The Copyright and Related Rights Regulations 1996 introduced a new “publication right” into UK law. This right, according to Regulation 16, is a property right, “equivalent to copyright” which arises after the expiry of copyright protection upon the first publication of previously unpublished literary, dramatic, musical and artistic works or films. Helen Simpson of Southampton City Art Gallery and David Booton of the University of Liverpool explained the features of this new right, and the implications it will have for many involved in the art world, particularly for museums and galleries.
The rights enjoyed by the owner of the publication right are identical in substance to the basic rights of a holder of copyright; the exclusive right to reproduce the work by copying it, to issue such copies to the public; the exclusive right to rent or lend the work to the public, and to make adaptations of the work. The rights subsist for a period of twenty-five years from the end of the calendar year in which the work is first published.
In order to determine whether the publication right will subsist in a particular work, three basic factors must be established. First, the work must fall into one of the categories in which publication right can exist. In the majority of cases, this will be a straightforward matter. It is to be noted that objects which are purely or mainly functional, including for example arms and armour, will not be protected. Problems may also arise in respect of items such as fine furniture, jewellery, clothing, glass and ceramics. Such objects should receive protection as “works of artistic craftsmanship”; however, the courts have been unable to define precisely what is included within this category.
Second, copyright in the work must have expired, as it generally does seventy years after the end of the calendar year in which the author dies. With museum collections it may often be the case that the identity of the author of a particular work will be unknown. If such a work is unpublished then copyright expires at the end of the period of seventy years from the end of the calendar year in which the work was made. Difficulties arise where neither the identity of the author nor the date of manufacture of a particular work is known. Booton commented that “these problems have not fallen to be considered by the courts in the context of copyright law and it may be that solutions will have to be found given the introduction of the publication right”. A further, and more fundamental difficulty may be encountered in establishing that copyright once subsisted in any given work. Copyright law has a long and complex history. With older works, in particular, there may be considerable difficulties in establishing whether copyright once subsisted in the work.
The third issue concerns the concept of publication itself. The publication right arises only on the first publication of a work. Hence, the potential owner of the right must establish that the work has not previously been published and that the act in which he is currently engaged does constitute a “publication” (which is defined extremely broadly, as Simpson and Booton point out, to reflect the fact that the publication right “is intended to encourage the public dissemination of previously unpublished works, rather than merely protecting the investment involved in communicating the work to the public”).
The publication right clearly has the potential to become a valuable and lucrative asset for museums and galleries. These institutions must therefore take great care to ensure that they recognise and retain their rights in this field. Close attention must be paid to agreements with publishing houses which produce catalogues and brochures for the galleries, and with other outsiders who have access to collections, to prevent inadvertent losses of publication rights by museums and galleries. Private collectors who exhibit their works will also need to give serious consideration to these issues.
The new publication right clearly has far-reaching consequences for numerous branches of the art world, and its full impact is almost certainly yet to be felt. As Booton and Simpson emphasise, “the key to ensuring that collections are not unfairly exploited lies in the wide dissemination of information and depends, of course, upon the clarity of the literature”. The creation of a national organisation responsible for raising awareness of the publication right within the museum world is a possibility which, they suggest, might usefully be explored.
Institute of Art and Law
Museums and collectors at loggerheads over Article 26 of the new Swiss Copyright Act
The new Copyright Act in Switzerland contains an innovative provision in connection with the reproduction of works of art in catalogues. Article 26 stipulates that “In catalogues published by the administration of a collection accessible to the public, it is legal to reproduce works contained in such collections, this rule also applies to the published catalogues for exhibitions and auctions.”
It is interesting to examine the legislative history behind this provision in order to understand what motivated its adoption. The reasons invoked during parliamentary debates were that auctions and fairs enhanced the artists’ recognition and chances of selling works, as well as the likelihood of being able to subsequently exploit copyright in their works. The main motive for exempting museum catalogues was the idea that not-for-profit exhibitions provide access to important works of art in the public interest, and that the exhibition catalogues form part of the educational and cultural event constituted by the exhibition.
Unfortunately the interpretation of Article 26 of the Copyright Act regarding the scope of the exception allowed for museum catalogues has already given rise to a large-scale dispute between a group of Swiss art museums and the Swiss art collecting society. The dispute has not gone to court and may be resolved through negotiation, in which case the question of the proper interpretation of Article 26 will be left open.
