COPYRIGHT ISSUES IN THE PRESERVATION AND DIGITIZATION OF CULTURAL HERITAGE

This article is written by Anshika Tiwari ofB.B.A.LL.B. (Hons.) of Government New Law College, Indore, Madhya Pradesh, an intern under Legal Vidhiya  

Abstract

This abstract delves into the intricate landscape of copyright issues surrounding the preservation and digitization of cultural heritage. It begins by introducing the concept of copyright, discussing duration, infringement, and the balance between preservation and copyright. It highlights digitization’s potential for accessibility and challenges, advocating for exceptions to copyright laws for preservation. International considerations, legal provisions, and case studies are examined to underscore the importance of striking a balance between preserving cultural heritage and respecting copyright laws, advocating for the thoughtful application of use exceptions to facilitate this delicate equilibrium.

Keywords

Digitization, Cultural Heritage, Copyright issues, Heritage digitization, Digital Preservation framework, Digital Preservation issues, Orphan Works.

Introduction

Copyright issues in the preservation and digitization of cultural heritage refer to legal concerns that arise when digitizing or preserving cultural artifacts, such as books, artwork, or recordings, that are protected by copyright laws. When cultural heritage items are digitized or preserved, it involves making copies of them in digital format.[1] However, if these items are still under copyright protection, making copies without permission from the copyright holder could infringe on their rights. For example, if a museum wants to digitize a painting that is still under copyright, they need permission from the artist or their estate to do so legally.

These issues can be complex because copyright laws vary from country to country, and the rights to cultural artifacts may be held by different parties, such as artists, authors, publishers, or even institutions that have acquired rights over time.[2] Balancing the need to preserve and share cultural heritage with respecting copyright laws requires careful consideration and often involves negotiation, licensing agreements, or seeking exemptions under copyright law for cultural preservation purposes.

 Preserving cultural heritage is a critical endeavor that ensures the legacy of our diverse histories and traditions endures for future generations. In the digital age, the preservation and digitization of cultural artifacts pose unique challenges, particularly concerning copyright law. This article explores the complex intersection of copyright issues and the preservation and digitization of cultural heritage.

What is Copyright?

Copyright is one if form of IP I e. intellectual property that secures or protects the original works of author or authorship.[3] It Is a legal concept that grants exclusive rights who authors, artists, and creators over there original work. It gives them the authority to control how their work add used, reproduced, distributed and publicly displayed. Copyright protection covers of wide range of creative works including literature, art, music, films, photographs, and computer software. “Bridgeman Art Library v. Corel Corp. 36 F. Supp. 2d 191, 1999 U.S. Dist. LEXIS 1731, 50 U.S.P.Q.2d (BNA) 1110:This case established the principle that exact photographic copies of public domain images do not possess originality and, therefore, cannot be protected by copyright.”[4]

Duration of Copyright Protection

Copyright protection generally lasts for the author’s lifetime plus an additional period of time after their death. The exact duration varies depending on several factors, including the type of work and the jurisdiction. in many countries, copyright protection extends for 70 years after the author’s death.

Copyright Infringement

Copyright infringement of course when someone violets any of the exclusive rights granted to the copyright holder without obtaining proper authorization. This include unauthorized reproduction, distribution, public display,  or performance of copyrighted works.[5] infringement can lead to legal consequences, such as injunctions, damages, and even criminal penalties.

Understanding Cultural Heritage Preservation

Cultural heritage encompasses diverse artifacts like artworks, literature, and music, embodying our collective identity and history. Preservation endeavors protect these treasures from decay, loss, or damage, securing their longevity and accessibility for future generations.

 Through careful stewardship, cultural heritage preservation safeguards our rich tapestry of human expression, enabling appreciation and understanding of our shared past and fostering connections across time and cultures.[6]

“Eric Eldred, et al. v. John Ashcroft, Attorney General537 U.S. 186 (more) 123 S. Ct. 769, 154 L. Ed. 2d 683, 71 U.S.L.W. 4052 (2003): this case upheld the constitutionality of the Copyright Term Extension Act, which extended copyright terms. It’s significant because longer copyright terms can affect the availability of works for preservation and digitization.”[7]

The Role of Digitization of Cultural Heritage

The digitization of cultural heritage plays a crucial role in preserving, promoting, and democratizing access to our shared history and heritage. By digitizing cultural artifacts such as manuscripts, artwork, photographs, and historical documents, institutions can ensure their long-term preservation and accessibility to a global audience. Digitization enables the conservation of fragile or rare items, reducing physical handling and potential damage.

