Copyright Infringement, Exceptions and Limitations and Access to Shared Cultural Heritage Across Borders
Paul Torremans, Professor of Intellectual Property Law, School of Law, University of Nottingham
Paul Torremans, Copyright Infringement, Exceptions and Limitations and Access to Shared Cultural Heritage Across Borders, in Andrea Wallace and Ronan Deazley, eds, Display At Your Own Risk: An experimental exhibition of digital cultural heritage, 2016.
ACCESS (AND MORE) TO SHARED CULTURAL HERITAGE
We live in a connected world, one in which we become more and more aware of nationally and internationally significant heritage collections. In the digital age there is a clear desire for access – online access that is – to this shared cultural heritage. But in a Web 2.0 environment the public’s expectations often go well beyond mere access. Users also expect to engage with and make use of this digital heritage in interesting and innovative ways. Making transformative works has become part of our everyday reality, an issue that is particularly complex and controversial within a cultural heritage context. It is therefore not my aim to try to unravel that complexity. Rather, I merely want to put things in context and then highlight the crucial but often controversial role played by copyright in this area.
Authors of copyright works deserve copyright protection for their works and this claim for protection is perhaps more compelling when the work in question forms a part of a cultural heritage collection. In one sense, copyright does not create problems as these works of national and international cultural significance often reside in the public domain, in that copyright in the work has expired (if such copyright ever existed). That is not always the case though: the term of copyright has in recent years become longer and longer, and heritage collections are increasingly populated by works still in copyright, such that enabling digital access to these works requires appropriate permissions. But even works that are no longer in copyright present copyright problems. In the digital environment we do not deal with the work itself (the material object), but with a digital photograph that has been made available online as a digital surrogate for the underlying material object (whether a painting, a work of sculpture, a textile, and so on). Arguably, that digital surrogate is a copyright work in its own right, owned by a different rightsholder, and created recently enough to stay in copyright for the foreseeable future.
COPYRIGHT: THE PROBLEM?
Copyright therefore has become an unavoidable element in the game. Making a digital photograph of a material object available online engages both the right of reproduction and the right of communication to the public. If online access has become the default expectation of users, that means the consent of the rightsholder must be secured (on ‘reasonable’ commercial terms?) to the uses of the work concerned. In the absence of such consent there will be infringement of the copyright in the work. That is, unless the legislator wants to redefine the nature of the rights of reproduction and communication to the public. Or of course, one could protect the interests of the user through the provision of exceptions and limitations to copyright. These exceptions and limitations might then enable access to the work online, and also allow the user the opportunity to make use of the work in appropriate, perhaps transformative, ways.
But when considering access to and use of heritage works within an international context, things are not so straightforward. We tend to think of copyright as a global phenomenon and certainly the online environment in which we access our shared cultural heritage operates at a global level. It is true that rightsholders enjoy protection around the globe for their literary and artistic works just as users similarly benefit from exceptions and limitations. But the reality of copyright across borders is complex. In truth, there is no such thing as ‘international copyright’, if by ‘international copyright’ one means a single global and uniform copyright regime or model law. Consider, for example, the Berne Convention 1886, the preeminent international treaty on copyright protection. Yes, it lays down grand principles, but key concepts such as literary and artistic works and originality are not defined. There is, in other words, no harmonised single criterion for deciding which works could be copyright works and what threshold of originality must be satisfied before a work will effectively qualify for copyright protection. And there is by no means a standard or complete list of copyright exceptions and limitations to guarantee and safeguard the interests of the user, such as the right of access to information.
More positively, the Berne Convention does deliver protection within an international context by way of the principle of national treatment. In this sense ‘international copyright’ is based on the simple technique of giving foreign authors and creators access to the national copyright systems of the member states of the Convention; that is, by treating them in each member state as if they were a national of another member state. The simplicity of this system is almost baffling. However, national treatment also embeds an underlying and problematic reality within the international copyright regime. That underlying reality is one of a patchwork of territorial laws based on the idea of one national copyright regime per country, albeit that each national regime adheres to common ideas and certain minimum standards established in the Convention. That is, international copyright protection is predicated on the basis of a patchwork of national copyright acts.
