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
Copyright Exceptions and Limitations to the Benefit of Museums
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Copyright Exceptions and Limitations to the Benefit of Museums
A number of exceptions and limitations share the common objective of encouraging the preservation, dissemination of knowledge and information among the members of society at large. This is the case of the limitations adopted in favour of museums. These limitations serve as a tool in enhancing democracy within society and in carrying out a government's information policy. They therefore reflect the government's belief that society as a whole derives greater benefit from allowing certain uses to take place without the rights owners' authorization, than from maintaining strict control over protected works. The fact that these objectives justify the use of copyrighted material without the rights owners' authorisation does not however necessarily imply that such use should occur without the payment of a fair compensation to the rights owner. The choice between recognizing an exemption and establishing a statutory licence is also part of each legislator's balancing process between the interests of rights owners and those of the users. On the other hand, a number of countries have decided not to adopt specific provisions applicable to educational institutions, libraries, archives or museums, yet have established exceptions for educational purposes, the private use exemption and the setting up of a reprography regime. Typical functions of any museum are the collection, preservation, and dissemination of information. The preservation of copyrighted works often involves the making of reproductions from original works, either because they have been damaged, lost, or stolen. The dissemination of information takes place in a number of ways, either by exhibiting works to the public; by permitting the public consultation of works on the premises of the museum or the consultation of electronic material at a distance; by allowing patrons to make their own reproductions of works for personal purposes using freely accessible machines (photocopy, microfiches or printer). Exceptions and limitations adopted for the benefit of museums are thus meant to allow these to perform their general tasks and to encourage the dissemination of knowledge and information among members of society at large, in furtherance of the common good. However, the need to adopt specific measures to meet this particular common good objective is evaluated differently from one country to the next. Moreover, since museums come in different shapes and sizes each pursuing different types of objectives, the public interest dimension of museums has been interpreted differently depending on whether they are publicly or privately funded, accessible to the general public or only to a restricted group. With the digitization of works, several of the museums’ main activities have given rise to an intensification of use of works internally or by the public, either off- or on-line, on the premises or at a distance. A number of these activities, when carried out in the digital environment, raise some uncertainty under copyright law, the most problematic of which are the making of digital copies of materials held in their collections and the digitization and online dissemination of copyright material held in the collections of museums. Lawmakers generally agree that the extension of the current limitations to the digital domain, thereby also allowing the digitization of works, may not be valid in all cases. In practice, the differences in accessing and marketing material in the digital environment may warrant differing approaches in different situations.50 The reactions of the legislators vary significantly from one country to the next, even if these issues are still far from being settled everywhere. As mentioned in the introduction, the copyright laws of forty-five countries have been identified as containing a provision dealing expressly with museums. Regrouped per continent, these are:
At least two types of provisions were encountered in the laws of a couple of countries but which will not be analyzed any further. The first one, found in the copyright laws of Costa Rica and Panamá, states that “It shall be lawful to make reproductions by photographic or other pictorial processes, provided this reproduction is not-for-profit, of statues, monuments and other works of art acquired by the authorities that are displayed in streets, parks and museums”. Contrary to the other provisions examined in the section below, this article is aimed at allowing the general public to make pictures in public places, rather than at facilitating the operations of the museums themselves. A second type of provision that should be mentioned, without going into further detail, can be found in the laws of Bangladesh, India and Pakistan. This article states: “Provided that where the identity of the author of any such work, or in the case of a work of joint authorship of any of the authors, is known to the museum the provision of this clause shall apply only if such reproduction is made at a time more than sixty years from the date of the death of the author or, in the case of a work of joint authorship, the death of the author whose identity is known or, if the identity of more authors than one is known, from the death of such one of those authors who dies last”. This provision essentially recognises the fact that the general public is authorised to use copyright protected works once the period of protection has expired, e.g. that public domain works are freely usable. The exceptions and limitations analysed in the sections below are classified in two categories: specific ones, addressing special needs and activities of museums; and general ones, through the application of which museums can achieve part of their functions, particularly in their inter-relations with their visitors. This being said, it is quite conceivable that the laws of countries not listed among the forty-five countries in Appendix II as expressly regulating exceptions and limitations for the benefit of museums, will nevertheless contain general type exceptions and limitations that will cater to some of the needs of museums or their visitors. It can be safely assumed that such general type exceptions and limitations in these other countries will be structured and formulated in a comparable manner as those examined in section 3.4 below. It should be stressed, however, that in some countries, like the United States, exceptions and limitations on copyright take a different form. Unlike the limitations recognised under most laws of countries following the author's rights tradition, the defence of fair use can be raised in relation to a large number of different factual circumstances, which courts examine on a case-by-case basis according to the factors laid down, for example in Section 107 of the United States Copyright Act of 1976.51 The fair use doctrine basically incorporates as one open limitation the many exceptions and limitations that exist in the closed authors' rights systems. In practice, the doctrine has been raised in an endless variety of situations and combinations of circumstances and it was the legislator's intent, at the time of its codification in the Act, that the doctrine evolve with time, especially in view of rapid technological change. Initially a purely American concept, the doctrine of fair use has been making its way in the course of the last decade into the legislations of other countries, like the Philippines, South Korea, and Israel. The introduction of a fair use defense is under consideration in other countries as part of current discussions on copyright reform.52
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