Copyright and Museums in the Digital Age

By Dr. Yaniv Benhamou, Attorney-at-Law, Lecturer, University of Geneva, Switzerland

Digital museums disseminated over technology platforms and social networks are fast becoming the norm. But they raise a number of legal issues ranging from copyright to image rights and data protection to contract law. Copyright, in particular, plays a key role in that it governs whether and how content can be used. This article explore some of the key issues facing museums involved in curating interactive online exhibitions or smartphone apps that are backed up with social media strategies and crowdfunding options. It also offers guidance on what museums can do to ensure their activities comply with copyright law.

So what exactly are digital museums?

Digital museums take various forms and serve different purposes. There are “brochure museums” which act as an informative website for a museum; there are “content museums”, which are databases of museum collections; and there are “virtual museums” or “museums without walls”, which offer a variety of online content.

Whether they involve digitization or dissemination of collections over social networks or other technology platforms, digital museums face a number of legal issues relating to copyright, image rights, data protection, traditional knowledge and the law of contracts, among others.

Copyright, in particular, plays a key role in that it governs whether a given type of content can be used and if so, how. What types of copyright issues will anyone embarking on a museum digitization project be likely to face? What considerations need to be taken into account when curating an exhibition with an interactive website, or a smartphone app backed up with a comprehensive social media strategy and crowdfunding options?

Is the museum free to digitize the content of the exhibition?

As a first step, the museum needs to determine the copyright status of the works it wishes to digitize. Why? Because digitization of copyrighted works and the making available online involves the right of reproduction and of communication, each of which usually requires permission from the copyright holder. 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.

There are three key questions in this regard: Is the work covered by copyright? If it is, does the museum have permission from the copyright holder to digitize it? Or might the museum’s intended use fall within a copyright exception?

Key principle: authorization needed for copyrighted work

Some works are not protected by copyright in which case the museum is free to digitize it. For example, an old bicycle in an historical museum may not qualify for copyright protection because it lacks originality. Similarly, an old manuscript that was once protected by copyright may now be in the public domain because the term of copyright protection has expired. According to the Berne Convention for the Protection of Literary and Artistic Works, the minimum term of copyright protection is 50 years after the death of the author, although in many jurisdictions it is now 70 years after the author’s death.

For other works protected by copyright, the museum will need to consider whether it has permission from the copyright holder. Unless the copyright in that work has been transferred to it by means of a contract, a donation or sale, the museum may need to identify the copyright holder and obtain permission to digitize the work and make it available online. Such authorization can be obtained by means of direct, individual negotiations with rights holders or through a framework agreement which allows for mass digitization along the lines of the Europeana Licensing Framework of the Europeana project).

Are there any exceptions to the rule?

In certain circumstances, it may be possible to digitize a copyright work without the right holder’s permission, for example, if its intended use qualifies for an exception under copyright law. The Berne Convention, which establishes minimum international standards of copyright protection, states that a work may be used “in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” This is known as the three-step test.

Different jurisdictions have different laws on copyright exceptions. In the United States, the copyright exception known as “fair use” is enshrined in Section 107 of the Copyright Act. It states “fair use of a copyrighted work … is not an infringement of copyright”. Similarly, European Union (EU) Directive 2001/29/EC outlines a list of compulsory and optional exceptions, and the Directive 2012/28/EU provides the principle of orphan works (where the author of the work have not been identified or located).

When establishing a digital museum, there are four main circumstances in which the museum is not required to obtain permission from right holders.

• First, when a work is permanently located in a public place. While this principle is enshrined in the laws of many countries, its scope varies from one jurisdiction to another. For example, the Panoramafreiheit (freedom of panorama) exception in Germany allows for the publication of photos or record video footage of artworks which are permanently located in a public place without infringing copyright that may otherwise subsist in them. This is an exception to the copyright owner’s exclusive right to authorize the creation and distribution of derivative works and is  particularly important in relation to cultural projects such as Google Street Art, which digitizes street art located in public spaces and places it online using street view technology.
• Second, when a work is part of an archive. In some jurisdictions, museums may benefit from an exception under copyright law. As such, they may reproduce the works they hold for the purposes of preservation without first obtaining authorization from right holders. While this principle is enshrined in the copyright laws of many countries, the scope of the exception may vary from one jurisdiction to another, particularly with respect to format (analog or digital), intended use (only for preservation or also for dissemination) or the number of copies that may be made (e.g. a backup copy or several copies for non-commercial or indirect commercial purposes). EU, Directive 2001/29/EC allows both the digitization and making available of works to the public on dedicated terminals (see Technische Universität Darmstadt v Eugen Ulmer KG). Case law relating to fair use in the United States suggests that digitization and making available to the public with full-text search functionality are allowed (see the ruling of the US  Court of Appeals for the Second Circuit, October 16, 2015 (No. 13-4829-cv) Authors Guild Inc et al. v Google Inc).
• Third, a copyright exception may apply in relation to using images of exhibited works in exhibition catalogues. Again, enshrined in the law of many countries, this exception varies in scope from one jurisdiction to another. In the EU, Directive 2001/29/EC allows such an exception but some EU member states have not included museums and others do not specify whether the exception covers online publishing.
• Fourth, when it comes to works whose authors cannot be found or contacted, museums may use the works. In the EU, Directive 2012/28/EU makes it possible to digitize and make such “orphan works” available online as long as a diligent search has been undertaken to identify the author. Again, this is not applied uniformly by all EU countries. In France, for example, the exception is limited to certain types of works, while in the United Kingdom it covers all types of works, again provided a diligent search has been undertaken. In the United States, while there is no special law relating to orphan works, the Google Book lawsuit referred to above has helped to define the limits of this exception in that country (digitization and making available to the public with full-text search functionality are allowed).

