E sccr/30/2 original: english date: april 30, 2015 Standing Committee on Copyright and Related Rights Thirtieth Session Geneva, June 29 to July 3, 2015
Right of exhibition and promotion of artists
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- The preservation mandate and permanence of artworks
Right of exhibition and promotion of artistsMany national copyright laws do not provide clearly whether the exclusive rights include an exhibition right, hence whether public exhibition of artworks by a museum is subject to payment of an exhibition fee based on the right of communication to the public and whether the printing and dissemination of materials reproducing the works for the purpose of advertising the exhibition is also subject to payment of a compensation. In Europe, article 5(3)(j) of the EU 2001/29/EC Directive allows Member States to provide a copyright exception or limitation for “the purpose of advertising the public exhibition – or sale of artistic works- to the extent necessary to promote the event, excluding only any other commercial use”. Yet the implementation of this exception at the Member State level is optional and its scope is not crystal clear. In Canada, the exhibition right is expressly granted to the author and fees/copyright royalties are collected by collective societies110. In Switzerland the 2011 Copyright Act grants the author the “exclusive right to decide whether, when, and how his work is used“ with no explicit exception for public exhibition. In Iceland, publicly accessible museums do not need the author’s permission to exhibit works in their collection pursuant to article 25 of the Copyright Act.111 Conversely, permission is required in Finland and exhibition of copyrighted works is therefore limited due to money considerations. In the US, section 109 of the Copyright Act allows museums to display, lend and borrow works without the permission of or the obligation to pay a fee to the copyright owner. The uncertainty surrounding the scope and costs of application of a right of exhibition of which an artist can avail himself, based on his national law or on the law of the country where the museum exhibition will take place, is often a matter of discussion and negotiation. The mandate of museums to make works available to the public for education and entertainment would be facilitated if clear rules were defined and applied evenly by museums when mounting exhibitions at home or abroad. In addition to dealing with the author’s exhibition right, museums must also rely on the national legal provisions regarding the making and distribution of advertising media to promote the exhibition, including reproductions of the works being exhibited, which may or may not be subject to copyright royalties depending generally on their commercial nature or scale. For instance, the Swiss Copyright Act in its version before 2007, contained an article 26 that provided for an exception to the copyright of visual artists and photographers according to which works located in a publicly accessible collection may be reproduced in a catalogue edited by the institution without compensation to the author. A dispute arose between a Swiss royalty collection company and the Geneva Museum of Art and History in relation to an exhibition in 2001. The Museum initially obtained permission to reproduce certain artworks in the accompanying catalogue, on postcards and merchandise but subsequently refused to pay the royalty invoice as far as the exhibition catalogue was concerned, claiming the copyright exemption of article 26. The case went up to the Swiss Federal Supreme Court which determined that article 26 applied both to artworks that are part of the permanent collection of a museum and to those that are loaned for temporary exhibitions. Above all, the Court emphasized that the Act protects the copyright but also aims at not overly slowing down the diffusion of culture. The Court also stressed the fact that article 26 of the Swiss Act is compliant with art 9(2) of the Berne Convention allowing certain exceptions to copyright (three-step test) to the extent that other forms of reproduction of the works , including by the museum, are subject to the author’s copyright. Furthermore, the Court held that the fact that several European States did not acknowledge in their laws, a right for museums to reproduce works in catalogues without permission and for free, had no impact on Swiss law. 112 A more recent example is given by the Museum Council of Iceland which highlighted the on-going debate over the last years on whether permission and compensation is required for catalogues that are available on the internet. Currently the matter is unresolved and the database contains few photographs of copyrighted artworks. Generally, museums are desirous to post more texts and images online notably for special exhibitions. Nevertheless the implications of obtaining the rightholders’ permission and the level of copyright royalties that may be requested are a concern for several museums, some of which feel that this problem impairs their ability to promote still unknown artists as they would like. Moreover, derogations allowed by the artist are not taken into account as noted by one museum in a non EU country.
Museums need to preserve artworks in their collections and this need arises on various occasions: when the original work is too precious or too cumbersome to be easily exhibited; when the work is too fragile and frequent or permanent exhibition or loan may deteriorate its condition; when the object is damaged and in need of restoration; when the medium embodying the work is soon to become obsolete or to disappear; when back up or working copies appear useful (for research and study for instance). The above examples are affecting the author’s moral rights but also his reproduction right. Whereas works which are available in many copies for sale on the market (sound recordings, films, books) will not justify a museum’s right to make a copy for preservation purposes, the situation is of course different for unique works. However, some national laws (Israel, Estonia) appear to allow broad copying of materials of any kind to be held in reserve in case the original would no longer be available. The classical example is the need to restore a work or to transfer it on a different medium. Being a recurrent question, most museums submit agreements to potential donors or sellers with provisions aiming to address likely situations involving moral rights. A US museum (MOMA SF) answered that it has established programs for working with artists to manage agreed-upon strategies for translating works that are deemed appropriate into new media in the event that the original medium and/or installation becomes obsolete. One may also think for instance of the possibility to 3 D-print fragile or damaged artwork for preservation or repair purposes; the new 3D printing technology will certainly impact significantly the restoration of artworks and many more museums’ activities. As moral rights are inheritable under many national laws, museums should anticipate that heirs shall have a say in the interpretation of the deceased’s implicit will regarding future uses allegedly altering the moral rights. Mind reading a dead person may bring various outcomes113. Also, moral rights may become an issue when works of art are donated/bequeathed to museums with conditions attached. For instance, there is a complex Peggy Guggenheim litigation about whether the Fondation Peggy Guggenheim situated in Venice, Italy which is the beneficiary owner of the building and the collections can be sued by Peggy‘s heirs for redesigning the museum and the display of the works, in violation of Peggy’s donation and wish that the collection be kept as a whole.114 Museums work with artists and artists need the support of museums. Both have an interest in the preservation of the artist’s work. It appears that anticipation and negotiation is the best tool to play down issues of moral rights and solve them successfully. In their answers to the questionnaire, respect of the author’s moral rights has not been highlighted as a problem by the museums115.
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