My weekly technology law column (Toronto Star version, Ottawa Citizen version, Vancouver Sun version, homepage version) explores the issue of museums and fees associated with public domain works. As museums experiment with the Internet – many are using online video, social networks, and interactive multimedia to create next-generation museums that pull content from diverse places to create "virtual museums" – the museum community has emerged as a leading voice for the development of legal frameworks that provide sufficient flexibility to facilitate digitization and avoid restrictions that could hamper cultural innovation.
Yet as museums embrace the Internet's potential, there is concern that their advocacy and actions are not always consistent. This is particularly true with respect to their policies on public domain works, for which the term of copyright has expired. The public domain issue has emerged as a contentious one within the museum community. Many museums receive regular requests for copies of works in their collection to be reproduced in school texts, magazines, or other publications. The costs associated with these requests vary widely. Some museums levy administrative fees (for the cost associated with handling the request), reproduction fees (for the cost of reproducing the image), and notwithstanding the expiry of copyright, permission fees.
In 2006, London's famed Victoria and Albert Museum became the first museum to completely drop charges for the reproduction of images in scholarly books and magazines. While that decision generated considerable acclaim, according to documents obtained under the Access to Information Act, the National Gallery of Canada (NGC) appears to be taking the opposite approach by treating public domain works as a profit centre.
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Appeared in the Toronto Star on April 15, 2008 as Museums Should End Fees for Public Domain Appeared in the Ottawa Citizen on April 15, 2008 as National Gallery Looking for Profits in all the Wrong Places Appeared in the Vancouver Sun on April 15, 2008 as Gallery Looking for […]
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The Associated Press has picked up on a story involving public access to images in the Smithsonian Institution. Public.Resource.Org has posted 6,288 images currently sold by the Smithsonian on Flickr (a book of the images can be downloaded for free from Lulu.com), arguing that the U.S. institution is overreaching by claiming copyright or control over images that are in the public domain.
The issue is an important one that should also resonate in Canada. Some readers may recall the battle between a small school division in Manitoba and the National Gallery of Canada over fees levied for a public domain Paul Kane painting. In the wake of that incident, I've been working with some students to identify how Canadian museums address access to public domain works in their collections. The research is not yet complete, however, the preliminary news is not good.
Museums are strapped for cash and therefore use their physical control over images to levy fees over public domain works. While a cost-recovery fee for digitization or administration is understandable, many institutions go much further charging "surrogate copyright fees" or "user's fees" for public domain works or deploy technology to limit the potential uses of digitized versions of those works.
For example, consider Emily Carr, whose work entered the public domain in 1996.
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The Ottawa Citizen covers Canadian Heritage Minister Bev Oda's appearance at the Canadian Museum Association's annual meeting, which apparently included the presentation of a boomerang, to emphasize that her election promises had come back to haunt her. Oda refused to accept the boomerang and left soon after without comment. Meanwhile, […]
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Early in the series, I discussed the need for DRM-free library deposits as part of the legislated library deposit program that seeks to preserve Canadian heritage. There are additional library issues, however, that merit discussion. Section 30.1 of the Copyright Act grants libraries (as well as archives and museums) special rights to copy works in order to preserve or manage their collections. These are important rights and any anti-circumvention legislation must not be permitted to render them ineffective.
Section 30.1(1) provides that, under certain circumstances:
It is not an infringement of copyright for a library, archive or museum or a person acting under the authority of a library, archive or museum to make, for the maintenance or management of its permanent collection or the permanent collection of another library, archive or museum, a copy of a work or other subject-matter, whether published or unpublished, in its permanent collection
The circumstances that permit such copying include a copy that is:
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