Unknown Speaker 00:01
Okay, so welcome to international copyright law implications for digital collections and collaborations. So regardless of our institutions, physical locations, or online collections are accessible worldwide. Yet duration of copyright varies across countries. works that are in the public domain in one may remain under copyright and another, a work might be created in one jurisdiction published or the equivalent in second second jurisdiction, housed and digitized in a third, and aggregated and accessed worldwide. Exceptions legal decisions and practices vary across borders, while international copyright treaties aim to provide a baseline across countries. So here are some of the questions we'll explore today. Against this backdrop, what are the practical implications for online collections and collaborative digital projects with stakeholders across international boundaries? And what are the corresponding ethical and moral rights implications related to digital cultural heritage? And does online access make every copyright question an international copyright question? So we have a very ambitious agenda today was relieved to note that our session bumps up against lunch. So if we run out of time for questions, we'll have a slide with our contact information at the end of the presentation for anyone that wants to follow up, or if you want to stay into lunch with us for a little while. We're okay with that too. So just a brief background on all of your speakers today. So mica G. Conway is a former museum curator now lawyer who advises the Jay Paul Getty trust on issues including intellectual property, tax privacy and economic sanctions. She's a true law nerd with a special interest in open access and copyright reform. She holds bachelor's and master's degrees in art history from Stanford University and Williams College respectively, and graduate graduated summa cum laude from the University of Minnesota Law School. Emily Lanza is counsel for Policy and International Affairs at the US Copyright Office. She received her JD from the Georgetown University Law Center. She holds a BA from the University of Pennsylvania in anthropology, and a master's in archaeological heritage and museums from the University of Cambridge. Andrea Wallace joined the University of Exeter as a lecturer in law in August 2017. She completed her PhD in cultural heritage law with the Create UK center copyright and new business models in the creative economy. At the University of Glasgow in partnership with the National Library of Scotland, Andrea, previously received an LLM Kumada eight from Brad bowed University in the Netherlands, a JD magna cum laude from DePaul University College of Law in Chicago, and a BFA from the School of the Art Institute of Chicago. She's also registered attorney with the Illinois bar. I'm head of imaging services and intellectual property at the Yale Center for British Art, where I've served for over 20 years in successive positions, evolving museum registration, collections, digitization, copyright and project management. I'm a graduate of Yale College, and I'm currently completing my Masters in Business Administration from the University of Illinois at Urbana Champaign. So we encourage you to engage with us and through the session by using the conference hashtags and our handles. So I'm going to hand this over to Mika for some US copyright law basics.
Unknown Speaker 03:16
Hi, everyone. This is my first MCN. Don't know the crowd. But I'm guessing most of you are not copyright lawyers, or haven't studied copyright extensively. So with apologies to those of you who are very facile with this, we thought that it would be helpful to start with just sort of basic, some some relevant basics of US copyright law, before we dive into how it operates internationally, and, and the issues that are raised by cross border collaboration, so I'll give you kind of the who, what, where, when of copyright. So why does copyright law exist? So US copyright law has its origins in the Constitution, Congress has the power to promote the progress of science and useful arts by giving exclusive rights to authors and inventors. So what this means, basically, is that the purpose of copyright is to promote the increase of knowledge. And the way it does that is by giving economic incentives for people to create. The first US Copyright Act was passed in 1790. So very soon after the Constitution was ratified, and the last major overhaul we've had some form of the Copyright Act in effect ever since. And the last major overhaul of it was in 1976. What are the requirements of copyright law? So copyright protects only original works of authorship. There has to be some spark of creativity or originality to make a work copyrightable. So by way of example, one US Court has held that faithful reproductions of public domain works of art are not themselves separately copyrightable because they lack originality. This is the famous Bridgman art library case out of federal court in New York, which some of you may have heard of. So this rule of no separate copyright in a public domain report motion is not written into the law. And it's never been recognized by a higher court. But it is a very practical ruling and has been very influential. And I know that a lot of us museums, including the Getty do rely on on the Bridgman rule to varying degrees when we're assessing risk around copyright. And we'll hear more about Bridgman and related international developments later from Andrea. Second requirement, the work has to be fixed somehow in a tangible medium of expression. So transitory communications, like me talking to you, right now, this is not copyrightable unless it's written down somehow or fixed or recorded with my with my authority, such that there's a stable copy that you can refer to. So note, though, that although there's a fixation requirement, there's no registration requirement, and this is a common misperception, you don't have to do anything. To register your copyright, you don't have to take any kind of affirmative steps to do that. In order to have those rights, copyright arises automatically, once an original work is fixed. And then finally, note that only some kinds of works are eligible for copyright protection, I list out a few of them here, what you would imagine, you know, literary literature, art music, note what's not eligible for copyright protection, ideas, facts, processes, methods, you know, you can have a brilliant idea, but unless you fix it, somehow express it in a fixed medium, you don't have any protection under copyright. Also note, by the way that works of the US federal government are not eligible for copyright. What does copyright encompass? Well, these are the exclusive rights, the basic exclusive rights that copyright holder has with respect to their work, subject to some limitations that I'll get to in a minute, but you know, the right to reproduce and distribute the right to make derivative works. So even to translate, you know, or to make, you know, a movie out of a book, the right to perform publicly for, for motion pictures for audio for sound recordings, the right to display. And because this is MCN, and I know a lot of you are coming from art institutions, I want to briefly also mentioned that the US copyright law does give does recognize limited so called moral rights for the creators of certain kinds of visual works of visual art. So the right of attribution, the right of integrity, and in some cases, even the right to prevent the intentional destruction of a work. These were enacted in the visual artists Rights Act of 1990, also called Vera. And some of you might be have read about the case that happened recently in New York, where there were some graffiti artists who had some very prominent murals on a building called five points in Queens, and the new property owner, whitewashed over them destroyed them. And those artists sued, and they ended up winning a $6.7 million judgment from the property owner. So that was a vindication of their of their vero rights.
