Guest blog from Sian Prosser of the Royal Astronomical society
Conference report: Keeping Within the Lines: Approaches to Copyright in Art and Design Archives (London Metropolitan Archives, 13 March 2015)
In March I attended a copyright study day organised by ARLIS Committee for Art & Design Archives in partnership with The National Archives’ ‘Archiving the Arts’ initiative. In spite of the art and design focus, this event covered issues relevant to anyone looking after library and archive collections. It was a chance to learn about recent changes in copyright legislation that affect archives, and to explore challenges and opportunities in the use of copyright-protected archive material in exhibitions or publications.
Changes to copyright law
The first speaker was Benjamin White, Head of Intellectual Property at the British Library. He gave an update on changes to UK copyright law in 2014 that affect the work of archivists. Many of the key changes have been summed up in a series of documents created by the Intellectual Property Office (IPO), including a leaflet about changes in exceptions to copyrightthat affect libraries, archives and museums. For example:
– It is now possible to make multiple digital copies of materials for preservation purposes.
– Copying for research and private study used to be limited to literary, dramatic and artistic works, but is now extended to sound recordings and films.
Other relevant changes in exceptions include the following:
– Section 30 used to be an exception that allowed quotation for criticism and review. This exception has now been widened to cover any reasonable quotation, including illustrative use, not just review (see p. 5). As the leaflet points out, this is good news for authors, academics and casual bloggers.
– Section 31 used to be an exception that allowed accessible copies to be made for people with visual impairments. This exception has now been widened to apply to all impairments that prevent equal access.
– Section 32 relates to the fair dealing exception for instruction. Now, copyrighted works in any medium can be copied for use in a teaching environment as long as certain conditions are met.
Orphan works: exception and licensing
Despite these relaxations in copyright exceptions, Benjamin White pointed out that during this parliament, there will be no change to the law that unpublished works remain in copyright until 2039. Two recent developments provide two routes to making such works available to the public: the orphan works exception, and the orphan works licensing scheme. Both routes have limitations. The EU orphan works directive has now been implemented in the UK, and this exception can be used by libraries, archives and museums. It does NOT apply to standalone artistic works.
A diligent search for copyright owners is required, and the details have to be registered on the OHIM database in Brussels. If the rights holder materialises later on, they would have a claim to reasonable remuneration.
As for licensing, the Intellectual Property Office has launched a scheme to allow people to apply for licences to copy orphan works, including standalone artistic works. The IPO receives the licence fee on behalf of relevant collecting societies. One problem with this scheme is that the collecting societies want licences to last for a limited amount of time e.g. 5 years, but this doesn’t correspond with the way that digitisation projects are funded.
Copyright and digitisation
Victoria Stobo gave an excellent talk on how archives are tackling copyright clearance when digitising collections. She gave several examples of how certain institutions in the US and UK are managing risk, as detailed in the slides which she has kindly allowed to be shared in this blog post.
The cost of rights clearance can outstrip the cost of digitisation and the monetary value of the material to be digitised. Across the sector, there is a clear tendency for digitisation strategies to focus on depositor copyright materials or public domain material, leading to an incomplete digital public record. The case studies showed how institutions like the Wellcome Library used risk management to achieve their digitisation objectives, and went through the procedure of obtaining rights clearance.
Although there were varying rates of response from rights holders across the different case studies, respondents tended to grant permission for digitisation, and they often do so without asking for a fee (in the case of the Wellcome Library’s Codebreakersproject, 84% of rights holders were identified, 77% were contacted, and 98 % of those who responded granted permission). Rights holder concerns are not always about copyright. Content and sensitivity is important, and the age of material is important, particularly for artists and writers.
It turns out that carrying out rights clearance can have a positive impact. For example, archivists have found that getting in touch with depositors has led to them becoming involved in outreach and fundraising. It establishes trust and increases engagement.
During the panel discussion, the speakers shared their top tips for rights clearance: Stobo recommends building six to nine months into a digitisation project for rights clearance, and Ben White advises taking time to explain the positives of digitisation to the rights holder, and never saying permission is needed urgently (even if it is because it’s been left to the last minute).
Naomi Korn led an excellent workshop, featuring case studies and exercises in ‘managed risk-taking’. Naomi highlighted the gap between print-oriented legislation and the digital landscape, leading organisations to select items for digitisation on the grounds of lowest risk, thus distorting the historic record. We can fill the gap by doing due diligence, seeking licenses and permission, and having a notice and take down policy. One of the best things about this conference was the chance to work with qualified archivists during the practical sessions, during which I learned that Tim Padfield’s 2004 flowchart of copyright duration is available online (a new edition of Padfield’s Copyright for Archivists and Records Managers is coming out in July).
We also heard from two speakers who looked at the effect of copyright law on creativity. Claudy Op den Kamp gave a paper based on her thesis on the impact of copyright legislation on archival access, focusing on how the EYE Film Institute Netherlands enables access to fragments of unidentifiable moving images in its collections by presenting compilations of these “orphan works par excellence”, and allowing them to be used in found footage film projects.
Artist David Mabb described the impact of copyright on his artistic freedom. The starkest example of this was when his request to display adapted photographs belonging to the Magnum photo agency was met with a threat of legal action. His response to the threat is revealed in this video(7m 10s). Mabb pointed out that copying used to be an accepted part of learning one’s craft, but evolved into a subversive act, as seen in the moustache that Duchamp drew on a postcard of the Mona Lisa, or in the Situationists’ practice of détournement. However, Mabb recognised that copyright stopped the exploitation of artists’ work by other artists, for example, when Jeff Koons based his ‘String of Puppies’ sculpture on Art Rogers’ photograph..
This study day was a great opportunity to learn about the latest changes in copyright legislation, as well as the obstacles that still remain. It’s clear that the constraints of copyright legislation are causing a distortion in the online historical record as material for digitisation is selected on the grounds of copyright compliance. However, there are strategies available for managing the risk involved in making orphan works and other copyright-protected material available to the public.