Collections online and copyright law – Is there a disconnect? Susan Corbett

Collections Online and Copyright

Law: is there a disconnect?

A Research Project funded by the New Zealand Law Foundation

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The elephant in the room

Copyright Law

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Orphan works

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“ ….a black hole of 20th and 21st

century content”

But we know…

….that museums are digitising their

collections …

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Lawrence Lessig’s “generation of pirates”.

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Museum workers - the new pirates?7

The Research

Interviews with 26 employees working

at 7 museums and archives in New Zealand.

• What do they know about copyright and digitisation?

• What do they do?

• What would they like to do?

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The typical CHI collection includes..

• Public domain items

• Copyright items – 3 categories

a) copyright transferred to institution (rare)

b) copyright owner known and traceable (also rare)

c) orphan works

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PROBLEM 1

The archiving exceptions in copyright law

apply to archives and libraries, not museums!

(Obscure and difficult information trail through 3 separate Acts of Parliament to discover in what aspects they do apply to museums)

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The Comments

“They are useless …. if a museum person read the Act, you don’t see the word ‘museum’ there, not even in the definitions.”

The comments

“We do our best to ignore copyright at all points. ….”

“The law is too complicated to understand. I’ve been to a couple of copyright things and the general feeling is that it’s next to impossible…”

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PROBLEM 2.

The digital archiving exceptions

strictly limit public access to digital copies.

Why digitise?

“ essentially it’s access first and then preservation....”

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Kermit the Frog and Friends American History Museum's Collectionssmithsonianmag.com

Access to digital copies (s 56A)

An archive may communicate 1 lawfully obtained digital copy in protected format to an authenticated user

but the number of users must be no more than the aggregate number of the archive’s lawfully obtained digital copies

and the user must be WARNED about copyright misuse.

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New Zealand research participants agreed:

“ the main reason for digitisation is to improve accessibility”

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“Oral history recordings are easier to reproduce and reutilise in digital format, for example by

extracting sound bytes…

… essentially it’s access first and then preservation....”

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PROBLEM 3. The digital archiving exceptions

permit limited numbers of copies

but

digitisation is synonymous with many copies

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“If we made one copy of something and lost it we would have much bigger problems than people complaining about copyright. …

I don’t think there is an organisation in the country that would only make one copy.

Certainly not in a digital format.”

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PROBLEM 4 The digital archiving exceptions

– focus on preservation of items at risk of deterioration.

– but museums use digitisation for collections management

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• Is digitisation the answer?

Not everyone agreed

Preservation?Collections management?

“Digital is not better… it is so easy to lose things when they are digital. ..

In IT we can’t even access things that were 15 years old. Yet, we can read books that were written 600 years ago.”

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The orphan works dilemma for cultural heritage

• If museums take a risk averse approach- many items cannot be made more widely accessible

• If museums take a risk management approach –they join Lessig’ s band of copyright pirates!

And, as State institutions, many do not want to take that risk

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Museum practices

1. They ignore the archiving exceptions

2. They digitise – but usually only post

online with permission of the copyright

owner

3. Many “orphan works” remain unseen

outside the physical institution.

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Digitisation of a cultural heritage collection

Do the digital images themselves have separate copyright protection?

Maybe!

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Online collections: the Digital Dilemma for Cultural Heritage

new opportunities v. risks

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Once uploaded to a website, an image, video or sound recording can be downloaded, appropriated and remixed by any user with sufficient technical knowledge.

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Conflicting views

“Usually with those there is restricted access and we don’t put them online unless permission has been granted by the iwi.”

“Weighing up the benefit and the harm. … what if somebody puts Hitler’s head on Te Rauparaha or what is somebody puts a Tā Moko on a tea-towel and somebody finds it offensive? The consequence of designing a policy around the exceptions is that nobody gets to see anything much.”

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“Paradoxically, at the same time the Dane-zaa people are asserting their right to control how their cultural heritage is circulated on-line,

representations of their culture and language are more prevalent on the Internet than ever before”

Kate Hennessey, British Columbia researcher

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Public Domain

“If we borrow something from another museum that is well out of copyright, they put their own copyright restrictions on it anyway and say no one’s allowed to photograph it because of copyright.”

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AN330971001

© The Trustees of the British Museum

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Is this a good thing?

1. Should public domain entities now effectively qualify for another lengthy term of copyright protection?

2. Is this contrary to one of the objectives of copyright – to encourage cultural development?

3. Conversely is it a good thing for the owners of the original cultural heritage?

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CONCLUSION

The archiving exceptions are

• Impracticable

• Unworkable

• Constrain institutional objectives.

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Recommendations (1)

changes to the archiving exceptions

– to specifically include museums and galleries

– not limited to ‘not for profit’ institutions.

– to allow multiple digital copies,

– to allow both on site and off site access to multiple digital copies.

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Recommendations (2)

A new provision in the Copyright Act- to reflect current practices of CHIs and apply a balanced approach.

public interest in culture v indigenous concerns.

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Thank you – please contact me if you would like a copy of my report

susan.corbett@vuw.ac.nz

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