Posts Tagged ‘Creative Commons’

Allsorts Online 09 on the Web

The Collections Australia Network (CAN) has posted six videos from the Allsorts Online 09 Forum in Adelaide for the benefit of those people who were not able to travel the distance. Science communicator Susannah Elliot talks about how cultural institutions can use history to look at contemporary issues. Gavin Artz explains how the arts can benefit from the disruptive digital revolution from the perspective of the Australian Network for Art and Technology (ANAT). Gavin Bannerman offers wild and entertaining stories about a mobile hairdressing salon in Cape York from the State Library’s Q150 digital storytelling project.

The presentations are a snapshot into some of the innovative projects happening in the sector. The panel discussion at the end of the forum was a terrific debate as to where the sector is going. It questioned whether institutions should become broadcasters or whether their role should remain as collectors and preservers of history. This is an issue the National Film and Sound Archive now faces as it relaunches its website Australian Screen Online. Allsorts Online 09 was hosted in collaboration with the State Library of South Australia and the Australian Network for Art and Technology (ANAT). Here are some photos on Flickr of the event. State Library of NSW’s Ellen Forsyth uses Twitter as a note-taking device. The Twitter hashtag for the forum was #Allsorts09.

AusStage: Collective Intelligence and Data Visualisation for Performing Arts eResearch

Dr Jonathan Bollen: Senior Lecturer, School of Humanities, Flinders University
AusStage is the Australian hub for research on live performance, linking researchers in universities, industry and government. It stimulates smart information use, promotes collaboration on innovative methodologies, and integrates access to collections. AusStage is extending its infrastructure to harness collective intelligence, to visualise the knowledge embedded in the AusStage database, and to deliver next-generation tools and services for information analysis, while continuing to populate the database with comprehensive coverage of live performance in Australia.

Jonathan plays a leading role in coordinating research for the AusStage project, with particular interests in data visualisation. He is co-author of Men at Play: Masculinities in Australian Theatre since the 1950s (with Adrian Kiernander and Bruce Parr, Rodopi 2008). His research on gender, sexuality and performance has been published in The Drama Review, Social Semiotics and Australasian Drama Studies.

Disruptive Digital

Gavin Artz, CEO, Australian Network for Arts and Technology (ANAT)
Gavin Artz’s experience in business management ranges from multi-national companies, to not-forprofit community organisations. His diverse background spans arts and commerce – with a BA in Politics; Double Bass and Composition Studies at the Sydney Conservatorium of Music; a Graduate Certificate in Business Management; and he is now completing his MBA. After working as a professional musician for many years, Gavin is currently pursuing creativity in business management with a focus on governance and strategy.

Digital Storytelling: Storylines – Q150 Digital Stories

Gavin Bannerman: Oral History and Digital Storytelling Coordinator, State Library of Queensland
Storylines is the State Library of Queensland’s digital storytelling project to capture the people, places and events that make up Queensland in its 150th year. Hear about the challenges of interviewing aboard moving steam trains, trying to contact travelling hairdressers in Cape York and making the outcomes accessible to the public.

Gavin has commissioned, created, acquired, registered, documented and made accessible oral histories and digital stories that relate to SLQ’s strategic objective of capturing “Queensland Memory.” Gavin is trained as an archivist, receiving a Graduate Diploma in Records Management and Archives from Curtin University. He has been involved with arranging and describing archival material, training cultural organisation staff in image digitisation, and consulting with Aboriginal and Torres Strait Islander communities regarding cultural clearance for images in SLQ’s collection.

Open Access: Conquering Copyright

Jessica Coates, Project Manager, Creative Commons Australia and the Creative Commons Clinic, Queensland University of Technology
Navigating the ins and out of copyright law can often be the most costly and difficult part of providing open access to a collection. Jessica will talk about what can and is being done by collecting institutions worldwide to share their collections and engage with audiences in the digital era – legally.

Jessica examines the legal mechanisms that encourage innovation in the creative industries, and promote and track the implementation of the international open content licensing movement, Creative Commons, in Australia. Prior to working for the Clinic, Jessica spent most of the last decade as a copyright and communications policy officer with the Commonwealth Department of Communications, Information Technology and the Arts (DCITA).

