Posts Tagged ‘Australian Copyright Council’

Copyright series 1/3: What are the copyright issues surrounding galleries putting collections online?

Viscopy, the Australian Copyright Council and the Creative Commons Clinic share their different views on how artists and galleries should negotiate copyright. This three-part series is being published in support of the National Public Galleries Summit in Townsville this week, of which CAN is an official sponsor.

Viscopy
Whilst galleries and museums may own or have on loan works of art, it does not follow that they will also own the copyright in those works which are protected by copyright law. Determining whether or not a work is protected by copyright is quite simple: the work is protected if its creator is still alive, or if the creator died after 1 January 1955, or in the case of photographs, if the photograph was taken after 1 January 1955. Once copyright is established, and assuming no exceptions to the law apply, the first issue galleries must consider when putting collections online is obtaining permission from the creator or copyright owner to reproduce and communicate the work.


Michael Riley, Untitled, from the series cloud (feather), 2000, © The Estate of Michael Riley. Licensed by Viscopy, 2009.

If a licence is granted, galleries and museums will usually need to ensure that:

Reproductions of the work are as faithful as possible to the original.
The work is correctly attributed to its creator.
Works are protected from third party infringements (for example, by including a copyright disclaimer on the website and limiting file size).
They have allowed sufficient provision in their budget to pay for a copyright licence.

Viscopy represents a huge number of Australian and international artists many of whose works form part of Australia’s public collections. We work closely with a number of small and large museums which want to make their collections available online.
We aim to make the copyright licensing process efficient, simple and affordable for customers, whilst still protecting and valuing our members’ work.

Viscopy:

Is unique in Australia in providing customers with a one stop shop for some of the world’s most iconic artists
Clear rights instantly in most cases
Offers annual licenses which are very cost effective and allow the museum to upload works at their own pace

Viscopy is committed to working with museums to continually improve our licensing services.

Joanna Cave, Chief Executive Officer, Viscopy
Email Viscopy for advice.

Creative Commons
As those on the ground know, the single biggest cost in trying to put collections online is usually copyright clearance. The vast majority of material held within most Australian institutions will not be cleared for online access, and there will often be large amounts of material for which the copyright status cannot be identified and copyright owners cannot be contacted (ie orphaned works). In this environment, the legal barriers to putting your collection online often seem insurmountable for individual institutions.


Jessica Coates, Project Manager, Creative Commons Clinic

One of the best things the government could do to assist collecting institutions moving into the digital age is to provide increased exceptions or legislative permissions schemes for minimum online access initiatives (eg provision of thumbnails or low resolution catalogues) and orphaned works.

However, this doesn’t mean that individual institutions have to wait for legislative change before they can do anything. There’s lots of interesting work being done with ‘low-hanging fruit’ in collections – such as material that is in the public domain, that has a single copyright owner who can be partnered with, that is created by the museum, or that is new to the collection (so appropriate clearances can be obtained). Successful projects such as the Flickr Commons and the increased viewership, user engagement and even improved sales that these initiatives have afforded for institutions provide good examples for those looking for ways in which they can make better use of their collections.

Jessica Coates, Project Manager, Creative Commons Clinic
Email Jessica Coates at the Creative Commons Clinic for advice.

Australian Copyright Council
A gallery will usually only be free to put up images of artworks where copyright in the artwork itself has expired and where it owns copyright in the image of that artwork (for example, because one of its employees has taken the photo). In other cases, it will usually need a clearance from the relevant copyright owner or collecting society (such as from Viscopy or the Aboriginal Artists Agency).

Where it¹s free to put an image online, a gallery should think strategically about what it will make available; where it will make it available; at what resolution; and on what terms.

A gallery will need to take extra care where an image contains Indigenous intellectual property or anything that may be sensitive to Aboriginal or Torres Strait Islander people, but a gallery should act sensitively no matter what is in an image. By considering making images available only on its own website or on websites within the museum and gallery sector, a gallery has a greater chance of ensuring that the integrity of works in its collection is maintained and that online access to images is properly curated. This may not be possible where images are made available on websites outside the museum or gallery sector.

In deciding whether to make images available at a low or a high resolution, a gallery will need to take into account the extent to which it would like to exercise a degree of control over the downstream use of the images, particularly in light of the revenue stream such licensing represents for many galleries.

Last, galleries should clearly distinguish between making images in their collection available to be viewed online from licensing the subsequent reuse of those images. Where a gallery allows people to reuse online images, it should take care that the terms of the licence protect both its own reputation and the interests of its stake-holders ­ including the community on whose behalf the gallery has custody of the material.

Ian McDonald, Senior Legal Officer, Australian Copyright Council
Email the Australian Copyright Council for advice.

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Copyright series 2/3: Should artists be concerned about Creative Commons licences?

Viscopy, the Australian Copyright Council and the Creative Commons Clinic share their different views on how artists and galleries should negotiate copyright. This three-part series is being published in support of the National Public Galleries Summit in Townsville this week, of which CAN is an official sponsor.

