Access, Ownership and Copyright Issues in Preserving and Managing Cultural Heritage Resources International Conference on Challenges in Preserving and Managing Cultural Heritage Resources Professor Khaw Lake Tee 20 October 2005

Roadmap Cultural Heritage Resources – meaning? Interface between Preservation and Management; and Copyright Law Copyright Issues

Cultural Heritage The cultural heritage of a people is the memory of its living culture Director-General of UNESCO, Koïchiro Matsuura (2002)

Cultural heritage – what? Immovable – architectural works, monuments, groups of buildings, cave dwellings, sites Can be natural or man-made Movable Includes both the tangible and the intangible Tangible such as manuscripts, books, paintings, arts and craft, sculptures, musical instruments, tapestries, maps, newspaper, historical documents, religious artifacts

Intangibles – practices, representations, expressions, knowledge and skills -transmitted from generation to generation such as oral traditions and expressions performing arts; social practices, rituals and festive events; knowledge and practices concerning nature and the universe; traditional craftsmanship. Manifested in various forms – mixture of tangible and intangible

Tangible manifestations may include written documents, photographs, texts, music recordings, film material. Published or unpublished works. Creator or producer of the tangible manifestations of the cultural products may or may not be the owner of the intangible idea

Why Copyright (or other IP) Law? To the extent that cultural heritage or its manifestation or derivative works could be Protected under copyright law; or Performer’s right Activities involved in preserving and managing cultural heritage – may raise copyright and related rights issues

Copyright and Related Rights A type of Intellectual Property Right or IPR Protects creations of the mind Covers a wide variety of subject matter – both tangible and intangible such as Books, art, music, photographs, letters, illustrations, maps, architecture, sculpture Audiovisual works, sound recordings, film, broadcasts, software Derivative works (translations, collections, arrangements, databases

Ideas vs Expressions Originality Authorship and Ownership Limited duration – life+ 50 years Protection is conferred automatically No registration No need for © symbol Ownership of physical copy ≠ ownership of copyright in the work Territorial in nature

Economic Rights Moral Rights Copying or Reproduction Communication to Public Public Performance First Distribution Rental Paternity Integrity of Work Adaptations, translations, etc Public Display Right to alter or withhold from publication Right against false attribution

Performer’s Right Right of the performer in his or her performance Singing, dancing, reciting Performance in relation to folklore Right to control recording of performance

Existing Material or works Derivative works based on existing material or works Manifestations of cultural heritage – paintings, music, arts and craft, photographs Includes documentation by libraries, etc

Activities – Preservation and Management Collection Fieldworker or collecting institutions, such as archives, museums, libraries, for the purpose of preserving and managing Deposit with institutions Preservation Making copies Microfilms Databases Digitization

Permission? Activities? Governed by Law? What law? Still Protected? Activities covered? Permission – Who? Result: New Product Right to Control Activities? What rights? Access - Collection - Historical Document

Access – Collection – Recording etc of Traditional Song Recording of performance of a traditional song on an audiovisual recorder Song is a traditional dance belonging to a cultural community

Matters to consider … Subject matter of preservation Copyright-protected? (subject matter, fixation, idea v expression) Public domain? (Note: Derived or inspired work?) Compliance with cultural heritage laws? Who is entitled to Grant consent for copying, recording, public display, etc? Identifying authorship and ownership Group or community (traditional culture expressions)

Matters to consider … Subject matter – still within the copyright period? Any restrictions on activities, such as preservation, making available of subject matter, public display? Terms of will, cultural practices, customary laws

Matters to consider … Ownership or possession of tangible manifestations – right to Make copies of recording/document for preservation purposes, access, and use? Convert into digital format? Grant permission for use resulting in creation of new works?

However, there are exceptions … Reprographic reproduction – single copy Purposes Fragile character or rarity Preservation Out of stock Not for profit Use by National Library or educational, scientific or professional institution – public interest and fair use

Public display of original – must have been published

Matters to consider … Moral rights – paternity; modification

Matters to consider … Singer – Performers’ Right? Permission to record? Whither the right once recorded?

Derivative Works Recording/Documentation Subject matter of copyright – document, database, photograph, sound recording or film Who is the Owner? Maker of the subject matter, such as archives, libraries, etc? or Owner of the cultural heritage? Managing access and rights Who is entitled to receive commercial benefits derived from exploitation of works?

Access - Users Categories of Users Researchers Public Members of cultural community Use Research Viewing Commercial purpose – creating new works paintings used on carpets, clothings, greeting cards Music adapted, arranged and recorded, performed etc

Copyright material Fair use Research, scholarship, news reporting, criticism, teaching, and similar purposes Private use – singel Issue of restricted access Use by relevant cultural communities To what extent still able to use works or derivative works if protected by copyright?