How to apply international IP laws at museums?

Written by Dr. Emma Duester (*)
Translated by Phuong Minh
Reviewed by Dr. Mark Williams, Barrister & Solicitor from Australia specicialising in copyright and IP for museums
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This article hopes to increase museum professionals’ digital legal literacy levels by sharing the current ways of applying international IP and copyright laws to protect digital content. Hence, this article will alleviate museums’ needs and fears around IP and copyright in the digital environment.

Vietnamese museums can apply these international laws as national laws are updated to fit the digital environment (1). The selected examples are relevant and appropriate for Vietnam museums.
Some questions that will be answered in this article are:
1. How can museums provide online access to copyright protected material without infringing copyright of communities and owners/original creators?
2. How can international IP and copyright laws be applied at Vietnamese museums?
3. What are some of the ways to protect digitized and published museum content online?

Coming into the global digital transformation means that museum professionals require more knowledge on the global legal landscape, and the museum sector needs to train staff in legal and digital literacy. Moreover, there is a need to raise awareness on how to protect the many new types of digital content that museums are now publishing, including 3D models of artefacts, virtual tours, and digital exhibitions. However, copyright law does not include a significant amount in relation to museums specifically. As Canat & Guibault (2015) argue, copyright law needs to include ‘museums’ more, as the definition of ‘museum’ in copyright laws and treaties is rare. In addition, digital copyright and IP are a complex terrain because digitization includes the exclusive right of reproduction. Digitization has introduced entirely new interfaces for producing and distributing creative works (Klein & Edwards, 2015; Reyman, 2009). Hence, there is a contradiction between digitization and copyright. Yet, museums must navigate this new landscape and come up with a balance, compromise, and way forward. This article will prevent museum professionals from fearing publishing content and works online. It will provide advice about IP rights, open access options, copyrights for works owned by artists and third parties, and copyright for communities and intangible cultural heritage. There are new limitations and exceptions for museums regarding how to publish works online that are useful to understand and implement.

As Pantalony (2013) states in the WIPO Guide on Managing IP for museums:

“Effective use of the IP system allows museums to meet international standards of best practice. During recent years, the role that IP plays in providing access to cultural heritage institutions’ collections, and in preserving and managing valuable works they contain has been increasingly recognized.”

Global Legal Landscape on Rights, Protection, and Exceptions for Museums in the Digital Environment

Vietnam is a signatory of the following agreements related to copyright protection:
* Berne Convention for the Protection of Literary and Artistic Works
* Brussels Convention relating to the Distribution of Program-Carrying Signals Transmitted by Satellite;
* Geneva Convention for the Protection of Performers, Producer of Phonograms and Broadcasting Organizations
* Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations
* World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights – TRIPS
* United States Copyright Agreement
* Switzerland Bilateral Agreement

As the Copyright Office of Vietnam states: “Vietnam is signatory to the WIPO from 2002, and since 2022 became part of Treaty of Performances and Recordings of the WIPO (WPPT Treaty). Both treaties protect works and use of works on the internet.”

The adaptation of copyright and related rights protection to the digital age began with the World Intellectual Property Organisation (WIPO) Internet treaties of 1996. It was subsequently updated in 2001 and most recently in 2019. It spread to the European level with Directive 2001/29/ EZ8 and was recently updated through Directive (EU) 2019/7909. In the latest version, the reproduction right has been developed so that any reproduction, on any media, in any way, by any technology, direct or indirect, temporary or permanent, is covered by the exclusive right for authors, performers, phonogram producers, film producers, and broadcasting organisations. A new exclusive right was developed for interactive uses on the internet through the WIPO Internet Treaties and Directive 2001/29/EC. It is called ‘the right of making available to the public’ and is considered as a special way of communicating with the public. The owners of copyright and related rights may authorise or prohibit members of the public from accessing protected content from a place and time chosen by them (Vuckovic, 2021: 384). The Rome Convention on the Protection of Performances, established in 1961, is another global treaty addressing copyright regulations for artistic performances, phonograms, and broadcasts. The WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) are developments of the Rome Convention principles.

