[MSN] Inside Views: The Nexus Of Cultural Heritage And Intellectual Property

[Museum Security Network Mailinglist]

21/9/2006
Inside Views: The Nexus Of Cultural Heritage And Intellectual Property


By Molly Torsen

Over the past several decades, scholarship on the nexus between cultural
heritage and intellectual property law has alternately garnered keen
international attention or remained stagnant. Those jurisdictions that have
a greater interest in protecting their heritage - perhaps because of its
cultural importance or because of a history of misappropriation - through IP
laws have, of course, focused more resources and thought on the issue.
Australia, for example, has grappled with the topic for decades; they began
looking at heritage protection issues for their indigenous populations
beginning at least in the 1930s. 

On an international platform, however, there is little legal consistency or
ideological agreement on the appropriate means through which to protect all
the objects and expressions that comprise a culture’s heritage. From
differing legal systems to different degrees of autonomy for indigenous
civilizations to different understandings of what constitutes ethical
treatment or dissemination of cultural heritage, cultural organizations
around the world are struggling to determine the most appropriate ways to
handle the intellectual property assets tied to cultural goods.

These cultural institutions generally house a vast array of cultural
heritage from both local and international peoples. As such, many believe it
would be useful to have an international consistency insofar as the manner
in which this heritage is treated for purposes of streamlining such things
as cross-border borrowing and lending of heritage objects and providing some
high-level guidance for an array of other difficult issues. 

There have been international treaties regarding the physical aspects of
heritage. Some examples include the 1954 Convention for the Protection of
Cultural Property in the Event of Armed Conflict (The Hague Convention); the
1970 United Nations Educational, Scientific and Cultural Organization
(UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit
Import, Export and Transfer of Ownership of Cultural Property (The UNESCO
Convention); and the 1995 International Institute for the Unification of
Private Law (UNIDROIT) Convention on Stolen or Illegally Exported Cultural
Objects (The UNIDROIT Convention). 

Regarding the intellectual property aspects of heritage, however, there have
only been attempts at international agreement. Some of the attempts at
creating consensus include a joint project between UNESCO and the World
Intellectual Property Organization (WIPO): the UNESCO-WIPO Model Provisions
for National Laws on the Protection of Expressions of Folklore Against
Illicit Exploitation and Other Prejudicial Actions of 1982; the South
Pacific Model Law for the Protection of Traditional Knowledge and
Expressions of Culture of 2002; and the UNESCO Convention for the
Safeguarding of the Intangible Cultural Heritage of 2003. 

Some of the problems these latter agreements have had include lack of
international interest or support, lack of strong definitions for the
terminology they use (both legal and nonlegal terminology), the role of
traditional knowledge in the general heritage conservation debate, and
dissimilar current practices amongst institutions in the areas of archiving,
preservation, website design and copyright law. As such, cultural
institutions tend to operate with the best information they have available
for their intellectual property concerns, rather than according to any set
of international best practices or guidelines. 

To fill this gap, organizations such as the International Council of Museums
(ICOM), headquartered in Paris, have begun to look at the topic of
intellectual property as one that needs urgent attention as more and more of
the world’s art travels from country to country and becomes accessible
online.1 There are, for example, distinct differences amongst cultural
institutions in the way in which art is digitized and placed online. 

Online Collections and Exhibitions

At the Art Gallery of New South Wales in Australia, which houses a large
collection of contemporary art, there is a brief mention of copyright law to
supplement its longer explanation on its Reproductions webpage regarding
image reproduction costs and processes:

This department can supply details of copyright holders where possible. It
is the responsibility of the client to gain clearance to reproduce, in
writing, from the copyright holder of the works requested. A copy of the
permission to reproduce must be forwarded to this department before
photographic material can be released.2

Far on the other side of the equator, Sweden’s Moderna Museet incorporates a
very brief mention of copyright law on its Website webpage:

All material on Moderna Museet’s website is protected by copyright laws.
Texts and pictures may be copied for non-commercial home use only.3

At the other end of the spectrum – and across the Atlantic Ocean – the
Smithsonian Institution’s website has a long webpage dedicated to the
copyright that inheres in its website.4 The webpage provides an overview of
intellectual property law generally; fair use provisions; commercial use
restrictions (and provides an e-mail to the Smithsonian’s Office of Product
Development and Licensing); information on trademarks as they relate to
website use; a disclaimer on the content of the website; and a list of
frequently asked questions with regard to IP and the website.

