Archiving artists’ works and related material has been greatly facilitated in recent years by significant advances in digital technology, which has stimulated museums and galleries to consider not only digitally archiving material in their collections, but also its digital transmission to the public. International and national copyright laws have, also in recent times, correspondingly been amended so as to protect the economic rights of authors and their estates against digital technology abuses, and at the same time to allow the public a measure of digital access to such material. This is not an easy balance for the law to achieve.

This month’s piece explores some key issues: for artists and their estates; for museums and galleries and archives; and for a public interested in digital access to archive material. First, we should briefly review relevant new laws introduced five years ago.

In 2003, the UK’s Copyright and Related Rights Regulations implemented the EU’s Directive (200I/29/EC) which, in turn, gave effect to the World Intellectual Property Organisation’s inter-governmental initiatives: they seek to address certain aspects of copyright and related rights – in the new context of the ‘information age’. These legislative changes gave certain new rights to authors and their estates (over and above their continuing basic exclusive rights to copy the work and issue copies to the public), and to the public (in relation to ‘permitted acts’ not requiring the copyright owner’s prior consent).

Artist copyright owners, and their estates, have been given an additional new exclusive right: ‘to communicate to the public by electronic transmission’. This new right therefore gives to copyright owning artists (and their estates for seventy years after death) the exclusive right to prevent any electronic transmission of their copyright works without their prior permission – unless such transmission is one of the new ‘permitted acts’ authorised by the law. One of the new permitted acts allows internet service providers, for example, to make temporary or transient copies of copyright material when they relay transmissions from one user to another; but this does not give internet users the general right to transmit copyright works (which only the copyright owner can do).

Specific new provisions were also made to allow public access to digital copies of artworks and related documentation – in tightly prescribed circumstances. What the law calls ‘fair dealing’ – for the limited purposes of ‘research and private study’, and of ‘educational’ instruction or examination – is permitted for ‘non-commercial purposes’ (provided that such an act is accompanied by sufficient acknowledgement, in the case of research or education). And ‘fair dealing’, for the purposes of ‘criticism or review’, is permitted only if the copyright work has previously been made available to the public and a sufficient acknowledgement of the copyright owner/artist accompanies any such published criticism/review; it follows that authors and publishers are not permitted to publish criticism or review of unpublished copyright works. In this context, ‘made available to the public’ means issuing (hard) copies, using an electronic retrieval system, renting or lending, performing/exhibiting, playing or showing, or transmitting, to the public.

In other words, the new ‘information age’ laws specified the new right of artists and their estates to control electronic transmission to the public of their copyright works. But this new right is qualified, not absolute: the general public were also given the right of digital access to copyright works for the specific and limited purposes of non-commercial research or private study, criticism and review of such previously published works, and for educational instruction and examination. Between artist/copyright owners who have made their works digitally accessible, on the one hand, and the public who digitally access such works on the other hand, there often stand museums or galleries or archives. What are they allowed to do – are they free to make digital copies of copyright material in their collections/archives and, if so, can they make it digitally available or transmit it to the public? The new ‘information age’ laws addressed these questions and enacted very special and limited provisions accordingly.

An archive of an organisation established or conducted ‘not-for-profit’ is allowed to transmit digitised copyright material from its collection, for the purpose of ‘research and private study’, only to individual members of the public at dedicated terminals on the premises of those organisations; but cannot do so if a term or condition of any acquisition documentation expressly forbids such digital transmission. Additionally, such organisations must satisfy themselves that any prospective ‘reader’ is genuinely conducting ‘research or private study’ – by requiring a form of declaration to be signed by the ‘reader’ before digital access is allowed. In other words, copyright works and related documentation in a not-for-profit museum’s or gallery’s collection may be digitally archived for the purposes of research or private study, and be made available to individual members of the public using terminals in the organisation’s premises who are conducting genuine research or private study; but the organisation may not make available such copyright works and related material if it agreed not do so, when originally taking material into its collection. It therefore follows that, if a not-for-profit museum or gallery wishes to transmit/make available via the internet digitised material from its collection – albeit for genuine research or private study purposes – it must acquire a licence to do so from the copyright owner.

One further matter needs to be considered in this context of digital archiving and transmitting: statutory moral rights. Most countries have now enacted into their domestic legislation the so-called moral rights of the artist copyright owner, including: the (so-called paternity) right to be identified as the author of a copyright work whenever it, or an authorised copy of it, is exposed to the public; and the (so-called integrity) right forbidding derogatory treatment of an artist’s copyright work by changing its physical nature, or its visual characteristics in any authorised copy of it, when such work or authorised copy is exposed to the public. This means that, although copyright works in an archive/collection may be digitally copied and made available in the limited circumstances explained above, the visual content of the original works – their shape, form, configuration, lines, colours, perspectives, and so on – must not be changed without the prior consent of the artist copyright owner.

Owners or keepers of art collections are invariably not the owners of copyright in the works they have acquired: although they will have acquired physical possession or ownership rights of the artworks, the artists or their estates will invariably be the owners of copyright and statutory moral rights in their works. Accordingly,  archivists and administrators of art collections (who are contemplating making digital copies with a view to their being made available by transmission to the public) should consider such questions as: did the artist die more than seventy years ago; did the organisation’s acquisition documentation (loan or purchase or donation agreement) allow or forbid the planned digitisation activity; is the organisation established or conducted not-for-profit; are the digitised copies to be made available only to individual members of the public, within the organisation’s premises, and solely for the purposes of research or private study?  In any event, the quality of any such digital image should not contain any alterations or additions or amendments to, or deletions from, the original artwork that damage its integrity and the professional reputation of the artist. In all cases, direct consultation with the artist or estate would be good and sensible practice.

© Henry Lydiate 2009

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.