WIPO outlined exemptions of copyright for museums in a ‘Guide on Managing IP for museums published in 2013 (Pantalony, 2013).

The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) define and protect a type of metadata called Rights Management Information (RMI) defined as:

“information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public”

(Art. 12 (2) WIPO Copyright Treaty; comp with Art. 19 (2) WIPO Performances and Phonograms Treaty).

Certain exceptions, limitations, and revisions have been made to the copyright law since 2009 by the EU and US. In the EU, Article 6 of the recent EU Copyright Directive 2019/790 of 17 April 2019 (“EU Copyright Directive”) provides that “Member States shall provide for an exception to the rights (of the copyright owner) in order to allow cultural heritage institutions to make copies of any works or other subject matter that are permanently in their collections, in any format or medium, for purposes of preservation of such works or other subject matter and to the extent necessary for such preservation”, and Article 8 facilitating use of out of commerce works and other subject matter by cultural heritage institutions. In the US, see the AAMD Guidelines for the Use of Copyrighted Materials and Works of Art By Museums (AAMD, 2017). See also the WIPO Study on Exceptions and Limitations for Museums, 2015; WIPO Revised Report on Museums Copyright Practices and Challenges, 2019 (2)

Cultural heritage institutions’ relationship to copyright and related rights is outlined in WIPO Directive 2001/29/EC, Directive 2012/28/EZ and Directive (EU) 2019/790 through several exceptions and limitations. Their initial, and primary, purpose was to enable the preservation of works and other protected subject matter contained in cultural heritage institutions’ collections. The first exception, regulated in Directive 2001/29/EC, enables publicly accessible libraries, museums, and archives to make ‘specific acts of reproduction’ that are not for direct or indirect economic or commercial advantage. Directive 2001/29/EC was designed to regulate the right of making available to the public as an exclusive right for on-demand uses on the internet, within the concept of communication to the public. It is also more commonly known as the ‘Information-Society Directive’. Its principal aim was to regulate the content of copyright and related rights for new digital uses and exceptions and limitations. As Vuckovic (2021: 393) notes, “it is emphasised in Directive (EU) 2019/790 that the exceptions and limitations regulated in Directive 2001/29/EZ were not sufficient for current developments of the digital transformation.” In particular, the exceptions and limitations needed to be widened concerning cross-border digital uses and cultural heritage preservation. Therefore, another mandatory exception was added to the 2019 Directive: the exclusive right of reproduction for all types of works and subject matter protected by related rights permanently contained in the collections of cultural heritage institutions, with the purpose of their preservation. Museums are allowed to make copies in any format or medium for such a purpose.

From a legal perspective, the uses of cultural artefacts in an institution’s collection depends on whether works fall within the exceptions and limitations of copyright, such as for use in exhibitions, digitization, databases, or catalogues. It is possible to use a work freely under the provisions of exceptions and limitations in copyright law or outside copyright law after the expiry of the rights to the work. In light of digital transformation, new exceptions to the rights of reproduction have been defined. These exceptions allow museums to make reproductions, in any format or medium, of works contained in their permanent collection. This includes works, owned or in the museum’s possession as long-term loans, whether in copyright, unpublished, out-of-commerce or orphan works (3), as part of their public interest mission. For instance, as Benhamou et al. & ICOM (2020) state, this might be for the preservation and/or restoration of works, for the purpose of education, private research or study; for text and data mining purposes; for the purpose of creating digital inventories of works contained in the permanent collection; for indexing, cataloguing and creating corresponding databases for the management of rights; for insurance, rights clearance, and inter-museum loan purposes (Benhamou et al with ICOM (2020) (4)

Museums can benefit from the exceptions, limitations, and provisions outlined in international IP treaties like the Berne Convention. For example, Article 10(2) permits Berne members a ‘teaching exception’ within their copyright statutes. WIPO includes more exceptions for museums:

– Reproduction for preservation purposes
– Use of works in exhibition catalogues
– Exhibition of works
– Communication to the public on the premises of the museum
– Use of orphan works
– Reproductions for private purposes and study
– Reproductions by reprographic means (photocopying – mostly on paper)
– For other purposes than preservation
– For use by patrons
– Educational use and research
– Fair use/fair dealing (WIPO, 2015).