Moreover, digitized cultural heritage facilitates educational initiatives, research, and creative endeavors. Scholars, students, and enthusiasts can access these materials remotely, breaking down geographical barriers and fostering cross-cultural understanding. Digital platforms also allow for innovative approaches to storytelling and interpretation, engaging diverse audiences in meaningful ways.

Furthermore, digitization fosters collaboration among cultural institutions, scholars, and communities, enabling the exchange of knowledge and resources. Projects like online exhibitions, virtual tours, and digital archives enhance public engagement and appreciation for cultural heritage.

Overall, digitization empowers us to safeguard and celebrate our cultural heritage, ensuring its continued relevance and accessibility for generations to come.

Copyright Challenges

While digitization presents numerous benefits, it also raises significant copyright concerns. Copyright law grants creators exclusive rights to their works, including reproduction, distribution, and public display.[8] Consequently, digitizing copyrighted materials without proper authorization can lead to legal ramifications, hindering preservation efforts.

Some challenges of Copyright issues in the preservation and digitization of cultural heritage are;

• Orphan Works Dilemma: Many cultural artifacts lack identifiable rights holders, making it difficult to obtain permissions for digitization.[9] Orphan works present a unique challenge as institutions must balance the need for preservation with the risk of infringing on potential copyright holders’ rights.
• Cross-Border Complexity: Cultural heritage preservation often involves materials with international origins or significance, requiring compliance with diverse copyright laws and treaties. Negotiating legal frameworks across borders adds layers of complexity to digitization projects, necessitating careful navigation of conflicting regulations and cultural sensitivities.
• Non-Commercial Use Restrictions: Some copyright holders may impose restrictions on the use of their works for non-commercial purposes, limiting the ability of cultural institutions to digitize and share materials without infringing on copyright.[10] Balancing the preservation mandate with copyright holders’ rights to control commercial exploitation poses a significant challenge for cultural heritage digitization efforts.
• Dynamic Digital Environments: The rapid evolution of digital technologies presents challenges in ensuring the long-term accessibility and integrity of digitized cultural heritage materials. Institutions must navigate issues such as format obsolescence, digital rights management, and technological barriers to preservation, requiring ongoing adaptation and investment in infrastructure and expertise.[11]
• Community Ownership and Indigenous Rights: Cultural heritage often holds profound significance for indigenous communities and other marginalized groups, who may assert collective ownership rights or demand cultural sensitivity in digitization efforts. Respecting community protocols, traditional knowledge, and indigenous intellectual property rights presents unique challenges in preserving cultural heritage while upholding principles of cultural sovereignty and equity.[12]

Balancing Preservation and Copyright

Achieving a balance between preserving cultural heritage and respecting copyright law is essential but challenging. Institutions must navigate a complex legal landscape, often requiring collaboration with rights holders to obtain permissions or licenses for digitization projects. However, identifying and locating rights holders for older or orphaned works can be arduous, delaying or impeding preservation efforts.

Fair Use and Exceptions

Fair use provisions within copyright law offer some flexibility for preserving cultural heritage. Fair use permits for the limited use of copyrighted materials without permission for purposes such as research, analysis, criticism, scholarship, or news reporting.[13] However, the application of fair use in digitization projects is nuanced and context-dependent, requiring careful consideration of factors such as the nature of the work, the purpose of the use, and the potential market impact.

“Authors Guild, Inc. v. Google, Inc.804 F.3d 202 know as Google Books Library Project Settlement (2008):Google faced legal challenges from authors and publishers over its book digitization project. The settlement allowed Google to continue scanning books for its digital library, but it also raised concerns about fair use and copyright infringement.”[14]

“Authors Guild, Inc. v. HathiTrust 755 F.3d 87 (2d Cir. 2014): This case involved the HathiTrust Digital Library’s digitization of millions of books, including some orphan works. The court ruled that the digitization for purposes of preservation and access for the visually impaired constituted fair use.”[15]

Applying Fair Use in Cultural Heritage Preservation

Cultural heritage institutions often rely on fair use to preserve and digitize copyrighted materials. fair use in this context encompasses activities that include

• Digital Preservation:  making copies of copyrighted work for the purpose of preservation, whether through format conversion of migration to new media.
• Access and Display:  efforts to provide public access and displayed digitized work within an educational or cultural context, such as online galleries all exhibitions.
• Research and Scholarships:  using copyrighted work for research, analysis, and educational purposes within cultural heritage institutions.