Another example is the newly opened Musée du Quai Branly in Paris, which
houses a broad collection of artifacts. French moral rights are some of the
strongest in the world, on top of which this type of collection calls for
special protection. The museum’s “legal notes” webpage instructs the website
user on his or her intellectual property responsibilities, pointing to
specific parts of the law.5 It explicitly prohibits full or partial
reproduction and translation of the website. The webpage further instructs
the user on what constitutes unauthorized reproduction and explains that
downloading and printing any webpage from the website shall be solely for
personal use and should be destroyed thereafter. 

“Organizations such as the International Council of Museums (ICOM),
headquartered in Paris, have begun to look at the topic of intellectual
property as one that needs urgent attention as more and more of the world’s
art travels from country to country and becomes accessible online.”One of
the interesting facets of the Internet, of course, is that the same webpage
is viewable from any corner of the world, and therefore, any jurisdiction.
Australia’s fair use provisions are currently more stringent than those in
the United States but an individual in Australia can access all the content
of an American-based website. An Australian artwork traveling to a United
States exhibition is treated like an American artwork for copyright
purposes, as per the Berne Convention, which mandates “national treatment”
in Article 5(1).6 As such, for example, a German artist’s moral rights can
go unacknowledged on American websites.7 While the effect the Internet has
had on international copyright practices in general is beyond the scope of
this writing, it is certainly an important issue that potentially impacts
every digitized work under copyright.8 

Very few museum copyright notices seem to acknowledge or explain the issues
regarding traditional cultural expressions (expressions of folklore), even
when the museum’s physical collection including such objects is reflected on
its Website. This may be the result of a lack of international leadership
and/or consensus in the legal arena. The Simon Fraser University Museum of
Archaeology and Ethnology [in Canada] has put some digital photographs of
ethnographic artwork on its website and has simply added a copyright notice
to its webpages,9 letting copyright law speak for itself. A different
approach than adding legal tags to a website can be seen at the website of
the Burke Museum of Natural History and Culture in Seattle, which houses an
impressive collection of archaeological and ethnological objects. It has
thorough reproduction and research access policies as well as an explicit
copyright statement, retaining sole copyright for the website content,
limiting website use to educational or research purposes and specifically
prohibiting commercial use of any content on the site.10 

Coffee Table Books, Catalogues, and Possible Future Rights 

A tangential issue that is uncertain in the international museum arena is
whether photographs of two-dimensional artwork in the public domain are
copyrightable. The 1999 United States District Court case, Bridgeman Art
Library v. Corel Corp.,11 ruled that ruled that photographs of public domain
paintings cannot be protected under copyright law due to a lack of
originality. While this finding has not been challenged in the international
arena or at the US Supreme Court, it has potential to impact museums’
ability to control and profit from reproductions of much of their
collections. This is because museums have traditionally been able to license
photographs of their art objects, for a profit, to entities wishing to use
those images, ranging from publishing companies that make glossy ‘coffee
table’ books to companies using artwork on pamphlets. 

