states to build a national collection, thus strengthening national identity and addressing aspirational statements such as the United Nations Declaration on Human Rights which identifies

a "right to seek, receive and impart information" (Article 19) and

a "right to freely to participate in the cultural life of the community, to enjoy the arts, and to share in scientific advancement and its benefits" (Article 27).

As with all intellectual property regimes, statutory deposit reflects a calculus of perceived costs and benefits. Publishers and authors forgo some revenue by giving rather than selling their work to the institution. In return the institution generally provides long-term access to that work, something that involves appropriate cataloguing and preservation.

The legislation in most statutory deposit regimes, such as Australia, centres on print publishing and reflects different national circumstances, with variation evident in regimes that require deposit of a single copy to a national library or a copy to each of a handful of libraries, differing coverage and penalties for non-compliance.

Most statutory deposit legislation predates technologies such as films, sound recordings and the internet. Challenges associated with identification, storage (including preservation copying and migration from one format to another) and appropriate access to digital works mean that the development of new deposit legislation is problematic.

Many nations are accordingly using voluntary deposit schemes for handling digital publications (and works such as films) outside legal deposit legislation. Those schemes are typically developed by national libraries and major commercial publishers, reflecting the Statement on the Development & Establishment of Codes of Practice for the Voluntary Deposit of Electronic Publications by the Conference of European National Librarians and the Federation of European Publishers and the 1996 guidelines from UNESCO and the Conference of Directors of National Libraries.

The absence of community pressure, institutional wariness about additional responsibilities and commercial publisher concerns about access mean that it is likely voluntary schemes will continue to predominate for electronic publishing.

We have explored statutory deposit in more detail in a separate profile that considers Australian, New Zealand and overseas regimes. A valuable overview is provided by Jan Jasion's The International Guide to Legal Deposit (Aldershot: Ashgate 1991) and the 2000 study by Jules Larivière on Guidelines for Legal Deposit Legislation.

     digitisation

[under development]

     electronic publishing

[under development]

     reprographic rights

Pressure on curatorial institutions to maximise revenue and the increasing ease of electronic publishing has highlighted disagreements about non-copyright 'reprographic' or 'publication' rights.

Much of the collection in many museum, library and archive collections is no longer protected by copyright because the period of protection (discussed here and here) has expired. Few sculptures, drawings, etchings or canvases created before 1900 are for example still protected. The institution is free to reproduce those works as posters, cards, books, bags, CD-ROMs and other merchandise or to take them online, whether through an intranet or the internet.

A common misapprehension is that institutions have a copyright in particular work because they own the physical entity, eg the canvas, stretcher and pigment that comprises an Old Master oil painting. In some cases that is incorrect. The institution instead has a reprographic right that is founded on contract law (eg binding purchasers of merchandise that features particular reproductions) and/or restrictions of access to the physical entity.

Typically, a condition of entry to an art gallery is that unauthorised photography is not permitted and that the gallery owns or licenses any reproductions of out-of-copyright works (eg has copyright in its authorised photograph of a Monet or Arcimboldo). The institution generally participates in revenue from use of the reproduction, for example gets an up-front payment and royalty for inclusion of the photographs in an illustrated book.

That restriction has been justified on the grounds of

• conservation grounds - eg substantive/potential damage to sensitive paintings and watercolours from constant flashlights or badly-aimed tripods
• 'public good', with revenue being used to keep the rain out of the building, pay for conservators or the headhunters searching for a new gallery director
• the institution or partner's investment in photography (eg set-up of lighting, photographer's time, processing).

Constraints on downstream use of images are contentious. The New York court decision in the Bridgeman v Corel case, for example, involved claims that Canadian software company Corel had breached the copyright of The Bridgeman Art Library (a UK British company that licenses transparencies of public domain artwork owned by museums) by including those 'Bridgeman' images on a Corel CD.

The court disagreed, endorsing Corel's claim that Bridgeman had no copyright to the individual images because those images were in the public domain and Bridgeman's transparencies lacked the original authorship required by US copyright law. That decision has, however, been criticised in the UK, particularly by museums, and caution is desirable.

In 2004 the Mellon Foundation released a report on Reproduction charging models & rights policy for digital images in American
art museums, exploring cost and policy models for imaging and rights services. In considering the transition to digital collections the report commented that lack of business planning and clear cost accounting for actual costs in service provision undermine efforts, with most institutions setting prices on the perceived market rate rather than actual costs. The largest revenue earners were those institutions where money was assigned directly to the service department to offset or recoup costs. 56% of institutions received under US$50,000 per year from rights transactions. 99% charge less for educational use than commercial use. 5% undertook less than 500 transactions per year.

     exhibition rights 

Some national copyright regimes feature an 'exhibition right' for visual artworks.

Typically, the legislation in such regimes entitles an artist to receive a payment if a work is exhibited on a non-commercial basis, eg is displayed in a public gallery as part of that institution's collection or on loan. In most cases an exhibition fee is set in a contract between the artist (or estate) and the institution. The Right is for the period of copyright protection and is independent of the artist's Moral Rights and Droit de suite.

Australia, New Zealand and the UK have not established an Exhibition Right and there is no requirement under the Berne Convention or subsequent WIPO treaties.

In Canada the Right forms part of the 1988 Copyright Act, covering artistic work created after 7 June of that year. The copyright holder (generally the artist) may license or assign the right to exhibit a work, with payments collected by the CARFAC copyright collecting society.

The Canadian right is waivable. The extent to which the right has been waived and its economic impact on emerging/established artists and institutions is uncertain. In 1996 Greg Spurgeon of the National Gallery of Canada commented that the Exhibition Right

has brought the will of most galleries to support the moral and economic rights of creators into conflict with their own ability to promote and exhibit contemporary art in the face of these new financial and administrative obligations. Some have set up the necessary mechanisms to negotiate and pay the exhibition fees (though this is an ever-increasing administrative burden at a time of wide-spread down-sizing in museums); and some continue to investigate means of licensing exhibition and other rights in a manner that respects the rights of the creator/copyright holder without imposing on the museum a burden which would inhibit its ability to carry out its mandated programmes.

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