Web 2.0 and Social Media: Collections, Flickr and the Media

Jenny Scott, Content Services Librarian, State Library of South Australia
In her presentation Jenny describes the process by which she brought a small private collection to the attention of a nation. The collection of photos and documents that could have easily been lost or discarded over the previous 60 years became the foundation of a Web 2.0 project that gained front page media attention.

Jenny is implementing the State Library’s presence on Flickr. After completing an Associate Diploma in Photography in the early 1980s Jenny operated her own commercial photography business at Port Adelaide. In 1993 she graduated BA in History and Politics from Adelaide University and in 1994 Graduate Diploma in Library and Information Management from the University of South Australia. After three years as an archivist with State Records of South Australia in 2000 she moved to the State Library of South Australia to take up the position of Curator Pictorial Collection.

Building Relationships with Media to Promote Research

Susannah Elliot, CEO Science Media Centre, Adelaide
Mention the word science to a senior editor and you’ll see them shift uncomfortably and look around for an excuse to get away from you. But talk to them about the dust storms in Sydney, why there are more mosquitoes this year, the science of Taser guns or even the bizarre mating habits of redback spiders and you’ll have their interest.

The reason for this is that those outside the realm of science and research still see it as an academic pursuit of little relevance to their daily lives. This talk is about making research the topic of media interest by making it relevant to the current debates and the breaking news with which we’re all consumed.

Susannah works with the news media to inject more evidence-based science into public discourse. Prior to this she spent more than five years in Stockholm, Sweden, as director of communications for the International Geosphere-Biosphere Programme (IGBP), an international network of scientists studying global environmental change. In the 1990s Susannah managed the Centre for Science Communication at UTS, where she helped establish the successful Horizons of Science series of media roundtables and was involved in numerous other initiatives such as Science in the Pub and Science in the Bush.


National Portrait Gallery (UK) vs Wikipedia: Jessica Coates

Wikipedia uploaded part of the National Portrait Gallery, UK’s online collection to its own Wikimedia Commons website. It is every art gallery’s greatest fear. Now that it has happened, Creative Commons Clinic Project Manager Jessica Coates explains how the test case is being dealt with.

If you’re of a copyright bent, you may have notice the discussion lately surrounding a legal dispute between UK’s National Portrait Gallery (NPG) and Wikipedia.

For those who haven’t heard, on 10 July Wikipedia contributor Derrick Coetzee received a threat of legal action from the NPG relating to Coeztee’s taking of more than 3300 Zoomify images of public domain paintings from the NPG’s website, which he then uploaded to Wikimedia Commons. The NPG claims copyright in the images, which are essentially high resolution digital preservation copies of the paintings, and alleges that by posting them to Wikimedia Commons Coetzee has infringed not only this copyright, but also a number of other legal rights relating to the works.

In responding to the allegations, the Electronic Frontiers Foundation (EFF) (which is representing Coetzee) have focused on the jurisdictional issues of the case ie whether Coeztee’s actions should be judged under US or UK law. There are also a number of other legal questions that arise in relation to the case, such whether Coetzee illegally circumvented the Zoomify copy protection on the works.

But what jumped out at me (and most readers judging by the online discussion) is the NPG’s claim of copyright in its digital copies of public domain paintings. Is it really true that if I get a work that is in the public domain – say, the Mona Lisa – and take a high quality scan of it, I have created a whole new work that attracts copyright protection?

As the EFF points out in their article on the case, it is fairly clear that under US law such images would not be protected by copyright. The US courts considered the application of copyright to reproductions of public domain material in Bridgeman v Corel and found that copyright does not subsist in ‘slavish copies’ (ie that seek to exactly replicate the original) of public domain works unless there is some level of originality (eg in the construction or composition) that differentiates the copy from the original work – mere technical skill and effort is not enough. So my photograph of my friend standing in front of the Mona Lisa is protected, but my photocopy or scan is not.