In addition to specific exceptions, the Berne Convention shares a ‘three-step test’ in Article 9(2), which is a framework for members to develop their own national exceptions. The three-step test establishes three requirements: (1) the legislation be limited to certain special cases, (2) that the exception does not conflict with a normal exploitation of the work, and (3) that the exception does not unreasonably prejudice the legitimate interests of the author.

The Digital single market DSM Directive, part of the EU Law on Copyright, outlines provisions included in the DSM Directive directly affect the functioning of museums. These include the provision of text and data mining for scientific research, the use of works in digital and cross-border teaching activities, the activities of cultural heritage institutions for the preservation of works in their collections, the protection of press (5), and the protection of material resulting from reproductions of works of visual art in the public domain. There is also “rights management information” as defined in the European Directive 2001/29/EC that outlines provisions for the harmonisation of copyright in the digital environment. As the European Commission (2022: 37) states: “Rights Management Information means any information provided by rightsholders which identifies the work or other subject matter, the author or any other rightsholder, or information about the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information. [This] shall apply when any of these items of information is associated with a copy of or appears in connection with the communication to the public of, a work or other subject matter”.

Limitations include inter alia use of works such as works of architecture or sculpture made to be located permanently in public places, use for the purpose of advertising the public exhibition or sale of artistic works to the extent necessary to promote the event (excluding any other commercial use), and reproduction of works for the purposes of preservation.

While undertaking digitization operations, museums must not only analyse the copyright law regarding the objects to be digitized, but also the copyright law applying to the digital copy of the artwork (6). The digital copy may have a separate copyright, which may need the rights holder’s consent for future uses (7). Some countries, like China, are making separate commercial copyright for second creations – as Wang et al. (2021) propose an authorization mechanism based on the blockchain technology related to museum’s digital rights can realise the economic benefits of the museum collection based on cultural dissemination and education of the public.

‘Fair Use’ is an important clause in copyright law that allows museums to create and publish non-commercial works that are new ‘versions’ of the original without infringing copyright law (8). The CAA’s Code of Best Practices in Fair Use for the Visual Arts (Guidelines for the Use of Copyrighted Materials and Works of Art by Art Museums, 2017) is a useful resource on this clause. AAMD has designed guidelines to outline how museums can utilize fair use or, in some cases, seek a “courtesy clearance” to maintain institutional relationships with rights holders (AAMD, 2017).

Digital Protection Measures for Museums to Implement

It is necessary for museums to know whether they have the right to digitise each work in their collection. It is also important for museums to know some protection measures they can implement themselves. Digitizing copyrighted works and making them available online involves the rights of reproduction and of communication to the public, each of which usually requires permission from the copyright holder. The only case where there are no restrictions on digitization, online display, and digital distribution is in the case of works belonging to the public domain and orphan works. In

all other cases, a museum must obtain authorisation from the author, for example, by signing an appropriate contract. In some cases, digitization may take place on the basis of legal provisions introducing copyright exceptions where the author’s permission is not needed.
Museum-created or digital-born content can be copyrighted, such as software, databases, blogs, images, or digital stories, animations, or 360degree views. This also means that any original content, including text, artwork, photographs, video clips can be protected by copyright. Check the website of your national copyright office for more information.

Some methods of protecting these works online include: (1) adding the © symbol alongside the name and the year in which the work was created, (2) include a “Terms of Use” section on the website outlining how the work may be used (9), and (3) adding copyright to digital inventories (10).