Unknown Speaker 08:00
Who owns copyright in the first instance, it makes sense, it's the author, it's the Creator, which could be a human being, but it can also be an entity. So under the works made for hire doctrine, for example, an employer, my employer, the Getty trust, owns my work as as their employee owns the copyright in my work that's made within the scope of my employment. Conversely, an independent contractor will will generally retain their copyright in works that they make for a hiring party, unless there's a written agreement. To the contrary, copyright can be owned by multiple people. If you have a joint work like a unitary work that's jointly created by two or more people or entities, they will share the copyright, there'll be joint owners, each of them having the same rights. And also copyright is a distinct property, right, that's separate from the physical object. I think we all know this, but just a reminder that owning the physical work is not the same as owning the copyright. And so you know, the consequences of that are obviously, you know, as museums, we know, we don't necessarily own copyright and copyrighted materials in our collection. But I think also important to remember is that because the copyright is a separate property, right, that can be transferred, you know, bought or sold separately. We also can't assume necessarily that even the artist or the author is still the copyright owner, because they may have transferred that away. So how long does copyright lasts, some people think, including me, that it lasts too long. It lasts. I mean, it's staggering sometimes when you think about some of the things still under copyright. But remember, the constitutional purpose of copyright is this limited term, finite monopoly for the Creator, during which they are allowed to exploit the work before it passes into the public domain. Under current law that monopoly lasts for 70 years after the creators death. So even if the Creator transfers away the copyright, their life is still the measuring, you know, stick for the duration of copyright. Right. In the case of a corporate work, it's 95 years from publication. So the works that I make for the Jay Paul Getty trusts should they be published, if the Getty decides not to give them away beforehand, that copyright lasts for 95 years, for unpublished works, it's even longer. It's 120 years, 120 years. So very long time, general rule of thumb is that works published in the US before 1924, passed into the public domain at the first of this year. And on January 1 2020, it'll be works published before 1925, and so on. So, US copyright law recognizes some limits on copyright, maybe the most important of which is fair use, which we could have a whole session on, we could have a whole conference on. But right now, just know that fair use is a is a role that's written into the Copyright Act. It's a very powerful, very flexible, but notoriously difficult to apply doctrine that allows the use of copyrighted materials without permission, in some cases, for certain kinds of legally favored uses, like scholarship and teaching and research parody, news reporting, criticism, commentary, it's basically how cop I think of I think of fair use as the way that copyright sort of can peacefully coexist with the First Amendment. Other limitations relevant to our sector, or section one, oh, wait for the libraries and archives among us. Section 108 gives certain rights to use copyrighted material without permission, section 109, which all of us museums rely on to display copyrighted works in our collection without without the permission of the copyright owner. There are also some ways that the copyright law mitigates damages and otherwise reduces risks risk for, for us when we're making use of copyrighted material, Oops, excuse me, including when a nonprofit educational institution is found to have infringed copyright, but to have done so with a good faith belief that they were making fair use, in that case, statutory damages will be reduced or eliminated. Also relevant I think, is the safe harbor under the Digital Millennium Copyright Act, which you all know of as sort of notice and takedown. This is for internet service providers, which can encompass you know, a museum with a website, anybody with a website whose users post infringing content, basically, it's how, you know, Facebook avoids copyright liability for all of the gazillion instances of copyright infringement, that are on that are on Facebook, by having a process in place to to receive an act on notices of infringement. So those are, I think, some of the sort of basics of how US copyright law works that are relevant to the kinds of projects that we're generally undertaking, and I hope it will help you put the rest of this in context. And with that, I'll turn it over to Emily.
Unknown Speaker 13:07
So good morning. My name is Emily Alonza. And I'm with the US Copyright Office and the Office of Policy national affairs. Now, I'll be speaking today about what is international copyright law. So the flow of ideas and creative works does not know jurisdictional boundaries, thanks to technology works are created and shared almost instantly across the globe. But despite this global nature of creation and consumption, there is no such thing as an international copyright law. And that'll be the end of my presentation. Thank you. So, the only you are that simple, would make my life a lot easier. But no, copyright law is territorial. That means it's up to the each nation state to create and enact their own copyright law. Copyright laws of the country only extend to the national boundaries of that country. And this means that US copyright law only applies into the US. protection against unauthorized use in a particular country depends on the national walls of that country. This means that it's important for both creators and users to pay attention to all the foreign copyright laws that are out there. In the past, countries have enacted copyright laws that operate in different ways conferring different rights limitations in terms of protection. Your national copyright conventions and treaties, have been developed to establish obligations for treaty members to adhere to, and to implement international laws that's providing some more certainty and harmonization. CNCS is a member to treaties administered by the World Intellectual Property Organization organization, also known as WIPO and the World Trade Organization also known as the WTO. Us as a member for the Bronk Convention for the Protection of Literary artistic works, which was first created accepted in 1886 and has been revised numerous times since us only joined Bern in 1989. The US is also a member of the WIPO Copyright Treaty and the WIPO performances and phonograms Treaty and the WTO is trade related aspects of intellectual property rights also known as trips. us very recently became a member of the Marrakesh Treaty to facilitate access to publish works for persons who are blind, visually impaired or otherwise print disabled. And they knew that United States is a concluded several comprehensive free trade agreements with multiple countries, with the exception of the US Israel agreement all US trade free trade agreements and contain intellectual property rights of tractors. So the treaty has really set forth substantive obligations for its member countries to adhere to these obligations provide a floor not a ceiling of copyright protection, meaning that countries are allowed to enact additional copyright protections on top of what was what is required in the treaty. This, for example, under the Berne Convention, term of protection is life of the author plus 50 years in the US is meager, just reminded us it's like for the author plus 70. Treaties, generally numerous rights that countries must enact for their authors. For example, the Berne Convention requires a right of reproduction. I write a broadcast and communication to the public, and the WIPO performances and phonograms treaty requires a right of reproduction distribution for performers. Were in Article Five requires for works created outside of country of origin protection must be afforded without formalities, formalities or legal requirements that must be met in order to receive copyright protection. So these include registration and no no notice little c and a circle. Meeting this obligation was one of the reasons why us delayed in joining Byrne for so long, because for most of the 20th century, US copyright law was predicated predicated copyright protection on registration and notice. Under the WIPO Copyright Treaty, parties must also provide protection for Rights Management Information and Protection against a circumvention of technological measures. These are deal with licensing software protocols, that can be avoided through passwords and serial numbers and other hacking methods.
