access, ownership and copyright issues in preserving and managing cultural heritage resources...
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Access, Ownership and Copyright Issues in Preserving
and Managing Cultural Heritage Resources
International Conference on Challenges in Preserving and Managing Cultural Heritage
Resources
Professor Khaw Lake Tee20 October 2005
Roadmap
Cultural Heritage Resources – meaning? Interface between
Preservation and Management; and Copyright Law
Copyright Issues
Cultural Heritage
The cultural heritage of a people is the memory of its living culture
Director-General of UNESCO, Koïchiro Matsuura (2002)
Cultural heritage – what?
Immovable – architectural works, monuments, groups of buildings, cave dwellings, sites Can be natural or man-made
Movable Includes both the tangible and the intangible Tangible such as manuscripts, books, paintings,
arts and craft, sculptures, musical instruments, tapestries, maps, newspaper, historical documents, religious artifacts
Intangibles – practices, representations, expressions, knowledge and skills -transmitted from generation to generation such as oral traditions and expressions performing arts; social practices, rituals and festive events; knowledge and practices concerning nature and the
universe; traditional craftsmanship.
Manifested in various forms – mixture of tangible and intangible
Tangible manifestations may include written documents, photographs, texts, music recordings, film material.
Published or unpublished works. Creator or producer of the tangible
manifestations of the cultural products may or may not be the owner of the intangible idea
Why Copyright (or other IP) Law?
To the extent that cultural heritage or its manifestation or derivative works could be Protected under copyright law; or Performer’s right
Activities involved in preserving and managing cultural heritage – may raise copyright and related rights issues
Copyright and Related Rights
A type of Intellectual Property Right or IPR Protects creations of the mind Covers a wide variety of subject matter –
both tangible and intangible such as Books, art, music, photographs, letters,
illustrations, maps, architecture, sculpture Audiovisual works, sound recordings, film,
broadcasts, software Derivative works (translations, collections,
arrangements, databases
Ideas vs Expressions Originality Authorship and Ownership Limited duration – life+ 50 years Protection is conferred automatically
No registration No need for © symbol
Ownership of physical copy ≠ ownership of copyright in the work
Territorial in nature
Economic Rights
Moral Rights
Copying or Reproduction Communication to Public
Public Performance
First Distribution
Rental
Paternity Integrity of Work
Adaptations, translations, etc
Public Display
Right to alter or withhold from publication
Right against false attribution
Performer’s Right
Right of the performer in his or her performance
Singing, dancing, reciting Performance in relation to folklore Right to control recording of performance
Existing Material or works
Derivative works based on existing material or works
Manifestations of cultural heritage – paintings, music, arts and craft, photographs
Includes documentation by libraries, etc
Activities – Preservation and Management
Collection Fieldworker or collecting institutions, such as
archives, museums, libraries, for the purpose of preserving and managing
Deposit with institutions Preservation
Making copies Microfilms Databases Digitization
Permission?
Activities?
Governed by Law?What law?Still Protected?Activities covered?
Permission – Who?
Result: New Product
Right to Control Activities?
What rights?
Access - Collection - Historical Document
Access – Collection – Recording etc of Traditional Song
Recording of performance of a traditional song on an audiovisual recorder
Song is a traditional dance belonging to a cultural community
Matters to consider …
Subject matter of preservation Copyright-protected? (subject matter, fixation, idea v
expression) Public domain? (Note: Derived or inspired work?) Compliance with cultural heritage laws?
Who is entitled to Grant consent for copying, recording, public display, etc?
Identifying authorship and ownership Group or community (traditional culture expressions)
Matters to consider …
Subject matter – still within the copyright period?
Any restrictions on activities, such as preservation, making available of subject matter, public display? Terms of will, cultural practices, customary laws
Matters to consider …
Ownership or possession of tangible manifestations – right to Make copies of recording/document for
preservation purposes, access, and use? Convert into digital format? Grant permission for use resulting in creation of
new works?
However, there are exceptions …
Reprographic reproduction – single copy Purposes
Fragile character or rarity Preservation
Out of stock Not for profit Use by National Library or educational,
scientific or professional institution – public interest and fair use
Matters to consider …
Singer – Performers’ Right? Permission to record? Whither the right once recorded?
Derivative Works
Recording/Documentation Subject matter of copyright – document,
database, photograph, sound recording or film Who is the Owner?
Maker of the subject matter, such as archives, libraries, etc? or
Owner of the cultural heritage? Managing access and rights
Who is entitled to receive commercial benefits derived from exploitation of works?
Access - Users
Categories of Users Researchers Public Members of cultural community
Use Research Viewing Commercial purpose – creating new works
paintings used on carpets, clothings, greeting cards Music adapted, arranged and recorded, performed etc
Copyright material Fair use Research, scholarship, news reporting, criticism, teaching,
and similar purposes Private use – singel
Issue of restricted access
Use by relevant cultural communities To what extent still able to use works or derivative works if
protected by copyright?