Exceptions to Copyright for Cultural Heritage Preservation

Apart from fair use, Specific exceptions in copyright law provide additional flexibility for cultural heritage preservation. These exceptions include

• Orphan Works:  words whose copyright owners cannot be identified or located institution may use orphan works with reasonable deligence and by following designated procedures.
• Section 108 Library and Archive exceptions[16]: This provision permits libraries and archives to make copies of certain type of works for preservation, replacement and research purposes
• Section 110(2) Classroom use[17]:  educational institutions can you use copyrighted works in face-to-face teaching setting, without obtaining specific permissions, under certain conditions.

International consideration:

 While fair use and exception are primarily shaped by national laws, different countries have distinct copyright framework. it is crucial for cultural heritage institutions engaged in preservation and digitization to be aware of the copyrighted laws applicable in a specific jurisdiction.

Legal Provisions Related to Copyright Issues in the Preservation and Digitization of Cultural Heritage

• In India, the preservation and digitization of cultural heritage is an important aspect of protecting the country’s rich heritage and making it accessible to a wider audience. However, copyright issues can arise during the digitization process, especially if the cultural heritage being digitized contains copyrighted works.
• The Indian Copyright Act, 1957, provides certain provisions that allow for the preservation and digitization of cultural heritage while still protecting the rights of copyright holders. For instance, Section 52(1)(i)[18] of the Act permits libraries, archives, and educational institutions to reproduce and distribute a work for the specific purpose of preservation, if the reproduction is made without any purpose of commercial advantage and the copyright holder is notified.
• Similarly, Section 52(1)(v)[19] allows for the reproduction of a work for the purpose of research or private study, provided that the reproduction is “not for any purpose of public performance or otherwise for any profit.” This provision can be useful in the context of cultural heritage, as it allows researchers to access and study copyrighted works in order to better understand and preserve cultural heritage.
• However, copyright issues can still arise during the digitization of cultural heritage. For instance, if the cultural heritage being digitized contains copyrighted works, permission must be obtained from the copyright holder before the work can be digitized and made available online. This can be a time-consuming and potentially expensive process, especially if the copyright holder is difficult to locate or if there are multiple copyright holders with conflicting interests.
• To address these challenges, the Indian government has taken several steps to promote the preservation and digitization of cultural heritage while also protecting the rights of copyright holders. For instance, the ‘National Archives of India’[20] has established a policy for the digitization of archival records, which includes provisions for obtaining permission from copyright holders and for ensuring that the digital copies are securely stored and made available to the public in accordance with copyright law.
• In addition, the Indian government has established several legal frameworks to support the preservation and digitization of cultural heritage. For instance, the National Museum Act, 1949[21], and the Ancient Monuments and Archaeological Sites and Remains Act, 1958[22], provide legal protection for cultural heritage sites and artifacts, and establish procedures for their preservation and conservation.

Conclusion

In conclusion, navigating copyright issues in the preservation and digitization of cultural heritage requires a delicate balance between protecting intellectual property rights and ensuring accessibility for future generations. Understanding copyright duration, infringement, and the importance of preserving cultural heritage is crucial in this endeavor. The role of digitization offers promising avenues for wider access but poses challenges in copyright compliance. Achieving this balance involves applying exceptions like fair use and cultural heritage preservation, supported by international considerations, legal provisions, and relevant case laws.

Preserving and digitizing cultural heritage in the digital age is both a monumental opportunity and a formidable challenge. Copyright issues present significant hurdles, requiring careful navigation of legal frameworks, collaboration with rights holders, and the exploration of technological solutions. By fostering dialogue, promoting advocacy, and embracing innovative approaches, we can overcome these challenges and ensure that our cultural heritage remains accessible and cherished for generations to come.