Unknown Speaker 17:13
So there are several legal doctrines in these conventions that kind of allow them to operate with other national copyright laws. Treaties defined points of attachment, which are factors enable work to be treated among cooperate member countries. These factors include an author's nationality, and also a place where the work was first published. Section 104 of the US Copyright Act apply specifies the scope of protection the US for both unpublished and published foreign works. Under Section One for all unpublished works, regardless of the nationality of the author are protected under US copyright. For published works under Section 104. B, the author must be a US citizen, or a citizen of a treaty party member, or the work must be first published in the US or in the country who is also a treaty party member. And when I say citizen in this context, I really mean citizens and permanent residents is just a legal terminology is just easier to say citizens. So this means that US law protects both unpublished and published works for UK authors, for example, because UK in the US your treaty membership, this also means that US law only protects unpublished works by Iraqi authors, because and not published works because Iraq is not a treaty part of any member. Another doctrine is reciprocity. It's kind of easier to explain this to example, nation as copyright laws grant rights to its citizens. And also this is since a nation be a treaty member, country, nation b This must grant the same protections inclined to nation to its citizens and nation a. So this allows you assistance to claim a copyright within all nations who are all the same treaty, who belong to the same treaty as US does. Us is a treaty member to burn. As of today, there are 177 signatory countries out of the 195 countries worldwide to burn. So this really means that US works are protected globally. And third, on the doctrine of national treatment, IP rights of foreign nationals are defined by the laws the jurisdiction in which the foreign national seeks protection and enforcement. But the foreign national does not enjoy greater or lesser benefits than the citizens of the particular country. This means that the US cannot provide greater or lesser protections to us authors does not provide to authors from Afghanistan, Austria or Australia, for example, while we're all members of burning, wandering national topic that's particularly relevant to museums is limitations and exceptions to a copyright owner its exclusive rights. Certain common law countries have fair use or Fair Dealing provisions that permit uses in certain circumstances without the prior authorization of the copyright owner. But it's important to understand that Fair Dealing and fair use so they they may sound the same they're not synonymous, fair deal. limits exception and common law countries such as Great Britain, Canada, Australia and New Zealand. Under fair dealing a non authorized use of a copyrighted work is not infringing if it is for purpose specifically stated in the act, as mica just explained for us is more of them. Judges rely on a long tradition of case law in order to interpret and apply those statutory factors. In civil law countries, there is perhaps even less flexibility but some might argue more certainty, where limitations and exceptions to copyright are explicitly delineated in the statutory text, as uses that are lawful and do not require authorization from a copyright owner. So in French copyright law, for example, there's no exceptions in the case of published works for private copies, progressive views and analyses, as well as for short quotations for critical educational or scientific purposes. But how do international conventions provide some harmonization among all these different frameworks for limitations and exceptions, this is perhaps one of the most challenging aspects of international copyright law. Several copyright agreements include was called the three step test that allows countries to enact certain limitations and exceptions, they must all kind of follow this framework.
Unknown Speaker 21:12
The first step is that it must be a special use. The second is it must not conflict with the normal exploitation of the work. And third, it cannot unreasonably prejudice the author's interests. So this means that a country can cannot act and act as an exception that would allow companies to buy, digitize and then sell books. That would be out of bounds that through CF test, but a narrowly enacted exception for libraries, for example, can preserve books for the purposes of research or research purposes only, that would likely meet a limitation that would meet the three step test. So what does this mean for museums? I mean, most countries have at least one statutory exception that specifically target to libraries to digitize and preserve their collection materials. But where do museums really fit in with these exceptions, where they shares kind of similar mission statements with libraries burn not specifically call it out in the statute, in the limitation as an entity that can do such uses? Well, this is an important issue before WIPOs standing committee of copyright and related rights, a CCR, they're really looking at limitations and exceptions worldwide law museums to enable the museums to carry out their missions that are really important to a copyright as both the user and creator of copyrighted material. So that's important issue to kind of see on the horizon.
Unknown Speaker 22:50
Okay, so to give sort of a concrete example of a project where we're facing all of these issues that we've talked about. Mica and I will talk a little bit about Pharaohs project and issues facing cross border projects in general. So established in 2013 Pharaohs is a collaborative project among 14 photo archives in North America and Europe, established to create a freely available common digital platform for research on images of works of art, through comprehensive consolidated access to their collections of photo archive images and associated scholarly documentation. So the Ferris consortium is comprised of 14 European and North American art historical photo archives, representing six countries, the United States, United Kingdom, Italy, France, Germany, and the Netherlands. So an over 25 million photographic images called from perhaps 1000s of sources, originals and copies published and unpublished, depicting cultural works created all over the world from every historical period. One of the longstanding and most complex questions for the fairest consortium, then is this how do we navigate copyright and intellectual property? Piece of cake right? The task is daunting. So in the initiative's infancy the pharaohs consortium made a deliberate decision to table detailed collective copyright discussion so as not to distract partners from the larger missions of mission of the initiative, but now it's time. So in the spring of 2019, the consortium successfully applied for and received a grant from the Mellon Foundation to fund a 30 month pilot project to create a linked open data research platform. This platform will make over 1.5 million images of works of art from five of the 14 member institutions available with accompanying scholarly documentation. The pilot project will guide the remaining Pharos members in their contributions to the research platform. With this project underway. The time has come for detailed discussions and agreements between the partners on open access and the assessment and communication of rights across the common platform.
