This chapter consists of the following sections:
Using cultural materials in interactive multimedia requires acknowledgement and/or negotiation of new intellectual property rights. As cultural information has no geographical borders, legislation and agreements must be developed in the international social and legal context. The differences in national copyright law are currently a barrier to the development and distribution of multimedia products.
What is worth copying, is probably worth protecting.
In most cases, museums want to distribute images and text related to their collections as part of their educational mission of making their collections physically and intellectually accessible. Nevertheless, they are concerned that, in order to maintain the aesthetic integrity of the original work of art they should exercise control over the dissemination and quality of this material. Licensing rights and reproduction fees are also an important economic asset to most museums. Every museum will have to develop policies and expertise in the implications of digital publishing (joint ventures, going it alone etc.), just as they have done with print, slides, film and video.
Copyright protects certain rights inherent in a creative work.
The copyright owner has the right to maintain the integrity of the work and protect it from piracy: to control reproduction, adaptation, distribution, public performance and public display of a work and to control the creation of derivative works. Widespread lack of understanding of the subject leads to emphasis on copyright protection rather than sensible and necessary exploitation of copyright. There is no required registration of copyright, no registration system and no central clearinghouse for information as to who owns or who can clear rights in relation to a particular work or performance.
Who are the authors/creators (copyright holders) of the digital form? This has become an even more complex question with the development of interactive multimedia now comprised of authors of text and image: writers, museums databases, artists and the estates of deceased artists, photographers and the estates of deceased photographers; museums as owners or controllers of photographic records of works; "subsidiary rights holders" including music, film, video; software authors; compilers of a new resource. Copyright may also attach to the actual digital scanning of an image.
To what extent does a museum own the works it shows? A museum has to consider the copyright and moral rights attached not only to the works held in the museum collections, but also to material of others that may be used in collection management systems and in other information systems or sources. In general terms, the copyright and moral rights attaching to a work of art (including photographs) belong to the "author" or "creator" for the duration of his/her life or their lives and to his/her heirs for a period after their death. Many works in museum collections will be out of authors'/artists' copyright and in the public domain. The museum (or other owner) may control physical access to the work but does not usually own intellectual property rights. The copyright attaching to any photograph of the work of art likewise belongs to the photographer unless the photographer is an employee of the organization for which the photograph has been taken (e.g. the museum) or unless there is an agreement transferring copyright to the organization in question.
The control of access to the work of art may obviously represent a financial asset to the museum or other owner. It can also be seen as part of the museum's responsibility to preserve, authenticate and accurately represent material in their collections. This involves not only copyright but also moral rights: to protect the integrity of the images and the identification of the author/artist. It would be conducive to good working relationships for museums to take the initiative on the subject of rights agreements at the time of new acquisitions entering the collection or new photographic records being commissioned, possibly utilizing standard forms of rights agreement. This becomes even more critical when the museum may subsequently wish to disseminate images via a network, whether for collection management, research or public access.
Museum as User of Copyright Material
Most museums are both providers and users of copyright material. Copyright protection arises when a work is "fixed" in any tangible medium of expression. Therefore use of a work without identifying the copyright owner (or his/her agent) and obtaining a license from them may result in copyright infringement. As a general rule, it is safe to assume that any right not expressly granted is reserved by the copyright owner and that one does not have the right. All relevant rights should be expressly stated in a rights license. Multimedia and other applications of "new media technology" is not clearly covered in many traditional rights agreements.
Historically there have been two different European approaches to intellectual property rights. On the one hand are those countries for whom the concept of author's rights put emphasis on protecting the moral rights of the creator: the right to claim authorship, to insist on the integrity of the work and to prevent false attribution of the work (e.g. in France, where these rights are not assignable and continue in perpetuity). On the other hand are those countries who emphasized copyright law focussing on exploitation (e.g. Great Britain and the USA).
Copyright legislation in Great Britain and the USA now encompasses moral rights but implementation is still not universal and the extent of moral rights protection varies from country to country. Other legal issues may be taken into consideration such as privacy rights and publicity rights in the USA. One or both of the Berne Convention for the Protection of Literary and Artistic Works and the Universal Copyright Convention have been signed by most countries, world-wide (but not fully implemented in all aspects by all signatories) as has the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting. These conventions lay down only minimum terms of protection of the rights to which they refer, leaving the contracting States free to grant longer terms.
The Commission of the European Communities addressed the problems of harmonization of copyright legislation within the European Union (EU) in a Green Paper in 1988 leading to legislation harmonizing the terms of protection of Copyright and certain related rights which has now been approved by the European Parliament for implementation in July 1995. While this represents a considerable step forward, these are minimal, only applying to the legislation of EU member countries (although many EFTA/EEA countries will probably harmonize with the EU) and there are still many exceptions to the norm.