This approach may have worked well in an era where copyright works were exploited on a national basis, that is, where authors of literary works typically had a different publisher in each country, and where each publisher roughly covered their own national market. In such a model there is an obvious, pragmatic parallelism between the national exploitation of copyright works and the national copyright regimes that govern the protection, use and exploitation of such works. But that model no longer exists. In the online environment (and even in the decades that preceded it, but then to a lesser extent) copyright works are exploited globally. That cross-border exploitation operates at a global scale, indeed the user does not always necessarily know from where in the world he or she downloads the copyright work. What has not changed, however, is the territorial, national character of copyright law. In other words, the parallelism between copyright law and copyright exploitation no longer exists. Instead one finds inconsistency, uncertainty and many opportunities for potential conflict.
PRIVATE INTERNATIONAL LAW: THE SOLUTION?
Private international law is sometimes portrayed as the solution to the problem of copyright across borders, with the emphasis here on the word ‘international’. According to this logic, private international law applies when there is potentially a conflict of jurisdiction or choice of law, and it is assumed that an ‘international’ solution takes over. But the reality is very different. The word ‘international’ merely indicates that the situation with which one is concerned involves an international dimension, for example, that the litigating parties are of different nationalities, or have their place of residence or business in different countries. The solution to these questions about jurisdiction and choice of law is not ‘international’; rather, it is ‘private’ in that the sense that we are concerned with issues of private law (rather than public law). And, like any other aspect of private law, private international law is a matter for each country to determine. Just like each country has its own national copyright law, each country has its own private international law. There is no international system that takes over. Each country merely has rules in its own national legal system to deal with cases that involve an ‘international’ aspect.
Each national set of rules on private international law first needs to address the issue of jurisdiction. Here we are concerned with the question of whether a court is able to hear and decide the case. The presence of an international element means there are by definition at least two potential countries involved whose courts could hear the case. Each of these countries – for example, on the one hand the country where the alleged infringer of copyright has its principal place of business and on the other hand the country where the infringing copies are put onto the market – has a link with the case and has an interest in facilitating a solution to the copyright problem between the parties by offering access to the courts. Essentially, this involves an offer of a forum for the resolution of the dispute between the private parties. Rules on jurisdiction will decide in which circumstances the link between the case and the country concerned are strong enough for such an offer of a forum to be made. But, when is a country closely enough concerned for it to be willing (in the sense of offering to, but also in the sense of demanding to) to hear and decide the case? Every country speaks for itself on this point and the approaches (and therefore the expectations) may differ.
Once the issue of jurisdiction has been resolved, judges must next decide which national copyright law to apply when hearing the case. This need not be the law of the jurisdiction in which the case is being heard. Rather, the court’s national rules on private international law will also determine the relevant choice of copyright law, and the international aspects of the case will once again mean that there is more than one option on this point. Suffice it again, for our current purposes, to note that there is an absence of international harmony on this issue.
AN IMPERFECT WAY FORWARD
The whole setting is therefore one of a country-by-country approach based on national law. This is not entirely helpful, but one will need to work with it for the foreseeable future. Let us therefore look at a couple of (national) approaches that may be of interest when accessing, communicating and otherwise making use of digital cultural heritage. First, we consider the way in which different national jurisdictions have addressed the creation and use online use of thumbnail images of digital photographs for informational purposes. Second, we consider some of the opportunities that copyright exceptions and limitations offer for both cultural institutions and users of those institutions.
One of the cornerstones of the online environment is the search engine. Without search engines locating and accessing anything online becomes virtually impossible. When dealing with digital surrogates of heritage objects, performing an online search will typically return a thumbnail version of the digital surrogate – a thumbnail often created by the search engine itself. Arguably, making these thumbnails available to users who perform an online search for the original works might constitute copyright infringement, engaging the right of reproduction as well as the right of communication to the public. However, different national courts have indicated that the creation and use of thumbnails by search engines is legitimate, albeit in different ways.
One approach is exemplified by the German Supreme Court which has held that the use of a thumbnail image does not constitute copyright infringement, on the basis that the rightsholder (for example, the cultural institution that has created the digital surrogate) has implicitly consented to the indexing of the material by putting it on the internet without attaching technical protection measures. From this perspective, consent means there is no infringement whatsoever. Indeed, the court was even prepared to extend its reasoning to the indexation of images that had been reproduced on websites without the rightsholder’s express permission.
