COPYRIGHT LAW AND MUSEUM

INTRODUCTION

Copyright Law and the Museum Industry sound like an odd fit but in reality, they both are intricately connected with each other for their certain objectives and purposes. This is important for the encouragement and promotion of science and art in order to maintain the value and heritage linked to some works. The Institute of Museum and Library Science defined Museum as:

“an organised and permanent non-profit institution, essentially educational for aesthetic in purpose, with professional staff, which owns and utilizes tangible objects, cares for them, and exhibits them to the public on some regular schedule”.

INTERNATIONAL COUNCIL OF MUSEUMS (ICOM)

The International Council of Museums is the global organisation of museums and museum professionals. ICOM was created in 1946 with an objective to conserve the world’s natural and cultural heritage. It is an NGO keeping formal relations with UNESCO. These organisations come forward to raise awareness of international matters such as intangible heritage and restitution and so on.

The International Council of Museums (ICOM) defined museum as:

“a non-profit making, permanent institution in the service of society and of its development, and open to the public, which acquires, conserves, researches, communicates and exhibits, for purposes of study education, and enjoyment, material evidence of humans and their environment”.

The functions of the Museums further categorized in three primary stages: Collection, Preservation and Research.

The primary purpose of the museum is to collect artistic works and state-of-the-art masterpieces. The second purpose of the museum is to conduct research. It shares its connection with the Archaeological units to do field- research. Museums sometimes conduct workshops in the form of exhibitions, sound shows, short films etc, with the motive to attract the tourists and others. It has also entered into the world of the digital age in order to enlarge the accessibility of the works which would be inaccessible.

Art museums perform the works of photography, sculptures, paintings, drawings and other types of activities which are divided into smaller spaces collectively called galleries. The Louvre in France is one of the most popular Art Museums in the world with 7.3 million visitors in the globe every year.

INTERNATIONAL COPYRIGHT LAW

There is no existence of International Copyright Law; every country has its own copyright law that applies to its citizens and also on the foreign content with respect to one’s country. It permits its creators and content owners from the whole world and citizens of many other countries to enjoy copyright protection of their countries other than their own.

There are a number of International conventions and treaties which safeguard the creative works that are subject matter of copyright. Such international agreements give protection for copyrightable works after they are created. The convention is called the Berne Convention which works for the Protection of Literary and Artistic works. This Convention is one of the most important international treaties, addressing protection of copyright at international level. Some of the countries acceded to this treaty such as the United States in 1989, China in 1992 and Russian Federation in 1995. All the important countries of the world acceded to the Berne Union. The Berne Convention’s copyright office issued a list of the countries that are part of it along with those other international copyright treaties such as Universal Copyright Convention.

The main feature of the Berne Convention is to prohibit member countries from imposing “formalities” on copyright protection; this is because the exercise of copyright cannot be subject to any rule except in the country of origin. The United States had joined the Berne Union to maintain the formalities U.S law required. Therefore, countries who become part of the Berne Union must afford copyright protection to foreign nationals without any need of any formalities. Foreign nationals must be afforded the same rights and treatment that a domestic copyright holder would receive.

The result then, is that a United States author automatically is entitled to protection against the infringement of his work in a foreign jurisdiction that is a member of the Berne Union. The U.S. author does not have to register the work in the foreign jurisdiction or comply with any other formalities required in the foreign jurisdiction. In fact, there are few benefits, if any, from registering the work in a foreign jurisdiction. However, if an act of infringement occurs in a foreign country, then the infringement lawsuit must be brought in the courts of the foreign country, and will be prosecuted under the terms of the foreign jurisdiction’s copyright law, not under the United States Copyright Act.

INDIAN COPYRIGHT LAW

Indian Copyright law is at equality with an international standard as consists in TRIPS. The Indian Copyright Act of 1957, subjected to amendment in 1999. Indian also acceded to Berne Convention in order to safeguard the Literary and Artistic Works, 1886 and also became a party to Universal Copyrights Convention. India also became a part of Geneva Convention with an objective to safeguard the rights of producers of Phonograms and it is also an active member of the World Intellectual Property Organization (WIPO) and United Nations Educational Scientific and Cultural Organization (UNESCO).