Viscopy
Yes. Viscopy accepts that Creative Commons offer a legitimate alternative to more traditional forms of copyright licensing. Creators of some forms of copyright material such as academic research can find that open source licensing serves their needs very well. However, Viscopy does not believe that Creative Commons provides the right solution for artists when a museum or gallery is seeking permission to communicate copies of their works online.


Rick Amor, Roman Life, 2001, © Rick Amor. Licensed by Viscopy, 2009.

The simple if inconvenient truth is that artists need the royalties – however modest – which flow from copyright licences such as those made available by Viscopy. Creative Commons licences do not enable artists to earn anything from exploitations of their work. Artists also desire – quite reasonably – a degree of choice about how their work is exploited; something which is denied to them by most forms of Creative Commons licences.

Joanna Cave, Chief Executive Officer, Viscopy
Email Viscopy for advice.

Creative Commons
A lot of misinformation gets spread about Creative Commons licences – that they are anti-copyright, or anti-commercial. But when it comes down to it, they aren’t really very different from other copyright licences. Having a Creative Commons licence on your material doesn’t affect your ability to enforce your copyright against pirates or people who are using your materials in ways you have not approved – it simply provides an easy way for you to provide certain permissions in advance. In fact, there is anecdotal evidence that users are more likely to follow the terms of use for material under an simple and friendly licence than ‘all rights reserved’, if only because they find it easier to understand what’s expected of them. The licences are legally sound, have been examined by literally hundreds of lawyers internationally, and have been upheld in several court cases. And most importantly – they’re entirely voluntary.


Jessica Coates, Project Manager, Creative Commons Clinic

Creative Commons licensing can be a valuable tool for artists looking to take advantage of the new online business models that are having success in the music and film industries, or even just engage with their audiences on a different level. This is particularly the case for emerging and early career artists, for whom obscurity presents a bigger problem than piracy. But they are just a tool, and need to be used thoughtfully. Creative Commons licensing can be used for different materials in different ways. For example, non-commercial licensing of low resolution images can be a good way of increasing an artist’s profile without impacting on revenue streams from sales of original works, high quality prints or commercial reproductions. Or putting out a single artwork, a draft, or a sample for remixing can be a great way of engaging with audiences without reducing the value of the larger collection. The point is, Creative Commons aims to hand these decisions back to artists.

Jessica Coates, Project Manager, Creative Commons Clinic
Email Jessica Coates at the Creative Commons Clinic for advice.

Australian Copyright Council
As with any licence, an artist thinking about licensing their work under a CC licence has to read and fully understand both all the terms of the relevant licence and all the implications. They also need to think about what they want to achieve by licensing their work, and the extent to which the licence will help them get there.

An artist interested in using a CC licence needs in particular to consider that these licences are for the entire period of copyright (their lifetime plus 70 years). Things are moving very fast in the online world, and what might seem OK today, might not seem such a good idea even a couple of years down the track. Under a CC licence, however, you can¹t change your mind.

An artist would also need to look at how the CC licences allow their work to be used. Generally, the licences are very broad and in some cases unclear.
(It’s not particularly clear, for example, what types of uses might be prohibited by the “non-commercial” licences, and other people may well be able to make money using an artist’s work even if the CC licence is labelled “non-commercial”).

Artists should also assess what they might miss out on under a CC licence.
One thing would be any potential payment under the Copyright Act for use of their artworks by governments and educational institutions: governments, schools and similar organisations pay for electricity and for pens and pencils ­ why not also for images of art they are using? Another thing artists lose under a CC licence is a great deal of control over their work ­ the ability to decide on a case-by-case basis whether a particular use of their work is OK or not, based on who wants to use their work and what they want to do with it. Artists also potentially lose the ability to get feedback, as the CC licences don¹t impose any obligation to let an artist know their work is being used.

In particular, an artist should consider whether they should hold off licensing their work until someone asks them for a permission. An artist can put his or her own artwork onto their own website so people can see it without having to give other people any upfront licence to reuse their works, and if an artist is putting images onto a social media site (such as Flickr or MySpace), then just using a copyright notice and reserving rights will generally work just fine. (Generally, also give contact details, such as an email address, for people to use if they want permission). Artists should also take into account the fact that there are lots of provisions in the Copyright Act that allow other people to use their material without permission – including for reporting news, for criticism or review and for educational purposes – so they don’t really need to license these uses themselves.

Last, if an artist wants to license their work, they should consider becoming a member of Viscopy ­ a non-profit organisation that has lots of experience in licensing artworks on behalf of its members.

Ian McDonald, Senior Legal Officer, Australian Copyright Council
Email the Australian Copyright Council for advice.

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Copyright series 3/3: What do artists need to be aware of when licensing artworks to galleries?

Viscopy, the Australian Copyright Council and the Creative Commons Clinic share their views on how artists and galleries should negotiate copyright. This three-part series is being published in support of the National Public Galleries Summit in Townsville this week, of which CAN is an official sponsor.

