Museums, particularly those that showcase art, must pay attention to copyright law when dealing with digital media. This predicament is new to most museums as many of these institutions never had to cater to digital media before the onset of digital technology and the Internet.
Although copyright laws have always existed, museums now need to be aware of specific aspects that directly apply to digital works, i.e., images, audio, video, and software.
Copyright law is a complicated, ever-evolving area of the law that affects museums and their ability to display certain works of art, both in physical and digital formats. The primary issue is whether a museum is "lawfully" displaying a digital work.
With jurisdictional issues, there seems to be no clear-cut answer. For example, some territories explicitly allow museums to use digital works without permission from the creator or copyright holder, while others don't provide such an exemption.
Before we continue, you must fully comprehend how the concept of "copyright" works.
Copyright is the legal right to control how original works of art are used. Copyright protection extends to various creative works, including sculptures, paintings, designs, photographs, music recordings and videos.
The copyright holder owns exclusive rights allowing them to reproduce their work or authorize others to do so. This includes the digitization of works and the making available of digital works to the public.
Digitizing Copyrighted Work
Transparency is turning out to be an intransigent issue in the digitization of copyrighted works. One key point that museums should consider is the importance of using licensed materials when displaying copyrighted work in a digital format.
It's their responsibility to check the copyright status of a work before digitizing and displaying it. Likewise, museums should disclose who holds the copyright for each digital artwork or software piece in their collections.
Be reminded that digitizing a copyrighted work is by itself already a pronouncement of the right to reproduce and distribute the copyrighted work. That being said, any alteration or manipulation of a digital work without permission is considered an infringement of its copyright. Essentially, museums are walking on thin ice when it comes to copyright law and digital works.
Repercussions for Unlawful Use
If a museum unlawfully uses a digital work or software, it may be subject to heavy fines and even criminal prosecution, depending on the severity of the case. In some cases, copyright holders may not even sue the infringing party but instead, ask for a licensing fee for the use of the work.
Museums should also be aware of how they can use digital works and abide by any restrictions imposed by the creator or copyright holder. For example, a work may be licensed under a Creative Commons or GNU license, which allows museums to use the work with certain restrictions and conditions.
Public Domain and Fair Use
When using copyrighted works in digital format, museums must fully recognize what constitutes public domain and fair use. Public domain refers to creative works such as literature, paintings, and sculptures that are not protected by copyright laws. On the other hand, fair use is a doctrine in U.S. copyright law that allows for limited use of copyrighted material even without the permission from the copyright holder.
These two concepts will prove critical for museums that eventually decide to foray into the digital art world. Knowing which works are in the public domain or eligible for fair use helps museums to avoid conflicts and potential copyright infringement issues. But public domain and fair use aren't as clearly laid out as you'd expect. For example, fair use is very subjective and open-ended, so seeking legal counsel is important. Fair use is a concept that may not even exist in other countries, and the courts are often left to decide whether a particular use will qualify as fair or not.
How About Copyright Exceptions for Museums?
A seemingly clever way to address copyright issues is to secure legal exemptions for museums. Doing so allows museums to digitize copyrighted works without facing repercussions from the copyright holder.
The European Union has implemented this exemption in its Directive on Copyright in the Digital Single Market. This directive allows out-of-commerce works (works that are no longer commercially available) held by libraries, archives and museums, to be digitized, stored and made available online.
The exemption also permits using these works for non-commercial purposes, i.e., educational and research activities.
Under certain conditions, museums may be allowed to reproduce and display copyrighted works without obtaining permission from the copyright holder. This is very helpful when a museum would like to display digital artworks or software pieces but cannot obtain authorization for whatever reason.
Bottom Line: Authorization is required when museums plan to use copyrighted work.
This state is already vague enough to cover a wide range of activities, but it's even further complicated because not all countries have equivalent copyright laws. It may be wise for museums to secure legal counsel before digitizing any copyrighted works and ensure they fully understand the regulations imposed on them.
Doing so minimizes the chances of inadvertently violating copyright laws and ultimately protects the museum. As the Latin maxim provides, "ignorantia legis non excusat," and it relates to the common excuse that not knowing the applicable copyright laws will save a museum from reprehension. It won't, so it's best to be prepared.
Rule Exception: The Berne Convention
The Berne Convention is an international agreement establishing a minimum copyright law standard. The convention does not allow countries to deviate too far from the established standards, which helps create uniformity in copyright regulations worldwide.
For museums, the Berne Convention provides two exceptions regarding copyrighted works. First, the convention allows museums to display copyrighted works publicly so long as the museum makes it clear that they are not gaining any financial benefit from it.
Second, when a museum displays a copyrighted work for educational purposes, they don't have to obtain permission from the copyright holder.
Under these two exceptions, museums can legally show digital artworks without violating applicable copyright laws.
But it's not as straightforward as it seems.
The convention explicitly provides, "in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the author's legitimate interests."
Commonly referred to as the "three-step test," this clause requires museums to determine whether their use of a copyrighted work meets these three criteria:
(1) Does it conflict with a normal exploitation of the work?
(2) Does it unreasonably prejudice the legitimate interests of the author?
(3) Is it strictly necessary for educational purposes?
If all three conditions are met, the museum can use the work without getting authorization from the copyright holder.
Otherwise, they will need permission before displaying it publicly, including digitization.