Readers will have not missed that last week London hosted the AIPPI Congress in the politically charged climes of Westminster.  The AmeriKat was frantically pouncing from one event to another, all while moving house.  Thus the IPKat was unusually quiet during this Congress.  But now that the dust (literal and mental) has somewhat settled, she brings reports from a team of guest AIPPI reporters.  The first of which comes from Sarah Blair (formerly of Bristows, but now off to Bermuda where she will continue practising IP - good luck Sarah!).

Over to Sarah for the first session from Day 1:

"Four distinguished panellists were welcomed by a packed room of attendees for the first panel session of AIPPI London 2019 to discuss the role of copyright in the protection and exploitation of art and architecture.

Works of visual art in the public domain

The session kicked off with a discussion of article 14 of the new (and controversial) copyright DSM Directive (2019/790) in relation to works of visual art in the public domain. Article 14 provides that:

“Member states shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation”.

For example, when the copyright in a painting has expired, copyright will not subsist in a photograph of that work unless that photograph itself satisfies the originality criteria.

Eleonora Rosati (academic and an Of Counsel at Bird & Bird, UK) commented that this article was a surprise to the copyright and museum industry, having not been included in the initial proposal for the directive back in 2016. Museums who provide a ‘©’ symbol with digital reproductions of works in their exhibitions will need to reconsider this practice. However, Eleonora rightly pointed out that this is not a new right per se – but arguably only clarifies existing law: to have copyright (or related right) protection in a work, it must be original. Eleonora recalled the CJEU decision in Painer (C-145/10) which discusses originality in photographs being the creative choices of the photographer as to e.g. framing, lighting, angle, atmosphere and post production changes. Dale Nelson (Donaldson + Callif LLP, US), who was moderating the panel, noted that the US generally accepts that photographs are subject to copyright protection.

Christian Zimmerman (chief operating officer, DACS, UK) noted that Article 14 may impact on UK law given that Article 14 specifically refers to the “author’s own intellectual creation” in contrast to the UK’s “skill, labour and judgment” test for originality. However, this might be of limited impact given that the UK courts have already begun incorporating the EU’s test in recent decisions, for example in the Red Bus case.

Christian reflected on the museum industry, which to date often rely on its terms and conditions of entry to prevent visitors from taking photographs of its exhibited works. However, following legal changes in 2014, an override clause meant that such a term could no longer be imposed. Museums are ever developing new media opportunities, some museums even curating ‘Instagram exhibitions’ and working with influencers for increased publicity. They may well still try to prevent recirculation of their photographs by way of watermarking their images or restricting the ‘right-click’ to copy the image.

Freedom of panorama

Next up for discussion was the exception for the ‘right of panorama’ found in Article 5(3)(h) of the InfoSoc Directive. This is a non-mandatory exception for the “use of works, such as architecture or sculpture, made to be located permanently in public places”.

Thomas Koch (Judge, German Federal Supreme Court) referred to the German Bundesgerichtshof’s (‘BGH’) decision in “AIDA Kissmouth” [decision in German only] (IPKat reported here). In that case, the upload of a photograph of a cruise liner which was externally decorated with copyright-protected artworks was exempt from infringement for falling within the panorama exception which had been implemented into German law. The trickier aspects of this decision concerned whether the cruise liner could properly be considered to be located permanently in public places given that it traversed the world and would occasionally be in private and public locations. The BGH decided that the work needn’t be stationary and that it is sufficient for the work to be accessible (in this case, seen and photographed) from a public place even if the protected work was situated in a private location.

Eleonora pointed out that, of those that have chosen to implement this exception, there are significant variances between the different Member States’ national transposition of it. For example, in France the exception doesn’t extend to commercial use (so the AIDA Kissmouth decision would have been decided differently there, having been photographed and used by an operator of excursions and cruises in Egypt). In the UK, it is significantly restricted by having been literally transposed and being restricted to only buildings, sculptures, models for buildings and works of artistic craftsmanship. Christian expanded on the UK position, pointing out that, for example, taking a photograph of Banksy street art would not be covered by the exception as it does not extend to graphic works. Without a personal fair use exception, individuals in the UK would be infringing Banksy’s copyright. The public also fall prey to infringement when they photograph works publicly displaced on a temporary basis – for example, sculptures displayed on the plinths in Trafalgar Square on a 5 year basis. Interpreted strictly, these aren’t “permanent” displays. The panellists agreed that clarification and harmonisation from the CJEU would be helpful in this area.

