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wipo-e

E

SCCR/30/2

ORIGINAL: ENGLISH

DATE: APRIL 30, 2015


Standing Committee on Copyright and Related Rights
Thirtieth Session

Geneva, June 29 to July 3, 2015

Study on Copyright Limitations and Exceptions for MusEums
prepared by Jean-François Canat and Lucie Guibault, in collaboration with Elisabeth Logeais
Table of Contents


1.Introduction 3

1.1.Context 3

1.2.Structure and Methodology 4

2.Museums and Copyright Law 7

2.1.Brief overview of the development of museums 7

2.1.1.Museal venture 7

2.1.2.Definition of “museum” 8

2.1.3.Mandates of museums 11

2.2.Rationales for museum exceptions and limitations 14

2.3.International Copyright Framework 16

2.3.1.Berne Convention and WIPO Copyright Treaty 16

2.3.2.TRIPs Agreement 18

2.3.3.UNESCO Conventions 18

2.3.4.Regional Conventions 19

3.Copyright Exceptions and Limitations to the Benefit of Museums 22

3.1.General remarks 22

3.2.Moral rights 24

 France, Cour de Cassation, Chambre Civile 1, 25 Mars 2010, 09-67515; Cour de Cassation, Chambre Civile 1, 11 Décembre 2013, 11-22031. 25

3.3.Specific exceptions and limitations 25

3.3.1.Reproduction for preservation purposes 26

3.3.2.Use of works in exhibition catalogues 29

3.3.3.Exhibition of works 30

3.3.4.Communication to the public on the premises of the museum 32

3.3.5.Use of orphan works 33

3.4.General exceptions and limitations 36

3.4.1.Reproduction for private purposes 36

3.4.2.Reprographic reproduction 38

3.4.3.Use for educational and scientific research 39

3.5.Resale rights 42

 Text: S. 2045 — 113th Congress (2013-2014) at https://www.congress.gov/bill/113th-congress/senate-bill/2045/text. 46

 Senat de France, “L'alienation des collections publiques”étude de legislation comparée N°191, Service des études juridiques du sénat, Paris, Décembre 2008. 47

4.Case Studies on the Role of Museum Exceptions and Limitations 48

4.1.1.Communication of the museum collections and creation of databases 49

4.2.Right of exhibition and promotion of artists 52

4.3.The preservation mandate and permanence of artworks 54

4.4.The scope of the “research” exception 55

4.5.Resale right 57

5.Conclusion 60

5.1.Summary of main findings 60

5.2.Recommendations 62

5.2.1.Recommendations to the lawmakers 62

5.2.2.Recommendations to the museum community 63

Bibliography 64

Appendix I: Questionnaire 70

Appendix II: National Legislation 74

AUSTRALIA 75

AUSTRIA 77

BANGLADESH 80

BELGIUM 82

BOSNIA AND HERZEGOVINA 84

BULGARIA 86

CANADA 88

CHILE 91

CHINA 93


CYPRUS 95

DENMARK 97

ESTONIA 99

ETHIOPIA 103

FIJI 104

FINLAND 107

FRANCE 110

GERMANY 112

HUNGARY 116

ICELAND 118

INDIA 120

ISRAEL 122

ITALY 123

LATVIA 125

LESOTHO 127

LITHUANIA 128

LUXEMBOURG 129

MACEDONIA, REPUBLIC OF, 131

MALTA 133

MONGOLIA 134

MONTENEGRO 135

THE NETHERLANDS 136

NIGERIA 139

NORWAY 140

PAKISTAN 142

POLAND 143

PORTUGAL 144

ROMANIA 145

SERBIA 147

SIERRA LEONE 148

SLOVAKIA 149

SLOVENIA 151

SPAIN 152

SWITZERLAND 153

TURKEY 155

UNITED KINGDOM 157





  1. Introduction




    1. Context

This study investigates the issue of limitations and exceptions to copyright for the benefit of museums, with a view to strengthening the international understanding of the need to have adequate limitations, exploring existing and proposed models of protection, and moving towards agreement regarding specific exceptions or limitations.