References

1. Copyright basics https://www.uspto.gov/ip-policy/copyright-policy/copyright-basics visited on 28/03/2024
2. Jeffery Wright  ‘What is the definition of fair use?” By Jeffery Wright https://www.quora.com/What-is-the-definition-of-fair-use-Is-it-illegal-to-use  visited on 28/03/2024
3. https://www.abhilekh-patal.in/jspui/ visited on 28/03/2024
4. History – National Museum, New Delhi https://nationalmuseumindia.gov.in/en/history visited on 28/03/2024
5. The Ancient Monuments and Archaeological Sites and Remains … https://indiaculture.gov.in/sites/default/files/acts_rules/TheAncientMonumentsandArchaeologicalSitesandRemainsAct1958_12.03.2018.pdf visited on 28/03/2024
6. Eric Eldred, et al. v. John Ashcroft, Attorney General537 U.S. 186 (more) 123 S. Ct. 769, 154 L. Ed. 2d 683, 71 U.S.L.W. 4052 (2003) visited on 29/03/2024
7. Definitions (FAQ) – U.S. Copyright Office https://www.copyright.gov/help/faq/faq-definitions.html visited on 29/03/2024
8. Practices and challenges of cultural heritage conservation in historical … https://heritagesciencejournal.springeropen.com/articles/10.1186/s40494-022-00802-6 visited on 29/03/2024
9. Bridgeman Art Library v. Corel Corp. 36 F. Supp. 2d 191, 1999 U.S. Dist. LEXIS 1731, 50 U.S.P.Q.2d (BNA) 1110 visited on 29/03/2024
10. Authors Guild, Inc. v. Google, Inc.804 F.3d 202 (2008) visited on 29/03/2024
11. Authors Guild, Inc. v. HathiTrust 755 F.3d 87 (2d Cir. 2014) visited on 29/03/2024
12. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4162559 visited on 30/03/2024
13. https://www.researchgate.net/publication/269604266_Challenges_of_digital_preservation_for_cultural_heritage_institutions visited on 30/03/2024

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[1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4162559 visited on 30/03/2024

[2] Practices and challenges of cultural heritage conservation in historical … https://heritagesciencejournal.springeropen.com/articles/10.1186/s40494-022-00802-6 visited on 29/03/2024

[3] Copyright basics https://www.uspto.gov/ip-policy/copyright-policy/copyright-basics visited on 27/03/2024

[4] Bridgeman Art Library v. Corel Corp. 36 F. Supp. 2d 191, 1999 U.S. Dist. LEXIS 1731, 50 U.S.P.Q.2d (BNA) 1110 visited on 29/03/2024

[5] Definitions (FAQ) – U.S. Copyright Office https://www.copyright.gov/help/faq/faq-definitions.html visited on 29/03/2024

[6] Practices and challenges of cultural heritage conservation in historical … https://heritagesciencejournal.springeropen.com/articles/10.1186/s40494-022-00802-6 visited on 29/03/2024

[7] Eric Eldred, et al. v. John Ashcroft, Attorney General537 U.S. 186 (more) 123 S. Ct. 769, 154 L. Ed. 2d 683, 71 U.S.L.W. 4052 (2003) visited on 29/03/2024

[8] Definitions (FAQ) – U.S. Copyright Office https://www.copyright.gov/help/faq/faq-definitions.html visited on 29/03/2024

[9] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4162559 visited on 30/03/2024

[10]https://www.researchgate.net/publication/269604266_Challenges_of_digital_preservation_for_cultural_heritage_institutions visited on 30/03/2024

[11] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4162559 visited on 30/03/2024

[12]https://www.researchgate.net/publication/269604266_Challenges_of_digital_preservation_for_cultural_heritage_institutions visited on 30/03/2024

[13] Jeffery Wright  ‘What is the definition of fair use?” By Jeffery Wright https://www.quora.com/What-is-the-definition-of-fair-use-Is-it-illegal-to-use visited on 28/03/2024

[14] Authors Guild, Inc. v. Google, Inc.804 F.3d 202 (2008) visited on 29/03/2024

[15] Authors Guild, Inc. v. HathiTrust 755 F.3d 87 (2d Cir. 2014) visited on 29/03/2024

[16] United States Copyright Law

[17] United States Copyright Act, specifically Title 17 of the United States Code.

[18] Section 52(1)(i) The Indian Copyright Act, 1957

[19] Section 52(1)(v) The Indian Copyright Act, 1957

[20] https://www.abhilekh-patal.in/jspui/ visited on 28/03/2024

[21] History – National Museum, New Delhi https://nationalmuseumindia.gov.in/en/history visited on 28/03/2024

[22] The Ancient Monuments and Archaeological Sites and Remains … https://indiaculture.gov.in/sites/default/files/acts_rules/TheAncientMonumentsandArchaeologicalSitesandRemainsAct1958_12.03.2018.pdf visited on 28/03/2024

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