Copyright Law: Protecting Our Heritage Sites

The application of copyright law to heritage sites is a complex issue that requires careful consideration of various factors, including the type of site, the country or countries in which it is located, and the specific national and international laws that apply.

Copyright law protects original works of authorship, including literary, dramatic, musical, and artistic works. It covers both published and unpublished works, and protection arises automatically upon creation without the need for any formalities. However, the specific laws and regulations governing copyright can vary by country and jurisdiction.

In the context of heritage sites, several aspects come into play. Firstly, there is the copyright of the creators or authors of any original works associated with the site, such as architects, artists, or writers. This includes the copyright of any content created for digital representation or reproduction of the site. Secondly, there may be copyright considerations for the site itself, especially if it is an archaeological site or historical building. The copyright laws of the country or countries where the site is located would typically apply in these cases.

Additionally, international treaties and conventions, such as the Berne Convention and UNESCO conventions, play a significant role in shaping national approaches to copyright and cultural heritage. These agreements often set the framework for the protection and preservation of cultural heritage while also addressing copyright-related matters.

The interplay between copyright law and cultural heritage can be complex, and it is essential to consider the specific circumstances of each case to determine the applicable laws and rights involved.

The Berne Convention and copyright protection

The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, was an international assembly held in 1886 in Bern, Switzerland, by ten European countries. The goal was to agree on a set of legal principles for the protection of original work. The assembly drafted and adopted a multi-party contract containing agreements for a uniform, border-crossing system that became known under the same name. The Berne Convention introduced the concept that protection exists the moment a work is "fixed", that is, written or recorded on some physical medium, and its author is automatically entitled to all copyrights in the work and to any derivative works, unless and until the author explicitly disclaims them or until the copyright expires.

The Berne Convention deals with the protection of works and the rights of their authors. It provides creators such as authors, musicians, poets, and painters with the means to control how their works are used, by whom, and on what terms. In some jurisdictions, these types of rights are referred to as copyright; on the European continent, they are generally referred to as authors' rights. The Convention is based on three basic principles and contains a series of provisions determining the minimum protection to be granted, as well as special provisions available to developing countries that want to make use of them.

The three basic principles are:

• Works originating in one of the Contracting States (that is, works the author of which is a national of such a State or works first published in such a State) must be given the same protection in each of the other Contracting States as the latter grants to the works of its own nationals (principle of "national treatment").
• Protection must not be conditional upon compliance with any formality (principle of "automatic" protection).
• Protection is independent of the existence of protection in the country of origin of the work (principle of "independence" of protection). If, however, a Contracting State provides for a longer term of protection than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases.

The minimum standards of protection relate to the works and rights to be protected, and the duration of protection. As to works, protection must include "every production in the literary, scientific and artistic domain, whatever the mode or form of its expression". Subject to certain allowed reservations, limitations, or exceptions, the following are among the rights that must be recognized as exclusive rights of authorization:

• The right to translate
• The right to make adaptations and arrangements of the work
• The right to perform in public dramatic, dramatico-musical, and musical works
• The right to recite literary works in public
• The right to communicate to the public the performance of such works
• The right to broadcast (with the possibility that a Contracting State may provide for a mere right to equitable remuneration instead of a right of authorization)
• The right to make reproductions in any manner or form (with the possibility that a Contracting State may permit, in certain special cases, reproduction without authorization, provided that the reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author; and the possibility that a Contracting State may provide, in the case of sound recordings of musical works, for a right to equitable remuneration)
• The right to use the work as a basis for an audiovisual work, and the right to reproduce, distribute, perform in public or communicate to the public that audiovisual work

The Berne Convention allows certain limitations and exceptions on economic rights, that is, cases in which protected works may be used without the authorization of the owner of the copyright, and without payment of compensation. These limitations are commonly referred to as "free uses" of protected works.

Copyright law and the digital age

Copyright law in the digital age is a complex and evolving issue. The traditional idea of copyright law, such as the right of reproduction and distribution, has become practically obsolete in the digital era. With the emergence of social media platforms and digital technologies, it is easier than ever to create, share, and access content, and as a result, the public is more familiar with copyright law and its issues.

Copyright law, at its core, is intended to protect and promote creativity. When an artist, musician, choreographer, film director, or any other creator makes something new, unique, and original, they are entitled to that work of art. Copyright law gives them the ability to replicate, market, monetize, and license that work as they see fit, and it protects them against plagiarism and "copycats."

However, the digital age has brought about new challenges and complexities. The concept of "fair use," which allows limited portions of a work to be used for purposes such as commentary, criticism, news reporting, and scholarly reports, is often ambiguous and subject to interpretation. The line between "fair use" and infringement can be blurry, especially with the emergence of new technologies and digital platforms.

Additionally, the rapid evolution of the digital era has made it difficult for copyright laws to keep pace. The music industry, for example, has faced significant complications due to unclear guidelines regarding interactive streaming services and the issue of online theft. The ease of digital reproduction and distribution has also made it challenging to enforce copyright laws, with many artists suffering from unauthorized reproduction and replication of their original work on social media and other online platforms.

To address these challenges, some changes and updates to copyright laws have been implemented. For instance, the Music Modernization Act ("MMA") was passed in 2018, bringing about changes in royalty arrangements for streaming services, royalty payments for audio producers and engineers, and the protection of songs recorded before 1972.