Museums, worldwide, have existed for centuries in their current form. They come in all shapes and sizes. They assemble in their collections a wealth of knowledge and culture for the benefit of their visitors. They are the caretakers of their nation’s cultural heritage. The objects gathered are as heterogeneous as the missions they pursue: objects of art or technique, texts, drawings, paintings, photographs, maps, films and sound recordings. All are collected and organized for the promotion of the art, anthropology, archaeology, science etc. To do so, museums engage in different types of activities in relation to the objects they hold, the core of which concerns their acquisition and curation, their dissemination to the public and the promotion of their use in support of education and research. With the significant technical and social changes brought about by the advent of information technologies, museums are now forced to adapt their ways and to consider digitizing and disseminating their collection via the Internet, if they wish to remain socially and culturally relevant in the 21st century.
The fulfilment of a museum’s mandates often involves the making of reproductions and the communication to the public of the works in its collection. To accomplish these acts with respect to copyright protected works, museums in principle need the rights holders’ permission, unless an exception or limitation on copyright applies. The intersection between copyright law and a museum’s activities has therefore the potential of posing a challenge to the latter’s functioning as is the case for the majority of potential users of copyrighted works.
Not all museums are confronted in the same measure with issues relating to copyright law, however. First, not all items assembled in the collection of a museum necessarily enjoy copyright protection: in some cases, the objects do not qualify as a work under copyright law (e.g. a bicycle in a history museum, a natural landscape); but in most cases, the term of the copyright protection on the object will have lapsed (e.g. Egyptian artefact or Shakespeare’s manuscripts).1 From the perspective of copyright law, these objects can therefore be used without restriction. Second, museums attempt as far as possible to obtain through contractual agreement the assignment of copyright, or at least a license of rights, together with the physical ownership of the works in their collection.2 Museums would hardly be in a state of realizing their mandate if they did not ensure that they are legally authorized to accomplish the acts necessary to do so. But museums are not always in a position to secure these rights. Moreover, the situation may not be so clear with respect to objects acquired before the advent of the digital networked environment: to whom belong the ‘digital rights’ on those objects, between the initial author or the museum?3 What if the author can no longer be identified or located, in which case the work is ‘orphan’?
The question addressed in this study is whether the current state of copyright exceptions and limitations in copyright law are fitted so as to enable museums to carry their mandates and if not so, how to ensure that the provision of museum services falling in the scope of their mandates, is not impeded taking account of the interests of all stakeholders. How can the rights holders’ authorization best be ascertained, through the law or through contract? Can the exceptions and limitations in the copyright acts of the Members of the Berne Union be amended to alleviate problems of legal uncertainty?


Directory: edocs -> mdocs
mdocs -> Common categories
mdocs -> Original: english
mdocs -> Original: English/French
mdocs -> Assemblées des États membres de l’ompi quarante-huitième série de réunions Genève, 20 – 29 septembre 2010 Assemblies of the Member States of wipo forty-Eighth Series of Meetings Geneva, September 20 – 29, 2010
mdocs -> E cdip/8/inf/6 Corr. Original: English date: January 16, 2012 Committee on Development and Intellectual Property (cdip) Eighth Session Geneva, November 14 to 18, 2011
mdocs -> F ipc/CE/32/2 Suppl. 1 Original : anglais date
mdocs -> E wipo/smes/qtc/05/inf/2 Prov. Original: English date
mdocs -> Hr statistics
mdocs -> Wipo/iptk/GE/15/inf/2 original: francais/english
mdocs -> E cdip/13/inf/2 original: english date: february 12, 2014 Committee on Development and Intellectual Property (cdip) Thirteenth Session Geneva, May 19 to 23, 2014


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