a) Museums as users of copyrighted assets

Museums hold a plethora of objects of artistic, cultural, historical or scientific importance whose nature vary greatly. Specimens from the natural world, manmade technological constructions, archaeological and ethnographic materials, antiquities, literary works and artworks are only a few examples of the precious heritage found in museum collections worldwide.

Not all items found in museums are however protected by intellectual property (IP) rights and a fortiori by copyright. Copyright is a form of intellectual property that protects certain types of creative works, such as literary and artistic works, for a definite time period.1 It grants the authors economic rights allowing them to control the reproduction and communication of their works, as well as moral rights allowing them to prevent the distortion of their works and to be named (or not named) in association to their works. Authors are generally free to decide whether they keep full control over these rights, or whether they grant a license to third parties allowing them to also exploit these rights (for instance, if an author expressly allows a museum to make digital copies of its works and/or publish these copies on the museum’s website). However, legal exceptions may apply in some cases, allowing third parties that do not own the copyright in a work to perform acts of reproduction and/or communication – amongst others – even without the author’s permission.

Copyrighted works found in museum collections may include any literary and artistic creation, whether printed, manuscript, three-dimensional or digital, such as books, music, paintings, sculptures, photographs, films and technology-based works (e.g. computer programs, electronic databases and 3D media), protected by national laws in accordance with international treaties.². On the contrary, ordinary objects lacking originality – such as an old bicycle or regular items that are displayed because they once belonged to a famous person – are not protected by copyright, ³ although they may sometimes be protected by other IP rights. Moreover, after a certain time (which varies from one country to another but is generally at least 50 years after the author’s death)⁴, copyrighted objects fall in the public domain and lose their copyright protection. This essentially means that only the most “recent” works found in museums collections are protected by copyright.⁵

Some works found in museum collections can also be “orphan”, meaning that they are protected by copyright but the rights holder is either unknown, cannot be located or cannot be contacted. As it is often difficult, if not impossible, to obtain permission to use the works in such cases, a special set of rules will apply to determine their permitted uses.⁶

The present Policy Paper concerns only the digitization and dissemination of copyrighted works (including orphan works), since museums are essentially free to digitize and disseminate non-copyrighted or public domain works (subject, of course, to other legal or ethical⁷ restrictions potentially applicable, which are not discussed in this Policy Paper).

b) Museums as owners of copyrighted assets

Although the present Policy Paper focuses on the challenges faced by museums when digitizing and disseminating third-party copyrighted works (e.g. when museums are users of copyrighted assets), it is important to keep in mind that museums can also be owners of copyrighted assets. Indeed, museums can have IP rights in some the works they own and/or digitize. This will be the case, for instance, for photographs of works taken by museum personnel in jurisdictions where the Lichtbildschutz doctrine applies.8 Museums can also gain some IP rights in third-party works if artists or rights holders choose to assign (transfer) them via contract. Therefore, museums may also find themselves in the opposite situation to what is described in this Policy Paper: they may own the economic rights in works of art and/or digitized copies that third parties, such as museum visitors or internet users, may wish to access, re-use or share for various reasons. Should the changes to copyright law suggested in the proposals below be eventually adopted, they would of course apply to museums as copyright owners as much as to other third parties such as authors.

Yet, even under the actual state of copyright law, museums who take the digital shift should endeavour, as part of their public interest mission, to open up their digitized collections as much as possible and to avoid using copyrights they might own to unduly hinder access, re-use or sharing of digitized materials. No legal reform is necessary in this case, since rights owners are always free to relinquish the protection granted by copyright law (except for some unassignable moral rights). However, museums may endeavour to do so through national guidelines or codes of conduct to give greater weight to this openness and accessibility movement. Upon acquiring new contemporary works of art, they may also encourage artists to immediately license or assign rights in that regard.

a) The changing environment of museums

Traditionally, museums preserve, interpret and promote the natural and cultural heritage of humanity.9 With respect to cultural heritage, museums have engaged for centuries in its preservation, interpretation and promotion mostly on their own institutional premises and in relation to the tangible artefacts contained in their collection. While these functions still constitute the core of a museum’s mission, digital technology has had a profound impact on all levels of a museum’s conventional activities, which may ultimately require an adaptation of its institutional role.

