Case Studies on the Role of Museum Exceptions and Limitations

Case Studies on the Role of Museum Exceptions and Limitations

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   Time spent and costs incurred for the completion of a digital inventory and the creation of corresponding databases and for management of rights when mounting exhibitions;
   

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   The boundaries of the making available of the collection to the public on their websites, for information, enjoyment and research and study.
   

As put by a European museum, when asked how do digital technologies affect your museum’s activities, “Digitisation, websites, social media, digitised collection presentation, apps for smartphone and tablets are a continuous concern for the museum staff”. The yearly copyright fee for publication on the Internet of works not in the public domain is higher than the price for the development of a new thematic website”. In this respect, museums share concerns similar to those of content providers and owners, all trying to cope with new models to carry their activities. Yet museums do have specific public interest mandates which commend that they rely on a clear set of rules regarding the interface of their mandates and copyright exceptions and limitations.

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  First, the mandate of communication of collections to the public entail nowadays that museums have a proper digitized inventory, whether full or partial, basic or enriched with text and images, that will facilitate off line and online presentation of collections and related activities.
  

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  Second, mounting exhibitions and promoting them in museums contribute to the recognition of the collections at home and abroad. Yet there is still a need to clarify some rules that weigh notably on the organization of travelling exhibitions, despite existing copyright exceptions.
  

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  Third, in the course of their mandate to enrich and preserve their collections, museums tend to cope increasingly often with situations of repair and format-shifting of the works to ensure the continued existence and accessibility of the works with due respect of the author’s moral rights;
  

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  Fourth, in a knowledge society curious of cultural heritage and prone to online interaction, the role of museums in education and research is growing. Yet much uncertainty remains on the ins and outs and boundaries of permitted uses to fulfil these goals of supporting education and research;
  

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  Fifth, museums purport to enrich their collections but most of public museums are prohibited from selling artworks in their collections. Yet inalienability of public museums’ artworks is an issue that may evolve and although most of the seventy-one museums which answered the questionnaire do not feel concerned by the resale right, it appears useful to highlight a couple of points that could impact the acquisition of artworks by museums, and as the case may be, their sale.
  

1. Communication of the museum collections and creation of databases

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  First the status of orphan works and unpublished works prevent museums from obtaining the permission of authors (who are unknown or who failed to publish in their lifetime, as is often the case of private correspondence and photos). Also, for certain works, such as photographs, sound recordings, letters, prints, drawings, information about copyright ownership and documents supporting a transfer of the copyright to the museum is often lost long before the expiry of the copyright.
  

Hence museums, which may not be able to afford time-consuming copyright searches, are reluctant to digitize these works and a fortiori to exhibit them or to display them through other means. However if the potential copyright risk is limited, some museums may accept some risk in certain circumstances, relying for instance on specific exemptions or on the fair use defense.¹⁰³

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  Second, the reproduction of the artwork itself in one or several databases is subject to the fulfilment of various requirements depending notably on the purported uses. Many museums are making high-resolution images of public domain works and of protected works seeking in the latter case the permission from the rightholder. They also make thumbnail versions for purposes of inclusion in an inventory database for internal managerial uses, which would not require on its face the rightholder’s permission. But the need of the rightholder’s permission for other uses of thumbnails, including for reference data for search engines and for posting on the museums websites is not a matter clearly solved by law or in practice. In the US, one early 2003 court decision considered that thumbnail images could be fair use and 2011 guidelines of the Association of Art Museum Directors adopted the same approach. Still, the subsequent economic use of thumbnail images by third party users is a debated matter between various stakeholders in the copyright value chain. Uses of images of the artworks in museums’ collections are essential in the carrying of their activities, both non-commercial and commercial, and deserve clarification for museums, rightholders and third party users of museums’ images.¹⁰⁴ Policies on the making of high resolution images of artworks in collections and their making available for downloading for free or for a fee are being developed by museums as of necessity but legal certainty would facilitate their tasks and simplify negotiation of permissions.
  

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  Third, virtual or online exhibition of museums’ permanent collections is becoming a mainstream vehicle to educate the public and increase its knowledge of cultural matters. Museums can reach more easily and broadly online friends from everywhere and gain potential visitors.
  

For instance, since 2005, the Smithsonian Institute has accelerated its efforts to “increase and diffuse knowledge through a learning model more aligned with technology” which is based on the “growing understanding of learning as a hybrid of formal education and self-directed discovery that can be brought together and enhanced by online tools and communities. Increasing online access to Smithsonian collections is part of its vision for promoting learning, encouraging re-use and sharing of its assets and allowing visitors to be our partners in the increase and diffusion of knowledge”¹⁰⁵.

They are some centralized or joint databases established by museums on platforms, which have a geographical or thematic connection¹⁰⁶. Some museums are engaged with several databases or platforms. For instance, in Iceland, forty museums use online catalogues for the registration of their collections, one catalogue gathering thirty-eight museums (www.sarpur.is). These museums share the view that “the relationship with people interested in the collection is better and more productive than before. It is common that online visitors share their knowledge of objects in the collection through the special ‘do you know more’ option that is a part of all posts in the catalogue. Many museums have had online exhibitions of works from their collections”.

2. 
   
   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
   
   
   
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