Unknown Speaker 25:03
The origin and scope of our collections present many challenges. First, making a determination about copyright status is not a precise exercise. Determining what copyright restrictions apply to the digitized contents of members photo archives requires understanding the following. Whether the original works and the photographs are copyrighted. This can be a challenge, especially when there's any uncertainty about the authorship, source, country, dates and place of creation or publication of a work. Whether the photo photography of the object created a new work with separate sets of rights, and whether the digital reproduction of the photography created yet another work with a separate layer of rights. It also requires understanding how the answers to these questions vary under the copyright laws of different countries. It's also interesting to consider the transformative nature of the photo archive. A typical accession item is more than just a photograph. The image is presented in conjunction with detailed metadata and organized according to a bespoke system of classification. Beyond factual catalog information, this may also include hadn't handwritten original annotations and observations from researchers over the decades. How might copyright apply here? Finally, the fairest partners are at different points in copyright assessment and have different levels of resources and risk tolerance from institution to institution. So in June of 2017 11 of the 14 Pharos institutions met in Rome and among other items agreed to form an intellectual property working group to assess our holdings, and approach these questions collectively. Oops, sorry about that. So initially, it was our thought in recording the difficulty in recognizing the difficulty of adopting identical practices across institutions, that we would develop a set of principles concerning rights that we could agree upon, but we'd allow for variation in practice, when the fairest partners met again in June of this year, with the pilot project, making the consortium goals and deliverables more tangible, and the changing international legal landscape, which we'll hear more about soon, we recognize the need to more clearly understand and establish our IP objectives and obligations as well as accelerate our timeline.
Unknown Speaker 27:25
So with this in mind, Pharos is planning a facilitated workshop for March 2020, devoted to exploring our cross border intellectual property and copyright issues, and formulating our collective IP principles, policies and procedures moving forward, we will invite legal experts from all three territories represented within the consortium, the United States, the United Kingdom, and the European Union to work with us to answer questions such as the following. What are the boundaries of the public domain and exceptions to copyright law in your jurisdiction with respect not only to copyright in the work of art, but to copyright in the photographic reproduction? And the contractual agreements with owners? What does open access mean in your jurisdiction? And do you feel that we can apply these definitions and principles in an international context, the anticipated outcome of our workshop is a clear definition of open access between an across our member institutions as it applies to the fairest project, and recommendations for tools, licenses, policies and procedures for the pilot platform. A report of the proceedings and recommendations will be made freely available to the cultural heritage community. I'm also thrilled to share that we learned yesterday that we've received support from the crest foundation for this workshop. pass over to mica for some additional concerns on projects like these.
Unknown Speaker 28:45
Unknown Speaker 33:01
Okay, so I'm gonna focus on some some UK and European perspectives in light of some recent legal developments. But really kind of focusing this discussion around photographic reproductions and public domain works, because there's some really intense developments here that at the moment, a lot of people are watching, even in the US, even outside of the EU, and specifically a shiny new directive with an article that on its face looks like a declares public domain reproductions to be in the public domain. But we're going to take a look at that, and especially another directive that has the potential to undermine what that shiny new directive hopes to achieve. So like the, excuse me, like the US, the EU has a threshold for originality. That's the author's own intellectual creation, and it's an Article Six of the copyright term directive. But and this is a big, but there's a second option for protection. And that's that member states can protect other photographs that do not meet the threshold of originality. Um, so that really opens up to possibilities for protecting reproduction media. And this is what it looks like in practice. Okay, so we will start with kind of this point of no, there's no protection, and then suddenly, there's a bit of an input that puts it into that kind of category for other photograph, until it meets the author's own intellectual creation standard, which is the threshold for originality, and if so, then it's an original, it's an original photo, even if it's at that like very basic level of originality. And in terms of what member states have implemented the other photographs protection, we only have a few, so less than a dozen, and there's I've underlined Germany, because there's only one jurisdiction that has considered this specific issue of whether or not a photograph of a public domain work is protectable. Maybe you've heard about this case is rice angle her Museum, which sued Wikimedia for hosting a number of images that have been scanned from a catalog and then upload an image available online by user So, but they also sued the user and everyone else who use the images. So it was kind of this collective, we're bringing this forward to, you know, to reclaim. And what the court said was that these photographs are only other photographs. Okay, so they're not creative. But of course, if you have any understanding of what that means for other Member States, it's only binding in Germany is persuasive authority elsewhere, and anyone could disagree. So this summer, huge development, and that's article 14 of our revised digital single market directive. So here in the text, it says that when the term of protection for a work of art work, visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original, in the sense that it is the author's own intellectual creation. And then in recital 53, which is part of the preamble, and I've included it just below the text refers to certain reproductions when mandating that no two rights are warranted, unless, of course it satisfy that threshold of originality. So what this means is that the directive recognizes that there will be reproduction media that might meet the originality threshold. And if it does, institutions are able to claim copyright and commercialize it. But if it doesn't, they cannot claim that lesser related rights, so they can't enforce the other protections. So going back to this chart, if this is where we are now, after transposition, this is where we'll be. So the other photograph protection will disappear. And actually, instead of thinking about original photos, it's broadly drafted to incorporate other encompass other types of materials. So that's not just photographic reproduction. It's all the outputs that are generated during the act of reproduction. So the component parts metadata software, any other code, but there's some very important limitations. So first, it only applies to works of visual art. And that means what is a work of visual art? It's not, you know, a philosophical question. It's a legal question. But article 14 does not encompass acts of reproductions around other public domain materials. So books, sheet music, film, scientific, other technical drawings, plans, maps, sketches, the list goes on. And the directive doesn't itself to find visual art. So member states will have to decide what works qualify as visual art that may be defined in their own national legislation, or they could take the option of transposing the text to be more broad to incorporate other types of public domain content.
