Text: S. 2045 — 113th Congress (2013-2014) at https://www.congress.gov/bill/113th-congress/senate-bill/2045/text

99^ Text: S. 2045 — 113th Congress (2013-2014) at https://www.congress.gov/bill/113th-congress/senate-bill/2045/text.

100^ “The museum ensures that: […] Disposal of collections through sale, trade or research activities is solely for the advancement of the museum's mission. Proceeds from the sale of nonliving collections are to be used consistent with the established standards of the museum's discipline, but in no event shall they be used for anything other than acquisition or direct care of collections.” (AAM Code of Ethics for Museums)”. For information, “Les peupliers à Giverny”, a painting by Claude Monet in 1887 belonging to the New York MoMA's collection, will be auctioned at Sotheby's in London on February 3^rd 2015. Auction sales had taken place earlier in 2011 In 2011 where the Moma sold nine masterpieces of modern art including works by Dubuffet, Magritte and de Chirico, which enabled the acquisition of new works by artists little or not represented in the museum.

101^ Senat de France, “L'alienation des collections publiques”étude de legislation comparée N°191, Service des études juridiques du sénat, Paris, Décembre 2008.

102^ It must be mentioned here that the European Directive 96/9/ of 11 March 1996 on the legal protection of databases confirms that databases are eligible to copyright protection and that the maker of a database enjoys, under certain conditions, a sui generis right allowing him to control to some extent uses of the content of his database.

103^ In comments filed on March 24, 2005 to the US Copyright Office in response to a Notice of Inquiry concerning orphan works, the counsel for The J. Paul Getty Trust gave the following example. “Another recent instance in which decisions about copyright had to be made involved the Getty Museum’s 2004 photography exhibition entitled Close to home: an American Album. As in the case of Railroad Vision, there was a book published as part of the exhibition. Close to Home was an exhibition of snapshot photographs from various sources: the photographers and their subjects were almost all unknown. There was no way the Getty could have identified or located the photographers and obtained their permission. Rather than forego the book, Getty Publications went forward with the book and has not received any claim of copyright ownership.“ For the previous exhibition book Railroad Vision, a note was included on the Photography Credits and Copyright page: “Every effort has been made to contact photographers whose work may still be in copyright, or their estates. Any one having further information concerning copyright holders should contact the publisher so that this information can be included in future printings”.

US Copyright law provides specific exemptions which can be invoked by museums (sections 109, 108, 110, 201) and the well-known fair use defense which is only available as a defense in a copyright infringement suit..

104^ Kelly V. Arriba, 336 F.3d 811 (9th Cir.2003) on fair use of thumbnail images.. AAMD policy on the use of “thumbnail” digital images in museum online initiatives, January 19, 2011, stating inter alia, that “Museums should not be requested or required o pay fees for the fair use of such thumbnails images in the museum’s collections image database, promotional materials to identify works in the museum’s collection or online scholarly publications.”

105^ See, “Inspiring generations through Knowledge and Discovery : Smithsonian Institution Strategic Plan Fiscal years 2010-2015” at http//www.si.edu/about and the related Smithsonian Commons Initiative at http///si.edu/commons/prototype/

106^ For instance, Portugal mentioned a public web based interface called «matriznet ». Lithuania amentioned 2 Europeana related networks : Athena Plus and Ancient Photographic Vintage Repositpories of Digitalized pictures of Historical Quality. Estonia mentioned the Estonian Museum public portal ww.muis.ee. Slovakia cited the CEMUZ Project – Central database of museum collections.

107^ Note for musical works http://www.globalrepertoiredatabase.com. Also regarding the development of identifiers of works for their management and licensing: www.linkedcontentcoalition.org, funded in part by the EU commission for management; also www.copyrighthub.co.uk pursuant to art. 3.6 of the OWD Directive, a publicly accessible online database is currently being set up by OHIM for the registration of orphan works.

