IVCopyright Law and Digitized Museum Collections

  • Hannah Spiering, The George Washington University

Although digitization of museum collections is not a new practice, it has come to the forefront of many museums’ concerns since the COVID-19 pandemic began in early 2020. Cultural institutions around the world, especially art museums, saw their digitized collections as a way to continue interacting with visitors even when in person activities could not occur. Not only were digitized collections used in virtual archives for exploration, but also in virtual exhibits and educational programming. Museums began to notice the greater impact that digitized collections could have on achieving their mission and interacting with a wider audience. As digitization and virtual access become more prominent, it is worth revisiting copyright law as it pertains to online collections. Through exploring the history of United States’ copyright law in relation to cultural institutions, focusing on the role of fair use practices, the recent changes due to technology shifts can be seen. As these practices continue to shift museums should ensure their guidelines and policies properly address copyright laws in practice. These recommendations are not from the perspective of a lawyer and therefore are not legal advice.

Every jurisdiction has different legal frameworks for the protection of creators through copyright but many of the general practices are similar. It is valuable to understand the ever-changing nature of copyright protection within the United States to see how it has and continues to evolve to protect both creators and cultural institutions. The direct authority for copyright protection in the United States is found in the Constitution in Article 1, Section 8, Clause 8 otherwise known as the Patent and Copyright Clause.1 The clause, like many legal ideologies in the US, is based on an English statute. The themes are pulled from the Statute of Anne which ensures financial incentive for creators along with eventual unrestricted public access to the work.2 In the United States it is believed that to stimulate the production of creative works and cultural progress, economic incentives are necessary. The fear is that without this statute and said incentives, no one would create.

The key aspect in the Patent and Copyright Clause is that the protected work would eventually be freely available to the public for further use and development. To further define this clause, Congress enacted the Copyright Act of 1790 which set the initial timeline for protection to two 14-year terms. This act only protected authors of books, maps and charts but was later revised and amended in 1831 and 1870 to expand the kind of materials it protected as well as aspects of the timeline and jurisdictions.3 As time went on and new technologies were developed it was clear that the Act should be updated.

President Theodore Roosevelt initiated the overhaul of the Copyright Act of 1790 in 1905 which resulted in the passing of the Copyright Act of 1909. This updated act continued to expand the materials it protected including all writing of an author as well as changing the timeline of protection to two 28-year terms with federal protection under federal law beginning at the moment of publication of the work.4 This act did not protect works that were not officially published. Outside of small amendments, the act was kept until Congress decided to replace it in 1955.

The project ended up lasting 20 years with conclusions not met until 1976. The Copyright Act of 1976 is currently relied upon today and worked mostly to clarify ambiguities in the law.5 Although it altered many aspects of copyright protection, the most valuable changes for cultural institutions to be aware of are length of protection, codified judicial recognition that protection is available only for a particular expression of an idea, not the idea itself, protection for unpublished works, expanded copyrightable subject matter, compulsory licenses, and exclusive rights and limitations for creators furthermore, the concept of fair use.6 The inclusion and limits of fair use are vital for cultural institutions and museums to understand moving forward with copyright guidelines.

Fair Use

In the United States, fair use is relied on by cultural institutions as it permits unauthorized use of a copyrighted work such as reproduction. The guidelines for fair use allow reproduction, for example the digitization of museum collections, if it is for purposes such as criticism, comment, new reporting, teaching, scholarship, or research.7 Within the history of copyright law in the United States, fair use was not included in American statutory law until 186 years after the original Copyright Act was written to protect creators. The basis of copyright laws at large is to promote the advancement of society overall, but tension is created as it works to protect creators while still making works accessible for public use. Fair use seeks to resolve the tension but in favor of the public as opposed to the creator.8

When understanding the rights museums have for reproduction, it is vital to know that based on Supreme Court decisions, fair use is a first amendment safeguard.9 This means that it is flexible, broad, and responsive to change over time. The Supreme Court views the practice of fair use as valuable to the economy, innovation, creativity, and scholarship therefore making it a powerful addition to the Copyright Act of 1976.10 It allows museums and other cultural institutions to provide broader access to their collections and create greater impact.

