Legal issues

Introduction & disclaimer

The purpose of this module is to examine the legal issues surrounding the reproduction and digitisation of heritage content. In particular, it will focus on the law pertaining to copyright of digital photographs. However it is important to note that this module does not examine the law pertaining to the exhibition, transmission or communication to the public of digital images.

This module is written from the Australian and Canadian perspective and provides only general information. Neither the Canadian Heritage Information Network (CHIN) or Australian Museums On Line (AMOL) seek to provide legal advice through it. If such advice is required it is strongly recommended that the services of a competent professional, licensed to practice law in your jurisdiction should be sought. The governments of Canada and Australia assume no liability whatsoever with respect to actions that may arise as a consequence of using this guide, either by negligence or otherwise. As such it is important for you to understand that any statements contained herein should not be construed as being either the official or unofficial policy or statement of legal position of any entity of the government of Canada or Australia. They are simply broad guidelines.

Copyright protects the expression of ideas that are fixed in any media. It also protects the majority of creations, including literary, dramatic, musical and artistic works, sound recordings and audio-visual works. Ordinarily photographs are considered to be artistic works and thus the author (photographer) is the copyright holder. However this may not be the case where works are created in the course of an employee's duties or where copyright has been assigned in writing to someone else.

See further information on Australian Copyright legislation and how it may impact on your digitisation project.

See further information on Canadian rights, exceptions to copyright, rights management and protection technologies.

Before you digitise a work in your collection, it is advisable to determine first whether you have the right to make the digital reproduction. It is important to note that just because you may legally own an artwork, object, or photograph and have a donor receipt, this does not necessarily mean you own copyright. The same can be said of object loaned or copies of objects that you may have in your collection. Because they are in your collection does not necessarily mean you own copyright to images of them.

Below is a basic checklist that will assist in obtaining the appropriate clearances. It is by no means exhaustive, and proper legal counsel should be consulted to ensure that you hold all appropriate clearances before reproducing the work, or the photograph of the work or compiling it into a database.

1. Does copyright exist:

The duration of copyright protection can differ from country to country. In Canada and Australia, for instance, the general rule is that copyright protection runs for the life of the author plus 50 years. In the United States and the European Union, copyright protection runs for the life of the author plus 70 years. It is also important to note that the laws of the country in which the copyrighted work was created, should always be used to determine its copyright status.

2. Where the underlying work to be photographed/digitised is still protected by copyright:

Before photographing and digitising an image for which copyright is still in existence, a museum should ensure that the work being photographed and then digitised has been licensed for reproduction. Authorisations (in writing in Australia) should be obtained from the artist/creator of the work that is to be photographed. The authorisation should include the purpose for reproduction, length of authorisation and number of copies required. In Canada where the work at issue falls in the public domain (i.e. where the copyright no longer exists), then these authorisations are no longer needed. For a comprehensive discussion, see CHIN's publication, Checklist for Licensing Museum Images, available on line or for purchase in hard copy from CHIN. In Australia from 4 March 2001 higher civil damages and criminal penalties will be incurred where digitisation is a factor in the infringement.

3. Where the photograph is still protected by copyright:

Since the digitisation of an existing photograph is a reproduction, museums should also ensure that they hold the rights to digitise the photograph. Such rights can be obtained in two ways: by ensuring that the museum holds the copyright in the photograph through an agreement with the photographer or by negotiating these rights when the photograph is being subsequently digitised.

It is recommended that the right to reproduce the photograph be expressly negotiated with the photographer at the outset, preferably in his/her freelance contract. According to both Australian and Canadian law, any rights to reproduce the photograph must be assigned by the photographer in writing. Where staff members of the institution are photographing the work, that is, in-house in the course of their employment, then pursuant to Canadian law, copyright in the photograph belongs to the heritage institution. Where the photograph being digitised falls into the public domain, then authorisation is no longer needed.

4. Where the digitised image will be modified:

Where, in the course of digitisation, the image is somehow modified -- either cropped or discoloured -- rights associated with copyright, such as moral rights, will be an issue in Canada and soon in Australia. If you are considering the manipulation or coloration of images, you should consider obtaining a waiver of moral rights from the author of the image and any of the underlying works. If the author(s) does not wish to grant the waiver, consider allowing the author to pre-approve any reasonable changes to a work. For example, if an image of a work is being cropped or reduced in the course of developing a Web site or virtual exhibition, the author may want to approve such changes in order to protect the integrity of his or her work. In this case, the author will probably retain the right to review the use of his/her work and provide a waiver in writing after being satisfied that the work has not been mutilated, manipulated or "destroyed" to his/her prejudice. If the work that is the subject of the image or the photograph that is being digitised falls in the public domain, then the moral rights of the artist/creator or photographer are no longer an issue.

Legal protection available

As a matter of course, all digitised images that are copyright protected should have a copyright notice displayed somewhere on the image or below it, to remind the viewer of the work's copyright status. Such notices commonly take the following form:

If you place your digitised image on the Internet or include it in a database where either a public or limited audience, such as via subscription, can view it, you may want to include Rules of Use for your images. Where copyright law may fall short, Rules of Use have become the common way of closing this legal gap. Rules of Use, appropriately placed between the home page and subsequent pages of a Web site or virtual exhibition, provide an implied contract with the visitor. In other words, if the visitor to the Web site has no choice but to scroll through the rules before continuing to browse through the Web site, then it is arguable that the visitor is bound by the rules as an implied contract. The argument is strengthened where a click-through button is provided so that the visitor can indicate whether he/she agrees or disagrees with the Rules of Use. If the visitor disagrees with the terms, access to the content on the Web site is denied.

It is highly recommended that Rules of Use be established for any Web site or virtual exhibition containing copyrighted digitised images. It is also recommended that the Rules of Use contain contractual provisions acknowledging copyright protection and conditions upon subsequent use or reproduction. For a thorough examination of Canadian Rules of Use, consult CHIN's publication, "Protecting Your Interests: A Legal Guide to Negotiating Web Site Development and Virtual Exhibition Agreements", available online or for purchase in hard copy from CHIN.

Digital watermarking

If you intend using your digital images to produce high resolution (quality) images for a website or other digital products, you may wish to use specialised software to protect your image copyright. One of the most common ways to deter people copying your images without your permission is to add a digital watermark to the image. This kind of technology is particularly useful if you intend placing images of contemporary artworks on your website where you may be required to protect not only your own museum's copyright, but also the artist. Also called digital finger printing, watermarking allows you to encode a subtle or not so subtle mark within your digital file so that when copied the file cannot be altered or the mark removed. Depending on the technology used, this mark can include the name of the copyright owner or their logo, and the trick is to find a way to clearly indicate copyright ownership without impeding the legibility of the image. Be careful, digital watermarking software can be expensive and you need to carefully assess the real risk against the cost of implementing an effective solution.

Points to consider

Do you hold copyright for objects and the images you plan to digitise?
Have you consulted legal counsel regarding any issues pertaining to copyright on your objects or images?
Are you aware of the moral issues related to cropping or otherwise altering images?
Are you planning to put a “Rules of Use” statement on your electronic image database?
Do your “Rules of Use” precede viewing images?

Date published: 1 August 2001