Corbett (2011)

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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

Corbett (2011)
Title: Archiving Our Culture in a Digital Environment: Copyright Law and Digitisation Practices in Cultural Heritage Institutions.
Author(s): Corbett S.
Year: 2011
Citation: Corbett, S., 2011. Archiving Our Culture in a Digital Environment: Copyright Law and Digitisation Practices in Cultural Heritage Institutions. New Zealand Law Foundation Report.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by: Cave, Deegan and Heinink (2000), Dryden (2008)
About the Data
Data Description: This study contains data on seven Cultural Heritage Institutions (CHIs). Data was collected through interviews with 26 individuals at the seven CHIs.
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • 2011
Funder(s):
  • The author gratefully acknowledges the generous support of the New Zealand Law Foundation for this research project.

Abstract

This report presents the findings from interviews conducted with 26 employees involved in different aspects of the digitisation projects at seven New Zealand Cultural Heritage Institutions (CHIs). The research project focused on copyright law and the digitisation of CHIs’ collections. The digitisation of Māori cultural heritage adds another dimension to the activities of New Zealand CHIs, and this area was also explored in the interviews.

The objectives of CHIs are to protect, preserve, and facilitate accessibility to cultural entities in the interests of research and education, and the general public interest in cultural matters. In line with overseas practice, New Zealand’s CHIs make use of digital technologies to achieve their objectives. However, many items in CHIs’ collections are protected by copyright. To make a copy of such items without the consent of the copyright owner is an infringement of copyright. Nevertheless, for various reasons including those that are linked to copyright law itself, as well as practical matters such as inadequate resourcing for CHIs to trace absent copyright owners, and a lack of metadata relating to some items in CHIs’ collections, most digitisation projects in CHIs proceed without the consent of copyright owners. Indeed, there is very little understanding within CHIs of the complexities of copyright law and how it relates to the practices of digitisation of their collections.

In essence, the permitted exceptions in the Copyright Act 1994 (“the Copyright Act”) which are intended to support the preservation and archiving of cultural heritage (“the archiving exceptions”) are, similarly to equivalent provisions in overseas copyright legislation, unsuitable in a digital environment. For example, the archiving exceptions permit a single digital copy of an item to be made, whereas digitisation inevitably results in multiple copies. In addition, it is unclear whether the archiving exceptions apply to CHIs that are museums.

In part, this gap between practice and law appears to exist because the broader purposes of digitisation of CHI collections were misconceived by the legislators. This research found that CHIs digitise their collections because they wish to provide accessibility to a more widespread audience. Conversely, the archiving exceptions have been drafted with a view that the main purpose of digitisation is similar to that of analogue reproduction; that is, to preserve a copy of an item in a collection that is in danger of deterioration.

Another reason for the inadequacy of the archiving exceptions is that, as for all permitted exceptions in national copyright laws, these provisions are required to comply with each of the “three step test” provisions in Article 13 of the Agreement of Trade-Related Aspects of Intellectual Property Rights (“the TRIPS Agreement”). Part 8 of this report suggests that the three step test requirement can be satisfied while nevertheless providing more appropriate exceptions for CHIs.

While CHIs’ practices in the area of digitisation of Māori cultural heritage appear, on the whole, to be robust this report proposes that to provide certainty a new provision to regulate this activity should be inserted into the Copyright Act. The report concludes by recommending further amendments to the Copyright Act to address the current gap between practice and the law that has been revealed by the research.

Main Results of the Study

The objectives of CHIs are to protect, preserve, and facilitate accessibility to cultural entities in the interests of research and education, and the general public interest in cultural matters. In line with overseas practice, New Zealand’s CHIs make use of digital technologies to achieve their objectives. However, many items in CHIs’ collections are protected by copyright. To make a copy of such items without the consent of the copyright owner is an infringement of copyright. Nevertheless, for various reasons including those that are linked to copyright law itself, as well as practical matters such as inadequate resourcing for CHIs to trace absent copyright owners, and a lack of metadata relating to some items in CHIs’ collections, most digitisation projects in CHIs proceed without the consent of copyright owners. Indeed, there is very little understanding within CHIs of the complexities of copyright law and how it relates to the practices of digitisation of their collections. In essence, the permitted exceptions in the Copyright Act 1994 (the Copyright Act) which are intended to support the preservation and archiving of cultural heritage (the archiving exceptions) are, similarly to equivalent provisions in overseas copyright legislation, unsuitable in a digital environment. For example, the archiving exceptions permit a single digital copy of an item to be made, whereas digitisation inevitably results in multiple copies. In addition, it is unclear whether the archiving exceptions apply to CHIs that are museums. In part, this gap between practice and law appears to exist because the broader purposes of digitisation of CHI collections were misconceived by the legislators. This research found that CHIs digitise their collections because they wish to provide accessibility to a more widespread audience. Conversely, the archiving exceptions have been drafted with a view that the main purpose of digitisation is similar to that of analogue reproduction; that is, to preserve a copy of an item in a collection that is in danger of deterioration.

Policy Implications as Stated By Author

The following changes to the archiving exceptions in the Copyright Act are recommended:

1. Section 50 should clarify the position of museums vis a vis the archiving exceptions. Of those participants who had heard of the archiving exceptions, most believed that they do not apply to museums.

2. Amend section 55 (3) to:

  • permit the making of multiple digital copies of all items in a CHI’s collection, apart from those items regarding which the copyright owner has clearly stated in writing that the item is not to be digitised.
  • require CHIs to remove any item from their website upon request from its copyright owner. No damages should be payable to a copyright owner in any such case apart from where the CHI unreasonably refuses to take down an item.
  • require CHIs to consult with Māori before digitising and providing online public accessibility to cultural heritage originating from Māori. An assessment of the balance between the public interest in culture versus the owners’ rights in their property should also be required.

3. Section 55(3) (a)-(d) should be repealed. In a digital environment each of these requirements is meaningless. Furthermore these requirements bear no relation to the practices and policy objectives of CHIs.

4. New s 55A should be inserted to permit format shifting of archival copies by CHIs. This will alleviate the ongoing problem of obsolescence of computer platforms, programming languages and hardware and will ensure that archives of cultural heritage works remain accessible.

5. Section 56A (1)(d) should be repealed. There is no logical reason to limit the numbers of users who can access a lawfully made digital copy of a work in a CHI’s collection at any one time.

6. Orphan works provisions for CHIs are urgently required and will be achieved by the proposed amendments to s 55(3) above. Given the resourcing constraints of CHIs, compulsory licensing should not be a prior requirement for CHIs to digitise orphan works.

Finally, it is noted that The Guide to Copyright, currently produced by Te Papa Services, will be more useful for other CHIs if drawn up by a (named) lawyer who can assert its accuracy and has professional indemnity insurance should any errors in their advice subsequently come to light.

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)
Green-tick.png
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)
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)
Green-tick.png
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: 7
Level of aggregation: Cultural Heritage Institutions
Period of material under study: 1990 to 2011


Sample size: 26
Level of aggregation: Individuals
Period of material under study: 1990 to 2011