Major developments brought about by digital technology manifest themselves in at least four ways:

• 1) museum collections contain more diversified works than ever before, ranging from new forms of works, to digitized analogue works and digital born multimedia works;
• 2) museums disseminate the works to the public in many different ways and for different purposes, including through social media, on their premises or at a distance, for scientific, educational and entertainment purposes;
• 3) mirrored by the change in the museum offer, visitors are adapting their behaviour towards the works presented to them, by taking a more “hands-on” and interactive approach to their experience with cultural heritage; and
• 4) there is strong demand by the economy, especially technology SMEs and large telecommunication companies, for more digital content to be made available online by, amongst others, large museums, in order for them to build new and innovative products and services around their content.10 Increasing demand from users to be able to “visit” museums online and, for many institutions, a lack of physical space to display all objects in their possession, make the use of technology and digitization attractive for museums.

In many countries, however, these far-reaching developments occur in the context of persistent financing difficulties. Seeing their public budgetary envelop constantly decrease, museum administrations must innovate in order to remain relevant to a demanding public and, if possible, to generate additional income.

As we shall see below, these changes put the copyright regime under serious strain.

b) The changing nature of the collection

A variety of new forms of art make their way into museum collections, including interactive, live performances (and the video recordings thereof), as well as digital born multimedia works. Museums typically negotiate license agreements with the artist or rights holder upon acquiring these new forms of artworks. In the absence of such a license, however, because of the non-physical nature of these new forms of art, it can become quite challenging for museums to fulfil their core functions with respect to these works, i.e. indexing, cataloguing, preserving, and communicating to the public, as it may be unclear whether the museums have the necessary copyright permission to do so.

The advent of digital technology technically enables museums to digitize the analogue works contained in their collection. Digitization is done for various reasons, including preservation and communication (i.e. the wish to broaden public access to those works). However, in most jurisdictions the copyright legislation does not legally allow wide scale digitization of copyrighted works without the prior authorisation of the rights holder. Obtaining permission becomes particularly problematic in relation to orphan works. Chances are that the older the work gets, the more difficult it is to identify or trace the rights holder.

Moreover, contrary to the vast majority of books, sound recordings or audio-visual works held by libraries, copyright as an economic driver seems limited for visual artists,11 since artworks and other pieces exhibited in museums are often unique and ordinarily not meant for multiple commercial copies. Visual artists may therefore be less inclined to have assigned their rights to a collective rights management organisation (“CMO”), which would make obtaining permission easier.

With digitization also comes an opportunity and a corollary need on the part of museums to develop precise metadata and indexation that will ensure traceability and usability of works. Unfortunately, it is not uncommon to see that even for indexation purposes, some copyright legislations create an obstacle to making the necessary reproductions without prior permission of the rights holder.12

c) The new ways of disseminating to the public

Digital technology has brought changes not only in terms of creating new works and preserving museum collections, but also in terms of disseminating works online to the public. Following the motto that “if you’re not online, you don’t exist”, many museums develop communication strategies aimed at reaching a broader public. Many museums (wish to) set up a digital inventory with internal databases and management of rights when mounting exhibitions. Several museums take advantage of digitization, websites, social media and apps for smartphones and tablets for reaching a greater public with the exhibits of the past, present and future. Depending on the circumstances, the use of social media can form an integral part of a museum’s core function of making the works in the collection available to the public, but it can also be aimed at promoting the museum’s activities and generating additional income.

In practice, online activities take different forms. The Tate Gallery offers a very good example of an institution with an all-encompassing media strategy: exhibitions and collections at Tate are promoted via multiple social media channels, like the World Wide Web, Twitter, Facebook, Youtube, Google+, Instagram, Pinterest and Tumblr.13 The Museum of Modern Art in New York has adopted a similar attitude towards social media,14 knowing that such an approach drastically increases the potential geographical accessibility of its collection, as it attracts virtual and physical visitors to the museum. The same goal lies behind the Dutch initiative of “MuseumTV”, which is a collaboration between Foundation Our Museum and participating Dutch museums. The mission of Foundation Our Museum is to introduce art and culture to the biggest audience possible and highlight the rich and diverse bandwidth of Dutch museums and cultural heritage. It does so by creating short video documentaries promoting the ongoing and upcoming exhibitions.15

However, most museums do not feel as comfortable in putting parts of their exhibitions online; copyright law and the obligation to obtain the rights owners’ permission for such acts creates a serious obstacle to these new forms of dissemination of artistic works – as far as works protected by copyright are concerned.16 In Europe, for instance a 2015 survey showed that European museums have only about 24 % of their digitally reproduced and born digital heritage collections available on line for general use. 17

