Clarify in the law that certain acts of reproduction conducted as part of a museum’s public interest mission do not infringe copyright.
A – Issue at stake
- At present, museums suffer from a serious lack of legal certainty concerning the impact of copyright protection on their core functions, especially in the digital environment. Indeed, in the countries that recognize limitations and exceptions for the benefit of cultural heritage institutions, most of these generally apply to libraries and archives and only a few are clearly declared applicable to museums.1 Moreover those that do apply to museums are generally very narrow in scope and are limited to acts of reproduction for preservation and restoration purposes. This is the case even in the context of ongoing copyright reforms in the European Union, Australia and elsewhere. Where statutory limitations and exceptions are not applicable, permission must be obtained from the rights owners prior to engaging in a reserved activity with respect to the work. The process of securing authorization can entail (very) high transaction and staffing costs for the museum, in terms of locating the relevant rights owner and negotiating an acceptable license. This actual situation is not viable in an increasingly digital world.
B – Clarifications
- Museums should be able to take full advantage of the technological developments for the management of their own permanent collections. Acts of reproduction and digitization are an integral and essential part of sound collection management procedures with respect to works contained in museums’ collections. Without the possibility to make reproductions of works, museums are not able to preserve, index, or replace works in their collection or to make inventories of these works. In other words, museums are not able to fulfil their public interest mission in a satisfactory manner. The possibility to make reproductions should be available irrespective of the category of work involved (literary and artistic works, sound or audio-visual works, etc.), and irrespective of whether the work is in analogue or digital form.
- In light of the above, new exceptions to the right of reproduction shall be defined. These exceptions shall provide that museums are able to make reproductions, in any format or medium, of works contained in their permanent collection (including works owned or in the museum’s possession as long-term loans, whether in copyright, unpublished,2 out-of-commerce or orphan) as part of their public interest mission:
- for the purpose of digitization for preservation and/or restoration of works, namely digital born multimedia works;
- for the purpose of education, private research or study (provided that such purposes are not pursued for commercial advantage);3
- for text and data mining purposes;
- for the purpose of creating digital inventories of works contained in the permanent collection, indexing, cataloguing and creating corresponding databases for the management of rights (including for the organization of exhibitions);4
- for insurance, rights clearance, and inter-museum loan purposes.
- For more certainty, acts carried out for the purposes listed above should be deemed not to pursue direct or indirect commercial advantage; they should therefore be deemed not to conflict with the normal exploitation of the works or to unreasonably prejudice the legitimate interests of the rights holder.5
- However, these exceptions shall be subject to the following conditions:
- They shall be limited to the museum’s core public interest mission (which generally includes collection, preservation, exhibition and dissemination),6 thus be in accordance with applicable international treaties7 (e.g. these new exceptions should apply in certain special cases that do not conflict with a normal exploitation of the work and that do not unreasonably prejudice the legitimate interests of the rights holder).
- If not already done,8 the definition of what constitutes a core public interest mission should be agreed upon per jurisdiction after consultation of the relevant stakeholders, including representatives of the copyright holders (i.e. individuals or collective management organisations), of the users (i.e. museums, general public) and of the competent public authorities.
- For the sake of harmonization, it is advisable that multi-stakeholder international organizations, such as WIPO or UNESCO, propose a unified definition of the notion of a museum’s core public interest mission.
- They shall be free of charge, but museums and stakeholders should be able to generate revenues in the course of uses beyond the exceptions.
- Compensation should be paid by the museums to rights holders who put an end to the orphan or out-of-commerce status of their works, but only if museums generate revenues with the digitized materials that go beyond the purpose of covering digitization costs.