The lawyers for the NPG argue that UK law goes in the opposite direction – or at least that Bridgeman v Corel doesn’t apply in the UK, that there are no relevant local precedents and that legal opinion is against the US case law. Andres Guadamuz from the University of Edinburgh argues in this blog post that the question isn’t as straight forward as the NPG lawyers contend. But it is certainly true that the requirement of ‘originality’ that is the basis of the US decision doesn’t apply in the UK, with British courts being far more willing to find a work is protected by copyright based on skill or effort alone.

So what is our position here in Australia? Unclear. I have to admit, I (and I think most of the local copyright community) had thought that the Bridgeman v Corel rule applied here, and hence such material wasn’t protected. However, Australia’s approach to originality has traditionally been more aligned with the UK than the US. In fact, the leading Australian case on the issue (Telstra v Desktop Marketing) arguably sets the bar even lower by finding that a telephone book was original based almost purely on the level of effort required to put it together. On the other hand, in the Ice TV case decided earlier this year the High Court seemed to suggest that they did not support the low originality test set by Desktop Marketing – although their comments were only in passing, and the case was decided on another issue.

This doesn’t mean that Desktop Marketing is the end of the matter in Australia. After all, it was looking at a text-based work which, in anyone’s judgement, was an entirely new product – not a photograph that is merely intended to be a facsimile of an existing work. It turns out Australia doesn’t really have a lot of case law about subsistence of copyright in photographs or verbatim copies (at least as far as I can see). IP commentator Rickertson points out that because the Copyright Act says that the owner of copyright is the person who took the photo, without requiring any particular artistic or intellectual merit, an argument can be made that just pressing the button is enough to invoke copyright protection. But, as Rickertson also points out, this logic would lead to the illogical position where every individual photocopy received separate copyright protection.

Until we actually have a case on point in Australia, it seems unlikely we’ll have a legal answer. So the question we need to ask ourselves is which precedent do we want to follow? If someone’s intention is to copy something exactly, should we be protecting the copy? Or do we want to take the direction of the US and require some extra level of creativity?

Of course, this question isn’t simple. After all, the NPG spent a lot of money digitising the paintings, which they (presumably) hope to recoup by selling high resolution copies. If anyone can copy high quality files once they’re put online, will that deter galleries from digitising or providing access to their works in the future? On the other hand, should publicly funded institutions be using legal technicalities to restrict access to material in their collections, even after copyright has expired?

My personal opinion is that I don’t think it would be good for Australia to go down this route. Many copyright experts are already concerned about the low level of originality required by Australian law, and how it is stifling innovation by stopping people from making use of public information and data. Do we really want to extend this drawback to public domain works?

After all, the digital era has changed how people create and use copyright material. Remix and mash up are now not only genuine art forms, they’re a standard means of communication for an entire generation. We all complain about piracy, but can we really blame the pirates if we don’t give artists, students and innovators something they can legally use, if we tell them that even century old paintings are out of bounds?

The more we extend copyright – whether by legislative amendment, contractual restrictions or, in this case, judicial interpretation – the more we reduce the pool of material that we are all free to use. Is it really a good idea to restrict the resources available to the many for the sake of the benefit of a few?

High heeled shoe on tricycle, `Liquorice Allsorts’, designed by Ross Wallace, used in `Parade of Icons’ Sydney 2000 Olympic Games Closing Ceremony, Sydney 2000. Collection: Powerhouse Museum, Sydney. Part of the Sydney 2000 Games Collection. Gift of the New South Wales Government, 2001.

Jessica Coates will be presenting a paper at CAN’s Allsorts Online forum in Adelaide on December 1. The one day free event will be a dynamic discussion on how collecting institutions can share content online. Jessica’s role in promoting Creative Commons licences is central to the success of online collections and telling stories about the nation’s cultural heritage. On Wednesday December 2, CAN is teaming up with the Australian Network of Art and Technology (ANAT) and the Royal Institution of Australia to host four masterclasses. By limiting the classes to 10 participants, there is an opportunity to leave the class with a personalised experience and an action plan.