Use of the participatory Web (social networks, crowdfunding, crowdsourcing)

Using websites for crowdfunding, crowdsourcing or promotional purposes (e.g. MuseoGeek, Facebook and Twitter), to encourage broader public engagement, heightens the risks that users will upload content that is in breach of copyright or other legal provisions (e.g. criminal law and the right of personality). To avoid legal liability, museums need to inform users about the website’s general conditions of use and to be prepared to promptly remove any litigious content they become aware of.

As museums often seek to reuse content uploaded by Internet users (pictures, texts, ideas), they need to put into place an online mechanism on each of the platforms they use to ensure that users automatically provide the requisite authorizations. Furthermore, museums need to be aware that they themselves will be subject to the general conditions of use of any social media platforms that they use (Facebook, Twitter). This may well mean that any content posted by them can be reused by the platform concerned.

Digital media are also protected by copyright (augmented reality, videogames)

Museums also need to be aware that the media used to create an online exhibition – the Internet site, video materials, apps – are also protected by copyright law. As such, they need to ensure they obtain the requisite authorizations from the technical and graphic designers responsible for creating these products.

• If the designers are employed by the museum, their employment contract will normally specify that the copyright in any technical and/or graphic design of the media belongs to the museum. However, if the designer is an external service provider, the museum needs to ensure that its agreement with that service provider allows it to continue to use all the media outputs freely.
• Similarly, when media are developed in the context of technological partnerships between, for example, museums, universities and/or industry, museums need to ensure they have the right to use these technologies. It is always good practice to outline detailed copyright arrangements when entering into such partnerships.  

Legal status of legal copies

An issue that is rarely discussed, but which merits attention, is whether a digital copy of a protected work qualifies for copyright protection in its own right. If a digital copy is an original artistic work, for example, by virtue of lighting effects or other camera work, it will be protectable under copyright law as a derivative work. Even a digital copy of a public domain work may be protected by copyright provided it is sufficiently original. The subsequent use of these derivative works therefore requires the right holder’s authorization. But if the digital copy is a simple reproduction of the original, it does not qualify for copyright protection because arguably it has no individuality or originality.

This seems straightforward, but is it really? Do new high-resolution digital cameras, which enable users to adjust pixelation, light and contrast, allow them to express the individuality and originality of their work? The standard for originality is low in some jurisdictions, and so even an image that is not obviously original may constitute a derivative copyright work.

Recommendations and issues for reflection

The development of digital museums raises complex legal issues and it will take a good many years for the law to adapt to the new realities they create. In the meantime, museums undertaking digitization projects can take certain steps to avoid unforeseen IP-related problems.

• It is critically important in managing their collections that museums address copyright issues when they acquire new works. This involves identifying rights holders and, where applicable, obtaining authorization to digitize the works and make them freely available online.
• Museums can get their mass digitization projects off the ground and gain access to a large pool of technical expertise by entering into technological partnerships with universities and industry.
• They can also encourage open data (free reuse of data published by museums through free licenses guaranteeing free access and reuse). Open data is now a critical consideration in cultural policy spheres because it allows for greater sharing and broader dissemination of information. It is also the subject of draft legislation in various countries (e.g. Directive 2013/37/CE on the re-use of public sector information, transposed into French law by Ordonnance n° 2005-650 and the Guide Data Culture of the Ministry of Culture).
• The gathering pace of the digital revolution, and the practical challenges it presents to the day-to-day operations of museums, underlines the need to build consensus on an international legal framework to govern how works may be used by museums. This is particularly important given the many different ways in which exceptions are formulated and applied in different countries. This will require multiply codes of conduct, in particular, to harmonize open data formats (types and forms of digitized pictures, and related scientific information) and exceptions to copyright protection, in particular to define whether digitization affects moral rights. If it does, then it will be necessary to provide an exception to moral rights and to define the link between that exception and contract law and, if needed, to assert the dominance of exceptions over contract law to prevent museums from waiving exceptions via contracts with third parties.