Unknown Speaker 37:39
But its strength is that you know, it will apply to anyone who's reproducing public domain material, so professionals, amateurs, tourists with a smartphone will all be disqualified from claiming rights unless the reproductive media meets a threshold of originality. But we all know that there's lots of other ways that reproduction can be prevented in the first place, namely by prohibiting photography on site, or access to the work physical access to the work, or restricting any reproductive media by contract or personal or educational use, etc. So I also want to look at the text around the threshold of originality, because the text does recognize, of course, there will be certain reproductions that do satisfy the threshold, and therefore might be protected and commercialized. But this is already the case across the EU. So the bigger question is, you know, what real impact will this article have on how copyright is interpreted by institutions? Because the argument has always been that this reproductive media needs the copyright threshold. And in a lot of the discussions around this, especially at governmental levels, the question is kind of who should decide this? And in that process, you know, the issues become conflated. So I have a screenshot of the House of Lords in the UK, which debated this question just about a year ago. And it was framed around whether copyright should be left to institutions to decide or whether government should intervene. And you know, the arguments that followed, let me tell you, I sign this as my exam for my law students, and that it was very juicy, because we have people talking about really antiquated ideas around what access means. But there was a lot of completion around the decision to claim copyright and licensed images as an operational matter, or an internal policy decision that should be taken by institutions. But of course, that decision to employ a copyright based business model is not an operational matter if the law does not support the business model in the first place through the copyright. So that is the specific issue here. And we don't have a lot of guidance around what that means in this context. And there's also an elephant in the room. That's the issue of how digital editing technologies and complex digital methods are maybe going to satisfy the threshold of originality or not. The majority of relevant case law considers largely outdated photographic reproduction practices. So all of these cases which you may have seen in some of the discussion around this, examine analog photography, rather than contemporary reproduction, and globally quartz movements. island on that idea of whether originality can arise during computer use of computer software to edit or enhance a digital file. So practically, there's an argument here that will be available to put forward that contemporary reproductions are a completely different process. And the new technologies that are involved are distinguishable from the past cases. So therefore copyright can arise. And then this other directive that's kind of haunting us in the background. So it was published just two months after the digital single market directive. And it's the revised public sector information directive. It covers what public sector bodies can do with documents and data that are produced during the execution of a public task. So in other words, glam institutions and reproduction materials. And what it does is it focuses on the kind of the commercial value of this material. So it's not it is, of course, it wants everyone to get access to this material. But it's more for the purposes of innovation and creative industries and new technologies, because there's a lot of really important primary material that can be used to stimulate the economy. But there's a number of ambiguities that can really undermine what's going on in article 14. And first is this bit here, which hinges on the obligation to release materials as commercial, or non commercial reuse rather than commercial and non commercial reuse. So it generates a bit of uncertainty around whether institutions must allow us with the reproduction materials. And then Article Six exempts institutions from having to provide documents for free. It allows institutions to set fees above marginal cost to support operations. But it does specify that the charges have to be practical and reasonable. And more specifically, it's phrased as the total income from supplying and allowing the reuse of documents shall not exceed the cost of collection, production, reproduction, dissemination, data storage, preservation and rights clearance with a reasonable return on investment. So that reasonable return on investment is what starts to get interesting, we're thinking about how we justify what the fee is, at the moment, that fee is not really reflective of what the actual costs of maintaining and providing the document is. But ideally, we might start to see translations to more service based fees to recoup costs that are associated with all of this, rather than that opaque copyright base fee that can be sometimes hundreds of dollars or pounds, or euros wherever it is.
Unknown Speaker 42:18
Third, article 12 allows institutions to continue to make exclusive arrangements for the right to digitize collections. But it recommends that they should be limited to a shortest time as possible in order to comply with the principle that the public domain material should stay in the public domain once it's digitized. So it suggests a period of no longer than 10 years subject to review. And those arrangements are supposed to be transparent and made public. And in addition, institutions are supposed to receive free copies of all the digital material, and they're supposed to publish them to the to the public for any reuse once the agreement expires. But think about this in practice, you know, 10 years is a really long time to for the public to wait, when we think about cultural resources digitizing 22,009 If they're released today, as long after key technical standards, resolutions, formats, software have moved on. So after 10 years, those materials might be outdated for contemporary innovation purposes, and forth without IP rights setting that aside, you know, access remains a separate issue. Um, so article 14 exempts institutions from having to make high value datasets available free of charge. So this can create an incentive to release lower quality datasets to the public while maintaining kind of close business models around the high value datasets. And then finally, we all know terms and conditions are still a thing. So the psi directive acknowledges this, but discourages placing reuse conditions around documents while recognizing that certain licenses might be justified in the public interest. So, you know, potentially where there's personal data, or we want the source to be acknowledged. But in these cases, conditions should be objective, proportionate and non discriminatory and limited to the greatest extent possible. But we should not underestimate the lobbying power of some of the biggest beneficiaries to the maintaining the status quo Bridgman. Specifically, there's major recessives and incentives that remain for commercial picture libraries to kind of forge ahead in spite of article 14, and to look for these exemptions that exist in in other places. Because our artwork reproductions comprise a significant source of revenue. And, in fact, the Bridgman decisions had no impact on the company's practices. Bridgman continues to claim copyright and sign exec or exclusive licensing agreements internationally, especially this one for all 439 state owned museums in Italy to manage the licensing. So here's a summary of kind of what essentially has broken my heart. Article 14 only applies to works of visual arts, so we'll have to see how national transposition proceeds over the next couple of years. Article 14 only really eliminates the other photographs protection from being applied to reproductions and there's only binding effect in Germany. So this means that copyright claims will likely persist especially via reproductions made or edited using new technologies. But there of course, will Be a lot of glam institutions that kind of see this as pushing them forward toward open access, and kind of taken on board. And then of course, there's ample room in other areas to restrict access to the public domain via different gaps online reuse other measures visited photography bands, etc. So I'm going to pass it back to Emily. Yeah.