In the United States the solution to the use of thumbnail images is different. Perfect 10 v Amazon.com (2007) was a United States Court of Appeals case concerning the way in which Google crawled, indexed and cached websites, making thumbnails of images from those websites available through its image search service. Google did not store or transmit the full images, just thumbnail versions. The court held that Google’s actions constituted a fair use of Perfect 10’s images as the use was transformative (in the sense that Google’s use of the thumbnails was intended to serve a very different purpose than Perfect 10’s use of the original images). In other words, the court held that the exclusive right was infringed, but continued that the fair use exception in US copyright law nevertheless permitted the use that was made of the works. The US court deployed a different rationale from the German Supreme Court but arrived at the same practical result.
With the Perfect 10 decision, however, we have also arrived at limitations and exceptions. Copyright exceptions and limitations play a dual role in this sphere. First, they allow cultural institutions to engage in the digital preservation of heritage objects that are still in copyright while also, in certain circumstances, permitting making digital surrogates of these works available online without the need for the express permission of the relevant rightsholder. Many countries provide specific copyright exceptions for libraries, museums and archives to enable such activity, and these exceptions are vital if heritage institutions are to deliver on their public interest mission. Within Europe, the recently implemented Orphan Works Directive offers an obvious example.
Second, however, copyright exceptions also enable users to make use of this digital cultural heritage in different ways. Within the UK, for example, there exist general exceptions that permit the use of work for the purposes of noncommercial research and private study, for criticism or review, quotation or reporting current events. Some of these exceptions are more narrowly defined than others, although the exact nature of the scope of these exceptions is not always clear.
Consider, for example, the copyright information that accompanies this exhibition. The organizers suggest that the use of certain images for the purpose of the exhibition (and the exhibition publication) is permitted ‘according to the research exception provided by UK copyright law’. But, does the exhibition really constitute research within the scope of the exception? The exception must be interpreted in light of European copyright law which permits EU member states to introduce an exception ‘for the sole purpose of illustration for teaching or scientific research … to the extent justified by the non-commercial purpose to be achieved’. But what is intended by the phrase scientific research? Opinions differ on this issue. For example, the authors of one of the leading treatises on UK copyright law have suggested that arts and humanities research ‘could not by any stretch of the imagination be called scientific,’ and so cannot fall within the scope of the exception (Vitoria et al. 2011, 21.33). Many would disagree with that perspective, preferring instead to interpret the concept of scientific research to encompass any research, in any discipline, that is directed to the development of knowledge and understanding broadly defined (scientia). The point is that the precise scope of the research exception remains ambiguous, and whether this exhibition experiment does indeed fall within the research exception is open to debate.
There are other exceptions that appear to be more capacious, however. The exception for parody is a perfect example. Again, European copyright law allows member states to provide for an exception to copyright for the purposes of parody. Not all member states have introduced such an exception but within the UK it has been implemented as follows: ‘Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work’. Whereas other exceptions are contingent upon various criteria (the use must be for noncommercial purposes, the exception applies only to published works, and so on), the exception for parody is more open-textured and expansive.
The nature of the exception has also been expressly considered by the Court of Justice of the European Union. The court has held on the one hand that a parody needs to stick closely to the original in the sense that it needs to evoke the underlying work in the mind of the public, whilst being noticeably different from it. On the other hand, the court determined that a parody does not need to be original in its own right, nor must a lawful parody meet any other requirements apart from the fact that it constitutes an expression of humour or mockery. I have argued elsewhere that this approach to the concept of parody opens up perspectives for other transformative uses, in that a user might benefit from the parody exception if the concepts of mockery and humour are interpreted widely (Torremans 2016). Indeed, one might suggest that, taking the various requirements for parody together, what is required is that the parody should not create confusion with the original work and by extension should not impact the market for the original work. Interpreted in such broad terms, other transformative uses of copyright protected work could find a home within the scope of the parody exception.
Might the organizers of this exhibition rely upon the exception for parody within the UK? It is possible. There is certainly humour to be found in the pixelated re-presentation of some of the world-famous works of art on show, or in the juxtaposition of subject, tradition, geography and more. But the intention of the organizers does not appear to be humorous or parodic. This is a serious-minded project, as well as one that aspires to celebrate the cultural institutions included within the exhibition not mock them. It would be a curious inversion if the exhibition were to find shelter within the safe harbour of parody should the research exception fall short.
More importantly, perhaps, whatever opportunities copyright exceptions offer to the organizers of this exhibition, to cultural institutions, or to the general public, regarding the access and use of works of digital cultural heritage, it remains the case that exceptions apply on a country-by-country basis. That is, exceptions and limitations do not transcend borders.
