Statutory exceptions and limitations for the benefit of museums should be given a mandatory character
a) Issue at stake
- The recognition of the mandatory character of exceptions and limitations for the benefit of museums entails three elements: 1) mandatory on national legislatures; 2) mandatory in the context of the application of technological protection measures; and 3) mandatory in the context of the use of (non-negotiated) contracts. It is no use recognizing statutory exceptions and limitations for the benefit of museums, if legislatures are free to implement them or not in their national law. A non-harmonized international or regional, legislative framework is seen as creating significant legal uncertainty for any type of cross-border activity by museums. Moreover, a non-harmonized international or regional legislative framework puts museums located in different countries on unequal footing, advantaging some and disadvantaging others.
- At present, disparities in the treatment of museums regarding the conditions of use of works contained in their collection, especially with respect to online activities, may severely impact the museums’ ability to become and remain relevant in the global digital environment.
- To ensure equal treatment of museums and their users between countries, the exceptions and limitations for the benefit of museums should be harmonized at the international and regional levels;
- Technological protection measures (“TPMs”) that have as objective or effect to take away the privilege granted by a statutory exception or limitation to the benefit of a museum1 should not be enforceable;
- More specifically, rights owners (including assignees, like CMOs and intermediaries) should not be able to block the legitimate exercise of a statutory exception for the benefit of museums through the application of TPMs. The law should clearly specify that the exceptions recognized in the law prevail over TPMs and that if rights owners do not provide museums with the means to exercise the exception, the Member State must take the necessary measures to ensure that museums may do so.
- Unilateral, e.g. non-negotiated or “take-it-or-leave-it,” contractual clauses that have as objective or effect to take away the privilege granted by a statutory exception or limitation to the benefit of a museum should be unenforceable, based on the same principle of priority described above.
- This should leave room for the negotiation of contractual arrangements between museums and rights owners, either on an individual or collective basis, for example for the online use of works.