Unknown Speaker 45:26
So if you're thinking all I have to worry about is copyright, unfortunately, you are wrong. There are also such things as called as more rights for authors more rights, or they refer to non economic rights that are personal to the author such as the right of attribution, or to be credited as the author of one's work or the right of integrity, the right to prevent prejudicial distortions of one's work. These rates, according to one court, quote sprang from a belief that artists in the process of creation injects his spirit into the work, and that the artists personality as well as the integrity of the work should therefore be protected and preserved. But the landscape of more rights, as you can probably predict is very complex as a combination of both federal and state laws, as well as industry customs and private ordering. More rights have a strong basis in international law and the corresponding legal protections. So if you kind of think back to what I was talking about earlier with burn, bird, the Berne Convention requires countries to enact laws to protect an author's right of attribution and the right of integrity. And this is one of the reasons why the US was delaying, joining burn so long another reason? Because where are these rights in US law? So that's a good question. And this is one of the questions that the US Copyright Office recently looked at it, and it's one of its studies. And in when Congress was joining, considering joining Bernie in the 1980s, it decided that it really did not need to meet to enact a new copyright law or a new law to meet these moral rights obligations, that it was this patchwork of all these federal and state laws, as well as contracts that together meet these arunesh obligations. So what are the different kinds of patches that are make up moral rights protections in the US, we have state laws, state laws that cover piracy and publicity, contracts, fraud, misrepresentation, unfair competition, and defamation? Of course, you know that every state has their different laws. So there's significant variability for more rights protections for authors depending on where he or she chooses to live. There are also contractual agreement agreements that kind of supplement authors protections for more rights. These are really important points of negotiation. And these contracts are well established and vary from industry to industry. So if you think about the large industry negotiated guild contracts there in the film industry, it's why we have those long credits at the end of the film. So more rights can also be found in federal law and the copyright act under the Lanham Act for claims and Miss attribution, passing off and false advertising, or the 1990 visual artists Rights Act, or vara, which provide limited moral rights of attribution integrity for artists of qualifying works of visual art, and section 1202, title 17, which prohibits the distribution of false copyright management information. That's anything that mentions an author's name, as well as the intentional removal or alteration of copyright management information. So what does this mean for museums, museums must certainly be aware of this patchwork of federal and state laws as well as contracts that make up moral rights protection in the US. More rights have even stronger tradition and protection in the international context, especially in Europe, so it's something that should be considered when you're developing any international projects. An important note moral rights protections in these countries are often more extensive, and for longer duration than in the US. an author's right of attribution means that when a museum uses an author's work, such as in on its website, or in publication materials, the author's name must be reasonably prominent and accurate. And also means an author's right of integrity, which means that author has the right to prevent distortion, destruction, mutilation, or material alteration, to work as prejudicial to the creators on a reputation is direct can be infringed, where Museum has permission to reproduce an audit, an honest work and puts on its website. But if it crops the image or kind of stretches it to fit a page, or a colorize is an image that was originally intended to be black and white, that's when moral rights can can be triggered. So obviously, more rights apply to an important core museum activities and mission and they really should be part of any kind of your checklist when you are implementing and considering both domestic and international projects. You would like to learn more about more rights. Our report is on the website copyright.gov. So next Okay, so last
Unknown Speaker 50:03
but not least, before we move to questions, I thought we would focus on an issue that discussing ethical implications is, you know, not necessarily new, but it's gaining momentum because of its digital aspects. And that's the debate around restitution and specifically how IP concerns are kind of crucial to repatriation policies as we think them through, both at an institutional and governmental level. So in the EU, governments are really revisiting this and of course elsewhere about repatriation and evaluating where national institutions should stand when returning Colonial Era objects that were collected from formerly occupied countries. And at the moment, this discussion is heavily focused on Africa in the EU. But copyright is a crucial dynamic that we need to start considering. So the legal systems that determine whether in under what circumstances copyrights arise in both material and digital culture, are products of colonial histories. So starting with the 1710 statute of an the first modern Copyright Act in the UK, also leading up to contemporary copyright law, which is obviously built upon this revision upon revision, and including the systems regulating the underlying objects, which sustain ownership and control over the works digital file. So these laws are often held up as barriers to institution. But, you know, excuses that the law doesn't permit it are kind of false claims to innocence. Because I'm a lawyer laws can be changed, you know, they might be inherited, but we can do what we want with them. So it's not clear how long the status quo will continue because, um, November of 2017, French President Emmanuel Macron, commissioned a report that was kind of looking at the potential for restitution of African cultural heritage that was held in French institutions. And one years later, Scalia scholars Feldene, Tsar and Benedict Savoy, published a really extensive record, it's in French and English on Francis role. And the primary purpose is to kind of lay out the history and the responsibility of France to exploit it African cultures, and the challenges that underlie physical restitution, its administrative processes and reparations, it's 250 pages, I strongly recommend reading it if your glam is engaging in these conversations internally. But there's a short very, very short section on the sharing of digital content, and it's on pages 67 to 68 of the English version. And for works already digitized. The report recommends a radical practice of sharing including one rethinks the politics of image rights use. And it promotes the creation of a single Open Access Portal to documentation of African cultural heritage, and associated materials held and collections for works not digitized. The report recommends systematic digitization, following a dialogue between the institutions and the parties involved. So I kind of want to consider these recommendations in context, especially with this kind of radical practice of sharing idea. So as a recommendation, you know, this is what we're all kind of working toward, because you know, the state of open and what that even means is often interpreted differently from institution to institution, and often quite subjectively. But the underlying issue here, and in this specific context is that if it is adopted by the French government, it's going to set a double standard of imposing open access, and free access to digital cultural heritage of African cultures, while similar obligations are not expected of French national institutions. So this is actually a Google sheet of different open glam instances that I managed with Douglas McCarthy of Europeana, and I spoke about it a bit on the panel yesterday, but we collect instances of open glam that are kind of globally based on the Open Knowledge Foundation, definition of open, which is, you know, for commercial commercial use. And at the moment, only 15 institutions in France actually make eligible data available for commercial use. Only nine have adopted an open access policy for all of their data. So rather than on a collections bases, you still need to kind of like dig deeper to see what type of data is made available and what quality to get a more accurate picture. But this radical practice of sharing is not yet imposed on for instance, intuitions, and considering that IP is a Western construct that can carries its own colonial bias. You know, it follows that public domain and open access are also components of this colonial thinking. So we need to be rethinking what we're applying them to to begin with. But if we look closer at the politics of image rights use one of the museum's of the report focuses on is music caper only in Paris, which holds 7000 70,000 Sub Saharan African treasures, and that represents about two thirds of the African objects that are still held in France. So according to the museum's digital collection, and exhibition portal, it hosts 1,063,300 and objects of African digital cultural heritage, and it claims copyright and all of it. So the politics that are embedded in this copyright secure to the institution to write the to benefit economically from the object's possession and the exploitation of its reproduction and to exclude others from accessing and reusing that cultural heritage.