As discussed prior, digitization is not a new venture for cultural institutions. When digitization first became a noteworthy activity, some museums felt that it lessened the control they had historically held over their collections.11 One of the many goals of digitization is to increase accessibility to a wider audience and yet some institutions viewed it as taking away the curatorial voice.12 This led to museums often asserting rights of control over images through copyright or contract and licensing terms. In 2012, Kenneth Crews evaluated the use of copyright laws within 50 American Alliance of Museum (AAM) accredited museums focusing on art institutions in his article “Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching”. His research found that many of the institutions would claim legal rights to control images even when the image existed in the public domain.13 The assertion of control and the convoluted nature of copyright and fair use laws can cause the public to believe they have no right to use said image. This only further imposes the idea that museums are keepers of knowledge and only some are worthy of obtaining it. It can harm museum mission work as it can create a deeper divide between the public and the collection.

Crews continues, explaining the concept of downstream control of images as harmful to the proper use of copyright law. This begins with the physical object that is held by the museum therefore allowing complete control of access. The museum is able to determine this level of control and creates the perception of controlling all rights to the object. When the object is digitized, the museum continues this facade of control and asserts authority through terms of use for later users.14 The harm in this practice is that it detracts from the purpose of fair use as it unfairly limits the greater access to the object continuing to give the museum control.

Crews states that many institutions would rather make a broad statement about copyright and leave details to be addressed as needed. This is due to the risks of more precise policies as it is an ever-changing legal framework with many liabilities if approached incorrectly. The damage of leaning on simple and possibly overreaching policy falls on the user as it restricts their access which they have a right to.

The rationale for continuing to use restrictive policies around digitized collection hinges on museums’ interest in protecting the integrity of art as well as the desire to use copyright as a way to earn back the costs put towards digitization projects.15 There are other reasons such as adherence to donor requirements as that may cause portions of the collections to be protected which can cause confusion to visitors. Crews argues that it is time for museums to re-evaluate their existing policy surrounding copyright to ensure proper access and use within the legal framework. His work highlights how overreaching copyright can hurt the public by putting a paywall or strict use limitations on digital reproductions that are not protected under copyright and can be used freely. It can harm further creation and exploration by the public.

Another way in which museums have overreached on their use of copyright relates to the public domain and contract law. Kaitlyn Garvin explores this concept in her article “Reclaiming Our Domain: Digitization of Museum Collections and Copyright Overreach.” She focuses on the ways museums have used contract law to claim control over digital photographic reproductions of masterworks that exist within the public domain pool of works. Public domain is essentially a pool of creative works from which society is legally allowed to draw from and is therefore not protected by copyright law.16 It is seen as a communal resource that benefits all people. Garvin explains that photographic reproductions of masterworks exist firmly within the public domain pool.

An example of this overreaching was used by the Bridgeman Art Library. Garvin unpacks how the institution tried to use contract law to create copyright-esque monopolies over photographic reproductions. The Bridgeman Art Library case occurred in 1997 after Bridgeman claimed copyright control over digital photographic reproductions of famous paintings being used by Corel Corporation, a Canadian computer software company.17 Bridgeman had been licensing its clients to use these copies pursuant to very specific contractual requirements. The clients were buying contracts to use these images and cost depended on resolution of the images. The contract allowed the institution to still maintain some control over the use of the image.18 The court focused on the doctrine of originality to determine whether copyright could be claimed. In the end it was determined that Bridgeman’s images were not copyrightable due to the fact they were exact reproductions of existing masterworks.19

Garvin explains that this decision was at a district court level and thus has limited legal scope and only addressed 2D art.20 Even with this fact, the Bridgeman case has set the precedent that photographic reproductions are merely copies and unworthy of copyright given they lack originality. Garvin relates this case to current digitization initiatives as it shows how museums have previously tried to maintain curatorial control and make money through digital reproductions in the past. This desire for control only further hurts access to collections. She further argues, the works within public domain exist for public use and should not be exploited in order to recoup costs of digitization.

These examples highlight how museums have historically seen copyright as a way to maintain control over their collection and possibly create another form of revenue. This mindset stems from a lack of understanding that many museum professionals have of what control the museum has over digital reproductions under copyright. A major way to overcome this misuse of power is to ensure clear understanding by implementing policy guidelines and risk analysis when digitizing collections.