In relation to works that are held by public sector heritage institutions within Europe, questions of access and use might be approached from a different perspective – one that is often overlooked amidst an understandable preoccupation with copyright law, and exceptions to copyright. The revised EU Directive on the reuse of public sector information applies to libraries, museums, and archives, and according to Article 4.2 documents (broadly defined as any content whatever its medium, or any part of such content) held by such institutions shall be reusable for commercial or noncommercial purposes (Bogataj Jančič et al. 2015). However, the documents do not need to be made available free of charge. A charge can be made according to Article 5, but the total income from supplying and allowing reuse of these documents over the appropriate accounting period should not exceed the cost of collection, production, reproduction, dissemination, preservation, and rights clearance, together with a reasonable return on investment. This minimal charge notwithstanding, the Directive may well play a major role in facilitating access to and use of at least certain elements of our shared cultural heritage. The main limitation on the reach of the Directive, in this regard, concerns the fact that the Directive mandates that respect for the intellectual property rights held by third parties should, in effect, trump the reuse access right. In other words, where the rights in the material held by the cultural institution lie elsewhere, the Directive enjoys no traction.
For those institutions that are engaging in digitization initiatives, the Directive does however signal that particular care and attention should be paid to the importance of contractual relations when contracting out any part of the digitization process. External organizations may be interested in securing intellectual property rights created as part of that digitization process on an exclusive basis, even if it is for a limited period of time. That outcome should be avoided. It would compromise the kind of unfettered – and, essentially, noncommercial – access to these materials that is envisaged by the Directive. But of course, a more market-based outcome may prove to be more attractive to cash-strapped museums, libraries, and archives.
BY WAY OF CONCLUSION
Copyright is often seen as a hurdle when it comes to access to our shared cultural heritage. In this essay I have tried to add some nuance to that picture. In the first place, copyright is an essential tool in preserving cultural heritage. And maybe there are elements in the complex copyright landscape across borders that can assist attempts to provide access to our shared cultural heritage more readily. Exceptions and limitations, such as the parody exception can play a key role in providing access to shared cultural heritage across borders, especially when it comes to transformative works. And these, and the option to make them, are a key aspect of the digital age in which we live. Finally, we highlighted the oft forgotten role that can be played in this area by the Directive on the reuse of public sector information after its extension to libraries, museums, and archives. That is, if the latter make sure not to hand the intellectual property rights in the digitized versions of analogue content to external third parties. The overall picture is therefore less bleak than it seemed to be at first glance.
 Vorschaubilder II, I ZR 140/10 (2011), available at: http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&Datum=2011-10-19&nr=59857&pos=18&anz=24 (accessed: 15 April 2016).
 Perfect 10, Inc. v Amazon.com, Inc., (508 F.3d 1146 (9th Cir. 2007)).
 For a global overview of copyright limitations and exceptions impacting the work of libraries and archives, see Crews (2015).
 Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works (the Orphan Works Directive), available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2012:299:TOC (accessed: 15 April 2016).
 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the Information Society Directive), article 5(3)(a), available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2001:167:TOC (accessed: 15 April 2016).
 Johan Deckmyn, Vrijheidsfonds VZW v Helena Vandersteen, Christiane Vandersteen, Liliana Vandersteen, Isabelle Vandersteen, Rita Dupont, Amoras II CVOH, WPG Uitgevers België, Case C-201/13, ECLI:EU:C:2014:2132.
 Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2013:175:TOC (accessed: 15 April 2016).
Bogataj Jančič, M., et al., Lapsi Policy Recommendation N.5: The Proposed Inclusion of Cultural and Research Institutions in the Scope of the PSI Directive (2015), available at: https://ec.europa.eu/digital-single-market/en/news/lapsi-policy-recommendation-5-proposed-inclusion-cultural-and-research-institutions-scope-psi (accessed: 16 April 2016)
Crews, K.D., Study on Copyright Limitations and Exceptions for Libraries and Archives: Updated and Revised, World Intellectual Property Organisation, SCCR/30/3 (2015), available at: www.wipo.int/edocs/mdocs/copyright/en/sccr_30/sccr_30_3.pdf (accessed: 15 April 2016)
Torremans, P., ‘Transformative Works in EU Copyight. Can the parody exception take on the role played in the US by fair use?’, in G. Karnell et al., eds, Liber Amicorum Jan Rosén, Eddy.se ab (2016), 805-22
Vitoria, M., et al., Laddie, Prescott and Vitoria: The Modern Law of Copyright and Designs, 4th ed. (London: Lexis-Nexis, 2011)