Berne Convention at least 50 yrs after death, at least 25 yrs from making:
- authors - photographers - performers / recording
Rome Convention 20 yrs from performance / fixation harmonization 70 yrs after death 70 yrs after death 50 yrs from performance
USA 50 yrs after death 75 yrs from publication 75 yrs from publication
Japan 50 yrs after death 30 yrs from performance / fixation
The 70 year EU harmonization will mean that some artists whose work is already out of copyright will come back into copyright. The EU Directive does not apply to works of non-EU origin, from countries that offer a shorter period of protection (e.g. the USA, life plus 50 years after death of the artist), where the protection will be for the shorter period. Copyright Protection of computer programs was the first example of harmonization in the field of copyright within the EC (1991), followed by Rental and Lending Right in 1992, and copyright related to satellite broadcasting and cable re-transmission in 1993. The EU has also published a draft Directive for harmonization of the legal protection of Databases, but has, so far, done very little on moral rights.
The administration of rights in the music industry (as compared with the visual arts) is much more developed - but highly complex. Attempts are currently being made to find workable solutions for music rights, in the new situations arising from the development of interactive multimedia, including encouraging moves towards one- stop copyright clearance. Linear media in the film and TV sectors are also highly complex and questions arise as to how interactive a use has to be before it becomes non-linear.
Traditional (analog) media were segmented and had their own terminology and economics. While the content elements of digital multimedia do not bring up new legal problems, the combination and uses of them do. The term "multimedia" can not only apply to text, images and music on hardisk, CD-ROM, CD-I etc., but also to networked resources, video on demand and other interactive services. Questions to be answered are:
Is multimedia a collaborative work (where the authors' rights belong to the different creators and have to be transferred by contract to the producer) or a collective work (where, from the outset, the rights belong to the publisher)?
If multimedia were to be legally considered as a databank, this would raise other sets of rights problems, under existing national legislations and proposed EU harmonization that is currently being discussed.
Does the inclusion of a work in a multimedia resource constitute a new form of exploitation or is it the adaptation of a pre-existing work ? Many existing contracts have provision for the assignment of unknown methods of exploitation but most do not include rights of adaptation. Ancillary rights in existing contracts do not cover new media subsequently introduced.
Digital forms also introduce many new complications - in relation to aspects such as image manipulation, downloading to disc or hard copy printout, networking etc. Reproducing a copyright protected work in electronic form is considered a restricted act, but in many EU and other countries the status under copyright law of temporary (transient) electronic storage of protected works (i.e. in RAM memory) during acts of loading, transmission or screen display is currently being debated. With the rapid rate of technology development it is going to be necessary to regularly update agreements.
Multimedia is ravenous for content and, realistically, we have to start valuing the price of the various elements of content on a new basis.
Image Scanning and Image Security
Who should digitize - the museum or the developer/publisher ? Ideally all scans, whoever makes them, should have integral header identification and information including author/creator of the object or work of art, title, date, owner, copyright owner. Security of digitized images from unauthorized use and piracy (which is a major economic problem in videotape and digital audio publishing), is made more problematic by the rapid development of networking, and is being explored by the development of a variety of technical devices. These include encryption systems and visible or invisible watermarking of images. CITED for instance (Copyright in Transmitted Electronic Documents) has been developed under the EU ESPRIT II program and represents a comprehensive system of controls as to access and degrees of use of material within on-line and also CD-based multimedia resources, including audit trails - according to the password status of the particular user.
Recent Administrative Developments
The law follows, often much later, technical development. Most of present copyright law does not adequately reflect current (and likely future) developments in digital publishing. Some people now feel that copyright will not be able to cope with digital developments in IT and will eventually be replaced by contract law or by copyright-on-demand arrangements. In 1993-94 the CIAGP (Conseil International des Auteurs des Arts Graphiques et Plastiques et des Photographes), made up of artists rights societies in many countries, drew up draft proposals for agreements on digital imaging and interactive multimedia.
These proposals are currently being considered by its parent body CISAC (Confederation Internationale des Socis d'Auteurs et Compositeurs) and will hopefully be available in 1995. Although they are unlikely to include recommended tariffs, they could and should provide a basis for an important step forward, providing the individual Societies can, between themselves, agree on the terms and basis of implementation. The German Publishers Association has produced a Guide to the Negotiation of License Agreements for the Utilization of Published Works in On-line Databases (September 1993).
International conferences on Interactive Multimedia and on museums and Information technology increasingly feature sessions on the topic of Intellectual Property Rights and their implications but there is still no sign of a basis for international proposals for model agreements. There have been a number of initiatives by consortia of museums in the USA, setting out to establish and protect the position of museums. Similarly there are initiatives by consortia of Photographers in the USA.