Risk Management

As museums and other cultural institutions move forward with digitization it is important to understand the risk associated with digitizing collections. Risk is not meant to scare institutions away from digitization projects but instead inform them of possible outcomes, so they are prepared to handle them. It is valuable to know that legal complications surrounding copyright infringement are not common especially with museums, but it is still important to mitigate risk as much as possible.

Guideline books such as Copyright and Cultural Institutions: Guidelines for Digitization for US Libraries, Archives, and Museums exist as tools to better understand how to approach digitizing safely and ethically. Risk management is a vital step in digitization projects and should come at the beginning to ensure the institution is capable of handling potential risks. Some possible factors that could indicate copyright infringement include copyright subsists in the collection item, the institution does not own the copyright for the item, the copyright owner is still in control of exclusive rights such as digitization, the act does not fall with exemptions such as fair use, or the copyright owner has not granted permission.21

The risk of litigation against museums and cultural institutions has historically been low but it is valuable for museums to understand the precedent set by previous cases surrounding copyright infringement.22 As explained above, the Bridgeman case sets the precedent that digital reproductions are not protected by copyright. Since the passing of the Copyright Act of 1976, courts have historically sided with fair use and public domain claims or have found ways to settle cases outside of court. Much of the risk lies with copyright holders due to the cost of litigation and precedent of actions falling under fair use.23

Although the risk may feel low due to precedent and risk to copyright holders, museums should work to respect copyright holders and avoid infringement. The purpose of copyright law is to benefit public good by motivating creators. Through understanding risk and the creation of mitigation plans, museums are better suited to continue mission-based work and create better access to collections. Risk management as it relates to copyright law should not scare away museums from pursuing digitization but instead create more ethical practice standards.

Moving Forward

As museums continue to focus on digitization efforts, museum associations can support and guide institutions by outlining best practices. The International Council of Museums (ICOM) has centered several workshops on copyright law and digitization since the beginning of the COVID-19 pandemic in 2020.24 Although this organization is international and therefore does not strictly center around the legal framework of the United States, there are still many similarities. Digital cultural heritage can be accessed worldwide so it is valuable to build relationships and have conversations with professionals worldwide.

Digitization has caused change in copyright law around the world, not just in the United States. At the international conference When Museums Go Online held in Geneva in December of 2020, museum professionals from around the world gathered to discuss ways for museums and cultural institutions to clarify current legal and political frameworks for museums in the digital space.25 During the conference, they workshopped the website digitizationpolicies.com as a resource for formulating policies centered around museums in the digital environment.

The site is separated into three main concepts. Part 1 includes policy proposals that can be directed towards policymakers and legislators to help guide new policies to best serve both the public and museums. It provides suggested policy changes or clarifications for varying museum scenarios revolving around copyright law.26 Part 2 is directed at museums themselves and is a recommended code of conduct for digitization. It creates guidelines for museums to properly follow copyright law while pursuing digitization efforts.27 Part 3 is centered around dispute resolution as a way to help museums create mitigation plans when digitizing. The alternative dispute resolution is directed at both museums and copyright holders to help identify possible issues and resolve disputes early on.28 ICOM created this site to help bolster communication between museums worldwide as they continue to face the ever-changing nature of copyright law.

The tensions surrounding copyright law in the United States are also felt worldwide. By looking at practices and trends in other countries, museums can better prepare for upcoming changes. In the European Union, they have approached resolving tensions by gradually and progressively relaxing the existing legal framework.29 This is similar to the inclusion of fair use and public domain in the United States. The recent trends appear to push for legal frameworks to create more exemptions and processes for cultural institutions to digitize collections and make works more widely available for public good. This flexibility should not take away the rights of owners and creators but allow for greater public access.