Another timely issue in the art/law nexus is the appropriateness of droit de
suite, a royalty for visual artists on the resale of artworks, in art
publications. Canada’s Society for Reproduction Rights of Authors, Composers
and Publishers (Société du droit de reproduction des auteurs, compositeurs
et éditeurs au Canada) has recently been cited for sending invoices to
unsuspecting auction houses that are reprinting images of artists’ works in
their sale catalogs without paying for using those images. While some might
consider auction catalogs commercial, others consider them academic; some
worry that catalogues raisonées could be similarly affected and that art
imagery will be locked away under price tags that are unaffordable for
publishers and gallerists. The freedom with which images have been used in
this field has long gone unregulated in most jurisdictions.

Because of the sometimes-nebulous legal parameters of intellectual property
in museum and gallery collections, it may be useful to focus international
attention on best practices in this arena. While an authoritative text or
list of legal guidelines on the international scale are currently not
feasible because of the ongoing discussions and disagreements in several
areas (traditional cultural expressions, e.g.), it is important for museum
professionals to understand the issues for physical art, digital
reproductions of that art, and online digitization efforts with regard to
their own jurisdictions; and to be exposed to ways in which other
jurisdictions and institutions are handling these issues. A
“one-size-fits-all” approach is currently inappropriate but an understanding
of the issues and legal landscape is essential in order for art and heritage
professionals to make informed choices regarding the art and heritage for
which they are stewards.

Current notable efforts in researching issues related to the above include
the World Intellectual Property Organization’s heritage research under the
heading Promoting Creativity and Safeguarding Cultural Heritage;12 this is a
long-term effort in its beginning stages to collect data regarding current
practices and understandings of intellectual property in the museum
community before undertaking any guidelines or best practice-type endeavor.
The International Council of Museums International Committee on Museums of
Ethnology is also interested in tackling the issue.13

The Inter-American Development Bank (IDB) in Washington, DC will hold a
related symposium on 21 September, focusing on understanding the cultural
heritage debate, and explaining some of the inherent intellectual property
issues.




Molly Torsen is a Program Attorney at the International Intellectual
Property Institute (IIPI) in Washington, DC and is involved in the World
Intellectual Property Organization’s Heritage project. This writing does not
reflect the viewpoint of either IIPI or WIPO but are the author’s own ideas
based on her research.

1  See, e.g., ICOM’s Legal Affairs and Properties Committee:
http://icom.museum/legal_committee.html.

2 http://www.artgallery.nsw.gov.au/collection/image_reproduction.

3  http://www.modernamuseet.se/v4/templates/template4.asp?id=41.

4 http://www.si.edu/copyright/.

5 Conditions d’utilisation du Site, available at
http://www.quaibranly.fr/index.php?id=18.

6 Authors shall enjoy, in respect of works for which they are protected
under this Convention, in countries of the Union other than the country of
origin, the rights which their respective laws do now or may hereafter grant
to their nationals, as well as the rights specially granted by this
Convention.

7 See, e.g., Martin Kippenberger (German, 1953 – 1997). Untitled (A la
Grande Cloche), 1995, available at
http://www.moma.org/collection/browse_results.php?object_id=34527. German
moral rights end with the end of copyright protection, i.e., 70 years after
the artist’s death.

8 For an interesting discussion of the topic, see Olena Dmytrenko and James
X. Dempsey, Copyright and the Internet: Building National Legislative
Frameworks Based on International Copyright Law, Dec. 2004, The Global
Internet Policy Initiative, available at
http://www.internetpolicy.net/practices/20041200copyright.pdf#search=%22bern
e%20convention%20national%20treatment%20internet%22.

9 http://www.sfu.ca/archaeology/museum/nwcc/T1.htm.

10 http://www.washington.edu/burkemuseum/copyright.php.

11  36 F.Supp.2d 191 (S.D.N.Y. 1999).

12 http://www.wipo.int/tk/en/folklore/culturalheritage/predatabase.html.

13 See, e.g., Martin Skrydstrup and Wend Wendland, Protecting Intangible
Cultural Heritage; From Ethical Dilemmas to Best Practice, ICOM News No. 2,
2006, available at
http://icom.museum/intellectual_property_eng.html. 


http://www.ip-watch.org/