108^ http://en.wikipedia.org/wiki/Europeana

109^ ARROW for Accessible registries of Rights Information and Orphan Works towards Europeana (www.arrow-net.eu)

110^ The Canadian law of June 7 June 1988 establishes an exclusive exhibition right for artistic works other than a map, chart or plan created after June 8, 1988. The right can be bought, sold or waived when purchased by the museum. See the decision of the Supreme Court of Canada of 12 June 2014 on the fair negotiation of the exhibition fees due to artists. Canadian Artists’ Representation v National Gallery of Canada [2014] SCC 42 (can LII)

111^ Art. 25 of the Icelandic Copyright Act states: “Once a copy of a work of visual art has been delivered to an owner that owner may, unless other reservation has been made, dispose of that work and exhibit it to the public. Public exhibition of the work at art exhibitions and in other comparable manner is, however, not authorised without the consent of the author, with the exception of exhibitions at publicly owned galleries which are open to the general public. The provisions of this paragraph shall also apply to published reproductions of art works”.

112^ Pro Litteris v Ville de Genève , BGE 127 III 26

113^ For instance in a 2007 decision, the French High Court held that writing a fiction sequel of “les Misérables” was not violating Victor Hugo’s moral rights as claimed by one of his heirs. In a more recent decision of 10 September 2014, the French High Court addressed the complaint filed by the heirs of Picasso that the database of an online auction company containing digital reproductions of Picasso’s works was infringing Picasso’s economic and moral rights. The Court confirmed the infringement of economic rights but held that the mere coexistence, on the contentious website, of the Picasso works next to many other works, did not characterize a violation of Picasso’s moral rights.

114^ TGI Paris 2 Juillet 2014, N°RG 14/06216. The case turns essentially on the revocation of Peggy’s Guggenheim donation; the question of a violation of her moral rights was set aside because a prior final judgment had already held that the collection of paintings did not enjoy copyright protection under Italian copyright law. The judgment may have been appealed.

115^ Aside from the right of integrity of the artwork, the attribution right is also garnering attention in these last years as a result of the blossoming of works borrowing from previous ones, also known as “transformative”  works of visual arts or “appropriation art” whereby an author reinterprets a prior work of another author..

116^ Art. 5(3) Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:

(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved;

(n) use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections.

117^ For instance, the University of Pennsylvania Museum of Archeology; the Oxford University Museum of National History

118^ ECJ, 11 September 2014, Technische Universität Darmstadt v Eugen Ulmer KG, C-117/13, already quoted.

119^ Directive 2001/29/EC on Copyright in the Information Society states in recital (42) that: “When applying the exception or limitation for non-commercial educational and scientific research purposes, including distance learning, the non-commercial nature of the activity in question should be determined by that activity as such. The organisational structure and the means of funding of the establishment concerned are not the decisive factors in this respect.”. However, this recital does not clarify much the non-commercial purposes.

120^ Case C-41/14 Judgment of the Court (Fourth Chamber) of 26 February 2015 (Christie’s France SNC v Syndicat national des antiquaires).

121^ Décision 2012-276 QPC - 28 septembre 2012 - Fondation Hans Hartung et Anna Eva Bergman [Transmission du droit de suite sur les oeuvres d'art graphiques et plastiques].

122^ In its decision of C-466/12 of 13 February 2014, Swensson, the European court of Justice held that (i) providing clickable links towards copyrighted content which the original rightholder has already made accessible to everyone is a communication to the public which does not require the rightholder’s consent.but (ii) if access to said content was originally restricted to some recipients, then there could be a communication to a “new public”, subject to the rightholder’s consent.

123^ The resale right (recognized under European law) entitles authors of works of art to receive a royalty each time their work is resold by an auction house, gallery or art dealer.

Directory: edocs -> mdocs -> copyright
copyright -> World intellectual property organization
copyright -> E sccr/30/5 original: English date: June 2, 2015 Standing Committee on Copyright and Related Rights Thirtieth Session Geneva, June 29 to July 3, 2015
mdocs -> Original: english
mdocs -> E cdip/9/2 original: english date: March 19, 2012 Committee on Development and Intellectual Property (cdip) Ninth Session Geneva, May 7 to 11, 2012
mdocs -> E wipo-itu/wai/GE/10/inf. 1 Original: English date
copyright -> E sccr/20/2 Rev Original: English date : May 10, 2010 Standing Committee on Copyright and Related Rights Twentieth Session Geneva, June 21 to 24, 2010
copyright -> Original: English/francais
copyright -> E sccr/33/7 original: english date: february 1, 2017 Standing Committee on Copyright and Related Rights Thirty-third Session Geneva, November 14 to 18, 2016
copyright -> E workshop
copyright -> World intellectual property organization