The American Association of Museum Directors (AAMD) has also sought out the creation of guidelines and policy for fair use in museums. They originally drafted a policy on the use of thumbnail digital images in 2011 which focused mostly on creating guiding principles for a rather narrow range of situations.30 The association revisited this idea in 2016 with the release of its Guidelines for the Use of Copyrighted Materials and Works of Arts by Art Museums. The revision occurred as the rise in digitization projects, evolving technology and legal frameworks became a larger focus for museums and cultural institutions.31

The updated framework names six distinct times museums can lean on fair use for the use of digitized collections. These include online collections, publications, promotional, marketing and advertising materials, fundraising, onsite uses, archives, and other special collections.32 AAMD wanted to simplify the copyright exemptions for museums as a way to ensure ethically and legally sounds practice. This kind of policy, like many other guiding policies created by museum associations, can be used by institutions to guide the creation of site-specific policy for best practices.

Conclusion

Copyright law is a highly complex and ever-changing legal framework that museums must understand as they move forward with digitization projects. The future of museum collection preservation and use will include digitization and access virtually. As previously discussed, copyright protection is centered around protecting creators while also ensuring public access to these works. Moving forward, museums must ensure ethical and legal frameworks are followed when digitizing collections and allow for public use without overreaching copyright claims. Museum associations such as ICOM and AAMD are taking the correct steps for the future of copyright policy writing.

Simplifying and standardizing the framework for addressing copyright when digitizing can be achieved through policy. All museums and cultural institutions must be knowledgeable about and prepared to assess risk and copyright protections before digitization processes begin. Although this may feel like a large and convoluted task, museum associations have already begun the work to create guidelines that can be altered for individual institutions and streamline copyright processes across the country and the world. By ensuring copyright is fully understood and outlined in policy, not only will museums be following the law, they will be respecting the rights artists and creators while building stronger relationships to promote cultural progress.

Notes

  1. Appel 1999, “Copyright, Digitization of Images, and Art Museums.” 157. ↩︎

  2. Appel 1999, 157. ↩︎

  3. Appel 1999, 159. ↩︎

  4. Appel 1999, 160. ↩︎

  5. Hirtle, Hudson, and Kenyon 2009, Copyright and Cultural Institutions. 192. ↩︎

  6. Appel 1999, “Copyright, Digitization of Images, and Art Museums.” 162. ↩︎

  7. Young 2018, Rights and Reproductions, 190. ↩︎

  8. Appel 1999, “Copyright, Digitization of Images, and Art Museums.” 175. ↩︎

  9. Young 2018, Rights and Reproduction, 190. ↩︎

  10. Young 2018, 190. ↩︎

  11. Crews 2012, “Museum Policies and Art Images.” 794. ↩︎

  12. Crews 2012, 795. ↩︎

  13. Crews 2012, 796. ↩︎

  14. Crews 2012, 807. ↩︎

  15. Crews 2012, 812. ↩︎

  16. Garvin 2019, “Reclaiming Our Domain.” 455. ↩︎

  17. Wojcik 2008, “The Antithesis of Originality.” 260. ↩︎

  18. Wojcik 2008, 261. ↩︎

  19. Wojcik 2008, 261. ↩︎

  20. Garvin 2019, “Remaining Our Domain.” 472. ↩︎

  21. Hirtle, Hudson, and Kenyon 2009, Copyright and Cultural Institutions. 193. ↩︎

  22. Hirtle, Hudson, and Kenyon 2009, 195. ↩︎

  23. Hirtle, Hudson, and Kenyon 2009, 197. ↩︎

  24. Bayrou 2022, “Digitization of Museum Collections and Copyright - Report on the International Conference ‘When Museums Go Online’, University of Geneva, 11 December 2020.” 439. ↩︎

  25. Bayrou 2022, 440. ↩︎

  26. Digitization Policies “Digitization of Museum Collections” ↩︎

  27. Digitization Policies “Digitization of Museum Collections” ↩︎

  28. Digitization Policies “Digitization of Museum Collections” ↩︎

  29. Vuckovic, Kanceljak, and Juric 2021, “Cultural Heritage Institutions during and after the Pandemic - The Copyright Perspective International Scientific Conference.” 382. ↩︎

  30. Young 2018, Rights and Reproductions, 193. ↩︎

  31. Young 2018, 195. ↩︎

  32. AAMD 2017, “Guidelines for the Use of Copyrighted Materials and Works of Art”. ↩︎