Another way to safeguard online content and to address the needs of communities and community ownership is through the use and implementation of Creative Commons (11). Museums can easily apply these free IP mechanisms. As is outlined on their website, “one goal of Creative Commons is to increase the amount of openly licensed creativity in ‘the commons’ – the body of work freely available for legal use, sharing, repurposing, and remixing.” Using a Creative Commons license requires no centralized registration or certification; it is easily accomplished by placing language or symbols on a work that indicate the intended Creative Commons license. This is a suitable solution for newly created material like videos, animations, and other web or social media content. Creative Commons allows you to individuals or organisations to set the restrictions versus open-access of content (12)

When lacking living artists as copyright holders, antiquities are obvious open access (OA) candidates, requiring only institutional permission. OA initiatives also frequently frame audiences as “makers” or “prosumers” (producer-consumers) with invitations to modify (“remix”) models in creative projects. Some projects, such as OpenGLAM, have already submitted principles and guidelines to help museums open up their collections and metadata (13)

Control and management of digital content can be done via Data Rights Management (DRM). DRM is the management and use of digital technologies to protect and specify content as being owned by a particular person or organization. “DRM is a term given to a very broad range of technologies that can be used to protect content online. Essentially, DRM is the technological means to either control access and use of content online, by designating the rights to either provide or deny access to content online. DRM can also include information, known as rights management information that is tagged to the content to inform a user about its owner. According to international law, it is illegal to remove, change, or circumvent digital rights management (DRM) protection of a work. There are different types and forms of DRM. For example, watermarking technology used on digital images. There are also other technical measures you can include to online content to limit uses, such as adding a technical block on ‘downloading’ or ‘copying’ text on your website. Another option is digital fingerprinting, which consists of embedding an identification sequence in content in such a way that each recipient receives a slightly different copy that can be traced back to them (Megías 2020) (14)

Summary

This article has provided a review of the global legal landscape including the latest laws and exemptions for museums in the digital environment (15) from WIPO, TRIPS, WTO, and Berne Convention. It included a selected number of examples to help create a framework that is relevant and appropriate for Vietnam – both in terms of the implications of joining the global digital transformation and to create an appropriate review of the current laws on digital copyright. This can be used as a resource for museum professionals by providing a condensed and understandable discussion on the global legal landscape, particularly on copyright and IP in the digital environment in the legal documents as well as guidance from these documents.

These international standards and IP treaties share best practices for the museum sector and provide museum professionals with a clearer understanding of existing limitations and exceptions provided under copyright. These treaties identify the international copyright instruments to address the protection of Internet works and digital rights management devices. These treaties also include explanation of some of the current digital rights management technologies and how they work as well as provisions for the enforcement of digital protection measures. Transnational organizations, like WIPO and Berne, are the key bodies for the global circulation of culture policy and the latest laws on IP and copyright. So, museum profs need to strike a balance between local interests and transnational policies. Shows how their careers and working practices for creating the digital museum will include working with the global and the local.

For the sustainable future of museums and their collections, we need a balance between copyright and related rights and cultural heritage institutions should be sought. This requires thinking in two directions. The first is related to the general issue of mass digitization, and the second relates to digitization and making content available online in extreme situation. The first direction might lead to compulsory licenses. In situations where there is a prevailing public interest in mass digitization of cultural heritage collections and providing online access to digitized content, the compulsory license might be the solution. States, through their ministries of culture, might issue compulsory licenses, at the request of cultural heritage institutions. This model should refer only to non-commercial uses for reproduction and making available to the public of digitized content. The second direction might go towards a new exemption to copyright and related rights that would benefit cultural heritage institutions where the possibility of physical access is denied or restricted for some prevailing public interest. This exemption would enable cultural heritage institutions to digitize and provide access to digitized content despite the third parties’ copyright and related rights.