Unknown Speaker 55:01
But the report does not advocate, you know, for emptying museums of collections, it actually starts by identifying a group of works fit for restitution like this one in bronze. And it highlights the many ways that African material cultural heritage has been exposed to a system of appropriation and alienation as a result of colonization. And it doesn't ironically, extend this wonderful analysis to the digital cultural heritage. Because the impact is that, you know, the IP will extend to control over how the work has been documented and catalogued how it historically has been exhibited, as well as contemporary forms of exhibition, how it has been merchandised through postcards, and who is economically benefit from its commercialization, how it has been re documented under new technologies over the years, as well as authority, knowledge generation and dissemination around the works, and including about the dissonant communities themselves. So due to copyright, digitization carries the ability to symbolically appropriate and control the knowledge personhood object that is often very embodied in the material work. And if the material work is returned. While all of the digital materials remain in France, you know that the material will be alienated from the material work and the communities who are seeking to reappropriate their own heritage. But the report's recommendation around systematic digitization also means that the material culture will be digitized in France, and trigger the application of French and EU IP law. So we should start to kind of consider who is best placed to undertake these tasks and the system of values that will inform this answer. Because digitization is not a neutral act, even the choice to digitize in the first place. And we should critically examine whose needs are served by systematic digitization, and explore how more nuanced systems serving the communities of origin might be established through collaborative work. So there's a really wonderful paper that I want to highlight by Andrew Prescott and Lorna Hughes that is arguing for slow digitization process, and involves paying the same attention to the processes of digitization that we pay to the objects themselves, instead of rapidly digitizing to make cultural heritage available online. Because digitization as well as preservation, access and control our cultural and curatorial prerogatives that should belong to the communities of origin, it's going to impact how heritage is remembered, preserved and represented. And legally, that reality remains that works like the Benin bronzes were looted. So the choice to digitize and how should be held by that community. But there's also the concern that restitution might be conditioned upon digitization for preservation purposes. And I think we need to start accepting that some of the works may be lost. And that is needed to preserve the work itself is rooted in western practices around collection, management, and preservations. So finally, all of us, you know, this, we are very familiar with the idea of a new digital resource that's going to solve all problems should sound very familiar. We always want to go big. And in this case, digitization can enable wider African communities access during the transition, and even after restitution. But restitution itself is going to be a huge and complicated endeavor. So we should think about how we might use existing models of digital heritage collections, cultural data aggregators, and online platforms. You know, they're designed by organizations that have successfully delivered on these portals. Because one of the reasons why citizen led initiatives like wiki and GitHub are great platforms. You know, it's it's not that they're not without their own issues of copyright, excuse me of authority, and gatekeeping, but they enable communities to reclaim cultural narratives and native languages. And we need institutions to play a role to help educate the public around sensitive treatment of heritage objects, and to make sure especially that data sovereignty is respected. So all of this is kind of included in a response that I wrote with my colleague, Mattel pavis, to the report itself, and it was signed by 108 academics and practitioners from the legal and glam sectors. Some of them are in the room today. And it's been published open access. Also in the Journal of intellectual property information technology and E commerce law. There's a version in French as well. So if you have other questions around some of these issues, I'd recommend downloading this and also getting in touch. But now we have a little bit of time for questions.
Unknown Speaker 59:21
throwing a lot at you today. Thank you for joining us. There any any questions for our panelists? Everyone's hungry. Yes. Microphone. Oh, wait. There's a button. There's a button on my side.
Unknown Speaker 59:45
I think it's is it working now? Yes. Hi. I think mica mentioned early on the ubiquity of social media sharing and the copyright infringement that happens on Facebook and all the platforms everywhere. So Can Can you any of you speak a little bit more to cases that you've seen where the copyright holder has won in court? Or if an institution or individual has violated a copyright of an artist's work through digital social sharing? Is or do you have
Unknown Speaker 1:00:24
lots of them? There are lots of them. I mean, I don't I can't rattle off a citation for you right now. But for example, there was a I'm gonna get these facts on like the, I think on the Fox News case with with it. Well, that would that didn't get, like,
Unknown Speaker 1:00:41
which one do you want? Yeah,
Unknown Speaker 1:00:42
Unknown Speaker 1:03:01
Any other questions?
Unknown Speaker 1:03:04
We're standing between you and lunch, we get it. We're not offended.
Unknown Speaker 1:03:09
I have a super basic, ever really basic 101 Copy. Right. Question for you. Miko. Yeah, I mean, it's about the term. So 1924 versus the death of the author? How do you do that math?
Unknown Speaker 1:03:27
Do you want to talk about the difference between publication or the present?
Unknown Speaker 1:03:33
Well, let me tell you what I'm Do you know what I'm saying? You understand my question?
Unknown Speaker 1:03:36
And answer. Yes. And the answer there? The simple answer is the lawyer answer is it depends. Because it really depends on a lot of different factors when the work was first published, because you have to account for what was the law at the time, things changed in 1976. So you have different the copyright of 1976, with implementation in 1978. So you have if it's for work created today, it's easy, because it's life for the author plus 70 years if it's work for created, published before 1924. It's easy. It's in the public domain, anything in between, then it depends. And it really depends on the specific work, whether it was published, whether it was assigned, and whether copyright has expired or not. So there are lots of resources on the internet that if you have a specific question, they can do the math for you. And but for anything between 1978 and 1924, you really have to you could use resources on the copyright office to look up who the actual owner is, if you're really looking into but yeah, I mean,
Unknown Speaker 1:04:46
the way I summarize it, is that what the critical distinction is when was the work created? So that life plus seven year rule only applies to works created after January 1 1978. Before that, it did Really copyright duration. before that date, the duration of copyright was measured from publication date. So that's why it matters. When was it published? Where was it published and all of that. So for me, that's, that's the key thing to remember, is like, when when was it made? Yeah. And
Unknown Speaker 1:05:16
I would just say, you know, the Peter hurdle chart, which is now hosted by Cornell, for US law specifically. So you know, what, for US law, whether you're looking at, you know, data creation, date of publication, or artist's life dates, you know, and then for for work, you might also be looking not only at US law, but you're going to be looking you might want to look at it for from a UK or an EU or another perspective as well. And in that perspective, you might be looking just at life dates.
