Today is International Museum Day and we at Creative Commons (CC) are thrilled to celebrate the institutions that curate, care for, and provide access to the world’s rich diversity of cultures, ideas, and forms of knowledge. This year’s theme, dedicated to the universal values of equality, diversity, and inclusion, is a testament to museums’ ability to act as intercultural bridge-builders and powerful engines of social change.

International Museum Day 2020 poster designed by the International Council of Museums.

At CC, we share these values and we’re glad to support museums in nurturing the cultural fabric of societies around the globe. We do that through our work on openGLAM, where we help cultural institutions make the most out of the possibilities offered by CC licenses and tools to share their collections of cultural heritage online as openly as possible. We’re also busy promoting the interests of museums in the copyright law and policy arena. Central to CC’s copyright policy agenda is making sure museums’ concerns and needs are treated on equal footing with those of copyright owners, in a balanced and fair manner. In this blog post, we focus on the importance of copyright limitations and exceptions (L&Es) as the pillars on which museums can rest to fulfill their mission free of any undue legal encumbrances.

Limitations and exceptions (L&Es) to copyright exist to ensure a fair balance between the rights of creators and the rights and legitimate interests of users and the general public. L&Es allow uses without authorization from the copyright owner, most often without payment. In countries of common law tradition, they often take the form of “fair use” or “fair dealing,” and in countries of civil law tradition, L&Es are usually circumscribed and precisely defined in the law.

Museums’ invaluable mission: sharing their collection with the public

Museums collect, preserve, research, interpret, exhibit, educate, and offer spaces for visitors (both on-site and online) to interact and participate in an incredible variety of histories, artifacts, and experiences. They are entrusted with the public interest mission of providing access to knowledge and culture, thereby contributing to economic, social, and cultural development. Together with galleries, libraries, and archives (known collectively as “GLAMs”), many museums strive to take advantage of digital technologies to preserve and provide access to their collections for the benefit of present and future generations. For example, Paris Musées recently released over 100,000 works in the public domain under Creative Commons Zero (CCØ), adding their name to the growing list of GLAMs that recognize the importance of open access to artistic and cultural artifacts. This is especially important to address the risks of loss and degradation presented by global challenges such as climate change. 

A portrait by Paul Cardon of French feminist journalist Caroline Rémy (1855-1929) in the public domain. Made available by the Paris Musées.

For museums dedicated to cultural heritage, broadly disseminating online the world’s shared heritage is directly aligned with their public mission. Also key is the sharing with visitors and the general public of information and content—ranging from digital images to information about works, including bibliographical information and metadata. 

Copyright should not stand in the way of museums’ basic functions

Alas, for museums on all continents, basic functions like making copies of works under copyright for preservation or making available online are hampered by a jumble of entangled copyright issues. This is especially the case in the digital environment, where legal uncertainty is rife. One troubling gray area is the claiming of rights over slavish reproductions of works. On that point, CC adamantly asserts that digitized public domain works must remain in the public domain. The world over, outdated, and misaligned copyright rules fail to accommodate the legitimate activities of museums, exacerbate inequalities by curtailing efforts of museums to provide access to knowledge and culture, and carve a black hole into our shared digital heritage. 

Copyright should be limited where it serves a public interest. Stronger, clearer, and more effective limitations and exceptions are necessary to allow museums to fulfill their mission.

At CC, we firmly support the view that copyright laws should not stand in the way of preservation and access to education, scientific and cultural works, as well as other legitimate, public-interest activities of museums. In fact, we believe that copyright should be limited where it serves a public interest. That’s why we fully agree with the International Council of Museums (ICOM) that stronger, clearer, and more effective L&Es are necessary to allow museums to fulfill their mission. Indeed, last month we signed the open letter co-prepared by ICOM and others, calling on the World Intellectual Property Organization (WIPO) to urgently create an international legal instrument with clear rules allowing the preservation of cultural heritage. 

A clear way forward for international law and policy on limitations and exceptions 

At the European level, the 2019 Directive on Copyright in the Digital Single Market (CDSM) contains several mandatory L&Es aimed at supporting museums and facilitating the digitization and online sharing of cultural heritage. For example, article 6 provides an exception for the preservation of cultural heritage while article 14 states that faithful copies of works of visual art that are in the public domain must remain in the public domain. CC-sister organization Communia is offering guidelines and assistance in the implementation of the CDSM. The EU Member States have until June 2021 to seize this unprecedented opportunity to recognize and support the pivotal roles of museums in society and write clear E&Ls into their national copyright laws. 

Internationally, there is currently no clear international framework providing for mandatory L&Es for the benefit of museums. That means that countries are not obligated to have museum-friendly L&Es in their national copyright law, and many, indeed, don’t. A 2015 WIPO study on copyright L&Es for museums prepared by Dr. Lucie Guibault and Jean-François Canat shows that L&Es vary greatly across jurisdictions. Less than a third of WIPO Member states provide specific L&Es for museums, while two-thirds allow museums to rely on general L&Es and/or licensing solutions. Specific exceptions include reproduction for preservation purposes, use of works in exhibition catalogs, the exhibition of works, use of orphan works; general exceptions comprise use for educational or private purposes. According to WIPO’s 2019 Revised Report on Copyright Practices and Challenges of Museums, E&Ls are not frequently well understood or used due to legal uncertainty.

Hence, it’s essential to create an international treaty that clearly enshrines the rights of museums to conduct their legitimate activities without the burden of having to abide by out-of-touch, impractical, and sometimes straight-out unfair copyright rules. We recently said on this blog that it’s high time to establish an expeditious way forward on L&Es within the WIPO Standing Committee on Copyright and Related Rights (SCCR), with a view to safeguarding the interests of museums and GLAMs in general. Building on the adoption of the 2013 Marrakesh Treaty on access to works for visually impaired people, the SCCR should now concentrate on creating clear and mandatory L&Es for GLAMs. 

Museums deserve to be celebrated all year for a multitude of reasons, and we’re proud to support the museum sector through our openGLAM and copyright policy efforts. Interested in learning more? Get in touch ? info@creativecommons.org!