No liability of museums if they comply with certain due diligence steps and a correct right statement (promote a kind of “safe harbor right statement“)
A – Issue at stake
- Museums face a myriad of problems if they decide to make orphan works available to the public. If the author of a work cannot be located, museums either have to forego the digitization of the works – risking that millions of works in their collections will sink into oblivion and cannot be used by society; or else, face liability for copyright breaches (possibly in the thousands).
- Museum professionals, even when they act diligently and do extensive research, may face private law claims or even risk criminal prosecution, since under almost all copyright laws regulating the use of orphan works, research is obligatory. The extent of such research or the sources which have to be consulted, however, are not codified. Legal insecurity therefore remains.
- A new, easy-to-operate legal framework is needed to give museums the leeway needed to be able to use orphan works and make the whole of their collection accessible. A generally accepted Code of Conduct would provide assistance, orientation and a reliable due diligence process to follow-up.
- The website rightsstatements.org provides cultural heritage institutions with simple and standardized terms to summarize the copyright status of works in their collection. However, to date, no statement reflects the specific due diligence steps that should be/have been taken by museums. “Copyright undetermined”1 is too broad and does not reflect the museum’s efforts in researching.
B – Clarifications
- A Code of Conduct needs to be established, which should be easy-to-follow and would steer museum professionals, who want to use a protected work, through a step-by-step list of items to check.
- These items would need to include all exceptions and limitations applicable to museums if they intend to use protected works.
- It would also need to include the relevant databases which museum professionals need to check for authors of each respective work category if they intend to use works but are unsure of the author. This list should be mandatory and exclusive: other databases need not be checked.
- See our proposed Code of Conduct for a “Safe Harbor Right Statement” in Part II of this Policy Paper as a model.
- The existing right statements (rightsstatements.org) should be amended to reflect the due diligence steps taken by the museum.
- Indeed, the museums should have an easy and generally accepted way to demonstrate to possible rights holders and the public in general that it followed the due diligence process as set out in the Code of Conduct.
- Because the Code of Conduct would reflect the international, globally-accepted standards pertaining to the use of protected works in the context of museums’ mass-digitization and dissemination operations, museum professionals following it, and therefore completing a due diligence process, should benefit from a safe harbor protecting against abusive litigation. Right holders would however keep the right to request injunctive relief (without damages) if/when they allege that these operations infringe on their rights.