The Coalition for Networked Information, Washington DC, produced an interesting research report on Rights for Electronic Access and Delivery of Information (READI) Project, September 1992. This has been followed by the deliberations and a preliminary report in July 1994 of the USA Working Group on Intellectual Property Rights of the National Information Infrastructure (NII) Task Force, which highlight the problem that sources of valuable intellectual property are not being made available over the networks because of the absence of reasonable assurance that intellectual property rights will be respected. The Multimedia Subcommittee of the Copyright Council of Japan's Agency for Cultural Affairs considered the establishment of a centralized organization for copyright information in a preliminary report in 1993. In 1994, the Multimedia Committee of the Japan's Institute of Intellectual Property (MITI) proposed a Digital Information Centre, a collective administrative centre at which information on copyrighted works could be readily accessible and clearance approval efficiently obtained.
Also in Japan, Copymart is a contract-based model for the collective licensing of copyright, which would comprise two databases - the "copyright market" (CRM), where rights holders can file their copyright information including a brief description of works and sale or license agreements and the "copy market", (COM) where copies of works are distributed to customers upon request and payment. In the USA, there is a proposal for a Multimedia Clearinghouse, with copyright owners participating on a voluntary basis. Photo Library Agencies in the UK and the US are working with CD-ROM and on-line networking, providing clients with images that are copyright cleared for the purposes declared on-line by the client followed by the payment of the appropriate fee by the client.
The World Intellectual Property Organization (WIPO) is studying the establishment of an international system of assigning, on request, identifying numbers to certain categories of literary and artistic works and to phonograms. These identifying numbers may also be used for the electronic (particularly digital) means applied to control the extent of use and, possibly, to identify the protected material used.
The French agency for protection of Programs (APP) has developed such an international identification system for software at the request of WIPO. Significant among recent specialist conferences was Legal Aspects of Multimedia and GIS organized in Lisbon, October 1994 by the Legal Advisory Board (LAB), DGXIII of the European Commission. This included the presentation of drafts of several wide-ranging and, in some respects, controversial papers commissioned but not yet (January 1995) and now published by the Commission. Given that the clearing of intellectual property rights is currently complicated, time consuming and therefore costly, there is an urgent need for simple, understandable licensing and model contracts on the part of the providers to encourage and facilitate integrity on the part of the users.
In many countries, copyright legislation allows for a number of defined exemptions on the principle that copyright should not hinder the acquisition of knowledge (eg. Fair Dealing in the UK, Fair Use in the USA). These exemptions relate to research for private study, review or criticism, reporting of current events. This has increasingly proved to be a problem, for example in relation to education and slide libraries. With the rapid development of digital imaging and networking it is now becoming a major issue as to whether Fair dealing / Fair Use is a valid concept in a digital environment, particularly in relation to educational use. This will have to be resolved in order to create confidence and willingness on the part of all interested parties, whether by means of development of intellectual property rights legislation or by licensing. The Museum Education Site Licensing Project, with Getty AHIP support, is one example of an initiative to define, through experiment and working practice, a basis of agreement that can ensure the availability of large collections of digitized museum images and information to all levels of the education sector.
It is advisable for the producer to conduct a legal audit of the rights involved and establish a clear chain of title before undertaking any multimedia publishing. Initially, this should involve existing agreements with the producer's own staff. A surprising proportion of both publishers and museums do not have the necessary legal framework to embark on multimedia. A checklist could include:
Copyright and Moral Rights Factors
The extent of permissions in relation to: - geographical rights - language rights - duration exclusive/non-exclusive requirement for provision of audit trails.
User licenses: the number and nature of site licenses for viewing only or more extended usages.
There are copyright implications in: - loading text and images into a resource - calling up/displaying on screen - printing/copying for study and private use - duplicating or manipulating images - on-site retail publishing (museums, libraries etc.) - down-loading text and/or images to disc or videotape - transmitting - networking - rental provision of digitized image files or color separations for publishing
In scanning images, artists, museums and other image "owners" have to determine their policy as to: - what material they provide (transparencies, digitized scans etc.) - on what basis they let others originate photographic material and who owns the rights - on what basis they agree to others undertaking scanning and ownership of the resultant scans - on what basis they license (e.g. non-exclusive) - for what period of time (e.g. subject to resource being published within a specified period - for a specified number of years - for a period determined by maintaining of a specified level of royalty payment) - what control they wish to exercise over image quality and design of the resource
In regard to digital text: - what data and other text material they provide - any limitations on the joining with other text or images from other sources. In regard to usage: - museum public information - research - general public, retail museum management - education - on-site publishing, - libraries
Platforms : - specifying of type(s) of platform licensed (e.g. CD-ROM, CD-I,etc.) - networking (inter-museum, Internet etc.) - cable transmission
Distribution arrangements and payments: - publishers and/or distributors - outright fee and/or royalty basis.
In a 1994 paper Jorgen Blomquist, Head of the Copyright Section, World Intellectual Property Organization (WIPO), stated "it is fair to say that digital technology is not just another technological evolution, it is a revolution; technology will not wait for us ; we are deploying all possible efforts to achieve a good, updated international framework, proper measures to facilitate the administration of rights in the face of new distribution and communication systems, efficient means to fight against piracy.
11. Funding 13. Data Interchange