Viscopy
The law is clear that the copyright belongs to the creator in the first instance. It is time-limited in order to realise benefits to the creator during his or her lifetime and for a limited period following death. Once copyright expires in a creative work, it enters the public domain and may be exploited freely by any individual or organisation. Public domain works exist in most public collections; in some cases, museums own very few or no works at all which are protected by copyright. In such cases, they are free to do as please.


Emily Kame Kngwarreye, Untitled (Awelye), 1994 (c) The Estate of Emily Kame Kngwarreye. Licensed by Viscopy, 2009

With respect to works which are currently protected by copyright, the law allows for copyright to be bought, sold or licensed for use. The right to receive remuneration arising from any of these transactions can be waived altogether. Unfortunately, some museums are taking advantage of their superior bargaining power by demanding that artists whose works they collect freely assign their rights or forgo their entitlement to a copyright royalty for any uses of their works the museum wishes to make. The justification for this is almost always financial. Of course we understand that museums often operate with limited funds. But then so do artists.

If museums are insistent on finding ways to avoid paying artists for the right to use their work, either through rights waivers or the imposition of Creative Commons licences, our question is this: how will creativity be funded?

In a changing information and knowledge environment museums need to be leaders in their field. Museums are important standard bearers, which would not exist but for the creative impulse in human beings. If guardians of our national culture and public heritage cannot be relied upon to support those artists who – often with significant personal sacrifice – enrich our lives so much, then who can?

Joanna Cave, Chief Executive Officer, Viscopy
Email Viscopy for advice.

Creative Commons
On the other hand, where material is in the public domain or has been created by or in collaboration with the institution, there are good arguments that institutions shouldn’t be too risk averse in their licensing. Although it is tempting to feel that as the ‘owner’ of a public domain work you need to protect it from ‘undesirable’ uses, this can lead to policies that undermine the value of our collective culture. After all, the whole point of copyright is that it eventually ends – creators have a monopoly for a certain period of time to allow them to earn a living, but after that time the work should go back to the commons so it can be used for the benefit of the whole community. If kids can play with Shakespeare, they should be able to play with material from their own national collections.


Jessica Coates, Project Manager, Creative Commons Clinic

Australia’s collecting institutions can be a valuable tool to reduce piracy by providing a source of safe material that can be legally reused by innovators, creators and educators, to name just a few. By taking advantage of new business models and audience engagement tactics, galleries should also be able to implement access policies for materials that they ‘own’ in ways that benefit the community and their institution.

Jessica Coates, Project Manager, Creative Commons Clinic
Email Jessica Coates at the Creative Commons Clinic for advice.

Australian Copyright Council
When a gallery acquires an artwork (whether from an artist or from a donor or auction house), it is usually only acquiring a physical item, and not any of the copyright in the work. In other words, just owning an artwork does not make a gallery a copyright owner.

There are, however, cases where a gallery will own copyright in works in its collection. One example is where an artist specifically bequeaths either copyright to a gallery or a hitherto ³unpublished² artwork. Another case is where the artist has assigned his or her copyright to a gallery or licensed the gallery to use images of the artwork in particular ways.

In my view, when it comes to copyright, artists and galleries should follow the ³best practice² guidelines and protocols published by the National Association for the Visual Arts (available at www.visualarts.net.au). Under these guidelines, a gallery should respect the copyright of the artist and ensure that these rights are respected by all parties and the general public. In particular, outside the exemptions under the Copyright Act, galleries should not expect artists to allow image reproduction without the payment of a reproduction fee ­ particularly where an exhibition catalogue is a commercial venture or where an image database is to be made available to the public. Under those guidelines, artists and galleries might nonetheless take into account the suggestions from the 2007 Museums & Galleries NSW NETS Touring contract that attempt to balance the interests of the artist and the interests of the gallery in relation to when an artist might allow images to be reproduced without a fee (see the guidelines for more information).

Note also that, although the point is not clear under Australian law for photos of two-dimensional artworks such as paintings and drawings, there may be a separate copyright in a photo of an artwork. This copyright will usually be owned either by the gallery or the photographer, depending on the circumstances and any relevant agreement, but will usually be subject to any underlying rights in the artwork depicted in the photo.

Ian McDonald, Senior Legal Officer, Australian Copyright Council
Email the Australian Copyright Council for advice.

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Copyright procedures for managing websites

CAN has links to the Australian Copyright Council’s information sheets on “Websites” and “User generated content & Web 2.0 websites”. The information sheets highlight the basic elements that need to be considered when designing a website. The terms of use need to be clearly marked on your site so the website owner and contributor understand who owns the copyright. The website moderator must continually audit and assess its content. They must keep a record of the source of any text, photos, links, graphics, videos and audio uploaded by the website owner that could infringe on the copyright law. If there is uncertainty, seek legal advice. The Australian Copyright Council is planning a practical guide to User Generated Content, to be published next year. They have an online enquiry system to let them know if there are particular issues that have not been covered on their website.



It must be noted that the dynamic nature of the web means material can easily be removed if there are any complaints. Contributors and web browsers feel reassured if there are clearly marked procedures to make a complaint, including the contact email and address. This can help to diffuse confrontation.

In sector resources, there are valuable links to further research on copyright procedures for websites.

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