Despite these efforts, critics argue that copyright laws are outdated and complicated, often serving the interests of wealthy private investors rather than the general public. The digital age has transformed how we access and share knowledge and information, and it is essential for copyright laws to adapt and provide a regulatory framework that encourages creative work and innovation while also protecting the rights of creators and promoting access to information and cultural heritage.

To keep up with the evolving digital landscape, copyright laws need to be regularly reviewed and updated. Clear infringement guidelines, robust legislation against piracy, and measures to prevent service providers from profiting off illegal materials are essential steps to protect the interests of creators and the public in the digital age.

Limitations and exceptions to copyright law

Limitations and exceptions to copyright are provisions in local copyright law or the Berne Convention that allow for copyrighted works to be used without a license from the copyright owner. These provisions relate to several important considerations, including market failure, freedom of speech, education, and equality of access for people with disabilities.

The scope of copyright limitations and exceptions has been a subject of societal and political debate due to the impact of digital technology, changes in national copyright legislation for compliance with TRIPS, and the enactment of anti-circumvention rules in response to the WIPO Copyright Treaty.

Some well-known limitations and exceptions to copyright include fair dealing in the UK and Canada, and the fair use doctrine in the US. Fair dealing allows limited portions of a work, including quotes, to be used for purposes such as commentary, criticism, news reporting, and scholarly reports. The fair use doctrine in the US is just one of several important limitations, with others outlined in sections 107 through 122 of US copyright law, which limit the copyright holder's exclusive rights.

In the context of heritage sites, copyright issues can be complex and uncertain, especially for older artworks or cultural heritage pieces. Heritage organisations can benefit from several fair dealing exceptions to support their digital strategies. However, the legal uncertainties surrounding copyright status often lead to pragmatic solutions, such as fictitiously ascribing rights or accepting false claims of copyright.

To address the uncertainty of the copyright status of older works, heritage institutions must balance rights clearance with risk management. While they should put significant effort into rights clearance, they must also accept a degree of risk. Allegations of copyright infringement need to be proven, and heritage institutions can protect themselves by diligently documenting their searches and basing their assumptions on evidence.

The Freedom of Panorama exception

Freedom of Panorama (FoP) is a legal right in some countries that allows people to publish pictures of artworks, sculptures, paintings, buildings, or monuments that are in public spaces, even if they are still under copyright. This exception to copyright law does not exist in some countries, including Argentina, Belgium, France, Greece, and Italy.

The concept of FoP originated in Germany in the 19th century. In 1840, the Kingdom of Bavaria introduced an exception for pictorial depictions of "works of arts and architecture in their exterior contours" in public spaces. The German parliament implemented this legal right throughout the German Confederation in 1876.

The scope of FoP differs among countries. In most countries, it applies only to images of three-dimensional works permanently installed in a public place. However, in Switzerland, people can take and publish images of two-dimensional works such as murals or graffiti, as long as they are not used for the same purpose as the originals.

Many countries have subtle differences in their definitions of "public space." For example, in Germany, it includes only outdoor spaces, while the UK and Russia also include indoor spaces such as public museums.

The right to FoP is essential for the arts, preservation of culture, education, and freedom of expression. It is the foundation for many European photographers, painters, and visual artists to create art and earn a living. However, the lack of harmonized rules across the EU creates legal uncertainty and challenges for citizens who wish to share photos and videos of copyrighted works located in public spaces.

To address this issue, stakeholders have proposed a mandatory EU-wide FoP exception that applies to both commercial and non-commercial uses of all works permanently located in public spaces. Despite broad support, the European Commission has not included this issue in its Digital Single Market (DSM) proposal.

The reproduction of public domain art

In the United States, for example, the case of Bridgeman Art Library v. Corel Corporation (1999) set a precedent that mere 'record' photographs of two-dimensional works of art do not acquire copyright protection. This means that faithful reproductions of public domain art, such as paintings, are not protected by copyright in the US. However, it's important to note that each country has its own rules regarding copyright protection for reproductions, and local laws may restrict the reuse of such images. For instance, in the Nordic countries, there is a neighbouring right that applies to all photographs, including "faithful reproduction" images, which grants a reduced term of protection. On the other hand, countries like Germany and the UK have excluded certain photographs of public domain material from protection, allowing for the free use of such reproductions.

The issue of copyright for reproductions of public domain art has also been a concern for cultural heritage institutions. There has been an increase in the use of Creative Commons (CC) licenses by these institutions on photographic reproductions and 3D scans of objects that are indisputably in the public domain. However, CC licenses are designed to operate only where copyright exists, and applying them to public domain works is ineffective. In such cases, tools like the Public Domain Mark or the CC0 public domain dedication tool should be used instead to confirm the worldwide public domain status.

While digitization and reproduction by itself don't usually create copyright or similar rights, cultural heritage institutions should still exercise caution and consider the cultural prerogatives of the communities of origin when dealing with contested objects. Additionally, instead of using CC licenses to get credit for their work or indicate provenance, these institutions can utilize better technical tools such as metadata and machine readability standards.

Overall, the reproduction of public domain art can be a complex issue, and it's important to be aware of the specific laws and guidelines in your jurisdiction.

Frequently asked questions