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
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Standing Committee on Copyright and Related Rights Thirtieth Session Geneva, June 29 to July 3, 2015 Study on Copyright Limitations and Exceptions for MusEums prepared by Jean-François Canat and Lucie Guibault, in collaboration with Elisabeth Logeais Table of Contents 1.Introduction 3 1.1.Context 3 1.2.Structure and Methodology 4 2.Museums and Copyright Law 7 2.1.Brief overview of the development of museums 7 2.1.1.Museal venture 7 2.1.2.Definition of “museum” 8 2.1.3.Mandates of museums 11 2.2.Rationales for museum exceptions and limitations 14 2.3.International Copyright Framework 16 2.3.1.Berne Convention and WIPO Copyright Treaty 16 2.3.2.TRIPs Agreement 18 2.3.3.UNESCO Conventions 18 2.3.4.Regional Conventions 19 3.Copyright Exceptions and Limitations to the Benefit of Museums 22 3.1.General remarks 22 3.2.Moral rights 24 France, Cour de Cassation, Chambre Civile 1, 25 Mars 2010, 09-67515; Cour de Cassation, Chambre Civile 1, 11 Décembre 2013, 11-22031. 25 3.3.Specific exceptions and limitations 25 3.3.1.Reproduction for preservation purposes 26 3.3.2.Use of works in exhibition catalogues 29 3.3.3.Exhibition of works 30 3.3.4.Communication to the public on the premises of the museum 32 3.3.5.Use of orphan works 33 3.4.General exceptions and limitations 36 3.4.1.Reproduction for private purposes 36 3.4.2.Reprographic reproduction 38 3.4.3.Use for educational and scientific research 39 3.5.Resale rights 42 Text: S. 2045 — 113th Congress (2013-2014) at https://www.congress.gov/bill/113th-congress/senate-bill/2045/text. 46 Senat de France, “L'alienation des collections publiques”étude de legislation comparée N°191, Service des études juridiques du sénat, Paris, Décembre 2008. 47 4.Case Studies on the Role of Museum Exceptions and Limitations 48 4.1.1.Communication of the museum collections and creation of databases 49 4.2.Right of exhibition and promotion of artists 52 4.3.The preservation mandate and permanence of artworks 54 4.4.The scope of the “research” exception 55 4.5.Resale right 57 5.Conclusion 60 5.1.Summary of main findings 60 5.2.Recommendations 62 5.2.1.Recommendations to the lawmakers 62 5.2.2.Recommendations to the museum community 63 Bibliography 64 Appendix I: Questionnaire 70 Appendix II: National Legislation 74 AUSTRALIA 75 AUSTRIA 77 BANGLADESH 80 BELGIUM 82 BOSNIA AND HERZEGOVINA 84 BULGARIA 86 CANADA 88 CHILE 91 CHINA 93
CYPRUS 95 DENMARK 97 ESTONIA 99 ETHIOPIA 103 FIJI 104 FINLAND 107 FRANCE 110 GERMANY 112 HUNGARY 116 ICELAND 118 INDIA 120 ISRAEL 122 ITALY 123 LATVIA 125 LESOTHO 127 LITHUANIA 128 LUXEMBOURG 129 MACEDONIA, REPUBLIC OF, 131 MALTA 133 MONGOLIA 134 MONTENEGRO 135 THE NETHERLANDS 136 NIGERIA 139 NORWAY 140 PAKISTAN 142 POLAND 143 PORTUGAL 144 ROMANIA 145 SERBIA 147 SIERRA LEONE 148 SLOVAKIA 149 SLOVENIA 151 SPAIN 152 SWITZERLAND 153 TURKEY 155 UNITED KINGDOM 157
This study investigates the issue of limitations and exceptions to copyright for the benefit of museums, with a view to strengthening the international understanding of the need to have adequate limitations, exploring existing and proposed models of protection, and moving towards agreement regarding specific exceptions or limitations. Museums, worldwide, have existed for centuries in their current form. They come in all shapes and sizes. They assemble in their collections a wealth of knowledge and culture for the benefit of their visitors. They are the caretakers of their nation’s cultural heritage. The objects gathered are as heterogeneous as the missions they pursue: objects of art or technique, texts, drawings, paintings, photographs, maps, films and sound recordings. All are collected and organized for the promotion of the art, anthropology, archaeology, science etc. To do so, museums engage in different types of activities in relation to the objects they hold, the core of which concerns their acquisition and curation, their dissemination to the public and the promotion of their use in support of education and research. With the significant technical and social changes brought about by the advent of information technologies, museums are now forced to adapt their ways and to consider digitizing and disseminating their collection via the Internet, if they wish to remain socially and culturally relevant in the 21st century. The fulfilment of a museum’s mandates often involves the making of reproductions and the communication to the public of the works in its collection. To accomplish these acts with respect to copyright protected works, museums in principle need the rights holders’ permission, unless an exception or limitation on copyright applies. The intersection between copyright law and a museum’s activities has therefore the potential of posing a challenge to the latter’s functioning as is the case for the majority of potential users of copyrighted works. Not all museums are confronted in the same measure with issues relating to copyright law, however. First, not all items assembled in the collection of a museum necessarily enjoy copyright protection: in some cases, the objects do not qualify as a work under copyright law (e.g. a bicycle in a history museum, a natural landscape); but in most cases, the term of the copyright protection on the object will have lapsed (e.g. Egyptian artefact or Shakespeare’s manuscripts).1 From the perspective of copyright law, these objects can therefore be used without restriction. Second, museums attempt as far as possible to obtain through contractual agreement the assignment of copyright, or at least a license of rights, together with the physical ownership of the works in their collection.2 Museums would hardly be in a state of realizing their mandate if they did not ensure that they are legally authorized to accomplish the acts necessary to do so. But museums are not always in a position to secure these rights. Moreover, the situation may not be so clear with respect to objects acquired before the advent of the digital networked environment: to whom belong the ‘digital rights’ on those objects, between the initial author or the museum?3 What if the author can no longer be identified or located, in which case the work is ‘orphan’? The question addressed in this study is whether the current state of copyright exceptions and limitations in copyright law are fitted so as to enable museums to carry their mandates and if not so, how to ensure that the provision of museum services falling in the scope of their mandates, is not impeded taking account of the interests of all stakeholders. How can the rights holders’ authorization best be ascertained, through the law or through contract? Can the exceptions and limitations in the copyright acts of the Members of the Berne Union be amended to alleviate problems of legal uncertainty? 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 Download 0.8 Mb. Share with your friends:
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