Destruction of works

Last up was a discussion was another, recent, decision of the BGH in relation to authors’ moral rights and the destruction of their work. Thomas explained that the case concerned an artist’s installation of an artwork (called “HHole (for Mannheim) 2006”) across multiple levels of an art gallery. Many years later, the art gallery sought to (and did) remove the installation. The artist claimed that such destruction infringed her moral rights in the work and constituted derogatory treatment under section 14 of the German Copyright Act (here). It was held that, in weighing up the respective interests of the parties, the interests of the building’s owner – in regaining space for its exhibitions - prevailed. When conducting this exercise, important factors include whether there is only one copy of the work, the level of design in the work and whether it serves a special use.

Eleonora commented that moral rights in the UK are weak. Christian considered two other means to preserve artists’ works: 1) public pressure; and, 2) the use of contractual obligations for refurbishment and preservation. For example, when substantial renovations of the Tottenham Court Road underground station in London threatened the removal of Eduardo Paolozzi’s iconic mosaic designs installed there in 1986, there was a public outcry. As a result, TfL (Transport for London) underwent a significant restoration and conservation project and consequently retained 95% of the mosaics. "

The IPKat has just heard about the WIPO Guide on Managing Intellectual Property For Museums, which appears to have been launched today (you can read it in full here).

Right, and below Left: museum architecture by the incredibly gifted Daniel Libeskind

According to the Executive summary,

"In the digital age, the cultural heritage community [The IPKat asks, aren't we all stakeholder in the cultural heritage - isn't that something to do with civilisation?] is increasingly faced with the responsibility of managing its own IP internally, as well as managing uses by third parties and users throughout the world, often on diminishing budgets. Effective use of the IP system allows museums to meet international standards of best practice, and can offer significant opportunities to leverage their goodwill, authenticity, uniqueness [The IPKat says, the usual way of leveraging authenticity and uniqueness seems to be by making picture postcards and models of artefacts, which doesn't do much for either of those vaunted assets] and scholarly expertise to generate a return on investment.

The first part of the Guide describes IP issues of relevance to museums such as rights in scholarly content, technologies developed in-house [The IPKat says, this is something that's easy to overlook, since it's often viewed as tangential to museum management], and branding tools that provide recognition and awareness of the museum in a commercial context. It also sets out recommended best practices in managing IP to enable a museum to identify its IP, understand its rights in using its collections, and strengthen its ability to deal with critical IP issues as they arise. The second part of the Guide reviews existing business models that could provide museums with appropriate opportunities to create sustainable funding, and deliver on their stated objectives.

The WIPO-commissioned author of the guide – Mrs Rina Elster Pantalony – is a recognized Canadian expert in the field of museums and cultural heritage institutions. Her biography is available for reference.

For any questions about the WIPO Guide, or WIPO’s activities in relation to museums, please contact the WIPO Copyright and Related Rights Sector, at copyright.mail@wipo.int, or tel: +41 22 338 8138".

Right: an icon of the past: the Natural History Museum, London

There's a lot to read - and a lot of thinking to do. The IPKat thinks it's strange that, while so much pressure is being brought to bear on the easy availability, downloading and multicopying of cultural not-yet-heritage items as CDs and DVDs, such careful thought is being given to the controlled exploitation of cultural heritage items that have already slipped into the public domain - if they were ever in the private domain in the first place. Merpel adds, are we talking about a sort of paying public domain for culturally significant materials?

Note by Lovells on museums' IP rights in the digital environment here
CIPIL virtual museum of intellectual property here
Whipple Museum of the History of Science copyright notice here
Cat museum magnets here