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This page considers intellectual property issues for curatorial
institutions in the digital environment.
It covers -
is supplemented by profiles on digital
archiving and on legal
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
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
We have explored some of the issues in a more detailed
profile on archiving
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
It has provided a basis for states to build a national
collection, thus strengthening national identity and addressing
such as the United Nations Declaration on Human Rights
"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
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
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
Pressure on curatorial institutions to maximise revenue
and the increasing ease of electronic publishing has highlighted
disagreements about non-copyright 'reprographic' or 'publication'
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
- '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
on downstream use of images are contentious. The New York
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
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
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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