Unknown Speaker 1:05:41
And there's something called the public domain calculator, which I think is managed out of the air in the University of Amsterdam, which is a really helpful resource for some of the jurisdictional questions around whether something's in the public domain.
Unknown Speaker 1:05:58
Hi, one more question. For works under copyright, the copyright holder can grant permission to institutions and individuals to use the work, right. So. But I, in my own experience, I've seen it quite arbitrary in terms of the cost of obtaining that copyright. And it just seems so bizarrely abstract, depending on the use and the audience and the and so do you have any other experience of standardization of that kind of pricing or costs? Or is there any legal recourse for the copyright holders to take advantage of the users?
Unknown Speaker 1:06:40
Yeah, yes. And this is America, you can charge whatever you I mean, that was what my copier professor would always say is like, to that very question like, can people just charge whatever they want? The answer? Yeah. I mean, the market, the market is the limit is the limit, I guess, on what people will pay. But yeah, I mean, if you're the owner of the copyright, you can you can charge whatever you want for that for license.
Unknown Speaker 1:07:08
So in my experience, I will get a one an image that is clearly in the public domain, it's Rembrandt in 17th century. And the institution or is a third party Clarence place will assign a copyright symbol to that image credit, is that, does that hold any legal weight? I mean, we'll put it as you know, to be stewards, but I always wonder if we don't include it. What do I mean? Are we liable for anything?
Unknown Speaker 1:07:42
Do you? So you said if we don't include it, are we violating anything? Yeah. Okay, so so this is the this is the question, is there? Is there a copyright or not a we don't really know, because we don't have a lot of legal guidance, we think we know we have the Bridgman rule, which says, if it's a faithful reproduction, then no, there is no new copyright in that reproduction, whether it's analog, digital, etc. Any creative contribution during that act of reproduction has to rise to the level of originality for the new work to have a copyright in it. So there is nothing wrong with not putting a copyright claim on there. And in fact, we would encourage that to not happen.
Unknown Speaker 1:08:25
Unless, of course, you you paid Yeah, you have a contract with the Rights Museum and says, I will use your copyright and you you write it down. If you don't use it, you're not violating copyright, necessarily. But you're violating your contract. So, so that's yeah, you know, it can depend.
Unknown Speaker 1:08:40
Yeah, it does.
Unknown Speaker 1:08:42
So that's C coporate. C use is what I was. Notice, which is the formalities which I was talking about, which is so that C used to be a requirement for you to receive copyright protection, you had to put that C on your work, not under US law anymore. Except the power of that C even though it has no legal weight now is very powerful. Even the Librarian of Congress has mistakenly said that that say means copyright. No, but it is but people still use it to mean copyright. So it's a very powerful symbol. So yeah,
Unknown Speaker 1:09:21
so then the question is whether or not they're your images or someone else. And if someone else is claiming copyright, then you have to do what they say. But if they're your images, push it out the door and let it go. Okay, at this point, if you want to leave don't feel awkward doing so. But if you want to stay party.
Unknown Speaker 1:09:42
So my other question is, what do you do with unknown authors or you can't find the author and you still want to distribute the work because it's culturally significant and it's from the 20th century?
Unknown Speaker 1:09:56
Well, I I do a risk assessment. And I say, I think I think that the likelihood that someone's going to come after me is very slim. And if they do, we'll be able to sort it out in a perfect world, I'd be able to check all the copyright office records and double check that it's not, not registered. Because that would greatly reduce my exposure. But the Orphan Works problem is huge, because copyright is automatic. There's no registration requirement lasts forever. So yeah, there's a ton of orphan work out there. And for us, at least at the Getty, you know, we just case by case, we, you know, we kind of decide whether it's an acceptable risk, but we're taking the risk.
Unknown Speaker 1:10:46
So the copyright office, digitizing those copyright records, as we speak, to make that risk a little bit easier, so that you don't have to come physically to the copyright office in DC to look at it. But it is an issue. Legally, it's like core frameworks is the term that they issue in the Copyright Office has produced numerous studies on this, and Congress has considered legislation about how to enable people to get around this problem. It hasn't gone very far. So is, unfortunately a problem. Now always just stick around.
Unknown Speaker 1:11:22
If you're in the EU, there is orphan works legislation that will allow you to license it for use within the EU, but it doesn't.
Unknown Speaker 1:11:30
Yeah, I mean, I actually just had a discussion with the Saudi copyright office recently, about what to do about orphan works, because they're concerned. Because everybody's concerned, they don't have legislation and do it. So it is international, it's the same, it's the same thing. You just have to do as mica said, a risk assignment assessment, and try to do your due diligence and doing whatever you can.
Unknown Speaker 1:11:54
I would also say that most of the time when there's an orphan work in a rights holder is eventually located, if at all the rights holder is usually in some I'm referencing some research that someone at my research center has been doing. Like it's static to learn that it has been collected that it exists somewhere that someone is using it, you know what I mean? Like, that sort of thing. There's never a oh my gosh, I can't, you know, I'm gonna sue you, that sort of thing. So this is Victoria. Stobo is an archivist who did a PhD in cultural heritage at the Create center that I was also working at. And she did a lot of case studies on different organizations and their risk assessment for orphan works, reuse, and whether or not you know, the rights holders were reached at an eventual point in time and what their reactions were to learn all of this stuff. So it's, it's really interesting. All right, thank you very much.