Event: Allsorts Online Forum
Date: December 1
Venue: State Library of South Australia, Adelaide
Cost: Free
Time: 8.30am – 5pm + Drinks

Event: Allsorts Online Masterclasses
Date: December 2
Venue: Australian Network of Art and Technology (ANAT) and the Royal Institution of Australia (RiAus)
Cost: $250 per session
Time: 9am – Noon and 1pm – 4pm

Jessica has requested this article is published under the attribution non-commercial share-alike Creative Commons licence.


Revealing the Arts: a snapshot

The biggest problem the arts community faces is that it is not part of the political or social agenda, the head of ABC TV Kim Dalton said at the Revealing the Arts conference yesterday. He expressed his frustration at how the sector was not being taken seriously while the Federal Government pledged $4.7 billion to the National Broadband Network, $22 billion in “nation building infrastructure spending” and $3.1 billion over four years on innovation. Mr Dalton invited all arts organisations to work with the ABC and the Australia Council to lobby the Government and put the arts back on the agenda.

Mr Dalton saw the ABC as a laboratory for creative projects. It has the branding and platforms to be the ideal partner for creating new work and attracting new audiences. He believed the feeling in the room was that there finally was an acceptance of the digital era as a platform in its own right rather than it just being a marketing tool. The ABC was ready to collaborate and partner with the arts community to explore this new medium.

The ABC and Australia Council hosted Revealing the Arts to enable the arts community to engage in ‘creative conversations and solutions for the digital era’. The two-day conference embraced a Web 2.0 philosophy with host and ABC journalist Virginia Trioli involving the audience and Twitterers in a dialogue with panellists after each keynote speaker’s address. A live webcast encouraged the public to answer questions ranging from ‘Show Me Your Arts’, ‘Show Me How’, ‘Who owns Your Arts’, ‘Get ‘Em While They’re Young’ and ‘Show Me the Money’.

Michael Lynch, who has just returned from an eight year reign over the South Bank Centre theatre venues in London, and is now an ABC board director, says it is time for arts institutions to engage differently with governments. No longer can they rely on governments to come up with legislation and funding. The arts need to be more proactive and ‘push and pull governments to work for arts institutions’.

Wollongong University Head of Music and Drama Sarah Miller believed that it was time to build relationships across all platforms and ‘give up the silos’. Physical TV co-founder Richard James Allen agreed it was time for traditional and new media to be seen as their own categories and and to allow the bridge between both to have a place as well.

After intensive and often heated discussion around the lack of representation of artists in the room, whether there should be open-access or copyright is a legitimate income stream, the conference concluded with Australia Council CEO Kathy Keele and Mr Dalton drafting a to do list they could work on together to create a better environment for artists to work in the digital era.

The three main themes discussed througout Revealing the Arts were:
• Co-operation and partnership
• Sharing rights and access
• Digital world exists in own right with own set of values and potential

As the conversation invariably came back to the issue of rights, Ms Keele believed the Australia Council and its arts community needed to work to create better conditions for artists working in the digital era. How can the public access the nation’s archives and collections? Can an artist use these archives in their artwork? How do artists’s protect themselves? Rights training for arts organsations and fostering stronger relationships between arts organisations and artists was also a priority.

In an Australian first, the ABC launched its raw news footage of the Brisbane Zombie Walk under a Creative Commons licence onto its collaborative website Pool. The ABC has embraced the Govt 2.0 movement of sharing its resources by licensing its raw news footage under a Creative Commons licence.

The ABC has also just launched its arts portal ABC Arts.

Sarah Rhodes


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.

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.


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.


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.

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.


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.

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 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.


Podcasting open-access and the commons

ABC Radio National is closely following the development of the Creative Commons and how it affects both the creator and the end-user. Future Tense host Anthony Funnell interviewed David Bollier for the show titled The future of the commons. Bollier is an activist and public policy analyst who talks about the premise behind his new book Viral Spiral: How the Commoners Built a Digital Republic of Their Own. For further reading, click on the links at the bottom of the ABC page.

Others may like to watch Bollier on YouTube – there is no shortage of videos to choose from.