Copyright and Museums in the Digital Age

• Author: Yaniv Benhamou
• Position: Attorney-at-Law, Lecturer, University of Geneva, Switzerland

So what exactly are digital museums?

Digital museums take various forms and serve different purposes. There are “brochure museums” which act as an informative website for a museum; there are “content museums”, which are databases of museum collections; and there are “virtual museums” or “museums without walls”, which offer a variety of online content.

Whether they involve digitization or dissemination of collections over social networks or other technology platforms, digital museums face a number of legal issues relating to copyright, image rights, data protection, traditional knowledge and the law of contracts, among others.

Copyright, in particular, plays a key role in that it governs whether a given type of content can be used and if so, how. What types of copyright issues will anyone embarking on a museum digitization project be likely to face? What considerations need to be taken into account when curating an exhibition with an interactive website, or a smartphone app backed up with a comprehensive social media strategy and crowdfunding options?

Is the museum free to digitize the content of the exhibition?

As a first step, the museum needs to determine the copyright status of the works it wishes to digitize. Why? Because digitization of copyrighted works and the making available online involves the right of reproduction and of communication, each of which usually requires permission from the copyright holder. In other words, although a museum may own the physical copy of a work, it does not necessarily have the right to copy or display it digitally.

There are three key questions in this regard: Is the work covered by copyright? If it is, does the museum have permission from the copyright holder to digitize it? Or might the museum’s intended use fall within a copyright exception?

Key principle: authorization needed for copyrighted work

Some works are not protected by copyright in which case the museum is free to digitize it. For example, an old bicycle in an historical museum may not qualify for copyright protection because it lacks originality. Similarly, an old manuscript that was once protected by copyright may now be in the public domain because the term of copyright protection has expired. According to the Berne Convention for the Protection of Literary and Artistic Works, the minimum term of copyright protection is 50 years after the death of the author, although in many jurisdictions it is now 70 years after the author’s death.

For other works protected by copyright, the museum will need to consider whether it has permission from the copyright holder. Unless the copyright in that work has been transferred to it by means of a contract, a donation or sale, the museum may need to identify the...