References

– AAMD Association of Art Museum Directors (2017) Guidelines for the Use of Copyrighted Materials and Works of Art By Museums
– Anderl, F. (2016) The myth of the local. Rev Int Organ 11, 197–218 (2016).
– Benhamou et al. (2020) Digitization of Museum Collections, Policy Paper on the Digitization of Museum Collections.
– Benhamou, Y. (2016) Copyright and Museums in the Digital Age, WIPO Magazine. (accessed 21.08.2022).
– Carpenter, M.M., 2004. Intellectual property law and indigenous peoples: Adapting copyright law to the needs of a global community. Yale Hum. Rts. & Dev. LJ, 7, p.51.
– European Commission (2022) Study on Copyright and New Technologies: Copyright Data Management and Artificial Intelligence.
– Klein, B., Edwards, L. and Moss, G., 2015. Understanding copyright: Intellectual property in the digital age.
– Klinowski, M., Szafarowicz, K. Digitisation and Sharing of Collections: Museum Practices and Copyright During the COVID-19 Pandemic. Int J Semiot Law 36, 1991–2019 (2023).
– Molho, J., Levitt, P., Dines, N., & & A. Triandafyllidou (2020) Cultural policies in cities of the ‘global South’: a multi-scalar approach, International Journal of Cultural Policy, 26:6, 711-721, DOI: 10.1080/10286632.2020.1811256
– Megías, D., Kuribayashi, M. and Qureshi, A. (2020) ‘Survey on decentralized fingerprinting solutions: copyright protection through piracy tracing’, Computers, Vol. 9, No 2, 2020
– OECD (2022) The future of digital transformation in emerging markets, OECD Emerging Markets Network,
– Pantalony, R. (2013) Managing Intellectual Property for Museums WIPO
– Reyman, J., 2009. The rhetoric of intellectual property: Copyright law and the regulation of digital culture. Routledge.
– UNESCO (2012) Measuring cultural participation. (accessed 30.09.2022).
– WIPO (2015) WIPO Study on Exceptions and Limitations for Museums, prepared by Jean-François Canat, Lucie Guibault and Elisabeth Logeais,
– WIPO (2019) WIPO Standing Committee on Copyright and Related Rights, prepared by Yaniv Benhamou
– WIPO (2011) ‘What copyright infrastructure is needed to facilitate the licensing of copyrighted works in the digital age: the international music registry’, WIPO, Geneva, 2011

Author Bio

Dr. Emma Duester is Associate Professor at the USC-SJTU Institute of Cultural and Creative Industry, Shanghai Jiao Tong University, China. Previously, Emma was a Faculty Member in the School of Communication & Design at RMIT University Vietnam from 2019 until 2022. Emma was principal investigator of a funded research project entitled ‘Futureproofing Museums: Digitizing Art and Culture in Vietnam’ between 2020 and 2023. Emma has worked with museums, government, and national media in events, conferences, and TV shows to work with and build capacity in the culture sector in Vietnam. She is the author of ‘Digitization and Culture in Vietnam’, published by Routledge in 2023. Emma received a PhD in Media and Communications from Goldsmiths, University of London, in 2017, after undertaking an ESRC-funded doctoral research project on transnational artistic practices across Europe. She has expertise in both research and practice in cultural sector development and transnational communication in Europe, Vietnam, and China. Her areas of research interest include technology and culture, digital culture, the culture sector, digitization of cultural heritage, digital technologies, museum and digital environments, transnational communication, migration and mobilities./

Note

(1) According to the copyright law in Vietnam (Law on Intellectual Property No. 50/2005/QH11 dated May 29 11 of 2005 of the National Assembly, effective July 01, 7, amended Modified and supplemented by: 1. Law No. 36/2009/QH12 dated June 19, 6, 2019), Intellectual property rights are rights of organizations and individuals to intellectual property, including copyright and rights related to copyright, industrial property rights. Intellectual property right holder is the owner of intellectual property rights or an organization or individual transferred by the owner assignment of intellectual property rights. The work is a product creativity in the field of literature, art and science expressed in any what means or forms. The exercise of intellectual property rights must not infringe upon the interests of the State, public interests, rights and interests lawful interests of other organizations and individuals and must not violate other regulations of relevant legislation. In cases where the item is secured for national defense, security, people’s livelihoods, or other interests of the State and society. As stated in Vietnam’s Copyright Law, the state has the right to prohibit or restrict intellectual property rights holders. Organizations and individuals have the right to apply measures permitted by law to protect one’s own intellectual property rights and have the responsibility to respect the intellectual property rights of other organizations and individuals according to provisions of this Law and other relevant provisions of law.

