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SCCR/30/2

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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

Study on Copyright Limitations and Exceptions for MusEums

prepared by Jean-Franois Canat and Lucie Guibault, in collaboration with Elisabeth Logeais

Table of Contents

1.Introduction1

1.1.Context1

1.2.Structure and Methodology2

2.Museums and Copyright Law5

2.1.Brief overview of the development of museums5

2.1.1.Museal venture5

2.1.2.Definition of museum6

2.1.3.Mandates of museums8

2.2.Rationales for museum exceptions and limitations11

2.3.International Copyright Framework13

2.3.1.Berne Convention and WIPO Copyright Treaty13

2.3.2.TRIPs Agreement15

2.3.3.UNESCO Conventions15

2.3.4.Regional Conventions16

3.Copyright Exceptions and Limitations to the Benefit of Museums18

3.1.General remarks18

3.2.Moral rights20

3.3.Specific exceptions and limitations21

3.3.1.Reproduction for preservation purposes21

3.3.2.Use of works in exhibition catalogues24

3.3.3.Exhibition of works25

3.3.4.Communication to the public on the premises of the museum27

3.3.5.Use of orphan works28

3.4.General exceptions and limitations30

3.4.1.Reproduction for private purposes31

3.4.2.Reprographic reproduction32

3.4.3.Use for educational and scientific research33

3.5.Resale rights36

4.Case Studies on the Role of Museum Exceptions and Limitations42

4.1.1.Communication of the museum collections and creation of databases43

4.2.Right of exhibition and promotion of artists46

4.3.The preservation mandate and permanence of artworks47

4.4.The scope of the research exception48

4.5.Resale right50

5.Conclusion53

5.1.Summary of main findings53

5.2.Recommendations55

5.2.1.Recommendations to the lawmakers55

5.2.2.Recommendations to the museum community56

Bibliography57

Appendix I: Questionnaire1

Appendix II: National Legislation2

AUSTRALIA3

AUSTRIA5

BANGLADESH7

BELGIUM8

BOSNIA AND HERZEGOVINA10

BULGARIA12

CANADA14

CHILE17

CHINA19

CYPRUS21

DENMARK23

ESTONIA25

ETHIOPIA28

FIJI29

FINLAND31

FRANCE34

GERMANY36

HUNGARY39

ICELAND41

INDIA43

ISRAEL44

ITALY45

LATVIA46

LESOTHO48

LITHUANIA49

LUXEMBOURG50

MACEDONIA, REPUBLIC OF,51

MALTA52

MONGOLIA53

MONTENEGRO54

THE NETHERLANDS55

NIGERIA57

NORWAY58

PAKISTAN60

POLAND61

PORTUGAL62

ROMANIA63

SERBIA64

SIERRA LEONE65

SLOVAKIA66

SLOVENIA68

SPAIN69

SWITZERLAND70

TURKEY71

UNITED KINGDOM72

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1. Introduction

1.1. Context

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 nations 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 museums 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 museums activities has therefore the potential of posing a challenge to the latters 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 Shakespeares manuscripts).[footnoteRef:2] 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.[footnoteRef:3] 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?[footnoteRef:4] What if the author can no longer be identified or located, in which case the work is orphan? [2: Pursuant to art. 7(1) of the Berne Convention, the term of protection lasts during the life of the author plus 50 years after death; a number of countries, including the countries of the European Union, Australia and others have adopted an even longer term of protection lasting for the life of the author plus 70 years after death. The term of protection in the United States lasts for 95 years from the date of first publication.] [3: D. Weber-Karlitz, Survey Museums, Artists and Copyright, (1983) 2 Cardozo Arts & Ent. L.J. 121-144. ] [4: K.L. Milone, Dithering Over Digitization: International Copyright And Licensing Agreements Between Museums, Artists, And New Media Publishers, (1994-1995) 5 Ind. Int'l & Comp. L. Rev. 393-423.]

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?

1.2. Structure and Methodology

Pursuing a two-fold objective, this study first provides a description of the current state of copyright law and exceptions and limitations regarding the use of copyright protected works by museums and their patrons; second, based on the findings of the first part, the study considers from a normative perspective possible ways to facilitate the provision of museum services in compliance with the norms of copyright law.

Before turning to the description of the statutory exceptions and limitations adopted in favour of museums in Chapter 3, and after the present introduction of Chapter 1, Chapter 2 puts museums in their global theoretical and legal contexts. The chapter first gives a brief overview of the development of museums throughout history (section 2.1), and a definition of the notion of museum as it is used in the rest of the report. The chapter then provides a description the main mandates pursued by museums (section 2.2), which encompass the acquisition and protection of cultural heritage, the communication and exhibition of cultural heritage, as well as the support of education, study and research. Section 2.3 follows with a brief discussion of the key rationales behind the adoption of statutory exceptions and limitations on copyright to the benefit of museums and their patrons. Among the main rationales are the citizens right to self-fulfilment, participation in cultural life, education and research, as well as the promotion of the states cultural heritage policy. Section 2.3 situates the discussion regarding museums and the achievement of their goals in the international legal copyright framework, having a look at the treaties administered by the World Intellectual Property Organization (WIPO), namely the Berne Convention and the WIPO Copyright Treaty; the Agreement on the Trad