The Nexus Of Cultural Heritage And Intellectual Property

By Molly Torsen

Over the past several decades, scholarship on the nexus between cultural heritage and intellectual property law has alternately garnered keen international attention or remained stagnant. Those jurisdictions that have a greater interest in protecting their heritage – perhaps because of its cultural importance or because of a history of misappropriation – through IP laws have, of course, focused more resources and thought on the issue. Australia, for example, has grappled with the topic for decades; they began looking at heritage protection issues for their indigenous populations beginning at least in the 1930s.

On an international platform, however, there is little legal consistency or ideological agreement on the appropriate means through which to protect all the objects and expressions that comprise a culture’s heritage. From differing legal systems to different degrees of autonomy for indigenous civilizations to different understandings of what constitutes ethical treatment or dissemination of cultural heritage, cultural organizations around the world are struggling to determine the most appropriate ways to handle the intellectual property assets tied to cultural goods.

These cultural institutions generally house a vast array of cultural heritage from both local and international peoples. As such, many believe it would be useful to have an international consistency insofar as the manner in which this heritage is treated for purposes of streamlining such things as cross-border borrowing and lending of heritage objects and providing some high-level guidance for an array of other difficult issues.

There have been international treaties regarding the physical aspects of heritage. Some examples include the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention); the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (The UNESCO Convention); and the 1995 International Institute for the Unification of Private Law (UNIDROIT) Convention on Stolen or Illegally Exported Cultural Objects (The UNIDROIT Convention).

Regarding the intellectual property aspects of heritage, however, there have only been attempts at international agreement. Some of the attempts at creating consensus include a joint project between UNESCO and the World Intellectual Property Organization (WIPO): the UNESCO-WIPO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions of 1982; the South Pacific Model Law for the Protection of Traditional Knowledge and Expressions of Culture of 2002; and the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage of 2003.

Some of the problems these latter agreements have had include lack of international interest or support, lack of strong definitions for the terminology they use (both legal and nonlegal terminology), the role of traditional knowledge in the general heritage conservation debate, and dissimilar current practices amongst institutions in the areas of archiving, preservation, website design and copyright law. As such, cultural institutions tend to operate with the best information they have available for their intellectual property concerns, rather than according to any set of international best practices or guidelines.

To fill this gap, organizations such as the International Council of Museums (ICOM), headquartered in Paris, have begun to look at the topic of intellectual property as one that needs urgent attention as more and more of the world’s art travels from country to country and becomes accessible online.¹ There are, for example, distinct differences amongst cultural institutions in the way in which art is digitized and placed online.

Online Collections and Exhibitions

At the Art Gallery of New South Wales in Australia, which houses a large collection of contemporary art, there is a brief mention of copyright law to supplement its longer explanation on its Reproductions webpage regarding image reproduction costs and processes:

This department can supply details of copyright holders where possible. It is the responsibility of the client to gain clearance to reproduce, in writing, from the copyright holder of the works requested. A copy of the permission to reproduce must be forwarded to this department before photographic material can be released.²

Far on the other side of the equator, Sweden’s Moderna Museet incorporates a very brief mention of copyright law on its Website webpage:

All material on Moderna Museet’s website is protected by copyright laws. Texts and pictures may be copied for non-commercial home use only.³

At the other end of the spectrum – and across the Atlantic Ocean – the Smithsonian Institution’s website has a long webpage dedicated to the copyright that inheres in its website.⁴ The webpage provides an overview of intellectual property law generally; fair use provisions; commercial use restrictions (and provides an e-mail to the Smithsonian’s Office of Product Development and Licensing); information on trademarks as they relate to website use; a disclaimer on the content of the website; and a list of frequently asked questions with regard to IP and the website.

Another example is the newly opened Musée du Quai Branly in Paris, which houses a broad collection of artifacts. French moral rights are some of the strongest in the world, on top of which this type of collection calls for special protection. The museum’s “legal notes” webpage instructs the website user on his or her intellectual property responsibilities, pointing to specific parts of the law.⁵ It explicitly prohibits full or partial reproduction and translation of the website. The webpage further instructs the user on what constitutes unauthorized reproduction and explains that downloading and printing any webpage from the website shall be solely for personal use and should be destroyed thereafter.

“Organizations such as the International Council of Museums (ICOM), headquartered in Paris, have begun to look at the topic of intellectual property as one that needs urgent attention as more and more of the world’s art travels from country to country and becomes accessible online.”One of the interesting facets of the Internet, of course, is that the same webpage is viewable from any corner of the world, and therefore, any jurisdiction. Australia’s fair use provisions are currently more stringent than those in the United States but an individual in Australia can access all the content of an American-based website. An Australian artwork traveling to a United States exhibition is treated like an American artwork for copyright purposes, as per the Berne Convention, which mandates “national treatment” in Article 5(1).⁶ As such, for example, a German artist’s moral rights can go unacknowledged on American websites.⁷ While the effect the Internet has had on international copyright practices in general is beyond the scope of this writing, it is certainly an important issue that potentially impacts every digitized work under copyright.⁸