(2) These exceptions generally need to conform to the three-step test as outlined earlier. However, the US is distinct with the Supreme Court’s regular extension of the fair use doctrine in favour of innovators.

(3) Orphan works are another type of permitted use, which can for eg be seen as regulated in EU law in Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works (Klinowski, K. Szafarowicz, 2023). Orphan works are works for which copyrights have not yet expired, but it is impossible to reach the holders of these rights for various reasons – they may not be known, or it may not be possible to contact the rights holder or their heirs. Klinowski, K. Szafarowicz (2023).

(4) The non-governmental organization called International Council of Museums (ICOM) is an association of over 2,000 museums and 32,000 experts. ICOM designs and promulgates best practices regarding ethics, fighting trafficking, and industry standards. One of the major roles of ICOM is information sharing and the promotion of the exchange of ideas regarding cultural heritage, it serves as a forum for the creation of discourse within the international museum community. Their website, https://icom.museum/en/, includes Covid recovery reports for museums, information on emergency preparedness and response, and training resources that are regional and international and online.

(5) If your museum wishes to license your works (either the original artefacts digital copy or new digital content creations) to users such as broadcasters, publishers, or even entertainment establishments (i.e. bars, nightclubs), joining a collective management organization (CMO) may be a good option. CMOs monitor uses of works on behalf of creators and publishers and are in charge of negotiating licenses and collecting remuneration.

(6) At the moment, whether a new copyright is accepted for the digitized image varies depending on the particular jurisdiction.

(7) This additional, separate copyright can be commercial or open or with some rights reserved, depending on the decision of the museum or the rights holder. Also, digital content can be divided into different categories of copyright types, some museums may wish to be open-access while others are restricted.

(8) In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner.

(9) For example, the museum may allow visitors to print a copy of poems or drawings for their personal use, but may prohibit the sale of these works without the museum’s approval.

(10) For instance, museums undertaking digitization operations usually disseminate artefacts and museum collections internally (for storage and preservation purposes) and/or online (for publication or cloud storage) in the form of digital inventories, catalogues or archives. Such inventories may be qualified as databases under law, which can also be protected by copyright law. This requires copyright applying to the individual items in the collection and copyright protection of the database itself. However, not every compilation of data is protected by law and the protection of databases varies greatly depending on jurisdictions. It is generally accepted that databases can be protected by copyright if it constitutes an intellectual creation.

(11) Creative Commons licenses give everyone from individual creators to large institutions a free and standardized way to grant the public permission to use their creative work under copyright law. From the user’s perspective, the presence of a Creative Commons license on a copyrighted work answers the question, “What can I do with this work?”

(12) Open access is an evident trend in the museum world. ‘Open’ may further refer to licenses that clarify the permissions and restrictions placed on data, or to the use of non-proprietary digital technologies, or ideally, to a combination of both open licenses and technologies. See also OPEN DEFINITION 2.1, available here. As explained by Mia RIDGE, ‘open’ refers to content that is available for use outside the institution that created it, whether for school homework projects, academic monographs or mobile phone apps.

(13) See here. Examples include the Rijksmuseum (Netherlands) and the Metropolitan Museum of Art (New York).

(14) Rather than preventing content from being copied or redistributed, digital fingerprinting focuses on identifying users responsible for illegal redistribution. It also guarantees that the identity of the buyer is not known during distribution, as required by the GDPR.

(15)Intellectual property rights (IPRs) refer to exclusive legal rights granted to an intangible subject matter deriving from human intellectual activity in the industrial, scientific, literary, and artistic field that contains copyright and neighboring rights, trademarks, patents, industrial designs, and trade secrets