Canat, Guibault and Logeais (2015)

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Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Canat, Guibault and Logeais (2015)
Title: Study on Copyright Limitations and Exceptions for Museums
Author(s): Canat, J., Guibault, L. and Logeais, E.
Year: 2015
Citation: Canat, J., Guibault, L. and Logeais, E., Study on Copyright Limitations and Exceptions for Museums, World Intellectual Property Organization (2015) SCCR/30/2.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: The 45 member countries with statutory exceptions for museums were analyzed. Additionally, a survey was conducted amongst 71 stakeholder members of the International Council of Museums.
Data Type: Primary and Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: Yes
Comparative Study?: Yes
Literature review?: No
Government or policy study?: Yes
Time Period(s) of Collection:
  • 2014-2015
Funder(s):
  • World Intellectual Property Organization

Abstract

The question addressed in this study is whether the current state of copyright exceptions and limitations in copyright law are fitted so as to enable museums to carry their mandates and if not so, how to ensure that the provision of museum services falling in the scope of their mandates, is not impeded taking account of the interests of all stakeholders. How can the rights holders’ authorization best be ascertained, through the law or through contract? Can the exceptions and limitations in the copyright acts of the Members of the Berne Union be amended to alleviate problems of legal uncertainty?

Main Results of the Study

Legal certainty being the backbone for the development of activities, museums need to have a clear understanding of the rules that apply and should apply to fulfill their mandates which, for the purpose of this Study, are non-commercial as per the ICOM definition.

The feedback sent by the museums reveals the following main concerns: 1) Time spent and costs incurred for the completion of a digital inventory and the creation of corresponding databases and for management of rights when mounting exhibitions; 2) The boundaries of the making available of the collection to the public on their websites, for information, enjoyment and research and study.

Policy Implications as Stated By Author

Recommendations to the museum community

  • Museums and rightholders should cooperate to ensure that they get a fair return in the subsequent exploitation of the artwork by third party operators.
  • Museums should also negotiate with the various stakeholders and in particular with academics, artists and collective management organisations to update licenses and tariffs, to ease the acquisition of permissions and to anticipate new uses that may need authorisation. Joint action of museums would enhance their negotiation position and help draw a blue print where the lawmakers may not have set applicable rules or even figured out the stakes. Statements of the museums community on thumbnail images could provide some guidance, more will be needed with digital humanities and 3D printing as well as with crowdfunding.
  • Cooperation between museums should be encouraged and those more experienced could provide useful guidance to fellow museums through the aegis of ICOM and project partnerships.

Recommendations to the lawmakers

  • Digitization of collections appears to be an inescapable step to fulfill their primary mandates of preservation and communication to the public for information on heritage resources to be visited. In this respect, rules on digitization of artwork held in the permanent collection of a museum, whether or not orphan works, for preservation purposes, could be clarified and harmonized as exceptions or limitations. Digitization of unpublished works could follow the same rule as for orphan works, e.g. prior due diligence to locate rightholders and seek consent and disclosure only for legitimate reasons of public interest. Consultation on museums’ websites (with restricted downloading) of the permanent collections, catalogues and archives could also be addressed as a limitation subject to the rightholder‘s consent and standard compensation.
  • The territoriality of rights and the difficulty associated with clearing rights in different territories is a long-enduring situation, which copyright collective management entities know well. They have indeed entered into reciprocal agreements with sister organisations to ease the licensing of copyright. Still there is no overall licensing framework for international exhibitions and the scope of the required authorisations for digital transmissions is not all that clear: differentiating acts of reproduction and communication to the public is not easy. Furthermore, “communication to the public/ making available” is not explicitly defined in content, location and effect, notably regarding spin off effects on image search services which operate to some extent like image banks and the implications of hyperlinking towards copyrighted works.
  • Education, research and study are often collaborative and cross-border activities. There are Creative Common licenses for these purposes which museums can use for dissemination of their own copyrighted works. Yet, museums should develop their own policy to ensure the terms of a communication of their collections for research and study in accordance with their strategy, the requirement of non-commercial purposes and the development of text and data mining for instance. A minimum set of principles could be retained by ICOM or a group of museums willing to address this challenge.

Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Green-tick.png
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Green-tick.png
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Green-tick.png
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size: 45
Level of aggregation: Country
Period of material under study: 2014-2015


Sample size: 71
Level of aggregation: Stakeholders
Period of material under study: 2014-2015