1. Collections Online and Copyright
Law: is there a disconnect?
A Research Project funded by the New Zealand
Law Foundation
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2. The elephant in the room
Copyright Law
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3. Orphan works
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4. “ ….a black hole of 20th and 21st
century content”
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5. But we know…
….that museums are digitising their
collections …
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6. ”
Lawrence Lessig’s “generation of pirates”.
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7. Museum workers - the new pirates?
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8. The Research
Interviews with 26 employees working
at 7 museums and archives in New Zealand.
• What do they know about copyright and
digitisation?
• What do they do?
• What would they like to do?
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9. The typical CHI collection includes..
• Public domain items
• Copyright items – 3 categories
a) copyright transferred to institution (rare)
b) copyright owner known and traceable (also rare)
c) orphan works
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10. PROBLEM 1
The archiving exceptions in copyright law
apply to archives and libraries, not museums!
(Obscure and difficult information trail through 3 separate Acts of
Parliament to discover in what aspects they do apply to
museums)
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11. The Comments
“They are useless …. if a museum person read
the Act, you don’t see the word ‘museum’
there, not even in the definitions.”
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12. The comments
“We do our best to ignore copyright at all
points. ….”
“The law is too complicated to understand. I’ve
been to a couple of copyright things and the
general feeling is that it’s next to
impossible…”
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13. PROBLEM 2.
The digital archiving exceptions
strictly limit public access to digital copies.
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14. Why digitise?
“ essentially it’s
access first and
then
preservation....”
Kermit the Frog and Friends
American History Museum's Collections
smithsonianmag.com
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15. Access to digital copies (s 56A)
An archive may communicate 1 lawfully obtained
digital copy in protected format to an
authenticated user
but the number of users must be no more than
the aggregate number of the archive’s lawfully
obtained digital copies
and the user must be WARNED about copyright
misuse.
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16. New Zealand research participants agreed:
“ the main reason for digitisation is to improve
accessibility”
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17. “Oral history recordings are easier to reproduce
and reutilise in digital format, for example by
extracting sound bytes…
… essentially it’s access first and then
preservation....”
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18. PROBLEM 3. The digital archiving
exceptions
permit limited numbers of copies
but
digitisation is synonymous with many copies
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19. “If we made one copy of something and lost
it we would have much bigger problems than
people complaining about copyright. …
I don’t think there is an organisation in the
country that would only make one copy.
Certainly not in a digital format.”
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20. PROBLEM 4 The digital archiving exceptions
– focus on preservation of items at risk of
deterioration.
– but museums use digitisation for collections
management
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21. • Is digitisation the answer?
Not everyone agreed
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22. Preservation?
Collections management?
“Digital is not better… it is so easy to lose things
when they are digital. ..
In IT we can’t even access things that were 15
years old. Yet, we can read books that were
written 600 years ago.”
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23. The orphan works dilemma for cultural
heritage
• If museums take a risk averse approach- many
items cannot be made more widely accessible
• If museums take a risk management approach –
they join Lessig’ s band of copyright pirates!
And, as State institutions, many do not want
to take that risk
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24. Museum practices
1. They ignore the archiving exceptions
2. They digitise – but usually only post
online with permission of the copyright
owner
3. Many “orphan works” remain unseen
outside the physical institution.
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25. Digitisation of a cultural heritage collection
Do the digital images themselves have separate
copyright protection?
Maybe!
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26. Online collections: the Digital Dilemma for
Cultural Heritage
new opportunities v. risks
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27. Once uploaded to a website, an image, video or
sound recording can be downloaded, appropriated
and remixed by any user with sufficient technical
knowledge.
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28. Conflicting views
“Usually with those there is restricted access and we
don’t put them online unless permission has been
granted by the iwi.”
“Weighing up the benefit and the harm. … what if
somebody puts Hitler’s head on Te Rauparaha or
what is somebody puts a Tā Moko on a tea-towel
and somebody finds it offensive? The consequence
of designing a policy around the exceptions is that
nobody gets to see anything much.”
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29. “Paradoxically, at the same time the Dane-zaa people
are asserting their right to control how their cultural
heritage is circulated on-line,
representations of their culture and language are
more prevalent on the Internet than ever before”
Kate Hennessey, British Columbia researcher
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30. Public Domain
“If we borrow something from another
museum that is well out of copyright, they
put their own copyright restrictions on it
anyway and say no one’s allowed to
photograph it because of copyright.”
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31. AN330971001
© The Trustees of the British
Museum
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32. Is this a good thing?
1. Should public domain entities now effectively
qualify for another lengthy term of copyright
protection?
2. Is this contrary to one of the objectives of
copyright – to encourage cultural development?
3. Conversely is it a good thing for the owners of
the original cultural heritage?
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33. CONCLUSION
The archiving exceptions are
• Impracticable
• Unworkable
• Constrain institutional objectives.
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34. Recommendations (1)
changes to the archiving exceptions
– to specifically include museums and galleries
– not limited to ‘not for profit’ institutions.
– to allow multiple digital copies,
– to allow both on site and off site access to
multiple digital copies.
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35. Recommendations (2)
A new provision in the Copyright Act- to reflect
current practices of CHIs and apply a balanced
approach.
public interest in culture v indigenous
concerns.
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36. Thank you – please contact me if you would like a
copy of my report
susan.corbett@vuw.ac.nz
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