Very few museum copyright notices seem to acknowledge or explain the issues regarding traditional cultural expressions (expressions of folklore), even when the museum’s physical collection including such objects is reflected on its Website. This may be the result of a lack of international leadership and/or consensus in the legal arena. The Simon Fraser University Museum of Archaeology and Ethnology [in Canada] has put some digital photographs of ethnographic artwork on its website and has simply added a copyright notice to its webpages,⁹ letting copyright law speak for itself. A different approach than adding legal tags to a website can be seen at the website of the Burke Museum of Natural History and Culture in Seattle, which houses an impressive collection of archaeological and ethnological objects. It has thorough reproduction and research access policies as well as an explicit copyright statement, retaining sole copyright for the website content, limiting website use to educational or research purposes and specifically prohibiting commercial use of any content on the site.¹⁰

Coffee Table Books, Catalogues, and Possible Future Rights

A tangential issue that is uncertain in the international museum arena is whether photographs of two-dimensional artwork in the public domain are copyrightable. The 1999 United States District Court case, Bridgeman Art Library v. Corel Corp.,¹¹ ruled that ruled that photographs of public domain paintings cannot be protected under copyright law due to a lack of originality. While this finding has not been challenged in the international arena or at the US Supreme Court, it has potential to impact museums’ ability to control and profit from reproductions of much of their collections. This is because museums have traditionally been able to license photographs of their art objects, for a profit, to entities wishing to use those images, ranging from publishing companies that make glossy ‘coffee table’ books to companies using artwork on pamphlets.

Another timely issue in the art/law nexus is the appropriateness of droit de suite, a royalty for visual artists on the resale of artworks, in art publications. Canada’s Society for Reproduction Rights of Authors, Composers and Publishers (Société du droit de reproduction des auteurs, compositeurs et éditeurs au Canada) has recently been cited for sending invoices to unsuspecting auction houses that are reprinting images of artists’ works in their sale catalogs without paying for using those images. While some might consider auction catalogs commercial, others consider them academic; some worry that catalogues raisonées could be similarly affected and that art imagery will be locked away under price tags that are unaffordable for publishers and gallerists. The freedom with which images have been used in this field has long gone unregulated in most jurisdictions.

Because of the sometimes-nebulous legal parameters of intellectual property in museum and gallery collections, it may be useful to focus international attention on best practices in this arena. While an authoritative text or list of legal guidelines on the international scale are currently not feasible because of the ongoing discussions and disagreements in several areas (traditional cultural expressions, e.g.), it is important for museum professionals to understand the issues for physical art, digital reproductions of that art, and online digitization efforts with regard to their own jurisdictions; and to be exposed to ways in which other jurisdictions and institutions are handling these issues. A “one-size-fits-all” approach is currently inappropriate but an understanding of the issues and legal landscape is essential in order for art and heritage professionals to make informed choices regarding the art and heritage for which they are stewards.

Current notable efforts in researching issues related to the above include the World Intellectual Property Organization’s heritage research under the heading Promoting Creativity and Safeguarding Cultural Heritage;¹² this is a long-term effort in its beginning stages to collect data regarding current practices and understandings of intellectual property in the museum community before undertaking any guidelines or best practice-type endeavor. The International Council of Museums International Committee on Museums of Ethnology is also interested in tackling the issue.¹³

The Inter-American Development Bank (IDB) in Washington, DC will hold a related symposium on 21 September, focusing on understanding the cultural heritage debate, and explaining some of the inherent intellectual property issues.

Molly Torsen is a Program Attorney at the International Intellectual Property Institute (IIPI) in Washington, DC and is involved in the World Intellectual Property Organization’s Heritage project. This writing does not reflect the viewpoint of either IIPI or WIPO but are the author’s own ideas based on her research.

¹  See, e.g., ICOM’s Legal Affairs and Properties Committee:
http://icom.museum/legal_committee.html.

² http://www.artgallery.nsw.gov.au/collection/image_reproduction.

³  http://www.modernamuseet.se/v4/templates/template4.asp?id=41.

⁴ http://www.si.edu/copyright/.

⁵ Conditions d’utilisation du Site, available at
http://www.quaibranly.fr/index.php?id=18.

⁶ Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.

⁷ See, e.g., Martin Kippenberger (German, 1953 – 1997). Untitled (A la Grande Cloche), 1995, available at
http://www.moma.org/collection/browse_results.php?object_id=34527. German moral rights end with the end of copyright protection, i.e., 70 years after the artist’s death.

⁸ For an interesting discussion of the topic, see Olena Dmytrenko and James X. Dempsey, Copyright and the Internet: Building National Legislative Frameworks Based on International Copyright Law, Dec. 2004, The Global Internet Policy Initiative, available at
http://www.internetpolicy.net/practices/20041200copyright.pdf#search=%22berne%20convention%20national%20treatment%20internet%22.

⁹ http://www.sfu.ca/archaeology/museum/nwcc/T1.htm.

¹⁰ http://www.washington.edu/burkemuseum/copyright.php.

¹¹  36 F.Supp.2d 191 (S.D.N.Y. 1999).

¹² http://www.wipo.int/tk/en/folklore/culturalheritage/predatabase.html.

¹³ See, e.g., Martin Skrydstrup and Wend Wendland, Protecting Intangible Cultural Heritage; From Ethical Dilemmas to Best Practice, ICOM News No. 2, 2006, available at
http://icom.museum/intellectual_property_eng.html.