Based partly on slightly different wording in the German text of Article 26 as compared to the French and Italian versions (in Switzerland all three texts are official), the collecting society has taken the position that the copyright exception does not apply to catalogues for travelling exhibitions in general, but only to catalogues related to the exhibition of works of art forming part of a collection (whether owned by the museum or a third party).
Considerations of space do not allow us to comment on this position in detail. However, it is noteworthy that, during the debate in parliament over Article 26, travelling exhibitions that allow public access to works from a variety of private collections were instanced as one of the reasons to introduce a copyright exemption for museum catalogues.
Exemption for museum catalogues is in some respects the counterpart to the right artists have been given under Article 14 of the same Act to request access to their works in private hands for the purposes of exhibition. Finally, bearing in mind the purpose of copyright, it is difficult to understand why the fact that exhibited works come from one or several sources should affect the status of the resulting catalogue.
In conclusion, it appears that Article 26 of the Swiss Copyright Act maintains a fairly good balance between the partly overlapping yet different interests of artists, museums and the trade. Nevertheless, to prevent abuses of the copyright exception contained in it, one needs to be aware of the strict dividing line implicit in Article 26 between reproductions in catalogues that only serve to promote another event (exhibition, sale or art fair)—such catalogues being exempt—and reproductions that do not benefit from the exception because they are meant for direct commercial exploitation. Thus it is circumstances such as the number of copies of the catalogue printed, its quality, and the time and place of its sale, as well as the status of the museum, that should determine whether a given museum catalogue falls within the scope of the copyright exception or is deemed a commercial product akin to a book.
Byrne-Sutton & Bonnard, Geneva
The benefits of using picture libraries and agencies
When you need a reproduction in a hurry, where do you go? If you know exactly what you need and where the original is kept, your first port of call will probably be the museum or gallery concerned. Belinda Ross, Picture Library Manager of the National Gallery, stressed that the NG can supply up-to-date large format transparencies of virtually all the works held in the gallery, and where no recent transparency is available, arrangements can be made to photograph the work at no extra cost to the borrower. Ms Ross commented that, although the cost of borrowing and of acquiring reproduction rights is relatively low, commercial publishers do sometimes set unrealistic budgets for their authors for obtaining reproductions. The main advantage in going direct to the museum or gallery for your image, as far as the museums officials are concerned, is that the reproductions are absolutely up-to-date, always taken following any conservation work, and in the best possible conditions.
Museum officials often know where else to go to get appropriate pictures. For Oxford University Press’s forthcoming New Dictionary of National Biography, for example, the huge task of selecting around 10,000 portraits in all media (paintings, drawings, caricatures, busts, etc) is being undertaken by the staff of the National Portrait Gallery (NPG). About half the portraits will come from the NPG’s own holdings and the other half will be identified by the NPG team from around the world. Shruti Patel, currently Picture Library Manager at the NPG (but shortly to move to the Royal Collection based at Windsor as Head of Photographic Services) explained that this is a ten-year project, started in 1992, and requiring a small, but dedicated team from the NPG.
Picture libraries and agencies also perform a vital role in getting the right image to the customer, particularly where the image requested is not held by a museum’s in-house picture library. The Bridgeman Art Library in London was founded in 1972 as a fine art photographic archive representing museums, galleries, private collectors and contemporary artists by handling the reproduction rights to the works in their collections.
A range of museums and galleries, both in the UK and around the world, have lodged some of their more popular transparencies with the Bridgeman. No registration charge is made, and any borrowing revenue is split fifty-fifty between the Bridgeman and the owner. Sarah Pooley of the Bridgeman argued that, while this split may seem high, it is justified for a number of reasons. She quoted research from the US, for example, which has shown that those museums which administer their own picture requests will typically be spending 66% of the revenue in administration. Moreover, since no charge is made for either registration or the taking of the photographs, the split in revenue provides a means of recouping what can sometimes prove to be quite substantial set-up costs. Ms Pooley gave the example of an East European castle, recently returned to the family which originally owned it, but who have very little money for maintenance and renovations. All the photographs have been taken by the Bridgeman photographer, and the revenue from any borrowings will be split with the family, in accordance with normal practice.
The skills of the art researchers in picture libraries are taxed to varying degrees by borrowers. Although many are quite knowledgeable about the art world, some come with very basic requests—such as the man who wanted a reproduction of a picture called the “Mona Lisa”, but was unsure of either the artist or the museum which held it; or the person who wanted to find out who owned the copyright in a picture—only to be told that he did.
Originally appeared in The Art Newspaper as 'Publish and be saved'