Moreover, while a study18 showed that digitization is a priority for the vast majority of collections institutions (86%), there are – apart from the copyright obstacles – two important barriers for their goals. Up to date, we see “that most still have a significant backlog to address, and based on their current rate of digitization most are more likely to meet their goals in decades rather than years.” Only 26% of the institutions participating in the study “could confirm they will have met their goal within the next ten years, and 16% can’t even see the completion of their digitization in their own lifetimes, predicting in excess of 50 years.” Also, the study found that “with technology and consumer expectations rapidly changing, the goal posts for digitization are constantly shifting. What constitutes good data and high quality imagery one year can easily fall below standards as new technology, higher-quality photographic equipment and 3D-imaging technology becomes available.”

d) The new forms of interaction from the public

The digital environment likewise has changed the behaviour of museum visitors in a fundamental way. Users now expect to be able to actively participate and interact with art on the premises of the museum and online. Participatory behaviour (e.g. selfies with objects, tweets) should be encouraged as much as possible within the limits of the law, not discouraged. Moreover, technology opens new ways for museums to play an important role in the area of research/educational development.

The digital environment enables, via metadata and open data, scientists, scholars and students to conduct research in museum collections. It also questions the museums’ and their curators’ classic role as sole interpreter of the museum objects and, consequently, encourages museums to rethink their policies (e.g. acquisition of objects and provenance research).19 As a consequence, in order to remain up-to-date and maintain a sustainable user-base, museums must redefine their role between their functions as cultural preserver and promoter; offer their services on a global basis; and therefore interact with their users to a greater extent. Allowing members of the public to interact with artworks may have consequences for both the public and museums in terms of copyright, for instance if derivative works are created and communicated to the public, which would require the original rights holder’s permission. Moreover, in many jurisdictions’ current state of copyright law, it is unclear whether mining a museum’s database for scientific, or other, reason infringes copyright.20

In sum, multiple copyright questions and issues arise when a museum is contemplating digitization for both internal purposes (archival, database) and for its eventual dissemination to the public. Indeed, a museum’s digitization process entails acts of reproduction and communication (making available online or on-site), which are both exclusively reserved to the owner of copyright in the originating artwork unless a legal exception applies. In other words, although a museum may own the physical copy of a work, it does not necessarily have the right to copy or display it digitally, unless a copyright exception applies.21

Against this backdrop, the proposals formulated in this policy paper are aimed at improving the legal situation of museums and at bringing their digitization activities into the 21^st Century.

The uncertainties concerning the legality of museums’ digitization and dissemination projects discussed in this paper keep museums under a looming threat of litigation and have a deterrent effect on their activities. Except for clear cases, museums – especially those without in-house legal counsel – sometimes choose to avoid risks by avoiding digitization and dissemination of their copyrighted collections.1

Museums need to be encouraged to undertake digitization operations. A dedicated alternative dispute resolution (ADR) system could incentivize them to go forward, knowing that disputes arising in this context could in many cases be solved in a cheap and quick manner.2

As a first step, a specific, quick and free mediation/consultation platform should be created to help museums and rights holders identify the contentious issues and negotiate solutions. Under this system, the parties would first fill a standardized questionnaire concerning all aspects of the digitization and dissemination process to help them identify on which aspects they agree or disagree. Then, they could either negotiate freely on those aspects or request the help of a mediator or conciliator3 if the negotiation proves too difficult. A dedicated platform could also be set up for parties to submit their dispute(s) not settled through mediation before an independent third party who may be empowered to render a binding decision (e.g. arbitrator).4

Such a system has multiple advantages, such as:

• Allowing the parties to reach mutually agreeable solutions that may go beyond the applicable law;
• Giving museums a “checklist” of all the important IP-related considerations pertaining to mass digitization and dissemination operations prior to undertaking them;
• Helping museums and rights holders to negotiate and draft complete licensing agreements in that regard, even without legal counsel, thereby minimizing dispute risks in the future;

Disputes concerning digitized orphan works raise a different set of issues, namely regarding the thoroughness of the museum’s prior diligent search. However, nothing would prevent the parties, once identified, to attempt to negotiate an agreement using the same ADR procedure instead of resorting to litigation.

When a dispute pertaining to the copyright status of a work digitized (or projected to be digitized) by a museum arises, the following questionnaire can be filled by the museum, in order for the rights holder to have a complete portrait of the situation. The rights holder may then mention whether he or she agrees or disagrees for each item on the list and comment if necessary. This will allow the parties to see where they stand in a standardized way and circumscribe the issues remaining to be negotiated between the parties directly or before a mediator.

Please click here to access the questionnaire.