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
The scope of the “research” exception
Download 0.8 Mb.
|
The scope of the “research” exceptionExceptions and limitations of copyright for research and study are acknowledged in most copyright statutes, which however are often silent on the uses/purposes of the research and study and appear to restrict access to one natural person. Furthermore, the access to copyrighted works under exception/limitation, rarely distinguish among the various categories of works and whether they are published or unpublished. Whereas museums are increasingly involved in providing learning facilities to their visitors, patrons or friends, notably on the occasion of exhibitions, the development of actions and tools to facilitate research does not seem to raise many practical concerns for museums. As highlighted though by the Finnish National Board of Antiquities, there is no definition of the word “research” in the EU Directive which Article 5.3 contains two provisions dealing with “research”: Article 5. 3 a) allows illustration with copyrighted works for teaching or scientific research and Article 5.3 n) which allows the communication on site of copyrighted content in their collections which is not subject to purchase or licensing terms “for research or private study” purposes.116. Hence the research exception/limitation refers to the concepts of “scientific research/private study” and non commercial purposes. The educational and research purposes are already known in the Berne convention and the preamble of the WIPO 1996 treaty. Still, it appears from the answers to the questionnaire that a vast majority of museums do not seem to know well the scope of the research exception/limitation. The reasons may be the following:
In any event, when the museum is not the copyright owner, reproduction and communication of copyrighted items is subject to consent of the author or of the relevant collective society, unless the national law provides for an exception or limitation for research and study which is generally the case. Several collective societies have entered licensing agreements with universities and museums or often also with the ministers of Education and of Research to enable uses of copyrighted works for educational/ research purposes both non commercial and commercial uses. Still, incorporation of the exception/limitation in the national laws has sometimes resulted in complex provisions more or less restrictive, uneasy to monitor especially at cross border level and regarding permitted means of making available. In a context of collaborative projects promoted by scholars and students taking advantage of the new digital tools to search, study, teach, create new forms of expression of content or artwork, the distinction between research and private study is increasingly blurred, all the more as there are no clear statutory definitions of these terms. The development of “digital humanities” projects, at the cross roads of digital media and humanistic studies, may be too early to draw attention of museums but it will certainly change substantially the carrying of their educational /research mandate. For the time being, practical issues need to be resolved to facilitate distance learning and study. For instance, in the EU context, the European Court of Justice held, in the Darmstadt decision of 11 September 2014 that the absence of existing licensing agreements in force between the university and the rightholders in the works, the library could make available on line (and not only on it premises) the works for research.118 But printing out of works on paper or their storage on a USB stick, carried out by users from dedicated terminals installed in publicly accessible libraries are not permitted, unless the national law provides for an exception/limitation and for compensation of the rightholder. Another distinction, which is non-commercial/commercial nature of the activity, has never been obvious but has become an even more delicate exercise nowadays. Most laws simply mention the research/study for non-commercial or non-economic purposes without requesting more, such as a proof of the purported uses of the works119. Some museums, like the UK, require in practice a statement of the user but this is not a common practice as it appears from the various answers to the questionnaire on this point. Museums may request mention of their name in the results of the research as well as a copy of said results; they may ask the researcher to sign a statement or a contract, with disclaimers of liability for the museum. Many museums do not seem to monitor closely whether the research is for commercial or non-commercial purposes.. Most of the museums that answered the questionnaire make their collections available online for education/research purposes, including images which then can be made available in high resolution in special circumstances. Some museums produce their educational digital material with the permission of the rightholders and some said that they offer an academic licensing service and Creative Commons license for educational use/research and private study. One mentioned an educational project with Google Art. Some rely on fair use. No issue was raised regarding legal impediments to the making available of content on line or on site for research purposes. Considering the diversity of situations and practices, clarification of the permitted uses covered by copyright exceptions/limitations for research and study would provide useful guidance for harmonization purposes where needed.
|