George Paramananthan is a Legal Officer at Arts Law
Museums and galleries are in the business of exhibiting their collections. These may be artistic works (like paintings, drawings, sculptures, photographs, engravings or works of artistic craftsmanship) or they may be made up of a combination of works (like a film, which may contain text, artwork and sound recordings).
Ordinarily, a museum or gallery will create marketing and advertising materials to promote its collection or upcoming exhibitions, for example, promotional fliers to advertise an exhibition and fact-sheets to accompany the exhibition. These materials may contain a reproduction of some of the works in the exhibition. Additionally, museums or galleries may produce exhibition merchandising, which reproduces some or all of an artistic work in the exhibition, on things like postcards, coffee mugs and key-chains. Under the Copyright Act, permission from the owners of copyright will be required before copyright protected works can be used in these ways.
What is the position if the museum or gallery wants to digitise these works for the purpose of archiving or for inclusion on its website? What if the artist in question does not agree with the way the work is being represented? Recent changes to the Copyright Act will affect the way museums and galleries answer these questions.
The Copyright Act now provides copyright owners with a new right – the right to communicate their work to the public. This new right to communicate the work is a broad right, which includes the right to electronically transmit the work online. Additionally, the Copyright Act makes it clear that the copyright owner of a work has the right to first digitise the work.
Assuming that copyright still subsists in the work, this means that permission from the copyright owner is required before a museum or gallery can digitise a work. This includes the digitisation of images of functional items, which may be regarded as works of artistic craftsmanship, works which have a design or pattern on their surface, or articles made from copyright protected design drawings.
Fair Dealing Exceptions
The Copyright Act provides that in some circumstances the permission of the copyright owner isn't required to use the work. For example, copyright protected material can be digitised or electronically transmitted if it is a 'fair dealing' of the work, say for research and study, criticism and review, reporting the news, undertaking judicial proceedings or providing legal advice.
The Copyright Act does not provide a definition of what is 'fair', however a range of factors can be taken into account, including the portion of the work being used and the commercial availability of the work. The reproduction of works on a gallery's website, for the purpose of advertising a particular exhibition, would not be a fair dealing of that artistic work.
Exceptions For Libraries And Archives
The Copyright Act provides limited exceptions to libraries and archives. The definition of 'archives' now explicitly includes non-profit organisations that collect documents or material of historical significance or public interest for the purpose of conserving and preserving those documents or materials. Most non-profit museums and galleries will therefore be caught under these exceptions provided, generally speaking, that they digitise copyright protected works for research or preservation purposes only. Examples of such purposes include:
- the digitisation and electronic transmission of artistic works that have deteriorated or been damaged, lost or stolen, for replacement purposes;
- to communicate the works to staff members via internal email or Intranet for administrative purposes; and
- to make preservation copies of artistic works that have deteriorated, been lost or become too unstable to display, available for viewing on terminals within the museum or gallery which do not allow the work to be printed, saved onto disk or communicated via email or the Internet.
These exceptions, however, will not allow a museum or a gallery to digitise copyright protected works in its collection and to put the images on its website for the purpose of promoting an upcoming exhibition, or transmit them to a manufacturer to assist in producing exhibition merchandising.
Moral rights came into effect in Australia on 21 December 2000. Under the current scheme, there are three distinct rights that creators of copyright protected works may claim – the right of attribution, the right against false attribution and the right of integrity.
Generally, the right of attribution requires that whenever a copyright protected work is reproduced, published, communicated to the public or exhibited, the author or creator has the right to be identified. This means that each time a museum or gallery uses these works, for example on its website, in publication materials or otherwise deals with the work, the identity of the author or creator of the work must be reasonably prominent.
The second right, the right against false attribution, prevents anyone from falsely attributing or authorising the false attribution of the work to another author or creator. This includes the dealing of a work knowing that it is falsely attributed to a person who is not the author or creator, for example, where a museum or gallery streams a film on its website as an example of works it holds, without ensuring that the correct copyright owner of the film, the script and any musical score on the film is attributed.
The right of integrity gives the author or creator of a work the right to prevent the work being subjected to derogatory treatment. "Derogatory treatment" includes the doing of anything that results in a material distortion, destruction or mutilation or material alteration to the work that is prejudicial to the creator's honour or reputation. This right could be infringed where a museum or gallery, which has the permission of the artist to reproduce works on its website, does so by cropping or stretching the work to fit a page, or by colourising of an artistic work that was originally intended to be in black and white. Another possible scenario where the right of integrity may be affected is the manner in which the work is reproduced on exhibition merchandising.
The artist's right of integrity may also be affected where the artwork is displayed in an exhibition that is damaging to the artist's "honour or reputation". Take for example the situation where a museum or gallery mounts an exhibition which promotes large corporations as benefactors of the global economy. In this exhibition, the museum or gallery includes artistic works painted by a particular artist who is known to be a vocal advocate against globalisation and its effect on small countries. The inclusion of his or her work in that exhibition could be said to affect the artist's right of integrity.
Permission is required!
The changes to the Copyright Act make it clear that permission is required to digitise the work. Further, the communication of that work via Internet, e-mail or related other means will also require permission from the copyright owner. Consent from the author or creator of the work may also be required where the work is being used in a manner that could affect the author or creator's moral rights.
It is important that museums and galleries obtain the correct and appropriate permission and consent from the copyright owner to reproduce and use a work protected by copyright.
The permission from the copyright owner comes in the form of a "licence". A licence may be written, or it may be verbal. While a verbal licence may be adequate, a written licence will provide more certainty as to what the permission covers. Where the museum or gallery is seeking an exclusive licence to deal with the copyright protected work, that licence must be in writing.
It is a good idea to have a clear understanding of what the museum or gallery will be doing with the work before attempting to negotiate the licence with the copyright owner. For example, where the museum or gallery wants to advertise an upcoming exhibition on its website, the licence should, at the very least, allow digitisation of the work, and to make the digitised image available on the gallery's website. If the museum or gallery wants to make long-term uses of that digitised image, for example, as a marketing tool on its website to show past exhibitions or to include the digitised image in a retrospective publication of past exhibitions, the licence should allow for this. Further, for the purposes of producing exhibition merchandising, permission may be required to manipulate the digital image of the work for reproduction on specific items.
When considering moral rights, the issues are the same. The Copyright Act does not allow for blanket consents. This means that particular consent must relate to particular infringing acts. It is a good idea to obtain these consents in writing, spelling out the manner and the mode in which the work will be used. The licence should cover issues such as how the artist would like to be attributed and how the work will be represented in the museum or gallery's website, on exhibition merchandising or on marketing brochures.
It is important to note that the copyright owner in the work, for the purposes of negotiating a licence, and the author or creator of the work, for the purposes of obtaining consents for possible moral right infringements, may not be the same person. While copyright may pass from the creator of a work to a third party, the rights afforded to creators under the moral right regime, can not be similarly assigned away.
The issues surrounding these new developments in the Copyright Act can be complicated and will require consideration on a case-by-case basis. If more information is required on how the law applies to a particular situation, please contact the Arts Law Centre of Australia.