There are certain “Works” protected under Indian Copyright Act, 1957:

Musical Work

Sound Recording

Cinematograph film

Literary Work

Artistic Work (consist of a sculpture, a drawing, a painting, an engraving, architecture, photograph etc)

In order to keep pace with the global requirement of harmonization, the Copyright Act, 1957 has brought the copyright law in India in line with the developments in the information technology industry, whether it is in the field of satellite broadcasting or computer software or digital technology. The amended law has also made provisions to protect performer’s rights as envisaged in the Rome Convention.

LIMITATIONS AND EXCEPTIONS IN THE COPYRIGHT REGIME FOR MUSEUMS

The Standing Committee on Copyright and Related Right (SCCR), which was established by the World Intellectual Property Organisation (WIPO) discussed the limitations and exceptions of the museum industry incorporated with the copyright law. All the members of WIPO are linked with the committee which used to acquire copyright and regarding the issues and formulates recommendations. Not only for the benefit of the Museum industry, Copyright law must have some limitations and exceptions with the view to welfare persons such as authors, artists, performers, broadcasters and the audience, and facilitate the free flow of information, education, research and dissemination of knowledge.

To have a cultural heritage policy is the need of the hour. For smooth functioning and management of these industries and to protect and preserve the cultural and artistic heritage for the present and future generation, the general conference of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) adopted the World Heritage Convention (WHC) on 16th November, 1972.

According to, the standing committee on copyright and related rights (SCCR) managed by WIPO, have some specific types of categories of exceptions and limitations that can be made to the copyright regime:

Specific Exceptions and Limitations – Some of these exceptions consist of the use of works in exhibition catalogue reproduction for preservation purposes, usage of orphan works and communication to the public on the premise of museums.

Use of works in Exhibit Catalogues- Advertisement of items in a museum can attract legal issues by the virtue of copyright law. To enable expansion of the reach and presence of museums, they must be exempted in respect of advertisement.

Reproduction for Preservation Purposes- Preservation of artwork in a digital form must be allowed. Collecting the paintings, drawings, sculpture, Artistic craftsmanship is not the only task which can justify the purpose and object of the existence of a museum but to constantly maintain that value the artwork should be protected against deterioration, theft, etc. Reproduction of works must be permitted in order to preserve and restore the collections. Digital technologies can be very helpful in this regard, subject to the copyright regime.

Use of Orphan works- When the author or owner of the work is unknown, it becomes difficult to obtain their consent. Hence, such orphan works must be

allowed an exception, as is allowed in museums in the European Union.

Communication to the public on the premises of the museum- Besides the conventional method of having an attractive and state-of-the-art collection in the galleries of the museum, museums must also be allowed to communicate their own work to the public in other ways. The digital medium is one of the best ways for such communication, but the copyright laws in most jurisdictions restrict it. Communication in the form of cinematograph film, sound recordings, and live performances must be allowed at museums. For example, the Akshardham temple at New Delhi has a light and sound show, with fountains, which communicates the work to the public the history and artistic craftsmanship of the temple. These were some specific limitations and exceptions which can be supplemented by some general exceptions such as reproduction for personal purposes, reprographic reproductions and use for educational purposes.

S. 52 of the Indian Copyright Act, 1957, talks about an exception where unpublished works have certain “permitted uses.” Where a museum has unpublished work whose author is not known, anybody who has access to the museum can not only reproduce that work but can also publish it.

LANDMARK CASES

There’s a wonderful landmark case on this point called Rock & Roll Hall of Fame & Museum v. Gentile Productions, 1998. A photographer was sued for selling posters featuring his photo of a building that had been trademarked.

The U.S. Sixth Court ruled that while the trademark “might be asserted to prevent the construction of a confusingly similar building,” it was unlikely that the photographer had “made an infringing trademark use of the Museum’s name or building design Thus the case was vacated and the photographer could continue to sell the posters.

-RITIKA SRIVASTAVA

-THE ICFAI UNIVERSITY, DEHRADUN

Curated by Athira Albert of Kristu Jayanti College of Law, Bangalore.